Although it would be expected that gross or obvious errors committed by the courts are corrected or rectified by their hierarchical superiors, there are occasions when the error is committed by the supreme instance, or the resolution in which it is contained becomes unappealable by law. In these cases, the judicial declaration – despite its anti-legal nature – becomes firm and unchangeable, for reasons of legal certainty; however, the person harmed 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 demand compensation from the State for the damages caused by this error. Articles 292 et seq. of the Organic Law of the Judiciary (LOPJ) establish the regime applicable to judicial errors.
The recent ruling of the Supreme Court (STS 121/2025) of 22 January (Rapporteur: Rafael Sarazá Jimena), summarises the jurisprudential criteria applicable to the assessment of judicial error. We extract below its main reasoning, which is applied to the facts in question, to end by rejecting the declaratory claim:
In judgement 647/2024, of 13 May, we have ruled on the requirements of judicial error: “In the necessary delimitation of the contours of miscarriage of justice, this Chamber has proclaimed, without fail, that its declaration requires that a decision has been handed down that is manifestly unjustified, judgements 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 proper to the instance, as if it were an appeal ( judgements 498/2019, of 27 September; 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 correctness or incorrectness of the court of first instance in the interpretation of the rules applied or in the assessment of the evidence (rulings 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 No. 17/2009; 11/2016, of 1 February and 237/2020, of 2 June), except, of course, in cases of gross error, arbitrariness or manifestly unjustified interpretation of the legal system, since otherwise claims of judicial error would never prosper. “This is how judgement 566/2020 of 28 October is expressed, the doctrine of which is reproduced in judgements 688/2020 of 21 December and 565/2021 of 26 July, when it states that: “Therefore, according to our jurisprudence, judicial error must be limited to decisions of fact or law that are manifestly unjustified (Supreme Court Rulings of 26 November 1996 and 8 May 2006), as admitting other cases of error would imply using the procedure to reproduce the debate on the claims made as if it were a new instance or an appeal to the detriment of the force of res judicata of judicial decisions and the independence recognised to the courts’.
The special process for declaring judicial error therefore strikingly takes into account 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 it comes to assessing whether the ordinary error has been exceeded and entering the realm of ‘gross error’. The reader will appreciate the sui generis nature of the evaluative process; for error hardly admits of gradation and if one considers the consequences of the error for the party seeking redress, these are the same whether the error is slight or gross. The concept of error is, reduced to its essence, binary, since something is either right or wrong, with no tertium genus. It happens, however, that the administration of justice has the mission of establishing in an irremovable manner and erga omnes, for the sake of legal certainty, a certain version of events – impossible to prove fully and directly, but only through evidence – and a certain interpretation of the current legal system – which can be as reasonable as any other alternative interpretation – which is why the courts and tribunals expose themselves and innately face error, which we could describe as ‘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 men. However, a loophole is left open to the satisfaction of that litigant who, having been the victim of an uncorrected judicial error and who has based a final decision on it, in the event that said error has exceeded the limits of correct observation and interpretation, and incurs a mistake 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, in the presence of a clear and obvious error, the Supreme Court falls back on it and proclaims that the decision of the resolving body was correct and in line with the ordinary parameters of logic? In this case, the injured party would have to bear the full consequences of the mistake; a situation that leads us to reflect on the elusiveness of truth. In this case, the sentencing body would not have made a mistake, given that the Supreme Court considers it to be so. In turn, the Supreme Court would be self-validating its criteria, given that there would no longer be any other reviewing body. In other words, the truth, like all human knowledge, is either subjective or intersubjective, and depends precisely on the mental processes that the law assigns to certain people. There is the consolation that, at least, there is a filter to review gross errors, a second layer of security that captures unacceptable decisions, even if this layer is made of the same material as the first: human nature.
What is truly dramatic is that the Supreme Court’s recognition of the error will only have consequences in terms of compensation, but not in terms of rectification, since it is contained in a declaration, constitution or sentence, reached in a ritual manner according to an established procedure, and consequently it is fatal and invariable. At the very least, the party to the proceedings disadvantaged by the error has at their disposal financial compensation to repair the genuine outrage caused by a ridiculous court decision. The State will be obliged to compensate the injured party, by virtue of the principle of the responsibility of public administrations (art. 149.1.18th Spanish Constitution, article 32 Law of the Legal Regime of the Public Sector and, finally, art. 1.903 of the Civil Code as a general supplementary law)
The aforementioned was not the case, and the Supreme Court declared that there was no judicial error. Rightly so?
Published in Legal Today (26/02/2025)