The Amparo procedure-institutional mean of realizing the constitutional justice.
The actors of the amparo proceedings
The fundamental principle characterizing the amparo proceeding as a means of protecting fundamental rights and freedoms is the principle of bilateralism (Brewer-Carias, 2009: 179), involving the existence of several opposing parties in a determined juridical issue. The general effect of the principle consists in the fact that, as a rule, starting the amparo proceeding implies filing a petition by a person with an interest in the matter, since the court cannot act ex officio (as an exception, in Guatemala and Honduras, the legislation on "amparo" institutes the obligation of the court to act ex officio and initiate specific procedures of protection when they know about injuring acts or actions against any rights). Thus, the initiation of such proceedings for the protection of rights requires the filing of an action, appeal or complaint within a jurisdiction by a claimant (the injured party) against a defendant or defendants (the injuring party or parties) as a result of the alleged prejudice to the constitutional rights of the former by the latter.
The claimant--the injured party
The injured party is, as a matter of principle, the person whose constitutional right was violated and who thus has a personal interest in filing a petition with a court for the purpose of ensuring the protection of the prejudiced right. From this perspective, the amparo action appears as an in personam action for the protection of the rights of a claimant who must have suffered an injury, a prejudice or harm to his or her rights and who has a legitimate personal interest in finding relief (Brewer-Carias, 2009: 181).
The national regulations on the amparo confirm the personal nature of the proceedings, also configuring the concept of "injured party" who may bring such an action to court as "any natural or artificial person whose constitutional rights are harmed or that are in a situation of imminent danger of being harmed by any disposition, act or resolution, and in general, by any action or omission from any public officer, authority or its agents"--art. 23 of Nicaraguan Amparo Law no. 49-1988 (http://www.bcn.gob.ni/banco/legislacion/Ley%20de%20Amparo.pdf). Therefore, in order to legally describe the active subject of the amparo proceeding--the injured party, certain aspects must be analysed: the capacity to stand in court and the status of the claimant as a human being, natural or artificial person under private or public law; the possibility for public entities such as Public Prosecutors or People's Defendants to file an amparo suit; or the possibility for a third party to intervene in favour of the claimant in the trial (Brewer-Carias, 2009: 181).
The injured persons standing in the amparo suit
The personal or subjective character of the action brought to court in an amparo suit qualifies the claimant as the person whose constitutional rights have been injured or threatened to be injured, excluding the possibility to start such an action with regard to the rights of another person on his/her behalf. Thus, the claimant in an amparo suit has to justify a personal, legitimate and direct interest in order to stand in personam in a court of law or through his/her legal representative (Brewer-Carias, 2009: 181).
Although the general rule refers to the personal nature of the action in an amparo suit, the claimant standing ad causam for the legal protection of his/her rights, certain regulations in the amparo field in the states of Latin America also consecrate the possibility to stand ad processum, having the capacity to use the judicial proceedings for his/her own interest, as well as with regard to other people's rights (Salgado, 1987: 81; Camazano, 2005: 162).
a) Natural persons
The principle consecrated by the Latin American regulations in the amparo field is that any individual, natural person is entitled to protect his or her constitutional rights injured or threatened to be injured by such an action, regardless of nationality or citizenship. This happens as a result from the use in these regulations of the generic term "person" without referring to his or her belonging to a certain state or community of individuals, so the foreigners and stateless persons can also enjoy this legal means of protecting fundamental rights.
Moreover, the extensive interpretation of the amparo regulations by certain supreme courts has allowed access to this proceeding to the persons outside the geographical area within which the law is applicable if their rights have been infringed within this area. In Venezuela, art. 1 of Law Amparo of 27 September 1988 (Ley Organica de Amparo sobre Derechos y Garantias Constitucionales http://www.mipunto.com/venezuelavirtual/leyesdevenezuela/leyesorganicas/leyorganica _deamparosobrederechosy_garantiasconstitucionales.html) establishes that the amparo action may be started by "all natural persons inhabitants of the Republic". The restrictive semantic nature of the regulation by referring to those persons living in the Republic, residents or tourists or even transitory persons, has been extensively interpreted by the Supreme Court of Justice of this state by a decision of 27 August 1993, as aiming at any person living or not in the Republic "whose constitutional rights and guarantees have been directly injured or threatened by an act, action or omission carried out or produced in the Republic" (Gazdik, 2001: 98-99).
