Tribunal Europeo de Derechos Humanos condena a España por disparidad de criterios del Supremo ante casos idénticos (STEDH 3ª 14 septiembre 2021)

La Sentencia del Tribunal Europeo de Derechos Humanos, sección Tercera, de 14 de septiembre de 2021, case of Inmobilizados y Gestiones S.L. v. Spain (Application nº 79530/17) ha condenado a España a indemnizar con 16.600 euros a la compañía Inmovilizados y Gestiones SL por una disparidad de criterios del Tribunal Supremo ante cinco casos idénticos al considerar que «no encuentra motivo para justificar las distintas conclusiones». el principio de seguridad jurídica y socava la confianza en el Poder Judicial.

En la resolución, el tribunal ha concluido que se ha visto vulnerado el derecho de dicha empresa a un proceso equitativo, contemplado en el art. 6 del Convenio para la Protección de los Derechos Humanos y las Libertades Fundamentales.

Inmovilizados y Gestiones SL era propietaria de un inmueble en el municipio de San Lorenzo del Escorial, expropiado parcialmente en 2011 por el Concejo Municipal, lo que dio lugar a cinco procesos administrativos judiciales relacionados con cinco terrenos. La compañía presentó cinco recursos, examinados todos en el Tribunal Superior de Justicia de Madrid (TSJM). Cuatro años más tarde, en 2015, la empresa interpuso cinco recursos de casación ante el Supremo contra las cinco sentencias del TSJM. En 2016, el alto tribunal resolvió: en dos casos falló a favor y anuló las resoluciones impugnadas; en los otros tres casos, desestimó los recursos

La compañía acudió a Estrasburgo al considerar que era «arbitrario» declarar admisibles dos recursos sobre cuestiones de derecho y declarar inadmisibles otros tres que eran de «idéntica naturaleza y el  TEDH ha confirmado que los cinco recursos de casación interpuestos afectaban a las mismas partes procesales y se basaban en los mismos motivos legales. Y ha destacado que el Supremo, “con el mismo juez actuando como ponente en el procedimiento de admisibilidad de los cinco recursos”, dictó “diferentes resoluciones».

De acuerdo con la sentencia

(a) General principles

  1. The Court refers to the general principles on access to a court, as set out in the case of Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018), and in the recent case of Gil Sanjuan v. Spain, (no. 48297/15, §§ 29- 31, 26 May 2020).
  2. It is well enshrined in the Court’s case-law that “excessive formalism” can run counter to the requirement of securing a practical and effective right of access to a court under Article 6 § 1 of the Convention. This usually occurs in cases involving a particularly strict construction of a procedural rule, preventing an applicant’s action being examined on the merits, with the attendant risk that his or her right to the effective protection of the courts would be infringed (see Zubac, cited above, § 97). An assessment of a complaint of excessive formalism in the decisions of the domestic courts will usually be the result of an examination of the case taken as a whole, having regard to the particular circumstances of that case (ibid., § 98). In making that assessment, the Court has often stressed the issues of “legal certainty” and “proper administration of justice” as two central elements for drawing a distinction between excessive formalism and an acceptable application of procedural formalities. In particular, it has held that the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Gil Sanjuan, cited above, § 31, 26 May 2020).
  3. The Court reiterates that one of the fundamental aspects of the rule of law is the principle of legal certainty, a principle which is implied in the Convention. Conflicting decisions in similar cases stemming from the same court which, in addition, is the court of last resort in the matter, may breach that principle and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Vusić v. Croatia, no. 48101/07, §§ 44-45, 1 July 2010). In this connection, the Court has held that different decisions by domestic courts in cases based on identical facts were susceptible of running contrary to the principle of legal certainty and could even amount to denial of justice (see Santos Pinto v. Portugal, no. 39005/04, §§ 40-45, 20 May 2008). The Court found a breach of Article 6 § 1 of the Convention in that case since the divergence in the Court of Appeal’s assessment of identical situations had had the effect of depriving the applicant of the possibility of having his objections to the arbitral decision on one of the plots of land examined by a higher court, whereas he had been able to do so in the proceedings relating to the other plot of the same land (see ibid., § 43).
  4. The Court has established (see Santos Pinto, cited above, § 39) that its role is to verify the compatibility with the Convention of the effects of the domestic courts’ interpretation of the rules applied. This is particularly true as regards the interpretation of rules of a procedural nature, such as those relating to the formalities and time-limits for bringing an action; since such rules are intended to ensure the proper administration of justice and respect, in particular, for the principle of legal certainty, the persons concerned must be able to expect them to be applied (see Miragall Escolano and Others v. Spain, nos. 38366/97 and 9 others, § 33, ECHR 2000-I).

