CASE OF MIRAGALL ESCOLANO AND OTHERS v. SPAIN
Violation of Art. 6-1;Just satisfaction reserved;Pecuniary damage - reserved
Matti Pellonpää
11. The profit margins for chemists in Spain were fixed by a ministerial order (Orden Ministerial) on 22 January 1982. 12. On 10 August 1985 the government published a ministerial order in the Official Gazette (Boletín Oficial del Estado) reducing the profit margins. 13. On 9 September 1985 the National Society of Chemists of Spain (Consejo general de Colegios Oficiales de Farmacéuticos de España) commenced proceedings for judicial review with a view to obtaining an order quashing the ministerial order of 10 August 1985. The Supreme Court ordered a stay on the implementation of the order concerned. On 4 July 1987 it quashed the order on its own initiative. The judgment of the Supreme Court was served on the National Society of Chemists on 7 July 1987, but not on the applicants, as they were not parties to the proceedings. 14. The judgment of 4 July 1987 became public when a ministerial order of 30 September 1987 was published on 5 November 1987 in edition no. 265 of the Official Gazette, which reproduced the grounds of the judgment in question. 15. On 5 and 6 July 1988 the applicants lodged claims (dated between 27 April and 27 June 1988) with the State General Administrative Department for the payment of compensation for the damage sustained as a result of the ministerial order, under Article 106 of the Spanish Constitution and section 40(3) of the Law on the Legal Regime governing the Administration of the State. Those claims were deemed to have been rejected as the authorities did not reply to them. 16. On 3 January 1990 the applicants sought judicial review before the Supreme Court. They argued that the one-year limitation period for lodging their application had started to run on 5 November 1987, when the Supreme Court's judgment of 4 July 1987 was published in the Official Gazette, or, at the very least, 7 July 1987, when it was served on the National Society of Chemists. Their applications were, however, dismissed on the ground that the time-limit for making a claim for compensation to the administrative authorities had been one year from the date of delivery of the Supreme Court's judgment, namely 4 July 1987, and that they had lodged their applications out of time. 17. The dates the Supreme Court delivered its judgments were as follows: 27 December 1993 (application no. 41487/98); 26 January 1994 (application no. 38366/97); 26 March 1994 (application no. 41446/98); 17 November 1994 (application no. 41509/98); 21 November 1994 (application no. 41015/98); 29 November 1994 (application no. 40777/98); 12 January 1995 (application no. 38688/97); 17 January 1995 (application no. 41484/98); 23 January 1995 (application no. 41400/98); and 28 January 1995 (application no. 40843/98). 18. The applicants then lodged ten amparo appeals with the Constitutional Court, arguing that the starting-point of the one-year limitation period for lodging their applications with the authorities had been either 5 November 1987, when the Supreme Court's judgment was published in the Official Gazette, or 7 July 1987, when it had been served on the National Society of Chemists. 19. State Counsel's lodged memorials that were favourable to the applicants, in which he said: “Whatever the position, State Counsel's Office considers that the interpretation by the Third Chamber of the Supreme Court, an interpretation which led it to declare that the action for compensation was statute-barred and, consequently, to dismiss that claim, in fact reflected a formal restrictive approach which is not best suited to facilitate the right of access to a court. That is because, as the Third Chamber itself openly recognised in its decision of 1 July 1994, which was produced by the applicant, it is impossible to establish the date when a judgment will be delivered before it has been drawn up and signed. That means that in every case, even people who were parties to the proceedings in question (which the applicant was not) will only learn the content and date of the judgment when it is served on them. Thus, taking as the starting-point the date of delivery of a judgment (which in practice is a fiction) and not the date of its service results in a material reduction in the time allowed for lodging the relevant claim for compensation, a reduction which, depending on how long service is delayed (which, admittedly, was for a very limited period in the present case), restricts and may even deny the effectiveness of the right to make a claim. Consequently, the decision of the Third Chamber of the Supreme Court entails a violation of the right to effective protection by the courts.” 20. The Constitutional Court nonetheless dismissed the appeals on the ground that the applicants had lodged their claims with the State General Administrative Department a year and two days after the date the Supreme Court's judgment was delivered. It held that a presumption arose that the applicants had been aware of the Supreme Court's judgment of 4 July 1987 in sufficient time, given their direct interest in it and the role played by the National Society of Chemists, which would have informed its members of the judgment. The dates of delivery and service on the applicants of the decisions of the Constitutional Court were as follows: 10 March 1997; 2 October 1997; 13 October 1997; 27 October 1997; 10 November 1997; and 27 November 1997. The judgments of 2 October 1997 (amparo appeal lodged by Mrs María de la Cinta Andreu Rocamora, application no. 38688/97) and 27 November 1997 (amparo appeal lodged by Mrs María Victoría Bonet Vilar, application no. 40777/98, Mr Salvador Roig Espert, application no. 41487/98, and Mrs María Dolores García Moreno, application no. 41446/98) were delivered by the Constitutional Court sitting as a full court. Three judges expressed an opinion dissenting from the judgment of 2 October 1997 (amparo appeal no. 160/1997). Three of