Spain – Constitutional Court, 11 May 2015, Appeal for the constitutional redress of the fundamental rights of the individual (Recurso de amparo) 4521-2009.

Facts:

The plaintiff appealed a decision ordering his expulsion from Spain, including an entry ban for a period of three years. The initial hearing to address that claim was originally scheduled in three-year time. As a consequence, the plaintiff submitted there has been an undue delay in the appeal procedure to the expulsion order he had been served and he thus appealed again under a separate, special appeal mechanism (irrespective of the expulsion order procedure) and solely aimed at protecting the fundamental rights of the individual, the so-called ‘recurso de amparo’ before the Constitutional Court (the ‘special appeal’ or ‘constitutional redress’). The plaintiff’s initial oral hearing on expulsion was finally held almost 4 years after the filing of the original application, and as such, the plaintiff claimed that there has been an infringement of his right to a trial without undue delay.

Decision & reasoning:

The Constitutional Court granted the amparo to the plaintiff determining that the three year span between the filing of the lawsuit and the oral hearing constituted an undue delay.

The Constitutional court has established objective criteria to determine whether procedural delay in a particular matter was undue. These factors, which are applied on a case-by-case basis are: (i) the complexity of the case, (ii) average duration of similar proceedings, (iii) the interest at stake for the plaintiff involved in the proceeding, (iv) behaviour of the plaintiff during the proceeding, and (v) behaviour of the relevant authority.

Here, after applying the above criteria, the Constitutional Court determined that the three year span between the plaintiff’s filing of the lawsuit and the subsequent oral hearing constituted undue delay, namely because:

(i) The case was not particularly complex;

(ii) The span of time of the case was in line with other previous cases where the Constitutional Court determined that there was an undue delay;

(iii) The pending decision was of crucial importance for the plaintiff, affecting his social and family life, because his stay in Spain depended on that; and

(iv) The plaintiff had an irreproachable behaviour and he was not responsible for the delay.

The fact that at the moment when the Constitutional Court issued its ruling grating the amparo there is no longer an undue delay (as the ruling regarding the expulsion was already issued) this does not entail mean that there no longer exists a reason for appealing, because the undue delay does not cease to exist and cannot be repaired through a delayed judicial action.

In addition, under case law established by the Constitutional Court and the European Court of Human Rights (ECtHR, Unión Alimentaria Sanders v Spain and Lenaerts v Belgium), the plaintiff was entitled to protection against undue delay even though the delay was due to structural reasons not attributable directly to the relevant court.

Outcome:

Amparo granted (i.e. the Constitutional Court determined that the plaintiff’s fundamental right to a trial without undue delay was infringed).

Observations/comments:

This case summary was written by Linklaters LLP.

Other sources: