Although it would be expected that gross or gross errors committed by the courts would be rectified or rectified by their hierarchical superiors, there are occasions in which the error is committed by the supreme instance, or the decision in which they are contained becomes non-appealable by reason of the law. In these cases, the judicial declaration – despite its unlawful nature – becomes final and irremovable, for reasons of legal certainty; nevertheless, the injured party by the abstruse decision of the court is entitled to request the Supreme Court to declare that the decision issued was erroneous. Such a declaration will give rise to the right of the injured party to claim compensation from the State for the damage caused by the size of the error. Articles 292 et seq. of the Organic Law of the Judiciary (LOPJ) establish the regime applicable to miscarriages of justice.
The recent Supreme Court Judgment (STS 121/2025) of 22 January (Rapporteur: Rafael Sarazá Jimena), summarises the jurisprudential criteria applicable to the assessment of a miscarriage of justice. We extract below its main reasoning, which is applied to the debated facts, to end up rejecting the claim for declaratory judgment:
In Judgment 647/2024, of 13 May, we stated on the requirements of miscarriage of justice: “In the necessary delimitation of the contour of judicial error, this Chamber has proclaimed, without fissure, that its declaration requires that a decision has been issued that manifestly lacks justification, judgments 654/2013, of 24 October; 647/2015, of 19 November; 21/2017, of 17 January; 268/2017, of 4 May or, more recently, 237/2020, of 2 June; 433/2020, of 15 July, 688/2020, of 21 December, among others), without the very nature of this procedure lying in reproducing the debate of the instance, as if it were an appeal (judgments 498/2019, of 27 September, 683/2019 and 684/2019, of 27 September, 683/2019 and 684/2019, of 27 September, 683/2019 and 684/2019, of 27 September, among others); 683/2019 and 684/2019, both of 17 December, as well as 688/2020, of 21 December, among others); consequently, it is forbidden to discuss the rightness or wrongness of the court of first instance in the interpretation of the rules applied or in the assessment of the evidence (judgments of 25 January 2006, EJ 32/2004; 27 March 2006, EJ 13/2005; 22 December 2006, EJ 16/2005; 7 July 2010, EJ 7/2008; 2 March 2011, EJ n.No. 17/2009; 11/2016, of 1 February and 237/2020, of 2 June), unless, of course, there are cases of gross error, of arbitrary or manifestly unjustified interpretation of the legal system, otherwise claims of miscarriage of justice would never succeed. “In this way, the judgement 566/2020, of 28 October, whose doctrine is reproduced in judgements 688/2020, of 21 December and 565/2021, of 26 July, states: “Therefore, in accordance with our case law, judicial error must be limited to decisions of fact or law that manifestly lack justification (SSTS of 26 November 1996 and 8 May 2006), since admitting other cases of error would mean using the procedure to reproduce the debate on the claims raised as if it were a new instance or an appeal to the detriment of the res judicata of judicial decisions and the recognised independence of the courts”.
The special process of declaring a miscarriage of justice, therefore, is strikingly based on the magnitude of the error suffered by the judicial body that resolves the controversy, which gives the Supreme Court a wide margin of discretion when assessing beyond ordinary error and into the realm of “gross error”. The reader will be able to appreciate the sui generis nature of the assessment process, as the error hardly admits gradation, and if the consequences of the error for the party seeking redress are the same if the error is slight as if the error is gross. The concept of error is, reduced to its being, binary, since something is either correct or incorrect, without a tertium genus being possible. It happens, however, that the administration of justice has the task of establishing irremovably and erga omnes, for the sake of legal certainty, a certain version of certain facts – impossible to prove fully and directly, but only through evidence – and a certain interpretation of the law in force – which may be as reasonable as another alternative interpretation – so that the courts and tribunals are exposed to and face connatural error, which we could call “invincible” in legal terms.
The LOPJ expressly recognises this error, and accepts and excuses it, considering it inevitable with the current means of cognition and intellection, typical of human beings who judge their fellow human beings. However, a loophole is left open for the satisfaction of the litigant who, having been the victim of a judicial error which has not been rectified and which has been the basis of a final decision, in the event that said error has gone beyond the limits of correct observation and interpretation, and incurs an error of such magnitude that it can be appreciated by any person, for example, declaring that a parent is a second degree descendant.
And what happens if, having made a patent and conspicuous error, the Supreme Court falls back on it, and proclaims that the decision of the ruling body was correct and in accordance with the ordinary parameters of logic? In this case, the injured party would have to bear the full consequences of the error; a situation that leads us to reflect on the inapprehensibility of the truth. In this case, the sentencing body would not have committed any error, since the Supreme Court considers it to be so. In turn, the Supreme Court would be self-validating its criteria, since there will no longer be any other reviewing body. In other words, truth, like all human knowledge, is either subjective or intersubjective, and depends precisely on the mental processes that legislation assigns to certain persons. There remains the consolation that at least there is a filter to check for gross errors, a second layer of security to catch unacceptable decisions, even if this layer is made of the same material as the first: human nature.
What is truly dramatic is that the recognition of the error by the Supreme Court will only have compensatory consequences, but not rectifying it, since it is contained in a declaration, constitution or sentence, reached in a ritual manner in accordance with an established procedure, and is therefore fatal and invariable. At the very least, the party disadvantaged by the error has at his disposal a financial consolation to compensate him for the real outrage of a misguided court decision. The State will be obliged to compensate the injured party, by virtue of the principle of liability of public administrations (art. 149.1.18th Spanish Constitution, art. 32 Ley de Régimen Jurídico del Sector Público and, finally, art. 1.903 of the Civil Code as general supplementary law).
This was not the case, and the Supreme Court declared that there was no miscarriage of justice. Rightly so?