Art 11 lopj

Law 40/2015

The requirements of the constitutional development demanded the approval of an Organic Law regulating the election, composition and operation of the General Council of the Judiciary, even before the integral organization of the Judiciary was carried out. Such Organic Law has, in many aspects, a provisional nature, which is explicitly recognized in its transitory provisions, which refer to the future Organic Law of the Judiciary.

This Organic Law satisfies, therefore, a double objective: it puts an end to the situation of provisionality that has existed until now in the organization and functioning of the Judiciary and fulfills the constitutional mandate.

The unavoidable and unpostponable need to adapt the organization of the Judicial Power to these constitutional and statutory provisions is, therefore, one more imperative that justifies the approval of this Organic Law.

The importance that the fullness of judicial independence will have in our legal system must be assessed by complementing it with the totality with which the Law endows the jurisdictional power. The Courts, in effect, control without exception the regulatory power and the administrative activity, so that no action of the executive power will remain outside the control of an independent power subject exclusively to the rule of law. It must be agreed that the rule of law proclaimed in the Constitution, as an organization governed by the law expressing the will of the people and as a system in which the government of men is replaced by the rule of law, achieves the greatest possible potential.

Lopj legal news

The Second Section of the Contentious-Administrative Chamber has issued a ruling in which it establishes as a doctrine that «the Tax Administration cannot validly carry out verifications, determine assessments or impose penalties on a taxpayer using as a factual basis the documents or evidence seized as a result of a search carried out in the taxpayer’s premises, determine liquidations or impose penalties on a taxpayer taking as a factual basis of the tax obligation allegedly breached the documents or evidence seized as a result of a search carried out in the home of third parties (even if the entry and search has been authorized by the judge of this jurisdiction), when such documents were considered null and void in a final criminal judgment, for being involved in violation of fundamental rights in obtaining them».

«The excess of the officials of the Tax Administration over what is authorized in the court order is contrary to law and should be controlled, a posteriori, by the judge himself authorizing, through the mechanism of accountability that the Administration is obliged to perform, art. 172 RGAT, without the infringement of this procedure should harm the person affected by it.

Civil procedure act

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Law 18/2011

It is not appropriate to admit the documents obtained in the domiciliary search of third parties to carry out tax regularizations and impose penalties on a taxpayer, when such documents are declared radically null and void.

The SC resolves the question regarding the scope of the radical nullity of the evidence obtained in a search carried out at the registered office or premises of a third party, with respect to the documents found in that action, and whether the Administration may carry out tax adjustments and impose penalties on a taxpayer taking into consideration documents seized in a home search carried out with respect to other taxpayers.