- Dr Luis Jimena Quesada
Professor of Constitutional Law at the Universitat de València - Carlos Ortega Carballo
Legal Secretary of the European Court of Human Rights - Dr Cristóbal Borrero Moro
Professor of Financial and Tax Law of the Universitat de València - Joaquín Moreno Grau
Legal Secretary of the Court of Justice of the European Union - Dr Juan Martín Queralt
Professor of Financial and Tax Law at the Universitat de València
The coordination of the jurisprudence of the Constitutional Court and the European Court of Human Rights
The multi-level legal position is complex and challenging to coordinate. A potential solution is for the European Union to accede to the Convention on Human Rights. Following a comparison between the Spanish Constitutional Court and the ECtHR, it is evident that the issue is not who protects more, but rather who protects the latter. This is a developing issue that requires further attention. In light of this, what is the best way to coordinate the Constitutional Court with the ECtHR, particularly in the area of taxation? Furthermore, how can our article 24 EC be aligned with article 6 of the Convention on Human Rights?
1.The critical role of special constitutional significance
Both courts have control perspectives, but they differ in regard to the requirement established by the LOTC reform of special constitutional significance, a formal and material requirement through which the Constitutional Court operates. This means that many of the cases that suffered a fundamental rights violation, such as those included in articles 14 or – in reference to taxation – of article 31 of the constitution, are not accepted by the Constitutional Court because they do not have this ‘special constitutional significance’. Therefore, a possible violation of fundamental rights can occur at the domestic level, without reparation on behalf of the Constitutional Court. This opens the possibility for further debate on whether the legal structure of this ‘special constitutional significance’ works in the best interest of safeguarding fundamental rights.
How does the Human Rights Court analyse the Constitutional Court’s special constitutional significance requirement? To present a request for defence, the following two requirements must be met:
- materially, the request must have special constitutional significance;
- procedurally, this requirement must be proven.
2.The ECtHR’s analysis with respect to special constitutional significance
The ECtHR was faced with this requirement for the first time when reconciling both levels of protection in the Rivas Antón Sentence in 2015. The Court ruled that a requirement such as this one did not infringe access to the courts under article 6 of the Agreement, but on the other hand, established that having this requirement does not prevent the European Court of Human Rights from entering into the merits of the case, even where the appellant has not demonstrated that the request has this requirement. Although the Court initially ruled in favour of the Spanish system for the protection of fundamental rights, based on the concept of special constitutional significance as a requirement endorsed by the Agreement, this was in effect invalid because the ECtHR reserved the right to decide whether or not this requirement met domestically and the Court would rule on the merits of the case in every way.
This changed slightly in 2021 with the Alvárez Juan Decision against Spain in which this requirement has been more profoundly analysed. The ECtHR maintains that since the ECtHR is assessing whether or not there has been a violation of the Convention, the TC's decision as to whether or not a request meets this requirement is not binding on the ECtHR, as these are different parameters. Nevertheless, it marks a paradigm shift as, in this Decision, the ECtHR undertook an analysis of the procedural requirement imposed by the Constitutional Court to justify the special constitutional significance given that the petition had been dismissed due to a complete lack of justification. The Strasbourg Courte ruled in this regard that in cases where the applicant for defence has provided no justification whatsoever for the special constitutional significance, it will be considered that the applicant has not properly exhausted all domestic remedies, as their own negligence led to the improper formalisation of the defence request. Therefore, this procedural defect renders the petition inadmissible.
Therefore, it is established as a procedural requirement that if the inadmissibility is due to fault of negligence attributable to the applicant, the petition will be dismissed by the Strasbourg Court. In another decision, García Morales, also in 2021, concerning the ECtHR’s inadmissibility ruling due to lack of justification, and furthermore, because the justification provided was insufficient, the ECtHR upheld the Constitutional Court’s decision. the Court reasoned that it always retains the discretion to determine whether the procedural justification is sufficient, thereby reserving this authority. This is the current direction of the jurisprudence.
3.Jurisprudence exceptions and specifics in the tax area
Although this requirement is under scrutiny in certain cases, there are instances where the ECtHR, which tends to be more case-specific and focused on the facts and on substantive justice than the Constitutional Court, relaxes formal requirements. In its own jurisprudence, while it rigorously applies the principle of non-exhaustion when there is insufficient justification of the special constitutional significance, the ECtHR may, depending on the case, either relax or strictly enforce formal procedural requirements. As a result, certainty is still developing as to what the ECtHR's role will be in the medium term in cases where this requirement of special constitutional significance prevents a substantive ruling.
However, statistically this requirement does not mean that more appeals for defence to the Constitutional Court will be ruled inadmissible, as there has always been an inadmissibility ratio of approximately 90 percent. The ECtHR’s inadmissibility ratios are equally as high and hover around the same percentage.
On the other hand, the article or right that generates the most controversy is that contained in Article 24 of the EC Treaty on effective judicial protection, because it is uses as a catch-all. Effective judicial protection is the first right that is usually invoked in the grounds of complaints, it is protectable and article 24.1 or 24.2 of the EC can be invoked in the Constitutional Court. Due to the great amount of literature published in this field, it is now very difficult to fit these claims into one of the cases already contemplated in STC 155/2009, which explained that it is the special constitutional significance. In the same direction, but from a tax point of view, it would be difficult to overcome the requirement of access to the Constitutional Court, due to the lack of it. At the same time, in this area, if we turn to the ECtHR and invoke article 6.1 of the Agreement, we will find a restrictive jurisprudence which considers that article 6.1, which provides for the right not to suffer delay and to a fair trial, is not applicable to tax law, since this article was conceived for civil obligations between parties and tax law is the maximum expression of public power vis-à-vis the individual. For these reasons, article 24 of the EC and article 6 of the Agreement have a protection deficit, as they would not generally provide comprehensive protection.
In this sense, the ECtHR's pronouncement stands in contrast to its own case law, which emphasises the dynamic nature of the Convention as it "adapts to the times." The right to a fair trial and protection against undue delays should, through renewed debate, be extended to the field of taxation, thus opening the door to such cases. It seems illogical that if a tax issue is addressed in contentious-administrative proceedings and there are undue delays or questions of judicial impartiality, the taxpayer would be barred from bringing the case before the Strasbourg Court under article 6.1 of the Agreement. However, article 6.1 can only be invoked when the tax in question constitutes a criminal sanction; in cases purely involving tax law, it would not be appealable, but if a sanction is involved, it can be invoked. These circumstances were addressed in ECtHR Judgment No. 14/2021, where a surcharge was deemed a sanction. The Court recognised the appellant's claim of omissive inconsistency by the Audiencia Nacional. The Constitutional Court had rejected the claim due to a lack of special constitutional significance, even though the Audiencia Nacional had upheld the claims of two of the three appellants, but not the third.
In conclusion, the ECtHR has greater ease in resolving cases because it applies a single set of rules, in contrast to the Spanish Constitutional Court. Therefore, the solution lies in adherence to the Agreement, as it is the only way to achieve coordination. Without this, the protection of the taxpayer's fundamental rights would be perpetually subject to a dialogue between courts, which could lead to the detrimental situation where the citizen is left wondering who has the final say.
