NUNES DIAS v. PORTUGAL
Inadmissible
The applicant, Mr José Daniel Nunes Dias, is a Portuguese national, who was born in 1947 and lives in Carnaxide (Portugal). He was represented before the Court by Mr M. Reis Cunha, a lawyer practising in Algés. In 1984 two individuals brought an action for damages against the applicant in the Oeiras District Court. They claimed compensation for the loss resulting from a road traffic accident which had led to the death of a member of their family. The judge summoned the applicant to appear before him. However, the applicant, who in the meantime had moved house, could not be traced at the address given by the plaintiffs. On 13 February 1985 the police informed the court that the applicant’s address was unknown. By an order of 25 February 1985, the judge ordered that the applicant be summoned to appear by public notice (citação edital). Notices were accordingly published in a national newspaper on 29 and 30 April 1985, informing the applicant that an action for damages against him was pending before the Oeiras District Court. In the absence of any intervention by the applicant in the proceedings, the judge appointed State Counsel’s Office as the applicant’s representative by an order of 14 October 1985, in accordance with the legislation. A hearing took place on 28 October 1986 at which the applicant was not present. By a judgment of 12 July 1989, the court granted the claim and ordered the applicant to pay the plaintiffs a sum equivalent to 26,186 euros, plus interest. As State Counsel’s Office did not appeal against this judgment, the decision became final. The applicant claimed not to have learnt of this judgment and the existence of these proceedings until 2 February 2000. He submitted that he had been served, at his current residence, with notice of proceedings against him in 1999 in the Oeiras District Court to enforce the judgment concerned. He then instructed a lawyer, who consulted the case file of the proceedings on the above-mentioned date. On 11 February 2000 the applicant appealed against the judgment delivered by the Oeiras District Court on 12 July 1989. In particular, he alleged that he had never been aware of the existence of the proceedings complained of; furthermore, the summons by public notice was null and void, the judge having neglected to ask the administrative authorities and the police beforehand for information regarding his address. By an order of 29 February 2000, the judge at the Oeiras District Court declared the appeal inadmissible on the ground that the judgment in question was undoubtedly final and that, consequently, no appeal could lie against it. He emphasised that the applicant should lodge an application to reopen the proceedings under Article 771 of the Code of Civil Procedure. The applicant lodged a complaint against this decision with the President of the Lisbon Court of Appeal, arguing that the appeal ought to have been declared admissible and examined on the merits. By a decision of 19 October 2000, the President of the Court of Appeal dismissed the complaint, referring to the reasons given in the order appealed against. The applicant also lodged an application for interpretation of this decision, which was rejected by the President of the Court of Appeal on 20 December 2000. On 14 February 2000 the applicant lodged an objection (embargos) to the application for enforcement submitted by the plaintiffs to the Oeiras District Court. In particular, he relied on the nullity of the summons in the main proceedings. The applicant argued that the Oeiras District Court ought to have contacted the administrative authorities, as had been the case regarding the enforcement proceedings, in which he had been lawfully summoned to appear. In this connection, he emphasised that, as early as 1984, he had communicated his new address to the national tax authorities, the road traffic authorities and the Lisbon centre for civil and criminal identification. Finally, the notice had been published in a daily newspaper with a limited circulation, which had, moreover, been declared bankrupt soon after 1985. The applicant also contested the amount of interest claimed by the opposing party. By a decision of 6 June 2000, the court allowed the applicant’s objection with regard to the interest sought by the plaintiffs but rejected the rest of the objection. The applicant appealed to the Lisbon Court of Appeal which, by a judgment of 2 October 2001, dismissed the appeal. The applicant appealed on points of law to the Supreme Court, alleging, in addition to the nullity of the summons, a breach of Article 20 of the Constitution concerning access to the courts and the principle of a fair trial. By a judgment of 19 March 2002, the Supreme Court dismissed the appeal. The applicant then lodged a constitutional appeal with the Constitutional Court. By a judgment of 2 December 2002, the Constitutional Court dismissed the appeal. It held in particular: “... The legislation concerning civil proceedings contains detailed provisions regarding the summons of a defendant to appear before a court. It seeks to guarantee that recourse is had to a summons by public notice only when the court is satisfied that it is impossible to trace the person who is to be summoned. For the most part, there have been no substantial changes to the provisions. At the material time, the provisions stated that the court had power to seek information from the administrative authorities ... Nothing was stated regarding an alleged duty [in bold in the original] which would oblige the court to request such information from specific bodies, in particular those indicated by the [applicant]. ... [Article 239 § 3 of the Code of Civil Procedure] required the court to be satisfied of the impossibility of tracing the defendant before ordering that he be summoned to appear by public notice; the court had to be certain[1] of this impossibility and could to this end use those methods that it deemed necessary or appropriate. There was in this no gratuitous act of free will or unfettered discretion; if a discretionary power was involved, it was limited to the court’s choice of methods to be used or, more particularly, the choice of authorities to be contacted. However, once the court was certain that it was impossible to trace the defendant, the relevant provision obliged it – and indeed continues to oblige it – to pursue the proceedings by means of summons by public notice. ... It is necessary to strike a balance between the various principles and interests at stake, particularly those relating to the adversarial principle and the obligatory presence of the defence and those of promptness and legal certainty, which are also protected by the Constitution. ... Once the court has used all methods, in particular those that are found to be the most appropriate, in order to trace the defendant, and is satisfied [that it is impossible to trace the defendant], it must pursue the proceedings but without allowing them to be prolonged indefinitely on account of long and exhaustive searches or allowing such searches to be repeated at any stage of the proceedings, which would have untoward consequences and might prevent justice being done. ...” Under Article 239 of the Code of Civil Procedure, in the wording in force at the material time, summons by public notice was ordered when the defendant could not be traced at the address indicated by the plaintiff. Under paragraph 3 of this provision, the court had to be certain of the impossibility of locating the defendant and could, to this end, gather information from the administrative authorities and the police. Notices containing basic information about the proceedings in question were to be published in a newspaper. In addition, three other notices were to be posted, one at the court dealing with the case, one on the door of the defendant’s last known residence, and one at the town hall of the municipality in which this residence was located. From the expiry of a given period (thirty days in the present case), the defendant had ten days in which to file his submissions in reply. Failing this, the proceedings would continue and the defendant would be represented by State Counsel’s Office. Article 771 (f) of the Code of Civil Procedure provides for the possibility of requesting that the proceedings be reopened where a party has taken no part in them whatsoever. The interested party must then demonstrate that the summons to appear was not served in accordance with the law. However, Article 772 § 2 states that any such request to reopen the proceedings must be submitted within five years of the date on which the decision in the proceedings in question becomes final. Article 813 (d) of the Code of Civil Procedure also enables the interested party to file an objection to the enforcement proceedings based on the nullity of the summons to appear served in the main proceedings.