Action of Annulment as a Cause for Admission of the Appeal for Actions for the Protection of Human Rights Before the Constitutional Court, in View of the Recent Ruling of the ECHR (December 15, 2022, case Olivares Zúñiga v. Spain)

Abstract

In this brief contribution I intend to reflect on the exceptionality with which the incident of nullity of actions regulated in the Organic Law of the Judiciary is configured, in the wording given by Organic Law 6/2007, of May 24, prior to the presentation of the amparo appeal, before the Constitutional Court, for violations of fundamental rights, attributable to the jurisdictional bodies. Despite the fact that it is configured on an extremely exceptional basis, in the sense that, «Incidents of nullity of actions», we will see that in practice it is not such, and that in order to pass one of the admissibility filters of the amparo appeal before the Constitutional Court, in most cases, we must present, «ad cautelam», the incident of nullity of actions, if we do not want to find ourselves with a cause of prior inadmissibility, to the controversial justification of the special constitutional significance. The recent judgment of the ECtHR, of December 15, 2022, case Olivares Zúñiga c. Spain gives a breath of hope, in the sense that in cases where its use is not mandatory, that is, when the violation of fundamental rights is part of the knowledge of the process, its presentation will not be necessary. Which will surely improve the statistics of inadmissibility of appeals for protection for this reason