The Acción de Protección (Constitutional Protection Action) is one of the most effective constitutional remedies for protecting rights, and one of the most used, though not always properly.
In this brief summary I will explain when this remedy can be used, its nature, its requirements, and what to watch for so that our petition is not denied.
- Purpose and admissibility
The Protection Action provides direct and effective safeguarding of the rights recognised in the Constitution, which is why judges are obliged to treat these claims as a priority over other types of action.
A Protection Action is admissible when your rights are infringed by:
1. Acts or omissions of any non-judicial public authority. That is, it does not lie against decisions of judges.
2. Public policies where they affect the enjoyment of constitutional rights; that is, decisions of the State that affect our rights.
3. Any private party, where there is serious harm, where they act on behalf of the State, or where there is a state of subordination, defencelessness or discrimination.
4. There is no other adequate and effective judicial mechanism to protect the infringed right.
For example, if someone owes you money it could be argued that your right of property over that amount is being infringed; however, the law provides ordinary, enforcement and payment-order proceedings, among others, to recover what you are owed.
Using a Protection Action to collect a debt would be like using roller skates to climb Everest.
IMPORTANT:
- To bring a Protection Action, the infringements of rights must not fall under other constitutional remedies, such as habeas corpus, access to public information, habeas data, action for non-compliance, extraordinary protection action, or extraordinary protection action against decisions of indigenous justice.
For example, if you have been unlawfully detained, that would infringe your right to liberty; in that case, to seek release you would not use the Protection Action but HABEAS CORPUS, as it is the specific remedy for the situation.
Using a Protection Action for a case of unlawful detention would be like taking the Spondylus coastal route to reach the Galápagos. You would never arrive!
- Jurisdiction and decision
The Protection Action may be brought by any person or group of persons, orally or in writing, before any first-instance judge in the place where the rights were infringed.
Note that you do not need to hire a lawyer to file the action; nevertheless, I recommend that you do: it is better to turn up to the battle with a bazooka than with a water pistol.
In the proceedings the respondent will be served notice so that they learn what you have FILED; that person may defend themselves and you will have to attend a hearing where the judge will decide as they see fit.
You may appeal that decision, and a second-instance court of three judges will decide whether to uphold or overturn the original judgment.
If you consider that this second-instance decision has infringed your rights, you may use the EXTRAORDINARY PROTECTION ACTION, which will be the subject of a further article.
- What happens if the action succeeds?
The infringement of your right will be recognised and, if there is harm, it must be FULLY REDRESSED, in the following ways:
- Restitution of the right
- Payment of monetary compensation.
- Rehabilitation of the right
- Guarantees of non-repetition
- Administrative penalties for those responsible
- Public apologies
- Provision of the denied service
These are not the only ones: you must plead and ask the judge for the appropriate way in which the harm caused by the infringement may be redressed. The judge will decide what is suitable and applicable.
CONCLUSIONS:
- It is the most effective remedy for protecting your rights, but you must be technically precise to file it and succeed.
- If your rights have been infringed, do not hesitate to file it.
3. #LEGALHACKS
- Many judges, because of misuse of the remedy, lack of knowledge, or simply a lack of empathy or courage, dismiss these actions over the slightest point of legality they find in the claim.
I suggest you check carefully that your focus is not on breaches of statutes, or arguments about the infringement of rules in specific codes, but rather that you centre your reasoning on the infringement of your rights and how that has affected you personally. Focus on the Constitution and the human rights treaties in force.
- You must consider whether what you really want is to have a right declared, or to have it recognised that your rights were infringed.
For example, if you want to be declared an heir to something, or you want to be paid money, or you want someone imprisoned for some reason: DO NOT USE THE PROTECTION ACTION, but the specific procedure for each case.
- If your right has been infringed by a judge's decision, do not use the Protection Action. It does not lie against judicial decisions.
Tell me about your case, I will be glad to help, at this link: https://bit.ly/3GgPRrA