Constitutional Appeal (Recurso de Amparo) in Criminal Cases: When and How

The constitutional appeal (recurso de amparo) is the closing safeguard of the Spanish system for protecting fundamental rights. In criminal matters it is the last domestic remedy available to a person who believes that a judicial decision has breached their rights: the channel that allows a conviction, a detention order or a procedural ruling that caused defencelessness to be brought before the Constitutional Court. As criminal lawyers specialising in the constitutional appeal, we explain what it consists of, which rights it protects, what it requires and what can realistically be expected from it, given its demanding admission filter.

What the amparo is — and what it is not

The amparo is a remedy of a constitutional, not an ordinary, nature. It is provided for in the Constitution itself — which reserves to the Constitutional Court the hearing of the constitutional appeal for the breach of fundamental rights (Arts. 53.2 and 161.1.b CE) — and developed by Organic Law 2/1979, on the Constitutional Court (LOTC). Its purpose is strict: to restore or preserve a fundamental right that has been breached by an act of the public authorities, including the decisions of judges and courts.

It is worth establishing from the outset what the amparo is not, because that is where many applications founder:

• It is not a third instance. The Constitutional Court does not review the proven facts or the assessment of the evidence as an appeal court would. It does not re-try guilt: it examines only whether the fundamental right was respected.
• It does not serve to correct any judicial error. A mere error in interpreting the criminal law does not, by itself, open the door to the amparo unless it results in the breach of a fundamental right.
• It is not just another ordinary remedy. It is subsidiary and exceptional, with its own requirements and a very strict admission filter.

The rights it protects: Article 24 CE

The amparo protects the fundamental rights recognised in Articles 14 to 29 and in Article 30.2 of the Constitution. In criminal practice, the bulk of applications concentrate on Article 24 CE, which gathers the essential guarantees of the process:

• Effective judicial protection without defencelessness (Art. 24.1 CE): the right to obtain a reasoned decision founded in law, to access the legally provided remedies, and not to suffer defencelessness through arbitrary or unreasonable decisions.
• A trial with full guarantees (Art. 24.2 CE): an ordinary judge predetermined by law and impartial, equality of arms, the right of defence and to legal assistance, and the right to use relevant evidence.
• Presumption of innocence (Art. 24.2 CE): one of the most invoked grounds. It requires the conviction to rest on valid incriminating evidence, taken with guarantees and assessed reasonably; it allows control over convictions without sufficient evidence or with a manifestly irrational assessment of circumstantial evidence.

Alongside these, criminal amparos based on the right to liberty (Art. 17 CE) are common, in relation to pre-trial detention ordered or extended without due reasoning or proportionality, as are those based on the secrecy of communications and privacy (Art. 18 CE), where the lawfulness of phone tapping, searches or access to devices later used as evidence is disputed.

Subsidiary nature: exhausting the prior judicial route

The amparo is subsidiary. It is not a shortcut: it is available only where the ordinary judges and courts have been given the opportunity to remedy the breach and have not done so. Hence two key requirements:

• Exhaustion of the judicial route. Before turning to the Constitutional Court, all the useful remedies available against the decision must be used (for example, the relevant cassation or appeal). Going to the amparo while leaving an ordinary remedy unexhausted leads to rejection.
• Early invocation of the right. The fundamental right to be raised in the amparo must have been invoked as soon as there was an opportunity to do so once the breach became known. This burden of prior complaint begins already at first instance: neglecting it may bar the amparo.

Where the breach occurs in the very decision ending the proceedings — so that it could not be challenged earlier — the prior channel is usually the motion to annul proceedings (incidente de nulidad de actuaciones). This is a decisive technical step: raised out of time or defectively, it leaves the route unexhausted and compromises the admission of the amparo. The challenge strategy should therefore be identified well before reaching the Constitutional Court.

The filing deadline is very short

In contrast to the slow processing of the amparo once admitted, the deadline for filing it is short and non-extendable: of the order of 30 days from notification of the decision that exhausts the prior judicial route. That starting day is the notification of the last useful remedy or, where applicable, of the order resolving the motion to annul proceedings.

The practical consequence is clear: the clock runs from notification, not from the moment the interested party decides to act. An application filed a day late is rejected as out of time without any examination of the merits, however well founded it may be. It is therefore advisable to commission the assessment of the amparo's viability immediately upon notification of the decision that closes the route.

Special constitutional significance

The most demanding filter of the amparo is not merely to prove the breach of the right: it is to justify its special constitutional significance. It is not enough that the decision breached a fundamental right of the appellant; the application must explain why the matter has objective relevance for the interpretation, application or general effectiveness of the Constitution — for example, because it raises a question on which there is no constitutional doctrine, because it allows the existing doctrine to be clarified or changed, or because the breach stems from a repeated practice.

This requirement must be argued specifically and autonomously in the application itself; its absence is one of the most frequent grounds for rejection. The selection made by the Constitutional Court is very strict, and only a small fraction of the amparos filed pass this threshold, which is why honest advice on the real prospects of admission is an essential part of the engagement.

What happens if the amparo is upheld

If the Constitutional Court upholds the appeal, its judgment declares the breach of the fundamental right and restores it. In criminal matters, the typical effect is the annulment of the decision or decisions that caused the breach and, depending on the case, the setting back of the proceedings to the point before the breach, so that the competent court issues a new decision that respects the recognised right. The precise scope — what is annulled and from which moment — is set by the judgment itself.

It is important to stress that upholding the amparo does not automatically amount to an acquittal: in many cases what is obtained is the repetition of a step with guarantees, or the issuing of a new, duly reasoned decision. The settled case law of the Constitutional Court sets out, for each right, the control criteria; our task is to translate that doctrine into the specific application, without attributing to the amparo effects that do not belong to it.

A final note on enforcement: filing the amparo does not in itself suspend the enforcement of the conviction. Interim suspension must be requested expressly, and the Constitutional Court grants it exceptionally, normally where enforcement would cause the amparo to lose its purpose and no serious harm follows for the general interest or the rights of third parties.