The apparent bias of the Spanish Supreme Court in favour of financial institutions

Disclosures Act 2014, in which whistle-blowers are ensured protection from reprisal. Applying this to the human trafficking context, the victims should be ensured a safe place for them to stay, with their anonymity protected, and measures taken to help them obtain new employment and residency. Victims have been viewed not as victims of trafficking but as potential witnesses in the eyes of the Irish criminal justice system. In a truly distasteful application of justice, human trafficking victims are required to co-operate in the criminal investigations if they wish to obtain support services, such as residency. GRETA strongly advises Irish authorities guarantee that identification of victims is dissociated from the suspected victim’s co- operation with the investigation. This grave injustice echoes the requirement that a sexual assault victim be a witness in their case, causing considerable trauma for the victims involved and impinging on their due process rights. It is strongly suggested that Ireland mirrors the Italian model, a pioneer among other member states. It provides victims with a right of residence not contingent on their co-operation with the investigative or criminal proceedings against traffickers, embodying a true victim-centred approach with a clear goal of vindicating human rights. Previously, Ireland’s only approach to human trafficking was founded in criminal legislation. Today, there is a greater understanding that human trafficking is a double-sided coin and the criminal aspect is not the only element that needs to be addressed. The recent case P v Chief Superintendent of the Garda National Immigration Bureau, highlighted the inadequacy of Ireland’s administrative scheme and how it fell short of its obligations under the Convention. This is further evidence of the inefficacious positive obligations founded in Article 4. The margin of appreciation doctrine is respected and acknowledges the ancillary nature of the Convention, however at times and particularly in relation to this issue, it appears to be a tool the European Court of Human Rights uses to evade coherently regulating an issue and maintaining a neutral position. It is at times like this, that I question if the European Court of Human Rights is a sword to be used in the battle of vindicating human rights or a political device to appease Member states.

DARA NEYLON

JF LAW AND POLITICS

Last November, the Spanish Supreme Court fell under public scrutiny due to a series of contradictory decisions. On the sixteenth of October the Supreme Court held that it was the responsibility of the banks to pay a particular tax on mortgages. However, this decision was soon overturned, causing the general public to feel as if they had been betrayed for the sake of financial interests. This is not the first time that people have doubted the transparency of the Spanish Supreme Court. In July of 2015, Luis Diez Picazo was appointed President of the third chamber, which was met with discontent from other Supreme Court members and politicians alike, due to being appointed through “merits” rather than through the common system. To do so, he had to be supported by the conservative members of the Court who are affiliated with the political party in power at the time. Not only was this method questionable, but the chamber that he was chosen to preside over was one in charge of decisions that may affect government legislation, making it seem even more possible that his appointment was politically motivated. This is not the only controversy that the Court has faced recently. Many of their latest rulings have ended up before, and been overruled by, European Courts. For example in 2015, the European Court of Human Rights held that Arnaldo Otegi, a pro-independence Basque politician, underwent an unfair trial. The tax on “Actos Juridicos Documentados” (Judicial Documents), is a governmental source of revenue that the bank’s clients who acquired a mortgage traditionally had to pay. However, on the sixteenth of October, the Spanish Supreme Court decided to depart radically from what had been the norm since the tax was created in 1993. The tax on mortgages is regulated by “Ley del Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados” (“Patrimonial Transmission and Judicial Document Tax Act”). It was enforced through executive order but was then maintained through legislation. This legislation deems that the one responsible to pay the tax is “whoever [the mortgage] may benefit”. Since

it is the bank that profits from the interest paid on mortgages this should be clear. However, through an executive order in 1995 (“Real Decreto 828/1995”) a clause was added, in which it was specified that the individual borrowing the money should be the one paying the tax. This executive order only acquired bylaw status (Article 68 in the “Reglamento del Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados”) in contrast to the document previously mentioned. As this clause was in contradiction with the higher status legislation, the Supreme Court, in its initial decision of 16th of October, believed that the correct thing to do would be to eliminate the bylaw that specified that the payer should be the client. After the ruling that it would now be the banks who would have to face paying this tax, the stock value of Spanish banks began to decline radically while many consumer platforms celebrated. The celebration was cut short when, just the next day, Mr Diez Picazo announced an emergency plenary session that would freeze any decisions involving the mortgage tax issue due to the “huge social repercussion”. The possibility that this was an illegal move of the President of the Chamber has been discussed by many academics and lawyers. As pointed out by Jose Luis Gonzalez, the spokesperson for an organisation representing those negatively affected by mortgages, this unprecedented and sudden change is highly questionable. The Supreme Court had already applied the rule that it is the bank’s responsibility to pay the mortgage tax on three separate occasions, nullifying Article 68 of the “Reglamento del Impuesto sobre Transmisiones Patrimoniales y Actos Juridicos Documentados” (a bylaw) and embedding the new law. The resolution of the “extraordinary plenary session” was to return to the previous doctrine that imposed the tax on the mortgage payer. The Court justified the return on the grounds that it was an “error” that would lead to judicial uncertainty and that would make other issues arise, like whether the banks would have to reimburse the amount that the clients had been paying for the last 23 years. The news was met with public outrage as it led to feelings of betrayal among by public by their own justice system. Whether in the media or on streets, the general consensus was that the financial sector had “bought out” the Supreme Court and that, once again, the interests of the wealthy elite were made a priority. This resentment towards the banks dates back to the 2008 economic crisis. After being were rescued by the government with “public money”, many cases of corruption and questionable practices came to light, building a terrible image for the financial sector. It became apparent that people were not satisfied with the idea that their tax money was being used to help institutions that had continuously acted abusively towards their clients. Knowledge of the market consequences that the initial decision brought in addition to awareness of the connection between the president of the chamber and politicians, it seems reasonable that it was portrayed as though the Chamber was under pressure to return to the original doctrine. It is difficult to believe that the law was simply “being applied”, , as the ruling of the 16th of October appeared to have been a clear demonstration of “clearing up” this law by nullifying a contradictory bylaw. Therefore, the overturn of such a decision on the grounds of “maintaining what has always been the law”has no logical reasoning behind it. It should come as no surprise that consequently the concept of separation of powers, as well as the independence of the Supreme Court, was severely put into question. To conclude, it appears that the issue may be resolved with the approval of a new set of laws to clarify the intention of the tax. Pedro Sanchez, the current President, has already stated that it is his wish to make the banks pay for this tax. However, national election will take place on the 28th of April and could potentially change this route of action. Whatever the outcome, the public must not be under any illusions - any extra tax that banks might have to face will be indirectly paid by the customers through higher interest rates or other mechanisms.