The Constitutional Remedy of Amparo in Spanish Law

Posted on Oct 22, 2025 in Law & Jurisprudence

The Constitutional Remedy of Amparo (Recurso de Amparo)

The Remedy of Amparo is a judicial process for protecting fundamental rights before the Constitutional Court (TC). It is the most significant mechanism for the protection of fundamental rights and is increasingly relevant to the public and citizens.

Characteristics of the Remedy of Amparo

The Remedy of Amparo is characterized by two main features:

  1. Special Character: It is an extraordinary judicial process, outside the regular court order, and its decisions cannot be appealed. Materially, its scope is limited to determining whether fundamental rights have been violated, preserving, and restoring them. It can only embrace the rights contained in Chapter II, specifically Articles 14 to 30 of the Spanish Constitution (CE).
  2. Subsidiary Nature: It plays a subsidiary role to the ordinary judicial system. It requires a series of filters, such as having exhausted all legal remedies in the ordinary courts, and having formally denounced the violation during the previous process if there was an opportunity. This subsidiary role aims, among other purposes, to reduce the level of resources flowing to the Constitutional Court.

Elements of the Appeal

  1. Scope (Objeto)

    The appeal is brought against public authorities. It does not include protection against laws, but rather against provisions, legal acts, omissions, or simple factual actions by authorities. It will only be considered if the rights violated are those specified in Articles 14 to 30 CE.

  2. Standing (Legitimados)

    According to Article 162 CE, standing is granted to any natural or legal person claiming a legitimate interest, the Ombudsman (Defensor del Pueblo), and the Public Prosecution Service (Ministerio Fiscal). The presence of the Public Prosecution Service is mandatory in all cases, especially those involving habeas corpus.

  3. Deadlines (Plazos)

    The deadlines vary depending on the origin of the rights violation:

    • 3 months: In cases of rights violations by parliamentary bodies, counted from the date the decision became final.
    • 20 days: If the violation of rights is part of an action by the Public Administration, counted from the notification of the final sentence.
    • 30 days: When the violation is attributed to the judiciary.

    Note: There is a singular event in the course of time regarding contentious election appeals, where the deadline is reduced to 2 or 3 days.

Procedure Steps

  1. Filing the Claim

    The claim must be filed, setting forth the facts relied upon, citing the provisions of the Constitution violated, and specifying the defense requested.

  2. Admission Phase

    This phase involves an admissibility decision by the Section. The application is agreed admissible only when the content of the resource justifies a decision on the merits by the Constitutional Court because of its special constitutional significance. If appropriate, the suspension of the act, sentence, or disposition under appeal may be supported before the final judgment.

  3. Processing

    The Constitutional Court prompts the lower courts for all relevant information and informs the parties of the previous processes. The presence of the Public Prosecution Service is required. The Board hearing the appeal may choose to resolve the case itself, request the defense arguments, or settle the matter through a Section.

  4. Judgment and Defense

    The judgment typically involves three declarations:

    1. The declaration of the breach of the fundamental right.
    2. The recognition that the appellant was the holder of that right or freedom.
    3. The restoration of the appellant to the integrity of their rights.

    It is important to note that the recognition of violations does not necessarily involve the annulment of the infringed act.

Effects of the Judgment

For the parties involved, the judgment takes effect immediately upon notification. The effects are inter partes (between the parties), meaning the effect is derivative, not direct.

All courts must respect what the Constitutional Court determines regarding the application of the Constitution (CE).

Furthermore, in the Spanish system, there is no direct defense against laws. If a provision or sentence derived from an unconstitutional law, the Constitutional Court will raise a Question of Unconstitutionality (cuestión de inconstitucionalidad) ex officio. This process involves the suspension of the Amparo period until the constitutionality of the underlying law is considered. Therefore, the protection cannot be solved until the self-questioning of unconstitutionality is resolved.