Violation of fundamental rights in the processing of legal proceedings: inadequacy of the procedure provided for in Article 41.1 of the Constitution
Posted by Manuel Casal | Section Juris. Litigation , Jurisprudence
III.-WHEREAS: we say that we share the opinion presented by the prosecutor in his report to this resource in the sense of urgency and priority that the procedure of Article 41.1 of the Constitution seems to be the most appropriate for the protection of fundamental rights when alleged violations occur in the context of legal proceedings, and that's what we said in our statement of 22 December 2008 (Roll 33/08), and we expressed our arguments that the prosecutor, and otherwise as the procedure laid down in Articles 15 and 18 of the Transitional Act is not subject to the deadline for filing the claim, suppose that at any time of the Battle Guard could declare null mind of a test from within the framework of a judicial process that had already concluded with a final sentence, that is, that through such action would be to rescind the principle of procedural law
the res judicata material, with the negative consequences this entails for legal certainty, and this possibility could even be repeated every time the decision is issued in the procedure of Articles 15 and 18 of the Transitional Act has the authority of res judicata, as commanded by Article 17 of the Act ("The decisions in this area may not be in any way the authority of res judicata"). I think, and has the same Article 17, the emergency procedure and preferably has no formal res judicata effect because it has no suspensive effect in terms of ordinary procedures.
But we can not ignore the recent ruling of the Constitutional Court of 7 September 2009, issued in Cause-RE 2009-2 (No. 18-2009 registration. Appeal), in which the Constitutional Court, after to argue that "In this case, it is true that there was a previous complaint of facts which are the subject of criminal proceedings and that the intervention of the Police Service was held in connection with certain prior proceedings on the basis of that complaint. However, know that this complaint had been accepted by any competent court. Also, it is clear that the resolution of urgent and preferent proceedings for the protection of fundamental rights in question has nothing to do with the fact that it occurred or not a crime against property is on the third deals with the pending criminal matter. Consequently, there is no conditioning between criminal proceedings relating to this crime against property and the process relating to constitutional rights to privacy and the privacy of home, "and is" not from the allegation of prejudicialitat penalty for not entering the bottom of the subject matter as urgent and priority of the procedure of Article 41 of the Constitution and in this appeal, if preferred always gets in the right time. "
Judgement of the Criminal Division of the High Court dated 23/10/08, JM Pijuan speaker, number 29-09.
Tags: fundamental rights
