The judgment of the mortgages charges, by its arbitrariness, against the judges who ruled in favor of the client
Twelve of the 28 judges who, on 6 November, fully agreed that the clients who had to pay the tax on documented legal acts on mortgages, have expressed their special opinions in writing. against the ruling and criticize judicial arbitration.
Immediately after knowing the sentence, which was settled by fifteen against thirteen, and the great social response that aroused, the President of the Government announced a royal decree so that outside the bank the one that took charge of the ratewhat was approved by the Council of Ministers two days later, on November 8.
The high court has made public the three judgments examined by the plenary of the Third Chamber, of the contentious-administrative, which evidences the discrepancies of the magistrates since it includes twelve individual votes. In particular, they reproach drastic jurisprudential turn with respect to what this Court had previously declared and for a long time in the contentious-administrative jurisdiction, as well as with regard to what was declared in the Civil Chamber, which had a broad social and legal echo due to the undoubted economic and social significance Of the mattery.
In one of them it is explained that the possibility of calling a plenary session for the deliberation and ruling of a matter is contemplated in the procedural rules as a regular procedure, which, although it is natural, is not frequent, in any way it can be described as exceptional or unusual. In addition, it emphasizes that only from a serious legal ignorance it can be said that to convene a plenary of this type to resolve on the jurisprudential criterion that this Chamber had to adopt could be qualified as a luck of appeal against previous firm decisions. And is that the Supreme Court had already failed on previous occasions in favor of the client, specifically on October 16.
In his personal opinion, Judge José Manuel Sieiro states that he expressed his dissatisfaction with the fact that a proposal was voted on without having been previously discussed, which does not mean that the result would have been different but it would have allowed to know the arguments, both for and against, about positions that had been previously announced and should have been discussed and, if applicable, voted. "If the Supreme Court itself questions the value of its jurisprudence, how it can be asked to respect it by the courtrooms of the contentious courts of the superior courts of justice and the National Court." says Sieiro himself. It also indicates that it can not be argued that there have been no changes in the social reality between the moment, more than thirty years ago, in which the doctrine that has been abandoned by the Second Section in its ruling of last October 16 and the current moment.
We must take into consideration the relevance of the protection of consumer rights today, adds the judge, both nationally and internationally, and look at judgments of the Court of Justice of the European Union, especially as regards that concerns the legal banking business, to realize otherwise. On the jurisprudential change that has been produced by the sentence of October 16, Sieiro clarifies: "In my opinion, unlike what is said in the majority judgment, it is fully justified, since the ruling was motivated, based on law and their theses shared by a part of the scientific and academic doctrine ».
Judge Nicolás Maurandi, for his part, complains that social trust in justice is seriously violated if, after a widely argued jurisprudential change, the highest judicial body of the State leaves it without effect, without justifying that it is a clear legal error , in the short timeframe of a number of days that do not complete a month. The other magistrates who have expressed their particular vote are Pablo Lucas Murillo, Isabel Perelló, José María del Riego, Diego Córdoba, José Manuel Bandrés, Francisco José Navarto Sanchís, Eduardo Calvo Rojas, Ángel Aguallo Avilés, Jesús Cudero Blas and Fernando Román.
