The Supreme Court upholds a claim of judicial error filed by Pareja & Associats against the Orders of the Contentious Administrative Chamber of the High Court of Justice of Catalonia in the execution of a judgment of the same Chamber, regarding the expropriation of a property in the municipality of Martorell. Supreme Court Decision no. 392/2020 of 13 May.

In its recent Decision No. 392/2020 of 13 May, the Second Section of the Contentious-Administrative Chamber of the Supreme Court (TS) has upheld a claim for the declaration of a judicial error filed against the Orders of 13 December 2017 and 4 April 2018, dictated by the Second Section of the Contentious-Administrative Chamber of the High Court of Justice of Catalonia (TSJC) in the execution of a Decision of the same Chamber, relating to the expropriation of a property in the municipality of Martorell.

The litigation began in 2009, when an individual appealed against the agreement of the Jury of Expropriation of Catalonia that set the price of a property, the expropriation of which he had requested from Martorell City Council. The TSJC, in Decision no. 736 of 26 October 2011 (Proceedings no. 423/2009), found that the assessment made by the Jury was inappropriate, as it took into account the gross buildability of the tax estate, when it should have considered the net buildability, considering that the property was a consolidated urban land. Even so, the Chamber refused to set the price in the terms requested by the appellant and pointed out that, since the net buildability of the tax estate had not been proven by the evidence provided, the price would have to be determined in execution of the sentence based on that buildability. The ruling also specified how this buildability would have to be determined: specifically, by dividing the total buildability of the estate by the total surface area of this area, excluding the surfaces not susceptible to private use.

Once the ruling became definitive, the execution incident was processed, and in this framework, the Chamber requested the expert who had been appointed in the main proceedings of the procedure to determine the price in accordance with the pronouncements of the decision No. 736 of 26 October 2011. However, the expert did not calculate the net buildable area of the tax estate in which the property was located in the terms indicated in the Decision (he divided the total buildable area by the sum of the constructed surfaces, instead of dividing the total buildable area by the surface of this area, excluding the surfaces not susceptible to private use) and, consequently, he determined the price, ignoring the pronouncements of the aforementioned definitive judicial decision.

Despite this action of the expert, the Contentious-Administrative Chamber of the High Court of Justice of Catalonia, in its Order dated 13 December 2017, accepted the calculation that the expert had made and set the price of the property based on his opinion at 1,139,454.87 euros plus 56,972.74 euros, as a 5% penalty. This Order was ratified by the Order of the same Chamber of 4 April 2018, which rejected the appeal for reversal filed by the City of Martorell.

Subsequently, the City Council prepared an appeal in cassation against the above-mentioned Orders, which was not admitted for processing due to the lack of competition of objective casational interest for the formation of jurisprudence.

In this scenario, the City Council, under the protection of Article 293 of the Organic Law of the Judiciary, filed a claim for the declaration of a judicial error committed by the aforementioned Orders of the Contentious-Administrative Chamber of the High Court of Justice of Catalonia. This claim was granted by the aforementioned Supreme Court Decision of May 13 of this year.

First of all, the High Court does not consider the claim to be inadmissible, as defended by the State Attorney, due to the fact that the incident of nullity of proceedings was not promoted. In that regard, it is pointed out that the claimant acted diligently by exhausting the ordinary remedies for appealing against the Orders to which errors are attributed and by denouncing in a timely way the violation of the right to an effective judicial protection (24 CE) during the appeal for reversal as well as in the subsequent writing of preparation of the appeal in cassation.

Secondly, the Supreme Court considers that the Contentious Administrative Chamber of the TSJC, in the Orders of December 13, 2017 and April 4, 2018, unjustifiably diverged from the bases established in its own Decision of October 26, 2011 for the determination of the appraisal, as a consequence of an evident and flagrant error, and more specifically, due to the lack of attention to its obligatory function of examining and submitting the referred expert’s report to the rules of reasonable judgment.