Can the resolutions of cassation appeals of the Supreme Court be appealed?
Faced with the dismissal of an appeal before the Supreme Court, the plaintiff who has seen his claim neglected has the possibility, still, of submitting the resolution to the control of the Constitutional Court through the substantiation of the amparo appeal.
In the nature of the cassation appeal its nature as a supreme appeal is implicit, intended to satisfy a claim to reform final resolutions of hierarchically lower bodies, thus being the supreme remedy and extraordinary provision under Spanish law, in its two aspects: the appeal on the merits, that is, if the matter discussed in the lawsuit has been in accordance with the law, in its manifestation of appeal stricto sensu< /em>; or in the form, that is, if it is based on the infringement of the laws that regulate the form of the trial, as an extraordinary remedy of procedural infraction.
The appeal for amparo
The appeal for amparo is an extraordinary and summary appeal, initiated at the request of a party, which in the Spanish legal system supposes – without prejudice to a possible remission after the European Courts – the ultimate protection of the fundamental rights recognized in the Constitution against the actions of public authorities.
Now, and as said Court has consistently maintained, it does not constitute a third instance, therefore it will not decide on the object of the civil proceeding nor will it assess the tests carried out by the ordinary courts (TC 307/2005, TC 11/1992, TC 56/1998). Nor is it, on the other hand, a way of universal appeal. As can be seen from its constitutional configuration, the Constitutional Court is positioned outside the Judiciary, so it will limit itself to verifying whether there has been a violation of constitutional rights or freedoms.
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Which rights are protected via an appeal for amparo
The fundamental rights protected through the amparo appeal are those contained in articles 14 to 29 of the Constitution, against possible violations of them by acts of public authorities . According to the Constitutional Court, this concept of public powers must be understood in a broad sense, as all entities and bodies dependent on them that exercise a power derived from the State (TC 35/1983, TC 90/2000).
Therefore, the appeal for amparo must be filed against decisions of the Supreme Court, as well as against acts of the Government and the autonomous communities, as well as against acts of the Power Legislative, against laws or against gaps in the legal system. Exceptionally, violations of rights and freedoms caused by individuals are protected in some cases of acts related to the exercise of freedom of association.
The appeal for amparo and the decisions of the Supreme Court
They are requirements, according to the LOTC art. 43, 440 and 50.1.a, for the filing of an amparo remedy, the exhaustion of the previous judicial route and that in that the violated constitutional right has been formally denounced, as soon as the violation is known (TC 185/1990) . In the case of a judgment of cassation, it is frequent that the violation of the fundamental right has already been revealed in the claim before the Supreme Court or one of the lower courts, which has been understood by jurisprudence as equivalent to the formal complaint that prescribes the LOTC (TC auto 315/1989; STC 39/2016, STC 92/1999).
The demand for “constitutional significance”
The plaintiff must clearly and concisely state the facts on which the claim is based, citing the constitutional precepts that are deemed to have been infringed and, especially, specifying precisely the protection requested (TC 53/2000).
Art. 50 LOTC also imposes the need to demonstrate the “constitutional significance of the appeal”, a concept traditionally of broad and flexible interpretation and which was the object of jurisprudential concretion through STC 155/2009, as well as by 69/2011, order 29/2011 , order 11/2012, listing several cases that were considered to have “constitutional significance”:
- That of an appeal that raises a problem or a facet of a fundamental right subject to protection on which there is no doctrine of the Constitutional Court. For example, on the suitability of the fax as a means of procedural communication (TC 58/2010), or the difference in temporary treatment between temporary and permanent workers in relation to the exchange of jobs (TC 149/2017).
- That it give the Constitutional Court the opportunity to clarify or change its doctrine, as a consequence of a process of internal reflection, or due to the emergence of new social realities or regulatory changes relevant to the configuration of the content of the fundamental right. For example, if the right to effective judicial protection implies the right to appeal in supplication (TC 149/2016).
- When the violation of the fundamental right that is denounced comes from the law or another provision of a general nature. For example, when it began to consider whether the denial of a widow’s pension to same-sex couples alleging the requirement of children in common excludes, de facto, the group of transsexuals (TC 77/2013).
- If the violation of the fundamental right is caused by a repeated jurisprudential interpretation of the law that the Constitutional Court considers injurious to the fundamental right and deems it necessary to proclaim another interpretation in accordance with the Constitution.
- When the doctrine of the Constitutional Court on the fundamental right that is alleged in the appeal is being breached in a general and reiterated way by the ordinary jurisdiction, or there are contradictory judicial decisions on the fundamental right, either interpreting the doctrine differently constitutional, either applying it in some cases and ignoring it in others.
- In the event that a judicial body incurs in a manifest refusal of the duty to comply with the doctrine of the Constitutional Court (LOPJ art.5).
- When the matter raised, without being included in any of the above cases, transcends the specific case because it raises a legal issue of relevant and general social or economic repercussion or has general political consequences.
- Other cases, in accordance with the flexible nature of the requirement of the LOTC.
In case of dismissal of the amparo appeal, the aggrieved party can resort to the general system of appeals before the CJEU that is included in the TUE and, above all, in the TFUE.< /p>
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