Criminal Lawyers for Constitutional Appeals (Amparo)

The constitutional appeal (recurso de amparo) before the Constitutional Court is the last domestic remedy for protecting fundamental rights violated in criminal proceedings. It is not a third instance or a new trial; it exclusively addresses violations of constitutional rights: the right to a fair trial (Art. 24 CE), presumption of innocence, effective judicial protection, equality before the law, and personal freedom.

What Is the Constitutional Appeal?

The recurso de amparo is provided for in Articles 53.2 and 161.1.b) of the Constitution and governed by Organic Law 2/1979 on the Constitutional Court (LOTC). It protects the rights recognised in Articles 14 to 29 and 30.2 of the Constitution against acts of the public authorities, including criminal judicial decisions. It is a subsidiary, extraordinary remedy: not a third instance reviewing the case afresh, but a specific channel to repair the violation of a fundamental right when the ordinary courts have failed to do so.

Fundamental Rights Invoked in Criminal Cases

In criminal proceedings, the most frequently invoked rights are effective judicial protection and the presumption of innocence (Art. 24 of the Constitution) —typically, conviction without sufficient incriminating evidence or with an irrational assessment of the evidence—, the right to liberty (Art. 17) in relation to disproportionate pre-trial detention, and the right to privacy and secrecy of communications (Art. 18) in relation to the lawfulness of evidence. The right to proceedings without undue delay and the prohibition of defencelessness are also commonly raised.

Admissibility Requirements

The Constitutional Court admits only a small fraction of amparo applications. Requirements include: exhaustion of all prior remedies (appeal and cassation must have been filed first); filing within 30 days of the final judicial decision; raising the constitutional violation at the earliest opportunity in lower courts; and demonstrating special constitutional significance (the case must raise a constitutional question of general importance, not just a private injustice).

Effects of a Successful Amparo

If the Constitutional Court upholds the amparo, it declares the violation of the fundamental right, annuls the challenged decision and restores the appellant in their right, which usually entails rolling back the proceedings to the moment before the violation so that a new, rights-compliant decision is issued. Filing the amparo does not automatically suspend execution of the sentence; interim suspension must be requested and is granted only exceptionally, particularly where service of the sentence would cause irreparable harm that would deprive the amparo of its purpose.

The Subsequent Route: the ECtHR

Once the internal constitutional route is exhausted, an application may be made to the European Court of Human Rights (Strasbourg) for violation of the European Convention on Human Rights, within four months of the final domestic decision. Our work covers both the preparation of the amparo —carefully invoking the rights from the trial stage so as not to forfeit the route— and the technical drafting of the application, advising realistically on the prospects of admission given the demanding filter of special constitutional significance.

Our Approach

Given the Constitutional Court's extremely low admission rate, our strategy focuses on: preserving constitutional issues from the trial stage (making timely objections that create the record for amparo); crafting applications that demonstrate special constitutional significance (connecting the individual case to broader constitutional principles); and, when appropriate, preparing for the European Court of Human Rights (Strasbourg) as the ultimate remedy after exhausting domestic avenues.

Procedural steps and deadlines of the constitutional appeal in criminal matters

The recurso de amparo is neither a third instance nor a disguised cassation: it is an autonomous proceeding before the Constitutional Court governed by Organic Law 2/1979 (arts. 41 to 58). In criminal matters, the usual form is the amparo under art. 44 LOTC, directed against acts or omissions of judicial bodies that have infringed a fundamental right. The application is filed by written submission signed by a lawyer and a court representative (procurador), addressed to the relevant Chamber, and must enclose a copy of the contested decision together with the documents evidencing that the admissibility requirements are met.

The time limit is strict: thirty working days from notification of the decision that exhausts the prior judicial route. It is a limitation period (caducidad) that allows no extension or interruption, so the exact count from the last final ruling is decisive. Once the application is filed, the Section examines its admissibility; if admitted, the court requests the case file, summons those who were parties and the Public Prosecutor, and opens the submissions stage under art. 52 LOTC before delivering judgment.

Admissibility requirements and special constitutional significance

Admission of a criminal amparo requires passing several cumulative filters. First, exhaustion of every available remedy within the judicial route: in criminal proceedings this typically includes appeal, cassation where applicable and, very significantly, the motion to annul proceedings (incidente de nulidad de actuaciones) under art. 241 of the Organic Law of the Judiciary where the breach arises in the decision ending the proceedings and there was no earlier opportunity to raise it. Second, the formal invocation of the fundamental right as soon as, once the breach was known, there was occasion to do so, preventing the ground from being raised for the first time before the Constitutional Court.

The most demanding requirement is justifying the special constitutional significance (especial trascendencia constitucional), introduced to refine access to amparo. Alleging the breach of a right is not enough: the applicant must argue, on a standalone basis, why the matter transcends the individual case and carries general relevance for the interpretation or application of the Constitution. The doctrine laid down in STC 155/2009 outlined illustrative scenarios, such as the absence of prior case law, the need to clarify or revise it, or a general and persistent failure of the ordinary courts to comply. Failure to discharge this argumentative burden leads to inadmission without examination of the merits.

Defence strategy: building the amparo from the trial stage

The viability of a criminal amparo is, to a large extent, secured before it is filed. The key is foresight: the fundamental right later invoked before the Constitutional Court must be cleanly raised and repeated throughout the proceedings, from investigation to cassation, to avoid any failure of invocation or exhaustion. Documenting each point at which the breach was denounced, whether the infringement of the right to a defence, to evidence, to a trial with full guarantees or to the presumption of innocence, builds the traceability that the Court demands.

In parallel, each route should be assessed realistically. The motion to annul proceedings is often the indispensable final step for breaches arising in the judgment or definitive order itself; omitting it can close the door to amparo. The drafting of the application must clearly separate the reasoning on the breach from the justification of special constitutional significance, treating them as distinct requirements. It is also appropriate to weigh whether to seek suspension of the enforcement of the contested decision under art. 56 LOTC where enforcement would deprive the amparo of its purpose.

Rights at stake, competent body and interplay with other routes

Amparo protects the rights and freedoms recognised in arts. 14 to 29 and the right to conscientious objection under art. 30 of the Constitution. In the criminal field, the recurring rights are effective judicial protection and the right to a trial with full guarantees under art. 24, alongside personal liberty under art. 17, the inviolability of the home and the secrecy of communications under art. 18, and the principle of criminal legality under art. 25. Jurisdiction lies with the Chambers of the Constitutional Court, which may refer the decision to their Sections, and the ruling takes the form of a judgment granting, refusing or, where applicable, declining to admit the amparo.

Amparo is subsidiary to the ordinary courts, which bear the primary duty to protect fundamental rights through preferential channels and, generally, within the criminal proceedings themselves. It does not replace cassation or review, but operates once those routes have been exhausted without remedying the breach. If, during the appeal, a doubt arises as to the constitutionality of a statute applicable to the case, the Court may raise a self-referred question of unconstitutionality. No remedy lies against the amparo judgment before domestic bodies; once this internal route is exhausted, access to supranational protection mechanisms may, where appropriate, become available.