Clarification of the Constitutional Court’s doctrine on «counter-amparo» («contraamparo») and special constitutional significance

Abstract

Some decisions of the ECtHR may give rise to a case being brought before the Constitutional Court of «particular constitutional significance» («especial trascendencia constitucional»). We refer, among others, to the judgements of ECtHR of 1 February 2011, Ebcin v. Turkey (duty to adopt specific criminal legislation, individualized provision and obligation to investigate) and of 2 June 2009, Codarcea v. Romania (obligation for the State to establish an effective judicial system against medical malpractice that may involve mechanisms of criminal repression even though the HRC does not guarantee as such the right to initiate criminal proceedings against third parties). Specifically, it could provide an opportunity for the Constitutional Court to clarify its doctrine on «counter-amparo» («contraamparo») and the obligation of the Judiciary to investigate, all in the line already opened in the Constitutional Court’s own case law in the field of torture in the police field (SSTC 123/2008, of October 20 and 34/2008, of February 25) on inhuman or degrading treatment in the military field (STC 106/2011, of June 20) and on gender violence (STC 167/2015, of July 20).

Summary: I. INTRODUCTION. II. ORIGINS AND CONCEPT OF «COUNTER-AMPARO» («CONTRAAMPARO»). III. REVISION OF THE DOC­TRINE ON THE EXCLUSION OF «COUNTER-AMPARO». III.1. Counter-amparo: III.1.1. Initial conception. III.1.2. SSTC 170/1994 and 78/1995. III.1.3. Return to the initial conception. III.2. Change in juri­sprudence. III.3. Substantive law in relation to which the «counter-ampa­ro». IV. DOCTRINE OS THE EUROPEAN COURT OF HU­MAN RIGHTS. IV.1. Sufficient and effective investigation. IV.2. EBCIN v. TURKEY. IV.3. V. BRIEF CONSIDERATION OF COMPARATIVE LAW. VI. CONCLUSION.