UPDATE: The Amparo Context in Latin American Jurisdiction: An Approach to an Empowering Action

By Gloria Orrego Hoyos

Gloria Hoyos Orrego has a law degree from the Pontificia Universidad Javeriana in Bogota, Colombia. She has a Master’s degree in Constitutional Law and Human Rights from the University of Palermo in Buenos Aires and a diploma in Library and Information Management at the University of Social Sciences and Business (UCES) in Buenos Aires, Argentina. For 10 years she worked at the Max von Buch Library of the Universidad de San Andrés in Buenos Aires, where she coordinated the legal reference service; among other tasks. She remains a professor of legal research methodology there and additionally she teaches the same course at the Universidad Torcuato Di Tella. She has been invited to lecture in Argentina and other countries in the region and has been a trainer for specific projects in non-governmental organizations, the judiciary, various corporate databases and teachers associations in Argentina.

Gloria Orrego Hoyos served as a consultant for the Observatorio de Sentencias Judiciales (Judicial Judgments Observatory) at ELA – Equipo Latinoamericano de Justicia y Género, an independent non-profit organization which analyzes, through the compilation of the rulings of the higher courts in seven countries (Argentina, Chile, Peru, Bolivia, Colombia, Ecuador and México), the local judiciaries’ level of compliance with rights recognized in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and to spread best practices in the defense and recognition of women’s rights. Ms. Orrego Hoyos is a member of the American Association of Law Librarians and since 2016 she works as part of the Board of Directors of the IALL where she chairs the Committee of Educational Affairs of the institution.

She currently serves on the General Secretariat Training and Law at the Public Defender’s Office in Buenos Aires, Argentina.

Published September/October 2017

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1. Introduction

Since 1948 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.

Under the influence of Mexican amparo, [1] the right to everyone “to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties” [2] was included in the American Convention on Human Rights (article 25.1) in 1969. [3]

With this “inter-American purpose”, the writ of amparo was conceived (also called Acción de Tutela, Recurso de Amparo and Juicio de Amparo, among others), inspired in the Mexican amparo which was created with the deep conviction of the need for a procedural instrument to protect the fundamental rights of the governed against the public power, including challenging the constitutionality of laws.

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.

2. 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, the amparo was born, 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 (e.g. Physical liberty and right to privacy), it does not include other non-jurisdictional mechanisms of human rights protection (e.g. the work of the ombudsman, the action (popular or direct) of unconstitutionality), or any other remedy of which, although eventually protects individual freedoms, the essential purpose or destination is not the direct protection of human rights.

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.

The writ of amparo, like the habeas corpus, may be invoked by any person who believes that any of his/her rights, is being violated. However, one of the great progresses of the amparo in Latin America is that it enables citizens to invoke the action for the violation of any right protected either explicitly or implicitly by the Constitution or by any applicable international treaties.

It is also a very inexpensive or a free action, and in some countries (e.g. 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.

Honduras, Paraguay, Peru and Costa Rica contemplated 60 days, while Bolivia and Venezuela six months. 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 is needed. The acts or omissions may contain positive or negative events. In the case of the public authority, they 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 thatthe arbitrariness or illegality becomes manifest. The amparo does not seek the effect of depriving 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.

However, although it has different expressions in the region and in many cases different procedural venues, the most appropriate terminology would be “writ”. The amparo conforms the appropriate procedural route to obtain, within a restricted area of recognition, the protection of a right unknown, although it is usually designated as a resource.

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.

Country

Nomen Iuris

Year

Article in Constitution

Amparo Jurisdiction

Observations

Argentina

Amparo

1957-1958

Art. 43,

Constitution of Argentina Nation (1994)

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.

Bolivia

Amparo

1967

Art. 19

Political Constitution of Bolivia (2009)

Constitutional Court hears the amparo under review as second or third instance.

Heavily influenced by Argentina´s amparo.

Brazil

Mandado de seguranca

1967

Art. 5°, LXIX y LXX

Constitution of the Federative Republic of Brazil (1988)

Supreme Court hears the amparo of under review as second or third instance. Exceptional cases may go directly.

Establishes collective amparo.

Chile

Recurso de protección

1980

Art. 20

Political Constitution of the Republic of Chile (2005)

Constitutional Court hears the amparo under review as second or third instance.

Recurso de amparo” in Chile, actually corresponds to the figure of habeas corpus, and the " Recurso de Protección” (resource protection) shares the legal nature of amparo.

Colombia

Acción de tutela

1991

Art. 86

Political Constitution of Colombia (1991)

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. Establishes collective amparo.

Costa Rica

Amparo

1949

Art. 48

Political Constitution of the Republic of Costa Rica (1949)

Constitutional Chamber of the Supreme Court. Direct Access.

Amparo is other than habeas data and habeas corpus

Dominican Republic

Amparo

1999

No specific constitutional provision.

Supreme Court hears the amparo of under review as second or third instance.

Created through the jurisprudence. The judgment establishes an expeditious procedure for the amparo action.

