The Constitutional Court issued a Judgment on December  19, 2013, limiting the cases where it is necessary to use  the previous stage for annulment of proceedings before  filing a writ of Constitutional Protection.

The facts giving rise to this decision originated in the lawsuit filed by  a civil servant alleging a breach of his right to honor and reputation  as a result of the publication of an article.

That claim was partially considered in the first instance, although the  compensation awarded was lower than was originally requested in  the claim.

An appeal was filed against this judgment by the defendants, which the  Regional Court considered and decided that it was in the public interest  for information to be provided on public figures – as the article referred  to a public official, the possible trespass was prevented.

The claimant appealed the decision before the High Court, who  considered the appeal and confirmed the judgment issued by the  Court of First Instance, asserting that there had been defamation to  the plaintiff.

The defendants then appealed to the Constitutional Court based  on the right of freedom of expression and information governed by  Section 20 of the Constitutional Law.

In response, the respondent alleged the lack of use of prior  annulment of procedural actions that should have been filed for  the violation of fundamental rights in the decision of the High  Court, invoking the doctrine contained in the Order issued by the  Constitutional Law [ATC as per its Spanish acronyms] 200/2010  dated December 21, which in a case of conflict between freedom of  expression and right to honor, the Constitutional protection was ruled  inadmissible for failure to file prior nullity proceedings actions.

The judgment analyzes essentially two fundamental issues, the  proper balance of the fundamental rights invoked (freedom of  expression vs Right to Honor) and, if necessary, the prior nullity  actions to the filing of the Constitutional protection.

Regarding the latter issue, the Constitutional Court considered that  the Court Order 200/2010 dated December 21 did not automatically  apply because the aforementioned order governed a different case.  Since the violation of the fundamental right took place under the last  resolution and not before (whereas in the case under discussion the  breach had occurred since the judgment of first instance) and could  therefore not be said that such injury could not be denounced before  the decision that ends the process in the same terms required by  Section 241 of the Judiciary Act in order to require the prior nullity  proceeding action and, therefore, the doctrine invoked shall not be  considered applicable.

Moreover, in similar cases, the Courts have had the opportunity  to pronounce on the rights that were later invoked before the  Constitutional Court, as long as the issue has been ruled by three  court instances. As a result, it is considered that the requirement of  prior exam and the subsidiary nature of the Constitutional Appeal  are guaranteed.

It should be noted that it would not make sense to claim that the  Supreme Court reconsiders its decision background with similar  arguments to those used at courts, so the doctrine mentioned above  is reviewed and it is concluded that in those cases when the object of  the process consists on the study of direct injury to the right, it is not  necessary the prior nullity of proceedings actions as it would mean a  review on the merits of the resolution.

Finally, in terms of balance of the aforementioned constitutional  principles, the Court concludes that the principle of freedom of  expression is infringed because the right to honor does not exclude  criticism of the conduct of another person and in this case we must  take into account several circumstances such as public relevance  judgment on the matter and the fact that being a matter of public  interest implies that public persons do come forced to assume some  risk to their personal rights are affected.