- Legal Analysis of the Petition of Amparo
- November 25, 2009
- Law Firm: Berkemeyer Attorneys and Counselors - Asunción Office
Article 134 of the Paraguayan Constitution
The purpose of this article is to identify under which situations individuals could petition an “Amparo”, which translated directly into legal English would be a “Constitutional Shelter”, established by article 134 of the Paraguayan Constitution promulgated in 1992. In other words, a petition of Amparo is intended to be a judicially enforceable guarantee to the rights and freedoms established in the Constitution, similar to those established by the US Constitution´s Bill of Rights or the Canadian Charter of Rights and Freedoms.
Article 134 of the Paraguayan Constitution reads as follows: (1) Anyone who considers himself seriously affected by a clearly illegitimate act or omission, either by governmental authorities or individuals, or who may be in imminent danger that the rights and guarantees of this Constitution or the laws may be curtailed, and who in light of the urgency of the matter cannot seek remedy through regular legal channels, may file a petition for amparo before a competent judge. Proceedings will be brief, summary, and free of charge, and will include actions in those cases established by the law.(2) The judge is empowered to safeguard rights, guarantee, or immediately restore the legal situation that existed prior to the violation.(3) If the subject matter is an electoral issue, the electoral courts will have jurisdiction over the case.(4) A petition for amparo cannot be filed in relation to a case that is already being heard by the courts, against actions taken by judicial organizations, or in the process of discussion, approval, and promulgation of the laws.(5) The law will regulate the respective proceedings. Court rulings in amparo cases will not be final.  The petition of amparo, through its long history, has had several concepts and denominations. Argentinean Professor German J. Bidart Campos believes that the filing of an Amparo is the formal petition interposed by an individual against the State, so that the state through its own jurisdictional organs could repair any damage suffered by an individual in a fast and effective manner.  reads as follows: The action of amparo will proceed in the cases established by article 134 of the Constitution. The petition of amparo will not proceed: a.) against resolutions dictated by judges or tribunals; b.) when a specific individual freedom is restricted an HABEAS CORPUS should be interposed; c.) when a public service or a State activity has been halted by a judicial order.
The petition of an amparo in the Paraguayan Constitution of 1992 is a legal remedy given to every citizen to safeguard fundamental rights.
The petition of Amparo could have powerful effects in society and create such a strong legal precedent, that it will only proceed when all regular legal channels could not be used or if interposed properly were not attended by the authorities.
In Paraguay the petition of amparo is a matter legislated by the Civil Procedural Code unlike in other countries in the region that have special laws regulating this legal remedy, for example Law number 16.986 in Argentina.
Article 565 of the Paraguayan Civil Procedural Code
The Petition of Amparo in the Parguayan Legal System
The judicial action of amparo is conceived as an exceptional legal remedy to guarantee rights established in the Paraguayan Constitution, that is why it should only be granted by a Judge when he/she can clearly observe the GRAVITY and URGENCY of the petition and that other legal channel where useless or did not exist in the specific case.
A clear and present danger to a specific constitutional right granted to an individual is another of the essential requisites to be successful when filing an action of amparo. If there is no danger, or the threat posed has disappeared the action will not proceed and a new petition concerning the same matter will be regarded by judges as abuse to the law which is severely punished.
The resulting damage (consequence left behind by the action or omission) should be of such gravity that it could not be suitably repaired by ordinary legal means, in other words all administrative and judicial recourses must be exhausted. Proof that the case has gone through every other legal option must be attached to the writ which petitions the constitutional guarantee.
An “amparo” in the Paraguayan legal system has been given constitutional hierarchy thus it should not be used to solve issues that have other legal solutions. According to law professors Ali Joaquin Salgado and Alejandro Cesar Verdaguer, “amparo” is an authentic guarantee of constitutional rights, hence it should function with a timely jurisdictional response against clear violations and threats. Additionally one must bear in mind that the constitutional hierarchy given also shows the importance the Paraguayan legal system has given to this legal measure. , states that the petition of Amparo, (“Acción de Amparo” in Spanish), should be interposed by the individual whose rights have been violated or threatened. The individual has a time limit of 60 days, counted from the day he or she became aware of the violation or threat. The petition should be formally presented (written in Spanish or Guarani) at the Constitutional Rights Permanent attention office, which will indicate which Judge shall be appointed to solve the case.  University of Richmond -- Constitution Finder at
Moreover, in order for the petition of amparo to proceed, the violation of constitutional rights must be the consequence of a deliberate act (meaning an activity) or omission (lack of realization of what is due because the law establishes so) by the State (Governmental Authorities) or and individual. The damage suffered by the victim must be real and tangible.
The act or omission by the State or the individual must be manifestly illegitimate. It is understood that an illegitimate act, is one that is contrary to the natural laws, justice or equity, while an illegal act is one that is contrary to positive laws (written laws.). Commonly speaking an illegal act is also illegitimate, however there are certain cases in which even though the act or omission is legal it could be illegitimate because it is wrongly applied or interpreted, making it an unjust or unfair act.
The Paraguayan Civil Procedural Code, article 567
The existence of a judicial figure of amparo in Paraguay allows an adequate control on acts or omissions by governmental authorities or individuals which could harm fundamental rights. The situations to which this legal remedy could be applied are outlined in the Paraguayan Constitution and the appropriate procedure is set out in the Civil Procedural Code.
This extraordinary legal recourse has had a huge impact in the modern Paraguayan legal environment, and as many scholars have noted, serves as a significant purpose within the framework of Civil and Constitutional law in many Latin American Countries and around the World.