Minors have the capacity to stand ad causam in an amparo suit, but they lack the possibility to stand ad processum, this taking place by their legal representatives. As an exception, in Mexico, the Amparo Law (Ley de amparo, reglamentaria de los articulos 103 y 107 de la Constitucion politica de los Estados Unidos Mexicanos) (http://www.diputados.gob.mx/LeyesBiblio/pdf/20.pdf) stipulates under art. 6 that the minor may ask for amparo protection without the intervention of his/her legal representative when the latter is absent or affected, and in this case the court, without being prevented from taking emergency measures, must appoint a representative for the minor who should act during the trial. In Columbia as well, by art. 10 of Decree no. 2591 of 1991 on accion de tutela, it is established that the request for protection may be exercised at any moment, in any place, for any person whose fundamental rights have been infringed or threatened, deciding personally or by a representative (http://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=5304).
Another exception from the rule established in the matter, in accordance with which natural persons have the capacity to defend their rights before a court, is the situation of a an action of habeas corpus when due to the fact that the person whose rights have been injured is deprived of liberty, being in custody, the amparo proceeding may be started by any person on his/her behalf or on behalf of the injured person. Thus, in Ecuador, pursuant to art. 48 of Ley de control constitucional (http://ecuador.justia.com/nacionales/leyes/ley-de-control-constitucional/gdoc/), the amparo appeal may be filed by any official agent justifying the impossibility of the injured person to act in this respect on condition that the decision is ratified within 3 days. In Uruguay, Ley de amparo no. 16.011 of 1988 provides that in case the injured party or his/her representative cannot file an action, any person is entitled to do so personally.
b) Artificial persons
Just like natural persons, artificial persons may be the holders of an amparo action for the protection of the inherent and recognized constitutional rights, such as the right to appear in a court of law, economic rights, freedom of property, the exercise of the action being accomplished by their legal representatives. The amparo protection of the constitutional rights of artificial persons is legally recognized by considering their possibility to be holders of fundamental rights and freedoms, in this sense, the Supreme Court of Justice of Venezuela, by the Decision of 2 October 1997 (Brewer-Carias, 2009: 188), stating that: "it is undoubted that artificial persons, and consequently, political-territorial entities can be holders of the majority of rights enshrined in the Constitution (...)".
As for the possibility of artificial persons to file an amparo suit, it is necessary to specify several aspects.
First of all, one should emphasize the fact that the admissibility of the action depends on the actual existence of an injury against a right or freedom whose holder is the artificial person, therefore, as the Constitutional Chamber of Costa Rica (Brewer-Carias, 2009: 188) argued "the object and matter of amparo is not to guarantee in an abstract way the enforcement of the Constitution, but to protect against the threats and violations of fundamental rights of persons". From this perspective, the amparo action cannot have as an object the violation of the constitutional provisions by means of legal norms (Valle, 2001: 235).
Secondly, it is necessary to specify that the group of artificial persons which can bring an amparo action to court may include associations and foundations, societies and unions, political parties, as well as political-territorial public authorities. Although the essence of the amparo proceedings aim at a means of protecting private individuals, natural or artificial persons under private law, first against the state and its structures, public authorities or entities, at present, taking into account that the artificial persons under public law may be holders of fundamental rights, it is possible for such persons to file an amparo suit for the protection of these rights.
Thus, in Uruguay, Ley de amparo refers in art. 1 to public or private artificial persons, and in Venezuela, the Constitutional Chamber of the Supreme Court decided in 2000 that "the political-territorial entities as the States and the Municipalities, can (...) file amparo suits for the protection of the rights and liberties they can be holders of, as the right to due process, or the right to equality or to the retroactivity of the law" (Brewer-Carias, 2009: 190).
In Argentina, after the economic protection measures taken by the state in 2001, the federate state San Luis (San Luis Province) filed an amparo suit against the federal state Argentina for the protection of the constitutional rights to property in the context of freezing all the financial resources in American dollars and transforming them in devalued national currency, pesos. The Supreme Court, by the decision of 5 March 2003, San Luis case, admitted the amparo action initiated by the federate state San Luis, an artificial person under public law, and ordered the Central Bank of the Argentinean Nation "to reimburse to the Province of San Luis the amounts of North American dollars deposited, or its equivalent in pesos at the value on the day of payments, according to the rate of selling of the free market of exchange" (Lazzarini, 1987: 238-240).
