CASE OF PÉREZ DE RADA CAVANILLES v. SPAIN
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
N. Valticos
9. The applicant had been in dispute with a neighbour concerning a view over her property at Lumbier in the province of Navarre. On 28 July 1992 a settlement agreement was concluded between the parties before the deputy judge of first instance at Aoiz (province of Navarre). In the agreement the neighbour, who had only a life interest in the building he occupied, undertook to block the view from his patio over the applicant’s property within six months. 10. When, on 6 May 1993, that period expired without the neighbour having carried out his undertaking, the applicant applied to the Aoiz Court of First Instance for enforcement of the agreement. 11. On 25 May 1993 the court gave judgment for the applicant and allowed the defendant an additional period of fifteen days to perform the undertakings made in the agreement. 12. On 11 June 1993 the defendant informed the Aoiz Court of First Instance that as he was not the owner of the building he occupied, he could not carry out the works needed to fulfil the terms of the agreement. On 24 August 1993 the applicant renewed her application, stating that the defendant had not brought any action to have the agreement in question set aside under Article 477 of the Code of Civil Procedure (see paragraph 27 below). 13. In a decision (auto) of 7 September 1993 the deputy judge of the Aoiz Court of First Instance (not the same judge as before) dismissed the applicant’s application and held that the agreement was void on the ground that the neighbour, who was merely a life tenant, could not carry out the works needed to block the view without the consent of the reversioner, since they would change the appearance and structure of the building. The judge added that there was nothing to prevent an agreement being concluded with the person who had the necessary capacity. As regards the applicant’s allegation that the defendant had not raised the nullity of the agreement within the prescribed time (see paragraph 27 below), the judge held that Article 477 of the Code of Civil Procedure covered only cases in which the actual conclusion of the agreement had not complied with the conditions or formalities laid down by law, and not defects such as to negate a consensus ad idem. The agreement was defective because one of the parties had no capacity to conclude such an agreement. 14. On 8 September 1993 the registrar of the Aoiz Court of First Instance ordered that the decision should be served at the applicant’s home in the village of Lumbier, some twenty kilometres from Aoiz. 15. On 27 September 1993 the magistrate at Sangüesa (under whose jurisdiction the village of Lumbier came) recorded that the applicant was not at her home at Lumbier and informed the registry at Aoiz that her husband, who was at the same time her lawyer, had requested by telephone that the decision should be served at the applicant’s home in Madrid. 16. On 6 October 1993 the decision in question was served on the defendant. 17. In an order of 21 October 1993 the Court of First Instance at Aoiz (some four hundred kilometres from Madrid) ordered that the decision should be served at the applicant’s home in Madrid; on 26 November 1993 the decision was at last served on the applicant in the person of her domestic help, since she herself was out at the time. 18. On 30 November 1993 the applicant lodged a reposición application and, in the alternative, an ordinary appeal against the decision of 7 September 1993 with the registry of the duty court in Madrid, which initially stamped the document. Noticing, however, that the application should have been lodged at the Aoiz Court of First Instance, the head of the registry crossed out the stamp, thereby invalidating it. On the same day, the applicant sent, by registered letter with advice of delivery, the same reposición application and, in the alternative, an ordinary appeal to the Aoiz Court of First Instance. The application was dated 27 November 1993 and had been signed by the applicant and her counsel at Lumbier. The first page was postmarked 30 November 1993. 19. The registry of the Aoiz Court of First Instance received the application on 2 December 1993. 20. In a decision (providencia) of 13 December 1993 the Court of First Instance declared the reposición application and appeal in the alternative inadmissible as being out of time. After a number of unsuccessful attempts by the Sangüesa magistrate and the Aoiz Court of First Instance to serve this decision within their jurisdictions, it was served on the applicant at her home in Madrid on 15 April 1994. 21. On 15 April 1994 the applicant sent to the Aoiz Court of First Instance, by registered letter with advice of delivery, a reposición application against the aforementioned decision and this was received at the registry on the following day. 22. On 25 May 1994 the Court of First Instance dismissed the application and upheld the impugned decision, on the ground that the application against the decision of 7 September 1993 should have been registered at the court registry within the prescribed period of three days, that is to say on 30 November 1993 at the latest. The court also noted that the legislation on administrative matters cited by the applicant (see paragraph 30 below) was not applicable in the case as proceedings in the ordinary courts were governed by the Judicature Act and the Code of Civil Procedure (see paragraphs 27–29 below). Lastly, the Court held that allowing an application to be lodged by post would undermine “judicial authenticity”, thereby breaching the principle of legal certainty, inasmuch as a post office (an administrative entity) could not be equated with a judicial body. As to the ordinary appeal, the court added that it could not be lodged until the reposición application had been determined and not at the same time as that application, and that it was accordingly pointless to consider whether it had been lodged timeously. 23. On 7 September 1994 the applicant lodged an appeal with the Navarre Audiencia Provincial, which dismissed it in a decision (auto) of 23 December 1994, emphasising that applications had to be made to the appropriate court or to the duty judge of the same town, particularly where the person making it was assisted by counsel. 24. On 20 January 1995 the applicant lodged an amparo appeal with the Constitutional Court, relying on the right to protection by the courts (Article 24 § 1 of the Constitution). 