The Supreme Court decided in a controversial plenary session at the beginning of the month that citizens, and not banks, should pay the mortgage tax. The ruling was announced on November 6, but today it is the complete sentence has been made public. It shows a Supreme Court divided after an internal battle that ended with 15 votes in one direction and 13 in the opposite.
The sentence approved by the majority criticizes the previous decision that forced to pay the bank and branded it "Drastic turn" jurisprudential "as unexpected as radical". On the other hand, the private votes signed by 12 of the 13 judges who voted against in the plenary launch harsh criticisms that clearly show the deep fracture of the High Court.
In some dissenting texts the magistrates express their strong opposition to different aspects of the recambolesco process that caused that a sentence dictated by the Second section of the Contentious Administrative was revised in full a few weeks later and that the criterion was changed again so that finally they were the customers, and not the banks, the ones that faced the mortgage tax. With the addition that only a few days later the Government finished a stroke with the controversy in real life: approved a royal decree law according to which banks pay.
Some contributions from the dissenting magistrates even question that the matter should be fully addressed and criticize the controversial decision of Luis María Díez-Picazo, president of the room. Others question the change of criteria and allude to the loss of credibility before the citizenship that has involved this convoluted legal soap opera.
"If the Supreme Court questions the value of its jurisprudence how it can be asked to respect it"
The former president of the Third Chamber of the Supreme Court, José Manuel Sieira, lashes out at his private vote against his successor at the head of that room. Sieira believes that Luis María Díez-Picazo should never have taken the mortgage judgment to plenary. "The Supreme Court is only called to hear of those issues that have an objective casational interest, which is something different to the interests of the parties," says the Fifth Section magistrate. For Sieira, the sentence of October 16, which established that banks must pay the Tax on Documented Legal Acts, was "a change of motivated and explicit criteria" and it was not necessary to convene the Plenary to ratify or revoke it because there was no "contradiction in the jurisprudence, which can not be confused with express and motivated jurisprudential change ". The judge even uses phrases of the informative note with which Díez-Picazo announced that the Supreme Court would review the sentence to discuss that decision: "Do not confuse the call to plenary with a remedy to decide whether a jurisprudential change should be confirmed or not."
"If the Supreme Court questions the value of its jurisprudence, how can it be asked to respect it," Sieira asks in his private opinion. In the same alludes to the "loyalty between the Sections and the Plenary" and assures that the jurisprudence of both organs has "identical value". On the merits of the matter (who should pay the mortgage tax), the magistrate assures that the Plenary of the Third Chamber could have accepted the sentence of October 16 and define its retroactivity. Although on this last issue, he cites a judgment of the Court of Justice of the European Community that in 1995 stated that "the economic consequences that could derive for a Government from the illegality of a tax have never justified, by themselves, the limitation of effects of a sentence ".
"Trust in Justice is severely broken"
Judge Nicolás Antonio Maurandi Guillén belongs to the Second Section and as such was one of the signatories of the order of October 16 that established that the IAJD should be paid by the banks and not the borrowers. In his private vote, the magistrate reaffirms that interpretation and assures that confidence in justice "is seriously violated if, after a widely argued jurisprudential change, the highest judicial body of the State leaves it without effect". His reasoning, which occupies 20 pages, concludes that the Plenary, instead of reviewing the sentences of the Second Section, should have limited to point out the non-retroactivity of the same since the legal text that motivated it was misleading and therefore not you could invoke an "absolute nullity"
"It is necessary to avoid that in the course of a few days the Supreme Court will affirm one thing and its opposite"
The private vote of Pablo María Lucas Murillo, to which four other magistrates adhere (María Isabel Perelló Doménech, José María del Riego Valledor and Diego Córdoba Castroverde), insists that the matter should not have reached the plenary session. "It must be avoided that in the course of a few days the Supreme Court will affirm one thing and its opposite, giving in, because then it will not transmit to society the image that it does justice but that it sows disconcert," he affirms. But not because the full can not or should correct a doctrine sitting by a section if it were wrong. In his opinion, the sentence that forced the banks to pay was not. "The opposition", in this case, moved "between a possible solution and another that is considered preferable", according to his argument. Because the problem with the tax was in the regulation that regulates it, as the magistrate assures in another point of his private vote: "In the deliberation of November 5 and 6, 2018 it was clear that the legal regulation of the Tax of Documented Legal Acts is deficient. "
"The courses that have taken this issue cause extraordinary concern"
"The course that has taken this issue causes extraordinary concern." Thus begins the particular vote dictated by Francisco José Navarro Sanchis, to which the judges Eduardo Calvo Rojas, Ángel Aguallo Avilés and Jesús Cudero Blas adhere. "The most worrisome, by far, is the image that we are projecting to society, especially the Thursdays and magistrates who make up the judicial area, who may be perplexed by these bellicose attitudes," say the magistrates.
