The Constitutional Court has taken four years to uphold a request for constitutional protection for an excessive delay in scheduling the hearing of a contentious-administrative immigration proceeding, in which the plaintiff had been denied a long-term residence permit. The Court recognizes the violation of the fundamental right to a process without undue delays. Judgment TC 89/2016 of May 9 .
Case history
On November 3, 2010, an administrative appeal was filed against a resolution job seekers database of the Government Delegation in Madrid, which denied an application for a long-term residence permit.
Following the filing of the administrative lawsuit and the appropriate procedures, the parties were summoned to the hearing on February 15, 2012. Almost two years after the appeal was filed (15 months).
implied a violation of the fundamental right to a trial without undue delays (article 24.2 CE), filed an appeal for reconsideration where he requested the advancement of the date of the trial in preference to other abbreviated procedures, in which the plaintiffs risked a lesser interest, under the provisions of article 63.1 LJCA (Law of the contentious-administrative jurisdiction).
Article 63.1 LJCA If a hearing is agreed upon, the Court Clerk shall set the date for the hearing in strict order of seniority of the matters, except for those relating to matters which, due to the statute of limitations or a reasoned decision of the judicial body, based on exceptional circumstances, should have preference, which, once concluded, may be placed before the others whose appointment has not yet been made. When setting hearings, the Court Clerk shall also take into account the criteria established in article 182 of the Civil Procedure Act.
The appeal for reconsideration was dismissed, arguing that it was not possible to meet the appellant's request due to the potential workload received by the Court. Therefore, the hearing was held on 15 February 2012, with a judgment being issued 5 days later and the administrative appeal being declared inadmissible because it had been lodged out of time. An appeal was filed before the High Court of Justice of Madrid, which declared the judgment of the instance to be null and void, with the proceedings retroactive to the time prior to its issuance. A new hearing was held on 28 November 2012 and a final judgment was issued (none of the parties appealed against it).
The plaintiff decided to file an appeal for constitutional protection on the grounds of a violation of the fundamental right to a trial without undue delay, since the scheduling of the trial almost two years after the claim was filed, means that the appellant is defenseless and, furthermore, until the appeal is resolved, he is in a situation of illegal residence in our country with the consequences that this entails. An appeal for constitutional protection was filed on April 27, 2010.