Along the same line, in Mexico, art. 9 of Amparo Law (http://www.diputados.gob.mx/LeyesBiblio/pdf/20.pdf) expressly stipulate that artificial persons under public law can file an amparo suit, but only with regard to the affected economic interests of these persons (los intereses patrimoniales). But this is the only case in which a person under public law could start such an amparo action because it would cause a conflict between the state authorities, in this respect the Supreme Court (Mac-Gregor, 2002: 244-245) stating that "it is absurd to pretend that a public dependency of the Executive could invoke the violation of individual guaranties seeking protection against acts of other public entities also acting within the Executive branch of government" or that "it is not possible to concede the extraordinary remedy of amparo to organs of the state against acts of the state itself manifested through other of its agencies, since this would establish a conflict of sovereign powers (...)"
Similarly, in Germany and Austria, the local communities or groups of such communities can file an amparo suit before the Federal Constitutional Tribunal in case their autonomy or self-government rights guaranteed at constitutional level have been injured by a federal law (Brewer-Carias, 2009: 191; Reyes, 2002: 25).
Public entities standing in the amparo suit
Although the amparo suit appears as an in personam action, under certain circumstances, when it concerns rights exercised in a community or of a diffuse nature, this can be initiated on behalf of groups of persons such as Public Prosecutors or the Defendant of the People (Brewer-Carias, 2009: 202-205).
a) The Defendant of the People
Besides the specific and original amparo proceedings for the protection of rights, the Latin American law systems also created independent constitutional institutions specialized in ensuring the protection of personal rights. It is about autonomous public entities whose origin lies in the Scandinavian Ombudsman institution, which enjoys certain competences with regard to the protection of personal rights concerning the activity of Public Administration and which appear under different names, such as the Defendant of the People (Argentina), People's Defendant (Paraguay) or Procurator on Human Rights (Guatemala).
Other such entities from states of Latin America enjoy a larger independence, concerning not only the protection of the rights exercised in relation to Public Administration, but also Parliament or other governmental authorities: People's Defendant (Venezuela, Columbia, Ecuadorand, Bolivia), Procurator for the Defense of Human Rights (El Salvador, Nicaragua), Commission on Human Rights (Mexico), People's Defendant Office (Peru).
The main characteristic of these public institutions for the protection of constitutional rights consists in their general competence to file amparo suits with regard to the injuries caused to collective rights (rights of political participation) or of a diffuse consecration (the right to a healthy environment or the rights of indigenous people). In this respect, the Constitutional Chamber of the Supreme Court of Venezuela stated that "as a matter of law, the Defender has standing to bring to suit actions aimed at enforcing the diffuse and collective rights or interests; not being necessary the requirement of the acquiescence of the society it acts on behalf of for the exercise of the action. The Defender of the People is given legitimate interest to act in a process defending a right granted to it by the Constitution itself, consisting in protecting the society or groups in it (...)" (Brewer-Carias, 2009: 204-205).
b) Other public officers
The implementation at the state level of the European model of the Ombudsman had as a result the recognition of the exclusiveness of their activity as independent entities for the protection of human rights and, consequently, the absence or limitations of the intervention of other public authorities in this field. In these states in which these public entities of European origin were not created or whose activity is limited by their purpose, the competence to file an action of the amparo type for the protection of human rights was granted to other public entities such as the Public Prosecutors or the Attorney General.
In the United States of America, the main public authority entrusted with the protection of human rights is the Attorney General, whose competence to introduce injunctions was recognized with the Supreme Court Decision in Brown v. Board of Education of Topeka Case, 347 U.S. 483 (1954); 349 U.S. (1955) (Brewer-Carias, 2009: 206). The precedent created in the field of education, corroborated with the dispositions of the Civil Rights Act of 1957, 1960, 1964, 1968, led to the authorization of Attorney General on the part of the American Congress to introduce injunctions with a view to ensuring the protection of human rights, mainly based on the Fifteenth Amendment of the American Constitution relating to the right to vote, and also regarding other rights of such domains as public accommodations, state facilities, public schools, employments, housing etc. (Fiss, 1978: 21).