the judgments of 27 November 1997 referred to the grounds of that judgment and to the dissenting opinion annexed to it. In the dissenting judges' view the starting-point for the limitation period was the date the person relying on it could reasonably act. In the instant case, that could not have been the date of “delivery” of the judgment of 4 July 1987, that being the date when the judges had voted in the parties' absence. Accordingly, in those sets of proceedings, the starting-point for the limitation period had to be the date of service of the decision, that being the point at which the parties had been able to act. With regard to Article 1969 of the Civil Code (see paragraph 23 above), the following view was expressed in the dissenting opinion: “... If regard is had to the fact that this latter rule provides that the limitation period for all types of action shall be calculated from the date the actions could have been brought, it is obvious that that date can under no circumstances be the date of delivery of the judgment, for the simple reason that the parties are not invited to be present at that 'act', which in general takes place in practice at the same time as the vote which, with the exception of judgments made public 'in open court', enables it to be considered as a fiction devoid of purpose. ... We therefore find ourselves confronted by a dangerous doctrine (by reason of the legal uncertainty which it creates for the parties) which, if extended to the calculation of the time-limits for appeals, may undermine the right to a remedy which is also fundamental. ... If account is taken of the fact that rules governing procedural time-limits are mandatory, that an interested party is at liberty to bring an action at any time within that period, and that any change to the rules for calculating the time-limits will affect the constitutional principle of legal certainty (Article 9 [of the Spanish Constitution]), the conclusion that we are faced not with a mere problem of interpretation of an ordinary legal rule (for which the Supreme Court has sole jurisdiction), but with an unreasonable interpretation of a procedural requirement that prevented the claim for compensation being considered by a court on the merits is inescapable. In our view, that situation amounts to a violation of the right to effective protection by the courts, since the requirement that the courts must examine a case cannot be satisfied by a mere decision containing formal reasoning, but requires a decision satisfying the criteria of legal and substantive debate or which, in accordance with Article 24 § 1, protects 'legitimate rights and interests'. The right to bring an action or to lodge an appeal must arise from the moment the parties may effectively become aware of a legal decision imposing an obligation on them or adversely affecting their legitimate rights or interests. As an act of communication between the court and the parties, service serves that purpose, namely to make the parties aware of the decision of the court and of the grounds for the decision. A pseudo-publication, a mere component of an esoteric judicial liturgy in which the parties play no role, cannot constitute the act required by our Constitution to enable the right to the effective protection by the courts or the right to a remedy to be exercised.” The dissenting judges concluded: “... we have to conclude that we are not dealing with a mere problem of interpretation of an ordinary legal rule ... but with an unreasonable interpretation of a procedural requirement which prevented the claim for compensation being considered by a court, something which is, in our view, contrary to the right to effective protection by the courts...” 21. Article 106 of the Constitution provides: “1. The courts shall supervise regulatory powers and the lawfulness of administrative acts and whether such acts are directed at aims which justify them. 2. Save in cases of force majeure, individuals shall be entitled in the circumstances and in the manner laid down by statute to compensation for any damage caused to their property and their rights whenever such damage results from the functioning of the public service.” 22. At the material time, section 40(3) was worded as follows: “Where the damage results from administrative deeds or acts ... the right to make a claim shall lapse one year after the event giving rise to the claim for compensation.” 23. The relevant provisions of the Civil Code read as follows: “Save as expressly provided otherwise, for the purposes of the limitation period in any action whatsoever, time shall start to run from the date the action may be brought.” “For the purposes of the limitation period in actions for the execution of obligations arising under a judgment or decision, time shall start to run from the date the judgment or decision becomes final.” 24. The issue of the starting-point has been considered by the Supreme Court in a number of decisions. “... The limitation period starts to run from the moment that a possibility of asserting the right exists, that is to say, from the moment the cause of action becomes a matter of public knowledge and the right can logically and legally be asserted, since it would be absurd and unjust if time started to run when the act giving rise to the cause of action was still unknown or concealed, when, as a consequence, it was impossible to challenge or contest that act effectively or when an obstacle prevented any challenge...” “... Time shall start to run from the moment the parties are notified, that is to say, from the moment they become aware of the rights and obligations which the decision creates for them...” “... [For the purposes of the one-year time-limit laid down by section 40(3) of the Law on the Legal Regime governing the Administration of the State, time begins to run as soon as] the judgment quashing the act or general administrative provision at the origin or constituting the cause of the pecuniary liability becomes final...”