These judges begin their exposition by criticizing "the disagreeable tone used in the sentences" of those who disagree. He adds: "The true design that presides over the resolutions is to give way to an unprecedented reprimand to one of the sections of the room, the second, in the exercise of its strict jurisdictional function, for reasons so fiercely manifested, that cause great confusion and perplexity, when read in a judgment of the Supreme Court ".
During their 60-page individual vote, the magistrates state that "legal arguments become anemic, decline due to their own weakness and come to be replaced by hurtful, comprehensive disqualification of a battery of statements that seem to be poorly thought out, such as that justified the change of jurisdictional criterion, or its porevalencia on the variability of the composition of the judicial bodies, or that this plenary can not assume, nor therefore, ratify the jurisdictional change as unexpected as radical as has been the attack on the second section of this room. "
The magistrates questioned that the president of room III, Luis Díez-Picazo, convened the plenary to elucidate who had to pay the tax on mortgages "after perceiving a posteriori the serious economic and social significance of the judgment." They criticize the full decision on the initial judgments that concluded that it was the bank and not the client who had to pay the mortgage tax, a criterion later corrected, because they argue that it could turn the plenary session into an audit room.
The magistrate refers to "the new and undesirable hunting practice" to describe the hunt, which in his opinion, has been lived in the plenary session of the third courtroom. It also considers as "a lack of respect […] the little tempered words of the speakers "and the fact of revealing the outcome of the deliberations, which reaches the result of it.
The judge charges against the tone of both the deliberations and the presentations. "Even more enigmatic is the use of that derisive or burlesque tone – if it refers to our criteria – or panegyric – when it alludes, well to the presidential powers to convene a plenary session to which a kind of mystical quality of the truth of intangible and ineffable faith – when the deployment of that energy was unnecessary to substitute, what is intended, one doctrine for another. It is never necessary, of course, discourtesy or argumentation ad hominem-and such behavior is always regarded with disapproval in this Supreme Court, but in this case is even more superfluous and uninhibited any sign of flushing, if you consider that the new doctrine -which emerges from these three sentences of today-, is born when there is no practical meaning any statement about who is the taxpayer of that tax to which we have given so many weeks of our lives.
"We can add, to what has been said, that the repeated and obvious faults of these judgments, which are going to perennially pass to the jurisprudential history as a blushing blot, only infam those who incur them and, in the case of judicial sentences adopted by collegiate bodies, to whom they have seconded without raising objections or objections to their forms ".
"Legal certainty and security rests on the predictability of judicial decisions"
The private vote of magistrate Fernando Román García is clearly in favor of maintaining the new jurisprudential doctrine that led to the October rulings, which established that the bank should pay the tax. It is obvious, he affirms that the Plenary of the room "has adopted the decision" to return to the previous doctrine, and adds: "Although the difference of support between the opposing options has been small". However, it considers that in no case can it be denied that the October rulings did not also have the character of jurisprudence. The magistrate considers that the three new cases should have been given the same response as the Second Section gave a few days before. Thus the Supreme Court would have transferred to citizens "the necessary and desirable sense of certainty and legal certainty that rests on the predictability of judicial decisions, which is even more important in a subject such as the one dealt with, in which society is specially sensitized "
Román García assures that "the October rulings solidly justify the jurisprudential doctrine that they establish with respect to the taxpayer, giving also a complete and coherent answer to the questions raised in the order of admission, without being able to appreciate in the aforementioned judgments defect or irregularity some from a formal or procedural perspective. "
"I should have raised a question of unconstitutionality before the Constitutional Court"
The private vote of José Manuel Bandrés Sánchez-Cruzat also considers "unquestionable" that in this case "the defective regulatory technique" used by the legislator to determine who should pay the tax has generated enormous legal uncertainty. For that reason, it agrees with Lucas Murillo, from the sentence of the Supreme one, the legislative power must modify or adapt the legal regime of the tax to "determine with precision and clarity the passive subject". Something that already has done the Government through a royal-decree law. In the opinion of this magistrate, it is not for the Supreme Court to interpret the legal provision whenever it is necessary to alter it and change its meaning, because the will of the legislator could be changing. Doing that "would be an exorbitant and deviant exercise of the jurisdictional power," he adds.
With this introduction, he comes to his opinion on what the Supreme Court should have done: before ruling the appeal, he states, "he should have raised a question of unconstitutionality before the Constitutional Court" and also prior to sentencing, the Plenum of the Chamber "should have adopted the decision to submit a preliminary ruling before the Court of Justice of the European Union". In his particular vote, this magistrate only adds additional details to the legal basis of the judgment rendered by the Plenary.