El procedimiento para la protección de los derechos fundamentales. Evolución y disfunciones bajo la Ley 29/1998

Abstract

This study, after a brief review of its constitutional and legislative developments, examines the main problems currently posed by the special procedure for the protection of fundamental rights. In particular, as well as specific issues such as the position of the Public Prosecutor in this process, explains the difficulties encountered by the applicant to obtain a decision on the merits —due to restrictive judicial interpretation of the admissibility requirements laid down by Act 29/1998— and the delays that sometimes suffers its passage, far from the principles of preference and quickness that must inspire their regulation. As solutions we propose the adoption of a predominantly oral form, similar to the abbreviated procedure, and the introduction of specific procedures where the urgency of the rights so requires, while the protection of the others is approached instead to the ordinary mechanisms. The work closes with a look at the incidence of incidental proceedings, as precautionary measures, the question before the Court of Justice of the European Union and the question of unconstitutionality.