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Rethinking the incident of nullity of actions without further delay

| News | Public and Regulatory Law

Silvia del Saz analyses the need to reconsider the incident of nullity of actions in an article published by Actualidad Jurídica Aranzadi

When Organic Law 6/2007 reformed the constitutional amparo appeal introducing the discretionary concept of the special constitutional transcendence as a requirement of admissibility (art. 50.1.b LOTC), it said it should be compensated with the strengthening of the incident of nullity of actions. The initial idea was a good one. As the remedy of amparo was reduced to a few cases, it had to be guaranteed that a breach of a fundamental right could always be reported to a judicial body so that the latter could have the opportunity to repair it. And if there was no judicial recourse to which to avail oneself, it had to be invented. That is why the incident of nullity of actions became the exceptional way, in the absence of an appeal, to review violations of fundamental rights (art. 241 LOPJ).

Despite the particularly open nature of the injuries to be denounced in this way, that of all the fundamental rights of Art. 53.2 EC, the incident referred to very specific injuries, those of the right to effective judicial protection without undue delay of Art. 24.1 EC - the right to obtain a resolution based on law, congruent, not erroneous, arbitrary or unreasonable - and those other injuries of Art. 24.Together with the procedural guarantees of Art. 24.2 EC and a few substantive rights (e.g. secrecy of communications), these were the only rights that the judge could infringe (Art. 44 LOTC).

For the rest of the fundamental rights, the nullity of actions was superfluous, as there was always room for an appeal against administrative acts that violated fundamental rights (art. 43 LOTC), which made this incident unnecessary. It should not be forgotten that when a judge does not correct the breach of a fundamental right previously caused, he is not infringing that same right but, where appropriate, the right to obtain a resolution based on law, congruent, does not incur in patent error, unreasonability or arbitrariness (STC 153/2012, July 16).

With the reform of the contentious-administrative cassation appeal in 2015, history has repeated itself, since in practice it has led to the exclusion of the appeal from the rights of art. 24 EC from the point and time that the objective interest of the cassation appeal for the formation of jurisprudence has reduced access to the cases in which what it discusses is the selection or interpretation of a state norm applied by the judicial body in the process. Hence, it transcends the specific case. However, precisely the infringements of the procedural rules that develop the rights contained in Article 24 EC rarely give rise to controversy over the selection of the applicable rule or its interpretation, but rather directly over the way in which the court decision has applied them in that specific case. Whether or not it has respected them.  And this implies that most of these injuries remain outside the cassation appeal unless in a certain process, in addition to the infringement of a material rule with a matrimonial interest, a procedural infringement is added.

In this case, the sentence, in addition to pronouncing on the issue that has aroused the objective interest, will have to pronounce on the lesions of art. 24 EC that are related to it since not in vain the cassation has not lost its subjective or reparative component, which supposes that, once the interpretation of the norm that justified its admission has been established, the Supreme Court should not resist to repair the violation of the rights of art. 24 EC related to it if it understands that they have been violated (ATS May 4, 2017). The question is more complicated when the infringed material rule that has a casacional interest is autonomic given that the autonomic cassation appeal can only be pronounced on infringements of autonomic rules and the procedural rules are not in any case.

In spite of this substantial change, the legislator has left unchanged the incident of nullity of actions even knowing that it weighs more than its guaranteeing facet its consideration of procedural burden or necessary requirement to be able to accede to the appeal of constitutional protection. The criticisms it has received continue to be aimed at questioning its effectiveness, since it is the same body that caused the injury that must acknowledge it and repair it. And the years of filming the system this way seem to have accredited it. But it is also true that the reform of cassation aimed at relieving the work of the Supreme Court would have been useless if the violations of Article 24 EC allegedly committed by the High Courts of Justice or even by the Courts when they pass a single instance sentence had necessarily ended up in the Supreme Court. Perhaps there is no other solution to the problem of the single instance than to end up admitting it.

However, in exchange, the formalistic application of the dogma of the subsidiarity of the remedy of amparo seems to be being imposed, which has made the nullity of actions, in spite of their scarce effectiveness, a necessary step to be able to correctly exhaust the judicial route before arriving at the amparo. High Court Sentence 95/2018, of 17 September, which claims to be the application of doctrine, states clearly and categorically that when there is a violation of a fundamental right that does not have access to cassation, after the inadmissibility of the appeal it is necessary to go back and present the nullity incident before the judicial body causing the injury, a thesis that has been quickly pointed out by the Supreme Court since, in its Order of 11 December, it came to interpret that when it comes to rights of 24.1 EC, once the appeal in cassation has been attempted and inadmissible for lack of objective interest in a house, it is necessary to raise the incident of nullity of actions so that it is the body that would have harmed art. 24.1 EC that corrects it.

In these conditions, I believe that the time has come for the legislator to seriously reconsider what to do with the incident of nullity of actions.

See the full article in Actualidad Jurídica Aranzadi.

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