Certain states of Latin America recognize the competence of some public authorities like Public prosecutors, or jointly with the institution of the Ombudsman, to bring amparo actions to court for the protection of collective or diffuse rights, by excluding any other public or private entities. Thus, in Argentina the General Prosecutor may exercise the competence to file an amparo suit (Sagues, 2006: 59); similarly, in Mexico, in accordance with art. 5, 1, IV, the Federal Public Ministry, through the Federal Public Prosecutor may start such actions in criminal and family cases, with the exception of civil or commercial cases (http://www.diputados.gob.mx/LeyesBiblio/pdf/20.pdf).
The exclusion of any other public authorities from the exercise of the competence to file amparo suits results from the case-law of certain Latino-American supreme courts. In Venezuela, the Constitutional Chamber of the Supreme Tribunal, by the Decision of 21 November 2000, rejected an amparo action filed by the Governor of a federate state, motivating that the federate states cannot bring such actions for the protection of collective or diffuse rights unless they are expressly authorized by law in this respect (Brewer-Carias, 2009: 208; Chavero, 2001: 115). This practice was resumed by the Decision no 656 of 6 May 2001, occasion on which the supreme court refused the competence of the Governors or mayors to file collective amparo actions, motivating that: "the Venezuelan State, as such, lacks, since it has mechanisms and other means to cease the damage caused to those rights and interests, especially through administrative procedures" and concluding that "within the structure of the State (...) the only one who is able to protect individuals in matters of collective or diffuse interests is the Defender of the People (in any of its scopes: national, state, county or special). The Public Prosecutor, the Mayors, or the Municipal auditors lack both such attribution and the action (unless the law grants them both)" (Brewer-Carias, 2009: 208).
The injured third party in the amparo suit
Besides the two above-mentioned subjects with legal rights, who may bring an action to court and appear in an amparo lawsuit, the injured party or those public entities entrusted with the protection of fundamental rights, it is possible for a third party to join the petition of the claimant and intervene in the trial, in the context within which the injuring action or omission brought to court affect his or her fundamental rights as well (Brewer-Carias, 2009: 209).
The courts may accept the intervention requests of the injured third parties when they prove a unity of interest in the subject matter of the proceeding and who are entitled to, and seek the same character of relief. Thus, in Mexico, in accordance with article 5, III of the Amparo Law (http://www.diputados.gob.mx/LeyesBiblio/pdf/20.pdf), the affected third party or parties have the possibility to intervene in an amparo suit in the following cases: a) The counterpart of the injured when the claimed act is issued in a noncriminal trial or controversy, or any of the parties in the same trial when the amparo is filed by a person strange to the procedure; b) The offended or the persons that according to the law have right to have the damage repaired or to demand for civil liability derived from the commitment of the crime in amparo suits filed against criminal judicial decisions, when the latter affects the reparation or the liability; c) The person or persons that have argued in their own favour regarding the challenged act against which the amparo is filed when being acts adopted by authorities other than judicial or labour; or that without arguing in their favour, they have direct interest in the subsistence of the challenged act. (http://www.diputados.gob.mx/LeyesBiblio/pdf/20.pdf).
In Guatemala, too, art. 34 of Ley de Amparo, Exhibition Personal y Constitucionalidad of 1986 provides that "the authority, the person denounced or the claimant, if they arrive to know of any person with direct interest in the subject matter or the suspension of the challenged act, resolution or procedure, whether because they are party in the proceedings or because they have any other legal relation and with the exposed situation, are obliged to make it known to the court, indicating the name and address and in a brief way, the relation with such interest. In this case the court must hear the referred person, as well as the Public prosecutor, considered as a party" (http://www.mintrabajo.gob.gt/index.php/leyes-y-convenios/leyes-constitucionales/55-ley-de-amparo-exhibicion-personal- y-constitucionalidad.html). It is necessary to specify that in the states of Latin America, before the implementation on a large scale of the People's Defendant institution, in the amparo suits or in the habeas corpus cases, it was the competence of the Public Prosecutors which was recognized, as a general guarantee of fundamental rights, competence to intervene and participate in the trial as a bona fide third party, a fact which has been preserved in certain states in the present context as well (Mexico, Argentina, Venezuela).
