#SeriesAFFAN #AFFANteExplains Chapter 2: The amparo - Procedure and main incidents WHAT IS THE AMPARO? (ART. 8 LAEPC; 265 CPRG) CONSTITUTIONAL GUARANTEE THAT AIMS TO PROTECT PEOPLE AGAINST THREATS OF VIOLATIONS OF THEIR RIGHTS OR TO RESTORE THE RULE THEREOF WHEN THE VIOLATION HAS OCCURRED. WHAT IS THE LEGAL NATURE OF THE AMPARO? IT IS AN ACTION BECAUSE BOTH THE POLITICAL CONSTITUTION OF THE REPUBLIC OF GUATEMALA, IN ARTICLE 272 LITERAL B), AND THE LAW OF AMPARO, PERSONAL EXHIBITION AND CONSTITUTIONALITY IN ARTICLE 163 LITERAL B), CONTEMPLATE IT AS AN ACTION. IT CAN ALSO BE CONSIDERED A CONSTITUTIONAL PROCESS, SINCE IT AIMS TO DETERMINE WHETHER THE QUESTIONED ACT IMPLIES ANY VIOLATION OF FUNDAMENTAL RIGHTS. WHAT DOES THE DOUBLE PURPOSE OF THE AMPARO REFER TO? 1. IT IS PREVENTIVE - WHEN THERE IS A CERTAIN AND IMMINENT THREAT OF VIOLATION OF FUNDAMENTAL RIGHTS 2. IT IS RESTORATIVE - WHEN THE VIOLATION OF THOSE RIGHTS HAS OCCURRED. WHAT ARE THE PROCEDURAL PRESUPPOSITIONS OF THE AMPARO AND EXPLAIN THEM BRIEFLY? 1. TEMPORALITY: refers to the fact that it must be filed within the period of 30 days following the last notification. During the electoral process and its own acts, the period will be 5 days. (ART. 20) 2. FINALITY: refers to the fact that in order to request protection, ordinary, judicial, and administrative resources must first be exhausted. (ART. 19) 3. ACTIVE LEGITIMATION: legal power for a person to promote an protection action, they must have a legitimate interest in requesting constitutional protection. (ART. 8) 4. PASSIVE LEGITIMATION: refers to the person who issued or produced the challenged act. (ART. 9) WHAT IS THE PROCEDURE FOR PROTECTION? 1. STEP 1 – FILING (ART. 19) Can protection be filed orally? – Yes, a notoriously poor or ignorant person, a minor or an incapacitated person who is unable to act with professional assistance, may appear before the courts to make a verbal request for protection, a record will be drawn up and a copy will be sent to the Human Rights Ombudsman so that he may advise or, where appropriate, sponsor the interested party. (ART. 26) 2. STEP 2 – FIRST RESOLUTION: (ART. 33) 2.1. IT IS ESTABLISHED AS AN EXTRAORDINARY COURT FOR PROTECTION 2.2. QUALIFIES THE REQUIREMENTS; What happens if requirements are omitted in the petition? – The Court that hears the case will resolve to process the protection and order the person filing the claim to comply with the missing requirements within 3 days; it will not suspend the process if possible. (ART. 22) 2.3. ADMITS PROCESSING; 2.4. 2.5. ORDERS TO REQUEST BACKGROUND OR DETAILED REPORT 3. STEP 3 – SENDING BACKGROUND WITHIN 48 HOURS (ART. 33) What happens if the background is not sent? – The Court in charge must order the provisional suspension of the act. (ART. 33) 6 BASIC ASPECTS OF PROVISIONAL PROTECTION 1.IT PROCEEDS EX OFFICIO OR AT THE REQUEST OF A PARTY. (ART. 27) 2.IN THE FIRST RESOLUTION THAT IS ISSUED, THE PROVISIONAL SUSPENSION OF THE ACT WILL BE RESOLVED. (ART. 27) 3.IT WILL PROCEED WHEN, IN THE JUDGE’S OPINION, THE CIRCUMSTANCES MAKE IT ADVISABLE. (ART. 27) 4.IT MUST BE DECREED EX OFFICIO, AMONG OTHER CASES: (ART. 28) 1.WHEN LIFE, PERSONAL INTEGRITY OR IRREPARABLE DAMAGE IS IN DANGER; 2.WHEN THE RESOLUTION LEAVES THE PROTECTION WITHOUT MATTER; OR RESTORATION TO THE PREVIOUS STATE IS IMPOSSIBLE 3.WHEN THERE IS NOTORIOUS ILLEGALITY 4.WHEN THERE ARE ACTS THAT NO AUTHORITY CAN LEGALLY EXECUTE 5.THE PROVISIONAL PROTECTION MAY BE GIVEN AT ANY STAGE OF THE PROCESS; (ART. 29) 6.AN APPEAL IS PROVIDING AGAINST THE RESOLUTION ON PROVISIONAL PROTECTION. (ART. 61) WHAT IS THE PROCEDURE FOR PROTECTION? 4. STEP 4 – FIRST HEARING OF INTERESTED PARTIES (ART. 35) OF THE BACKGROUND, THE INTERESTED PARTIES ARE GIVEN A HEARING WITHIN A COMMON PERIOD OF 48 HOURS. 5. STEP 5 – OPEN FOR EVIDENCE FOR 8 DAYS (ART. 35) 6. STEP 6 – SECOND HEARING FOR 48 HOURS (ART. 33) 6.1 – IF REQUESTED, A PUBLIC HEARING WILL BE HELD IN THE LAST OF THE FOLLOWING 3 DAYS (ART. 38) 6.2 – AUTHOR TO RULE BETTER – NO MORE THAN 5 DAYS FOLLOWING (ART. 40) IF NEITHER A PUBLIC HEARING NOR AN ORDER TO RULE BETTER IS REQUESTED, JUDGMENT IS ISSUED IN 3 DAYS. 7. STEP 7 – JUDGMENT 3 DAYS (ART. 38) HOW LONG IS THE DEADLINE FOR THE CONSTITUTIONAL COURT TO RULE? – IT IS EIGHT DAYS, SINCE IT COULD BE EXTENDED FOR 5 MORE DAYS (ART. 39) WHEN IS THERE LEGAL DOCTRINE OF THE CONSTITUTIONAL COURT? WHEN THERE ARE THREE SUCCESSIVE RULINGS OF THE COURT ITSELF, YOU RESPOND IN THE SAME SENSE. (ART. 43) We share with you the link so that you can download the complete study material https://drive.google.com/file/d/1EWct... Follow us on our Social Networks FB @affanprivados ???? / affanprivados IG @affangt ???? / affangt