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  • Print publication year: 2008
  • Online publication date: August 2009

Chapter Twelve - The General Conditions of the Injury (Harms and Threats)

Summary

Regarding the general conditions that the injuries to constitutional rights must comply in order for an amparo actions to be admitted, the following are the ones commonly established in the Latin American Amparo Laws: first, it must have a personal and direct character, in the sense that it must personally affect the plaintiff; second, it must be actual and real; third, it must be manifestly or ostensibly arbitrary, illegal and illegitimate; fourth, it must be evidenced in the case; and fifth, it must not be consented to by the plaintiff.

THE PERSONAL AND DIRECT CHARACTER OF THE INJURY

The first condition of the injury inflicted to the plaintiff's constitutional rights, in order for an amparo action to be admitted, is that the plaintiff must have suffered a “direct, personal and present harm or threat in his constitutional rights,” that is, the plaintiff must be personally affected. Consequently, the amparo action cannot be file when the affected rights belong to another person different to the claimant or only affects the plaintiff in an indirect way.

The plaintiff then, must necessarily be the “affected” person as it is called in Argentina (Article 5) and Peru (Article 39); or the “aggrieved” person, as it is called in Nicaragua (Article 23); or the one who “suffers” the harm, as it is referred to in Brazil (Article 1).

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