Filing of appeal before the Constitutional Court for a case of real estate law in Blanes
The office of Lawyers Velasco Blaya Advocats files an appeal in front of a judgment issued in a property law proceeding in Blanes
Following an ordinary judicial proceeding before the First Instance Court number 1 of Blanes in the exercise of the action of division of a property belonging to the litigants, the Velasco Blaya advocats law office in Girona, specialist in law real estate, filed, on September 20, 2018, a writ before the Constitutional Court, for violation of the right to effective judicial protection contained in Article 24.1 of the Spanish Constitution, when considering, in light of existing case law , the concurrence of a vice of incongruence "extra petita" in the judgment rendered by the Court of First Instance and in the judgment rendered by the Provincial Court of Girona.
For the viability of an appeal for protection before the Constitutional Court requires the strict compliance of the following requirements:
1. That he interposes in the following 30 working days (not counting Saturdays, Sundays, holidays, and the month of August), in the event that the appeal of amparo is filed in front of judicial resolutions.
2. That all means of challenge before the ordinary jurisdiction have been exhausted.
3. That the violation of fundamental rights has been denounced in the face of the violation committed in the different phases of the ordinary jurisdiction. It is usual to invoke the violation of article 24.1 of the Spanish Constitution, referring to the right to effective judicial protection without defenselessness.
4. That the special constitutional transcendence of the appeal be justified, in accordance with the provisions of article 49.1 LOTC in relation to article 50.1 b) of the same legal body.
What is meant by "special constitutional transcendence of the resource"?
The Judgment of the Constitutional Court number 155/2009, of June 25 (RTC 2009/155) includes different assumptions among which it is considered that, in fact, there is a "special constitutional transcendence of the remedy", "without the relationship being made being able to be understood as a definitively closed list of cases in which an amparo remedy has special constitutional importance ".
"Such cases will be the following:
a) That of a resource that poses a problem or a facet of a fundamental right susceptible of protection over which there is no doctrine of the Constitutional Court;
b) Give the Constitutional Court the opportunity to clarify or change its doctrine, as a consequence of a process of internal reflection, as occurs in the case that is now before us, or due to the emergence of new social realities or relevant regulatory changes for the configuration of the content of the fundamental right, or of a change in the doctrine of the guarantee bodies responsible for the interpretation of treaties and international agreements referred to in art. 10.2 CE;
c) When the violation of the fundamental right that is denounced comes from the Law or from another general provision;
d) If the violation of the fundamental right brings about a reiterated jurisprudential interpretation of the Law that the Constitutional Court considers to be harmful to the fundamental right and believes it necessary to proclaim another interpretation according to the Constitution;
e) When the doctrine of the Constitutional Court on the fundamental right that is alleged in the appeal is being breached in a general manner and reiterated by the ordinary jurisdiction, or there are conflicting judicial resolutions on the fundamental right, either interpreting the constitutional doctrine differently , either by applying it in some cases and ignoring it in others;
f) In the event that a judicial body incurs a manifest denial of the duty to comply with the doctrine of the Constitutional Court (Article 5 of the Organic Law of the Judiciary.
g) When the matter raised, without being included in any of the above, transcends the specific case because it raises a legal issue of relevant and general social or economic impact or has general political consequences, consequences that could occur, especially, although not exclusively, in certain electoral or parliamentary amparos ".
Failure to comply with the above requirements leads to the inadmissibility of the appeal.