(b) Application to the present case

  1. In the instant case the Court’s assessment does not concern the formalities, as such, for access to an appeal on points of law, but the Supreme Court’s alleged arbitrariness in issuing contradictory decisions, without reasonable justification, as to the admission of five appeals on points of law relating to the same legal problem and affecting the same parties to the proceedings. The Court reiterates that proceedings are examined as a whole in order to determine whether they were conducted in accordance with the requirements of a fair hearing (see Regner v. the Czech Republic [GC], no. 35289/11, § 161, 19 September 2017).
  2. The Court observes that the Supreme Court, with the same judge acting as rapporteur in the admissibility procedure for the five appeals on points of law submitted by the applicant company, issued different rulings. Two of the appeals were declared admissible whereas the remaining three were declared inadmissible. The main reason for the inadmissibility of three appeals was their allegedly flawed preparation; in the opinion of the Supreme Court, the applicant company had failed to comply with certain formalities laid down in the LJCA when preparing these appeals (see paragraphs 9 to 15 above). The other two appeals on points of law were declared “provisionally” admissible, in so far as it would still be possible to dismiss them at the decision-making stage. However, those admissible appeals ultimately resulted in two judgments in favour of the applicant company.
  3. The Court notes that the five appeals on points of law lodged by the applicant company – all of which referred to the expropriation procedure conducted in relation to five plots of the same land owned by the applicant company – affected the same procedural parties and were based on the same legal grounds. The Court further notes that the five notices of appeal were substantially the same in terms of the reasoning as to their admissibility and merits.
  4. The Court cannot accept the Government’s argument that the legislative change regarding the regulation of appeals on points of law (see paragraph 30 above) was the reason for the inadmissibility of the appeals introduced by the applicant company, as this new legal framework for appeals on points of law, in force in Spain since 2016, related to “objective cassational interest” and was not applicable to the appeals lodged by the applicant company.
  5. It is not the role of the Court to compare judicial decisions issued by national courts. However, in view of the five decisions handed down by the Supreme Court in cases assessed by the same judge as rapporteur and on the basis of the documents in the case file, the Court finds no reason to justify the differing conclusions as to admissibility, related to the formalities of the notices of appeal, which prevented the applicant company from obtaining a decision by the Supreme Court on the merits of its claims. No explanation was given to justify such contradictory decisions. Furthermore, the actions for annulment brought by the applicant company before the Supreme Court, requesting it to rectify its decisions in view of the five appeals of cassation taken together, were dismissed.
  6. The inadmissibility rulings in respect of the three appeals on points of law not only prevented the applicant company from being able to argue its case before the Supreme Court, but do not contribute to creating legal certainty as to the requirements for accessing the cassation remedy. The divergence in the Supreme Court’s assessment of substantially equal situations had the effect of depriving the applicant company of the possibility of having three of its appeals examined by the higher court, whereas it had been able to do so in the proceedings relating to the other two plots on the same land.
  7. In view of the above, the Court considers that the unjustified difference in the application of criteria for the admissibility of the abovementioned appeals deprived the applicant company of its right of access to the Supreme Court, which has been impaired in substance. Accordingly, there has been a violation of Article 6 § 1 of the Convention.

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