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By Gloria Orrego Hoyos. Orrego Hoyos is a member of the American Association of Law Librarians, and published significant scholarship. Published April Read the Update! Introductio n. Since and after the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights, the necessity of a judicial mechanism of human rights protection became a global concern.
Today is clear that one fundamental aspect in the modernization of the justice system in Latin American countries has been the quantitative and qualitative improvement of the instruments and the constitutional possibilities for the citizen to access the justice. This is particularly relevant taking into account the lack of access and the corruption in some governments and justice systems in the region. The writ of Amparo.
In the nineteenth century and in the first half of the twentieth century, the habeas corpus was the only specific mechanism of protection of fundamental freedoms. This led to the need for the institution to expand its scope to other rights and fundamental freedoms, in order to give amplitude to the protection. Thus, was born the amparo , following the Mexican experience. However, the introduction of this action was different in the countries of the Latin America region, and in many cases took more than a century for its incorporation into domestic law.
Since the writ of amparo was established to ensure those freedoms, which were not, covered by habeas corpus and habeas data eg. Physical liberty and right to privacy , it does not include other non-jurisdictional mechanisms of human rights protection eg. The amparo then stands as the ideal means for the effective protection of constitutional rights violated, regardless of whether the person who produced such violation is a public or private authority.
It is also a very inexpensive or a free action, and in some countries eg. Colombia it does not require the participation of any legal counsel. For all these reasons, it is logical to establish in a procedural level, tight deadlines for the exercise of the action.
This time, ranging from 15 to 30 days, counting from the illegal act is executed, or it was due to execute, or it has knowledge of it, according to the regulations of each country. Colombia establishes the possibility to exercise the action at any time just as Ecuador, Costa Rica and Mexico. The action must fulfill four requirements for its merit. In first place, an act or omission by a public or private authority it is needed. The acts or omissions may contain positive or negative events.
In the case of the public authority can come from any branch of the government. This is a high point in regard to its validity against judicial decisions. However, in most countries, and given the exceptional nature of the action, refuses this possibility since there are other actions to attack statements that are considered unfair. Secondly, the lesion must be actual and imminent. This is aimed primarily because the action was designed to protect the constitutional right timely, and that is why it has been added the requirement to the rights remain violated at the time of issuance of the judgment.
In third place, it is required that the arbitrariness or illegality becomes manifest. The amparo does not seek the effect of deprive any act of the authority which appears vitiated. The writ will proceed only when the act of the authority is blatantly arbitrary or illegal. Finally, there should be no other mechanism to file the claim.
The writ of amparo is exceptional and it will proceed only in the absence of any other mechanism jurisdictional or non-jurisdictional appropriate to the protection of constitutional rights of freedom. The description of amparo as a judicial mechanism in the context of the organization of justice differs from country to country. This means that according to the procedural law of each country, the amparo can be ensured through a court action or through a procedural remedy.
While the origin of the amparo is shared by almost all the nations in the Latin American region, its incorporation into domestic law varies, not only chronologically, but also in the forms and procedure for each country. Here is an overview of regulatory requirements of Amparo action in Latin American countries. Nomen Iuris. Article in Constitution. Amparo Jurisdiction. Constitution of Argentina Nation Supreme Court hears the amparo of under review as second or third instance.
Exceptional cases may go directly. Establishes collective amparo. Created through the jurisprudence. Political Constitution of Colombia Constitutional Court hears the amparo under review as second or third instance. Proceeds against acts and omissions of authority or private, promoted before any judge or jurisdiction.
Constitution of the Bolivarian Republic of Venezuela Constitutional Chamber of the Supreme Court hears the amparo under review as second or third instance. The procedure of amparo is oral, public, brief, free and unencumbered by formalities. Dominican Republic. No specific constitutional provision. The judgment establishes an expeditious procedure for the amparo action.
Article 72 of the Constitution enables the law that enshrines the protection. Constitution of Peru Habeas corpus fulfilled the functions of protection and was gradually expanding its natural scope of protection not only for the protection of personal freedom, but also for other fundamental rights.
Constitution of Paraguay Mandado de seguranca. Constitution of the Federative Republic of Brazil Political Constitution of Bolivia Political Constitution of the Republic of Chile Constitution of the Republic of Ecuador Amparo es distinto a habeas data y habeas corpus.
Costa Rica. Political Constitution of the Republic of Costa Rica Constitutional Chamber of the Supreme Court. Direct Access. Amparo is other than habeas data and habeas corpus. El Salvador. Constitution of El Salvador Constitution of Nicaragua Constitution of Panama Political Constitution of the United Mexican States Establishes the Amparo Omnicomprensivo , whereby protects all the rights and fundamental freedoms and, in general, all the constitutional order of the nation.
Constitution of Guatemala First country to introduce a constitutional court in Latin America by establishing autonomous Constitutional Court in Constitution of Honduras Final thoughts. Even knowing the shortcomings of the action, the amparo stands as the mechanism with greater amplitude in jurisdictional protection of fundamental rights and freedoms in Latin American countries, expanding globally with similar scope and effectiveness.
Although the amparo shares many things in the region, the overall analysis of the different situations prevailing in different countries support the view that, in practice, national systems differ widely. That is why they have created a range of issues in the implementation of constitutional jurisdiction of the amparo and its appropriate guarantees. In this regard, in the context of the analysis, it is logical that each country thinks and works on the necessary reforms and adjustments in the field of amparo writ.
In several of those countries, the discussion is already proposed. In Argentina, the use of amparo as a human rights protection is not problematic when it comes to protect a citizen from harmful acts. However, the use of amparo against harmful omissions is still disputed in the legal academy. Additionally, and even knowing the purpose of the protection of constitutional rights, in all the amparo cases, to bring the action is necessary that it meets, from the beginning, with all the conditions of proceeding.
Otherwise, it may not be filed. In Bolivia, the rights protected by the writ of amparo are even more extensive than in Argentina, protecting not only civil and political rights, but also economic, social and cultural rights. The amparo does not recognize exemptions, privileges or hierarchies.
Meanwhile, in Colombia, all judges have jurisdiction to hear the tutela. This is an important difference with other countries in the region, owing to its simplicity and accessibility. It may be filed even by an informal agent. These characteristics make the tutela , an agile and dynamic action that provides effective and timely protection to the constitutional rights.
Nevertheless, this feature of efficiency and protection has brought in practice, an excessive use of the action and congestion in the Colombian judicial system. The amparo cannot be understood as a unique process or substitute for other processes.
However, stands as a short and concentrated to be preferential, since the type of rights at stake. Suggested bibliography by country:. El recurso de amparo; comentario a los casos "Siri" y "Kot.
Derecho Constitucional Colombiano de La Carta de 1991 y Sus Reformas
ISBN 13: 9789586766289