Compensation for judicial error requires the exhaustion of all legal remedies.

The judgment No. 202/2024 of the Civil Chamber of the Supreme Court reminds us of the existence and requirements of the claim for judicial error, a last, subsidiary, and exceptional recourse, aimed at providing financial compensation to the party harmed by a manifestly and severely erroneous judicial decision that has become firm and definitive, and therefore irrevocable and unalterable.

In this case, the claimant argued that the Provincial Court had confirmed a ruling denying the provisional enforcement of a judgment issued in a declaratory procedure of a familial nature (the litigating parties were a son and his mother).

Compensation to the citizen harmed by a patent and serious judicial error is granted based on article 121 of the Spanish Constitution, which proclaims that “damages caused by judicial error, as well as those resulting from the abnormal functioning of the Administration of Justice, shall give rise to the right to compensation at the expense of the State, in accordance with the law,” and on the basis of article 292 LOPJ, which establishes that damages caused by judicial error or by the abnormal functioning of the Administration of Justice, shall entitle all those harmed to compensation at the expense of the state, except in cases of force majeure. The alleged damage must be effective, economically assessable, and individualized. It is clarified that the mere revocation of judicial decisions does not, by itself, presuppose a right to compensation.

Furthermore, the regime of the incident of nullity of proceedings is established by article 241 LOPJ, which indicates that exceptionally, those who are legitimate parties or should have been so may request in writing the declaration of nullity of proceedings based on any violation of a fundamental right referred to in article 53.2 of the Constitution – rights and freedoms, from article 14 to 38 CE – provided that it could not have been denounced before the issuance of a decision ending the process and provided that such a decision is not subject to ordinary or extraordinary appeal.

The Supreme Court declares that not just any judicial error suffices, but rather that the error must be manifestly contrary to the legal system. It is also noted that it is indispensable for the claimant to have previously exhausted the remedies provided in the legal system with the aim of obtaining a judgment in accordance with the law, as established by art. 293.1. f) LOPJ.

And in relation to this last point, the reason for dismissing the claim is found, as it is expressly stated in the judgment that: “In line with the above, with the aim of exhausting the remedies that the legal system offers to correct judicial errors committed, there is a need to promote the incident of nullity of proceedings, as has been reiterated by this First Chamber and also by the Chamber of Article 61 LOPJ. In this regard, judgment 36/2022, of January 24, is a manifestation, in which we outlined the existing jurisprudence on the matter, and in which we specifically pointed out that: ‘In a case, like the present, in which the denounced judicial error would have been committed in a judgment against which no appeal is possible, we have understood, in judgment 281/2016, of April 29, that before the claim of judicial error, the judicial route should have been exhausted through the incident of nullity of proceedings.'”

“In this case, the alleged defects are covered by art. 24.1 CE, which the same applicant for error claims as infringed, proclaiming the fundamental right to effective judicial protection, which according to the appellant was caused by denying him an appeal. However, contrary to the clear wording of art. 293.1.f LOPJ and the consolidated doctrine of this chamber and the Chamber of Article 61 LOPJ, the petitioner did not promote as he should have the incident of nullity of proceedings due to the infringement of a fundamental right. By not doing so, the claim aimed at declaring a judicial error cannot be estimated, since it requires, previously, the exhaustion of all the remedies offered by the laws, among which is the incident of art. 241 LOPJ.”

Therefore, the claim is dismissed, with costs awarded to the State, for the reason indicated: not having exhausted all ordinary and extraordinary remedies, among which the incident of nullity of proceedings is included.