The Right to Effective Judicial Protection in Spain

Posted on Aug 17, 2024 in Law & Jurisprudence

The Right to Effective Judicial Protection

A) Entitlement

It is a right applicable to all legal subjects, whether Spanish or foreign natural or legal persons, provided that the law recognizes the capacity to be involved in the process.

B) Essential Content of the Law in Civil Matters

(Although Article 24.1 of the European Convention on Human Rights (ECHR) does not distinguish between civil and criminal purposes, it will facilitate exposition.)

1. Access to Justice

This is the first quota of the law, the possibility of accessing the courts:

  • There are no legal conflicts that may be excluded from the possibility of being raised by citizens and resolved by jurisdictional bodies.
  • The possibility of raising a legal question before courts and judges cannot rely on administrative controls or authorizations from other powers.
  • The causes of legal inadmissibility of an admissible claim should be interpreted in the sense most favorable to the right of access to the procedure, which is the “top pro actione.”

2. Resolution of Claims

This is the second content of the right to effective judicial protection, the need to enact a resolution by the body established in jurisdictional law, which must be issued, whether or not it is favorable to the claims submitted.

  • The right may not involve obtaining a favorable ruling (Constitutional Court Judgments 19/1981 and 146/1991), as it would mean the constitution of all subjective rights.
  • The existence of the resolution on the merits can be made dependent on the concurrence of the assumptions or the fulfillment of procedural requirements.
  • Inconsistency, understood as a statement about a lack of request for funds made by the applicant, violates the right of Article 24.1 of the ECHR.

3. Motivation of Resolution

This is the third content of the right to effective judicial protection, i.e., the right to a reasoned ruling on the merits.

  • The right encompasses both the existence of motivation and its sufficiency, as the lack of motivation or arbitrary motivation is equivalent to nonexistence.
  • In a negative sense, it does not encompass the right to a certain outcome or the courts’ assessment, which means that the selection of the applicable rules and their interpretation is a matter of ordinary law and therefore has no constitutional relevance. The problem arises when the Constitutional Court, departing from what it has generally sustained, considers that it is relevant at the constitutional level and that it can fit within Article 24.1 of the ECHR:
  1. The arbitrary or manifestly unreasonable selection of the standard applicable to the case (Constitutional Court Judgment 126/1994).
  2. When the courts decide the issue of patent litigation with an error (Constitutional Court Judgment 55/1993).
  3. When they decide on the matter by deviating from the established system of sources (Constitutional Court Judgment 151/1994).

In these cases, the Constitutional Court is obliged to review the application of the law made by lower courts to determine if there was a manifestly arbitrary application of the law.

4. Prohibition of Legal Helplessness

This is a vague term that the Constitutional Court has used in several ways:

  • Sometimes the Constitutional Court understands helplessness as a generic clause that includes all violations of the guarantees established in Article 24.2 of the ECHR and serious procedural violations that could not be included in this paragraph (Constitutional Court Judgment 48/1984).
  • Sometimes it narrowly differentiates between helplessness and material and procedural helplessness or constitutional significance (Constitutional Court Judgment 106/1993).
  • Sometimes the Constitutional Court redirects helplessness as a prerequisite to understanding that some of the guarantees of Article 24.2 of the ECHR have been violated.

5. Firmness, Invariance, and Res Judicata

  • The firmness of judgments, in the sense that they can no longer be appealed by the parties, affects effective judicial protection because, at some point, the debate between the parties must end.
  • The invariance of judgments, in the sense that they cannot be automatically modified by the court that issued them.
  • Res judicata means that firm resolutions bind or affect all public authorities:
    1. They cannot modify or alter what has been decided (positive effect).
    2. They must refrain from resolving litigation on the same subject matter already judged by a firm court order (negative effect or “ne bis in idem”).

6. Judicial Enforcement

Effective judicial protection is not only satisfied with a ruling on the merits, as it would be meaningless if the resolution could not be enforced. Therefore, preventing or hindering the execution of a court order constitutes a violation of Article 24.1 of the ECHR.

7. The Right to Legal Remedies

There is no constitutional imperative for the legislature to establish appeals against judgments. The only exception to this rule is the appeal of criminal convictions.

With the exception of judgments of conviction, the legislature does not violate the constitutional order if it establishes that rulings and judgments are not subject to any appeal. However, if the legislature, despite the absence of an imperative, offers the possibility of appeal, the Constitutional Court has ruled that the arbitrary denial of the appeal constitutes a violation of the right to effective judicial protection:

  • When the legislature establishes requirements that are difficult or impossible to comply with.
  • When the court interprets these requirements in the most restrictive sense for admission.

C) Essential Content of the Law in Criminal Proceedings

  1. The action is nothing more than a criminal law process, and the decision declaring the existence or nonexistence of the right of the State to punish (criminal proceedings in the abstract sense).
  2. It is not an “unconditional” right to initiate and fully substantiate criminal proceedings, but only a right to a reasoned statement from the investigating judge on the legal classification that the facts deserve, expressing, where appropriate, why he does not admit its continuation.
  3. Right to Appeal: Article 10.2 of the ECHR leads to the implementation of Article 14.5 of the International Covenant on Civil and Political Rights of 1966, which states: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”
    • The Spanish legislature is obliged to provide at least one avenue of appeal.
    • The law refers to the convicted person, but given the way our criminal legal system is structured, with equal rights for all parties, it must be recognized for all of them.
    • The law does not specify whether the appeal should be ordinary or extraordinary, so the legislature can establish either.