The defendant--the injuring part
The principle of bilateralism, as a fundamental principle with characterize the amparo proceeding, requires that the plaintiff that fill the protective action of a right, freedom or guarantee of constitutional value, must individualize the injuring party, which, by its actions or omissions, have caused the seized lesion. So, in the amparo proceedings, a person or a public entity must necessarily be individualized as a defendant.
The bilateral nature of amparo impose therefore the establishing of a procedural relation between the injured party and the injuring party, both parties being participants in the amparo proceeding. In this sense, the Supreme Court of Venezuela, in the Haydee Casanova Case of December 15, 1992, stated that "the amparo action set forth in the Constitution, and regulated in the Organic Amparo law, has among its fundamental characteristic its basic personal or subjective character, which implies that a direct, specific and undutiful relation must exist between the person claiming for the protection of his rights, and the person purported to have originated the disturbance, who is to be the one with standing to act as defendant or the person against whom the action is filed. In other words, it is necessary, for granting an amparo, that the person signalled as the injurer to be in the end, the one originating the harm" (Brewer-Carias, 2009: 289-290).
The individuation of the defendant
As a general rule, from the formulation of the complaint filed by the injured party in an amapro suite it must be identified the injuring party, public authority, private person or entity. In the situation that the plaintiff cannot identify exactly or not the defendant, the judge, in order to guaranty the procedural bilateral relation, must provide the necessary means in order to determine it, as it stipulates the Paraguayan Civil Procedure Code in art. 569.b (Pangrazio, Pettit, 2009), or must designate a public defendant to take part and represent it during the case, as it is provided in the Uruguayan Amparo Law in art. 7 (Brewer-Carias, 2009: 290). In an amparo suite, the individualization of the defendant is necessary, but more important is providing legal protection to the person whose right or freedom has been lesion, so that, in the case that only the lesion fact or omission could be clearly identified, and not the injuring party, the complaint of the plaintiff will be filled: "the amparo action trends to focus on the damaging act and only in an accessory way on its author" (Salgado, 1987: 92), "more to restore the harmed constitutional rights, than to individualize the author of the injury" (Lazzarini, 1987: 274).
Even in these situations, however, it continues the general obligation of the injured party to try to identify the author of the lesion caused, the complaint may be dismissed if it is proved that the intention of the plaintiff was in the sense of compelling the court to conduct to an individualization that belonged as an obligation of the injured party. Thus, the Argentinean Supreme Court, in the Juan D. Peron case, rejected an amparo action because the lack of a "minimal individualization of the author of the act originating the claim", the plaintiff seeking only to obtain an order from the courts to practice the necessary inquiries regarding the whereabouts of the body of his dead wife: "the general principles of procedural law do not suffer any exception due to the exceptional character of the amparo and must be respected in order to eventually assure the exercise of the right to defense, from which the counterpart must not be deprived... This is evident from the text of the suit in which it is affirmed that the act provoking the claim has been executed by disposition of the former Provisional Governmen without adding any other reference or explanation regarding the pointed public officer or entity. It is evident that the minimal requirement of individualization of the defendant, referred above, has not been accomplished in the case. On the contrary what is revealed in the files of this case, is that in lieu of seeking protection to his constitutional guaranties harmed by an illegal State act, the plaintiff has intended to use the amparo procedure with the purpose of obtaining from the judges the order to practice the necessary inquiries regarding the facts, which are not proved or specified with precision. And it is clear that the performance of the instruction phase cannot be achieved by means of this amparo remedy whose incorporation to Argentinean positive law has purposes different to the one pursued in this case" (Brewer-Carias, 2009: 291; Lazzarini, 1987: 275).
In the cases of amparo actions against artificial persons of public or private law, the complaint, on the one hand, must identify both the artificial person and its representatives, and, on the other hand, can be filled directly against the natural person that represents the artificial person or against the artificial entity in itself (Brewer-Carias, 2009: 293). The bilateral juridical relation resulting from an amparo suite cannot be affected by the changes of the natural persons representing the injuring party, public entity or private corporation, the artificial person remaining the responsible author of the produced lesion.