Ecuador

Amparo

1967

Art. 95

Constitution of the Republic of Ecuador (2008)

Constitutional Court hears the amparo under review as second or third instance.

Amparo es distinto a habeas data y habeas corpus

El Salvador

Amparo

1886

Art. 247

Constitution of El Salvador (1983)

Constitutional Chamber of the Supreme Court. Direct Access.

Amparo is other than habeas data and habeas corpus

Guatemala

Amparo

1921

Art. 265

Constitution of Guatemala (1993)

Constitutional Court hears the amparo under review as second or third instance.

First country to introduce a constitutional court in Latin America by establishing autonomous Constitutional Court in 1965

Honduras

Amparo

1894

Art. 183

Constitution of Honduras (1982)

Constitutional Chamber of the Supreme Court hears the amparo under review as second or third instance. Exceptional cases may go directly.

Amparo is other than habeas data and habeas corpus

Mexico

Amparo

1857

Art. 103 y 107

Political Constitution of the United Mexican States (2005)

Supreme Court hears the amparo of under review as second or third instance. Exceptional cases may go directly.

Establishes the Amparo Omnicomprensivo, whereby protects all the rights and fundamental freedoms and, in general, all the constitutional order of the nation.

Nicaragua

Amparo

1894

Art. 45 y 188

Constitution of Nicaragua (1995)

Constitutional Chamber of the Supreme Court hears the amparo under review as second or third instance.

Amparo is other than habeas data and habeas corpus

Panama

Amparo

1941

Art. 50

Constitution of Panama (2005)

Constitutional Chamber of the Supreme Court hears the amparo under review as second or third instance.

Paraguay

Amparo

1967

Art. 134

Constitution of Paraguay (1992)

Constitutional Chamber of the Supreme Court hears the amparo under review as second or third instance.

Heavily influenced by Argentina´s amparo.

Peru

Amparo

1979

Art. 200.2

Constitution of Peru (1993)

Constitutional Court hears the amparo under review as second or third instance.

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.

Uruguay

Amparo

1988

No specific constitutional provision. In National Law N°16.011 (19/12/1988)

Supreme Court hears the amparo under review as second or third instance.

Article 72 of the Constitution enables the law that enshrines the protection.

Venezuela

Amparo

1961

Art. 27

Constitution of the Bolivarian Republic of Venezuela (1999)

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.

3. The Process/Trial of Amparo

It is the jurisprudence that has systematized the fundamental rights of constitutional protection; Thus, fundamental rights that are recognized by the amparo writ are not only constitutional but also international, legal and even jurisprudential.

At this point, it means a transition from the traditional rule of law to rule of law based on the Constitutional precepts: Thus, the amparo process fulfills the protection of the individual right, as well as the institutional values in which this constitutional process is based: tasks that are fulfilled by the Constitutional Courts or reserved for the Supreme Courts, ultimately, as supreme interpreters of the Constitution and Guardians of fundamental rights

The contemporary development of constitutional justice around the Constitutional Courts or Supreme Courts has made the amparo process the best indicator to characterize the state of the protection of fundamental rights in the Latin American region. In this manner, the Constitution and the Procedural Law are placed in a tension line based on the subjective protection of fundamental rights and the objective protection of the Constitution; a tension in which the constitutional judge adopts diverse positions, starting from the normative application and / or interpretation, which is evidenced in the jurisprudential praxis and the challenges of some central issues of amparo in countries such as Argentina, Brazil, Colombia, Mexico And Peru, among other countries.

The purpose of the amparo is to protect violated fundamental rights, which makes the object of constitutional protection take different forms of conceiving the rights from their "double character" as subjective rights and as elements of an objective order.
1. Wide protection . In Argentina, any right of legal, administrative or international origin, which can be recognized in the Constitution text, is a matter for amparo. This protection reaches individual and collective rights.
In Peru, any right in the constitutional text is protected by the protection of civil, political and economic rights, nominated or unnamed, legal or administrative configuration and always, the rights derived from international treaties. In the same way, the Constitution of 2010 of the Dominican Republic recognizes the amparo in similar terms to the Argentine or Peruvian model.
2. Intermediate protection. In Venezuela and Ecuador, the rights enshrined in the Constitution and international treaties are protected by the amparo writ, but not those created by a legal norm.
In Colombia, the tutela action protects fundamental rights in a residual and subsidiary manner.
3. Limited protection. In Brazil, the mandato de segurança protects only constitutional rights when they are violated by an illegal act or omission, or come from the abuse of power. Although the Constitution recognizes the mandate of collective security, there is a strong controversy about the judicial enforceability of social rights and the role of the judiciary in protecting them.
In Mexico, the amparo trial protects the so-called “individual guarantees of equality”, freedom, legal security and property rights based on the dignity of the people. In this way, the amparo trial fulfills the principal function of controlling constitutionality, in the measure that individuals are guarded in the relations between the governed and the state and the authorities.

