One day after the Contentious-Administrative Chamber (Third Chamber) of the Supreme Court rectify its own jurisprudence on the established mortgage tax three weeks agoHis magistrates were still divided this Wednesday. Not only on the decision to attribute to the client the payment of the tax, but also on how this matter should have been taken to avoid damage to the image of the Supreme Court that everyone agrees that it has occurred. In this it is almost the only thing that there is unanimity among the members of the room. In this and in that the performance of its president, Luis María Díez-Picazo (Madrid, 1958), during the last three weeks has not been up to the complexity of the moment.
"It is not that Díez-Picazo has aggravated the problem, it is that he created it," affirms a magistrate of the courtroom who, like others, blames the president for having created the conflict with the public note that he published on October 19, the day after the sentence that imputed the mortgage tax to the bank was known. In that letter, Díez-Picazo adopted two initiatives: stop the pending remedies on this issue to avoid applying the new jurisprudence; and to convene a plenary session so that all the magistrates of the room could determine if they confirmed the new criteria or reversed.
Some magistrates question the president of the room
The sentence known a day earlier had been met with criticism by the court, especially by some of the older magistrates, who considered that the five magistrates who signed the ruling had treated with lightness the jurisprudence established on that matter since more than 20 years. Many already said that day that before a decision of such draft had to have met the full. But the president of the room, who knew that the second section (the tax expert) was analyzing who paid the tax, did not think it necessary to call all the judges.
That was the first error of Díez-Picazo, according to several magistrates. Since he took over the presidency of the room in 2015, he has been reluctant to convene plenary sessions to establish doctrines. He maintains that these meetings of more than 30 magistrates lengthen the debate more than necessary and turn into tedious sessions, so he prefers to delegate all the deliberations to the expert section in the matter in question. "He does not like being on a day-to-day basis, he goes to the meetings he has to go to, but he's not on top of things, depending on how you look at it, that way of exercising office can be good for the independence of the magistrates, to work with freedom, but there may also be something to leave, "says a member of the room, who says that a situation like the one lived the last three weeks would be unthinkable with another president. "If you are studying such an important issue and you do not rule out changing a case law that has been going on for decades, you have to be alert, or do it fully, or go to the deliberations, or questions every day," he adds. What nobody explains is that Díez-Picazo, let the magistrates of the second section and call the plenary once issued and disseminated the sentences. This decision caused stupor among the vast majority of the members of the room and was even publicly disavowed by the president of the Supreme Court, Carlos Lesmes, considered the great defender of Díez-Picazo to reach the presidency of the room in July 2015.
A questioned rise
For many, what happened these days has its origin in that episode more than three years ago, which caused another huge internal conflict in the Third Chamber of which, according to many of its members, has not yet recovered. The presidency of the room was then occupied by José Manuel Sieira, a magistrate with 21 years of experience in the Supreme Court and with a positive balance in the management of the room according to most of its members. Sieira wanted to renew the mandate and when everyone took it for granted that the General Council of the Judiciary would renew it, the name of Diez-Picazo was promoted as a candidate of Lesmes to place in the position a more compatible judge that allows him to exert greater influence over a strategic room: in the Contentious-Administrative Chamber they resolve the appeals filed in the Supreme Court against the decisions of Lesmes and the Judicial Power, as well as all the lawsuits filed against the Government by the Autonomous Communities or any company or citizen.
Several magistrates denounced "pressure" on members of the CGPJ to vote for Díez-Picazo, which ended up being imposed by obtaining the vote of 12 of the 21 members of the governing body of the judges. For the first time, the General Council of the Judiciary did not renew a president of the Supreme Court who aspired to re-election.
After that stormy arrival to the position, Díez-Picazo has not managed to take control of the reins of the room, agree several magistrates consulted. Although it has successfully promoted the incorporation into the room of some related magistrates, it continues to have detractors who do not share its management in the presidency or the path followed until it reaches it. "I always said that I think he is a brilliant, solid jurist, but he came to the presidency very soon and in a bad way." It was not his moment and now it has been demonstrated, says one magistrate. When he arrived at the post, he was 57 years old and had "only" seven in the Supreme Court, which was incorporated by the fifth shift (jurists of recognized competence who enter the high court outside the judicial career). His first two years at the head of the room made them compatible with teaching at the University Center for Financial Studies (CUNEF), dependent on the Spanish Association of Banking, the employers of the sector. A relationship that has put him more if possible in the focus after his decision to revise the newly established criterion that it was the bank that paid the tax on mortgages.
The role of the president of the Chamber in the conflict of the last extend until the last moment of the plenary session last Tuesday, when Díez-Picazo decided the vote in favor of charging the mortgage tax on the client. Several magistrates consulted reproached him for changing his opinion after during the sessions he repeatedly showed support for confirming the jurisprudence that established that the bank should pay but without possible retroactive effects. But, above all, they criticize that it prevented to open a debate on possible retroactive effects if the tribute was imputed to the bank. "His obsession was retroactivity, curb the flood of demands for mortgaged," says a member of the plenary.