Surprise and helplessness of citizens in the face of the “desertion” of the justice system and the abandonment of the executive power.

The Supreme Court recently issued a ruling, confirming the limitation of effects contained in the Constitutional Court ruling number 182/2021 (STC 182/2021). This limitation implies that those who did not claim before 26-10-2021, the date on which the ruling was issued, will not be able to recover the municipal capital gains tax unduly paid due to its unconstitutionality.

The Supreme Court (Third Chamber, Second Section) and the Constitutional Court should have confronted each other, since in principle this measure is illegal, but the former chose to avoid any conflict by arguing the Constitutional Court’s power to limit the effects of its judgments, even if this violates ordinary legality.

The Supreme Court has justified the limitation of effects and has endorsed the Constitutional Court’s decisions, although this has generated controversy. One of the most striking conclusions was that a settlement could not be challenged even if it was not yet final and within the legal deadline for doing so.

The Supreme Court questioned the date on which the Constitutional Court’s judgement was allegedly handed down, 26 October, as implausible due to the time needed to deliberate, draft, sign and add individual opinions to the judgement in a single day. This opens the door to the Constitutional Court arbitrarily deciding the effective date of its declarations of unconstitutionality, even long after their publication in the BOE.

Furthermore, the Supreme Court denounced the lack of justification and motivation for this limitation of effects, which negatively affects taxpayers, violating their right to effective judicial protection and generating situations of grievance that are constitutionally difficult to explain.

Although the Constitutional Court has attributed to itself the power not only to declare the unconstitutionality of rules but also to limit the effects of such declarations at its discretion, it is argued that this must be done with respect for ordinary legality and the rights of taxpayers. Ruling 108/2022 of the Constitutional Court of September 2022 upheld this power.

In short, the feeling that remains is that the Supreme Court has left taxpayers at the mercy of an increasingly politicised Constitutional Court with an excessive use of its power, caving in on the preservation of ordinary legality and taxpayers’ rights.

In conclusion, these are difficult times for the judiciary, which has been placed at the service of the executive.