The Supreme equalizes forces: whoever is a party is not impartial, even if it is the Administration

The Supreme Court equalizes forces in matters of evidence and sentence: the opinions of the Administration must be evaluated, like the rest, under the rules of sound criticism, but "without automatically granting greater force to some of them for the sole fact to come from the Administration".

This is a very important sentence, since, until now, the reports and opinions of the Administration had a plus of credibility in the procedures in which the Administration itself was a party. Something that tipped the scales in his favor.

The Administration already has certain prerogatives and this, in practice, was one more.

The Supreme Court has ruled in this way in a case (STS 202/2022, February 17) on the request to export a painting by an individual, which was rejected by the General Directorate of Fine Arts on the grounds that the work had exceptional value , so it had to remain in national territory.

The individual filed an appeal, which was dismissed by resolution of the Secretary of State for Culture. Two reports issued by the director of the Sorolla Museum and by the head of the Department of Nineteenth-Century Painting at the Prado National Museum were included in the administrative file. Such reports were taken into account by the Administration. Dissatisfied with the denial of the request to export the painting, the individual went to court.

The TSJ of Madrid granted greater probative value to the opinions of the Administration

With his letter of demand, the individual, as is logical, provided two expert opinions from two experts in the artist's work. Both opinions were clear. They concluded that the merits of the painting were undeniable, but not exceptional in the context of the artist's work.

For his part, the State Attorney provided two reports on the painting: one from the head of the Collections Area of ​​the General Subdirectorate of State Museums and another from the General Subdirectorate for the Promotion of Fine Arts, in which it was argued that the painting had a value that justifies its permanence in Spain.

The sentence that the Supreme Court has now examined dismissed the contentious-administrative appeal and when assessing all the probative material, it gave greater weight to that which comes from the Administration. Something that, at the time, the Superior Court of Justice of Madrid (TSJM) justified by the "greater objectivity and impartiality" of its experts, without making a detailed analysis of the arguments contained in all the reports and opinions.

What does the Supreme Court say now?

The Supreme Court affirms that "there is no doubt that certain officials and technicians at the service of the Administration, due to their training and selection, may have relevant specialized knowledge to prove facts that can only be accredited by means of expertise."

It is also not in doubt, he adds, that "in the field of Administrative Law, both administratively and judicially, expert opinions must be valued as ordered by article 348 of the Law of Civil Procedure, that is, according to the rules of the healthy criticism. This is a duly motivated free assessment.

However, he rules out that the judge can base his decision on an alleged "greater objectivity and impartiality" of the experts at the service of the Administration, because, as he says, "it is not what the law requires."

In the court's opinion, when the TSJ of Madrid limits itself to saying that when a private expert and one from the Administration concur, the latter must be given greater credibility, "not only does it not provide sufficient motivation in the way in which its conviction has been formed about the facts, but -what is worse- it ends up implicitly granting the character of appraised or legal evidence to the opinions and reports coming from the Administration".

All of this, concludes the Supreme Court, is "an erroneous view of the rules governing the assessment of evidence, especially with regard to reports and opinions from the Administration."

Without a doubt, a transcendental ruling for legal practice, especially for the work of experts who have traditionally been harmed when the other party was the Administration. That extra force of proof is not justified. The Supreme Court could not be clearer: "it makes no sense to say that the report or opinion enjoys impartiality and, therefore, deserves a plus of credibility: whoever is a party is not impartial."