The public authorities as a defendant in the amparo suit
The amparo proceeding was initially created as a mean to protect the constitutional rights and freedoms against the lesion actions or omissions from the State. Thus, the main "negative actors" in this legal protective procedure, the defendant, are the public authorities, public entities and public officers. The Mexican traditional conception regarding the generic author of the lesion in an amparo suite it is maintained in all Latin-American States. It should be noted that the majority of Latin-American legal systems recognized in addition to amparo against public authorities, the amparo against individuals or private persons, only a minority of states keeping exclusively the traditional conception (Mexico, Brazil, El Salvador, Panama and Nicaragua).
Regarding the public authority as a defendant in the amparo suit, it must be observed which are the public entities or public officers against it can be filled an amparo action. The Mexican Constitution of 1917, art. 103, states that the federal courts shall decide all controversies that arise out of law or acts of the "authorities" that violate individual guarantees, and the Article 11 of Mexican Amparo Law points that "the authority responsible is the one who edicts, promulgates, orders, executes or tries to execute the statute or the claimed act".
But not all public entities can be considered as "authorities", only the ones "that are empowered to adopt decisions and to impose or execute them to individuals by use of coactive public power" (Brewer-Carias, 2009: 297), with the exclusion of those "with purely staff or consultative nature" (Human Right's Defendant or autonomous universities). The plaintiff should identify the "authority" that has been the cause of the lesion indicating both those who have ordered the injuring action and those who had executed it. Unlike the Mexican example, in the majority of Latin-American states the term of "authority" it is used in a wide sense, being applied to any "public authority", public entities and public officers, regardless of its powers and competences. Only in Ecuador, Article 46 of the Amparo law states that the amparo can be filled against "public administration authorities", with the excluding of those public authorities that do not belong to the Executive branch.
The individuals or private persons as a defendant in the amparo suit
The amparo against individuals or private persons was for the first time admitted in Argentina, the Supreme Court of the Nation ruling in 1958 in the Samuel Kot case that "nothing in the letter and spirit of the Constitution allows for the assertion that the protection of constitutional rights is circumscribed only to attacks from the State" (Brewer-Carias, 2009: 300). After this decision, in the majority of the Latin-American states was admitted that the amparo action it is possible to be filled against any individual's act or omission causing a lesion in the exercise of constitutional rights of others.
In Venezuela, the Organic Law of Amparo of 1988 states in art. 2 that the amparo action "shall be admitted against any fact, act or omission from citizens, legal entities, private groups or organizations that have violated, violates or threaten to violate any of the constitutional guaranties or rights" (Gazdik, 2001). Also, the Uruguayan Amparo Law of 1988, provides in its first Article that the amparo action can be filled "against any act, omission or fact of the state or public sector authorities, as well as individuals that currently or imminently, manifestly and unlawfully impair, restrict, alter or threaten any of the rights and freedoms expressly or implicitly recognized by the Constitution". Some Latin-American states, like Guatemala, Costa Rica, Honduras, Ecuador and Colombia, admit the amparo against individuals in restricted way: only against those private persons "in a position of superiority regarding citizens or that in some way, exercise public functions or activities, or are rendering public services or public utilities" (Brewer-Carias, 2009: 303).
A first conclusion that must be aimed reveals that the claimant in an amparo proceeding can be a natural or artificial person as a general rule, but in some determined cases a public entity can stand in an amparo suit and also a third party can join the petition of the claimant and intervene in the trial.
A second conclusion that arises concerns the defendant or the injuring part, the majority of Latin-American legal systems recognizing that the amparo action can be filled both against public authorities and against individuals or private natural or artificial persons, and only a minority of states keeping exclusively the traditional conception of the amparo as a mean to protect the constitutional rights and freedoms against the lesion actions or omissions from the State (Mexico, Brazil, El Salvador, Panama and Nicaragua).
This work was partially supported by the grant number 2C/27.01.2014, awarded in the internal grant competition of the University of Craiova.
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Received: November 15 2014 Accepted: December 4 2014
George Girlesteanu *
(*)Associate Professor PhD, University of Craiova, Faculty of Law and Social Sciences; founding member, Centre for Fundamental Juridical Research, Craiova, Phone: 0040721400650, E-mail: firstname.lastname@example.org
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|Title Annotation:||Original Paper|
|Publication:||Revista de Stiinte Politice|
|Date:||Dec 1, 2014|
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