In every amparo process, it is necessary to delimit not only the fundamental rights violated, but also to determine the injurious act object of constitutional control. This control can also be classified into 3 types:
1. Wide Control. In the Argentine case, it covers any act or omission of public authority (understood as the public servant in the exercise of the public function, the legislative power or the judicial power) or any particular in position of power.
In Peru, the amparo action is also against the act or omission of any authority, official or person that violates fundamental rights. Prima facie does not fit against legal norms or judicial decisions emanating from a regular process; but it does proceed against judicial acts (final decisions) provided that the content of the rights is directly protected in the Constitution. In this matter, it is similar to Venezuela, Guatemala, Honduras and Panama, with the exception that in these countries the amparo writ is expressly excluded against the decisions of the Supreme Court of Justice. It also proceeds against acts of government (including discretionary powers such as pardon or declaration of a state of emergency by the executive power), parliamentary acts and private acts (especially asymmetrical links between labor, health, consumer, etc.).
In the same way in Colombia, the acción de tutela proceed against any act or omission of any public authority (administrative authority, judicial acts) or private individuals (who performs public function, when the claimant is in a situation of subordination, against social media, when the conduct of the individual seriously and directly affects the collective interest)
2. Intermediate control. In Mexico, any voluntary and conscious, both negative or positive event, developed by a State body (decision or execution); whether against unconstitutional laws, judicial decisions, and administrative acts and resolutions. However, private individuals cannot seek protection against acts of other private individuals.
3. Limited control. In Brazil, the mandato de segurança does not apply against acts of individuals, judicial decisions, laws, bills, or administrative acts that have suspensive effect.

Ordinarily the process of amparo has meant that the owner of the action is the same as the owner of the right violated, however sometimes the constitutional judge in an extraordinary way can grant legitimacy to other subjects.
1. Wide legitimation. In Colombia, any natural or artificial person affected by their fundamental rights (even if they are minors or foreigners) may bring the guardianship action directly or through a judicial representative. The indigenous communities, the Ombudsman, the Municipal Representatives and in some cases the amici curiae are also legitimate agents of those who cannot promote their own defense.
In Peru, given the flexible character of the amparo writ, not only the aggrieved, but also third parties (natural or artificial, Peruvian or foreign) are legitimized, especially in the case of diffuse rights.
In Argentina, the amparo writ is a bilateral process between the State and private individuals, with active legitimacy of any person holding the violated right, the Ombudsman (for collective or individual rights) and legislators (accrediting the concrete affectation of a right). There is also the figure of the amici curiae.
2. Limited legitimation. In Brazil, the action can be brought by natural persons (national or foreign) and legal/artificial person (public or private) in defense of certain constitutional rights (does not apply to diffuse rights). The 1988’ Constitution recognizes the legitimacy of action to political parties with representation in the National Congress, trade union organizations and the Public Ministry.

The purpose of the amparo judgment is to protect the fundamental rights violated, thus, the judicial pronouncement is aimed at overriding the injurious act. According to their purpose, the sentences of amparo can be:
1. Wide protection. In Peru, the purpose of the sentence in principle is not compensatory and only seeks the replacement of the right to its state prior to the violation. In Colombia, the verdict of the tutela’ judge orders that the defendant acts or refrain from doing something immediately, the sentence is not compensatory in nature unless the person concerned has no other judicial means.
2. Intermediate protection. In the Mexican amparo trial, judgments only protect the particular case demanded and produce effects that depend on the kind of sentence that has been dictated.
In Brazil, the mandato de segurança is deemed immutable, but if it were to the contrary, the security mandate will not prevent the aggrieved person from being able to protect their rights and their respective patrimonial acts.

4. 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.

The procedural nature of the amparo has in its constitutional, legislative or jurisprudential configuration, a conception of the Constitution and of the process, which does not lack permanent tension between politics and law.

The challenges of the amparo in a process of democratic transition, such as that of the Latin American region, has a different nature, being directly linked to the democratic problems of origin in each country.

The amparo writ ends in the constitutional and legal norms, leaving to the judge the formalistic work of the application of these. However, the amparo writ is also understood as a way of achievement of these laws through the juridical argumentation, which can establish procedural rules, by means of the procedural autonomy that the judge develops creatively.

In some countries, the amparo writ can be conceived as a procedural resource dependent on ordinary processes and, in the final analysis, of civil procedural codes, or in other countries, it is understood as an autonomous judicial process with special or autonomous norms. For some it may be of a unilateral nature and of subjective protection of the fundamental right; And for others their nature may be a bilateral process of an objective nature provided. There is a relationship of interdependence between the rights of freedom and the powers of the authority or other individuals, as directed to the protection of constitutional values.

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.

Very similar to Colombia, Chile shows more informality, and the amparo (named recurso de protección) can be filed by any natural or legal person affected, including collective entities -without legal personality- or any other person in its name.

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.

1. Suggested Bibliography by Country:

Argentina

Colombia

Honduras

Bolivia

Chile

Brasil

Ecuador

Guatemala

México

Perú

Dominican Republic

Venezuela

El Salvador



[1] Enshrined in the Carta Federal on February 5th, 1857.

[2] American Convention on Human Rights, available at http://www.cidh.org/Basicos/English/Basic3.American Convention.htm (02.03.2012)

[3] Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969.