25. In a decision of 8 May 1995 the application was declared inadmissible on the following grounds: “… This Court’s case-law on the filing of applications ([see,] as a recent authority, the Constitutional Court’s judgment no. 287/1994) applies to the instant case. Applications are normally to be filed with the registry of the court applied to or with the duty judge and filing [of an application] at the headquarters of administrative bodies is, as an exception, permissible only where the litigant is not represented by a lawyer (abogado or procurador). In the instant case the applicant, assisted by counsel, filed her application at a post office; the ordinary courts, applying the rules of procedure and relying on decisions such as the Constitutional Court’s judgment no. 341/1993, held, in reasoned decisions, that there was no justification for failing to file [the application] at the registry of the court itself or with the duty judge in the town.” 26. Article 24 § 1 of the Constitution provides: “Everyone has the right to effective protection by the courts in the exercise of his rights and his legitimate interests, and in no circumstances may there be any denial of defence rights.” 27. The relevant provisions of the Code of Civil Procedure which concern settlement agreements read as follows: Article 476 “The terms agreed by the parties to a settlement agreement shall be enforced by the same court before which the agreement was concluded and according to the procedure (juicio verbal) laid down for the execution of judgments delivered by a court of first instance where the cases are within the jurisdiction of that court. …” Article 477 “An action to have the terms of a settlement agreement declared void may be brought on the same grounds as one for annulling contracts. Such an action must be brought in the appropriate court within fifteen days of the conclusion of the agreement, using the procedure corresponding to the amount in dispute.” 28. The relevant provisions of the Code of Civil Procedure concerning time-limits and the filing of applications are worded as follows: Article 249 “To be valid, judicial acts must be authorised by the public officer responsible for authenticating or certifying the act.” Article 250 “Registrars and secretaries [of courts] shall enter the date and time of filing of applications only where it is necessary for checking that a mandatory time-limit (plazo perentorio) has been complied with. …” Article 377 “Reposición applications must be filed within three days and must specify the provision of this Code that is alleged to have been infringed. Where these two requirements have not been satisfied, the court shall, without further consideration, make a declaration, against which no appeal shall lie, that no ruling will be made on the application.” 29. The relevant provisions of the Judicature Act are the following: Section 11 “1. The rules of good faith must be complied with in all proceedings. 2. … 3. In accordance with the principle of effective protection laid down in Article 24 of the Constitution, the courts shall always rule on claims and may only dismiss them on the ground of a formal defect where that defect cannot be remedied, or at least not in accordance with the procedure laid down by law [for that purpose].” Section 268(1) “All judicial acts shall be carried out at the seat of the judicial body.” Section 270 “Procedural documents, decisions and judgments shall be served on all the parties to a case and also, where expressly so provided in such decisions in accordance with the law, on any persons referred to in them or who may be prejudiced thereby.” Section 271 “Service may be effected by post, telegraph or any other technical means which record its accomplishment and the circumstances thereof in accordance with the laws on procedure.” Section 272 “1. In municipalities in which there are several courts …, a common service, under the authority of the Chairman of the Bar, may be established in order to effect service where this is the court’s responsibility. 2. … 3. General registration departments may likewise be set up for the filing of instruments or other documents intended for judicial bodies.” Section 283(1) “Registrars shall record the date and time of lodging of applications, writs and originating summonses and any other document which must be filed within a mandatory (perentorio) time-limit.” 30. The relevant provision of Law no. 30/1992 of 26 November 1992 on the rules governing public authorities and on common administrative procedure lays down: Section 38(4) “Applications, pleadings and communications sent by members of the public to public administrative bodies may be filed: … (c) at post offices, in accordance with the formal requirements laid down in regulations.” 31. The rules on the postal service, as enacted in Decree no. 1653/1964 of 14 May 1964 and amended by the Order of 14 August 1971 and Decree no. 2655/1985 of 27 December 1985, provide: Article 205 “Acceptance of applications and documents sent to administrative institutions … 2. The documents and applications in question shall be submitted in an open envelope… 3. The official who accepts the item for despatch shall stamp it with the date in the upper left-hand corner of the main document, so that the name of the post office and the date of submission are clearly visible…” 32. In a judgment of 31 January 1991 (no. 20/1991, Official Gazette (Boletín oficial del Estado) of 25 February 1991) the Constitutional Court, citing its own case-law, held that the right to effective protection by the courts was infringed “where a member of the public found it impossible to lodge an application on account of undue hindrances or of unjustified and unexplained refusal or of a mistake attributable to the judicial body”. In two judgments of 14 February 1991 (no. 32/1991, Official Gazette of 18 March 1991) and 6 June 1991 (no. 128/1991, Official Gazette of 8 July 1991) the Constitutional Court held, inter alia, that the rules of procedure on the acceptance of applications must not prevent the practical exercise of the right to effective protection by the courts. The interpretation of them was not to be excessively or unreasonably strict, regard was to be had to their purpose at the time they were adopted and remedies were to be made as accessible as possible. 33. In two judgments of 18 November 1993 (no. 341/1993, Official Gazette of 10 December 1993) and 27 October 1994 (no. 287/1994, Official Gazette of 29 November 1994) the Constitutional Court held that applications were to be filed with the registry of the court applied to or the duty judge of the town – in these cases the appeals had been to the Constitutional Court itself – and posting an application was, as an exception, permissible only where the litigant was not represented by a lawyer (abogado or procurador) and lived at a distance from the seat of the court.