Information Note on the Court’s case-law 17
April 2000
Ben Salah Adraqui and Dhaime v. Spain (dec.) - 45023/98
Decision 27.4.2000 [Section IV]
Article 35
Article 35-1
Exhaustion of domestic remedies
Rejection as out of time of an amparo appeal contesting a procedure in which the applicants were not parties: inadmissible
In August 1987 the husband of the first applicant and father of the other applicants died after being run over by a motor vehicle. The second applicant, who was the victim’s son, was questioned but his address in France, although given to the road traffic police, was not included in the deposition received by the judge, which only stated that he had no fixed address in Spain. The criminal investigation in respect of the driver of the vehicle, which initially opened before the Fuengirola investigating judge, was continued before the local magistrate as the offence had been reclassified as a summary offence. On 22 January 1988 the magistrate set the case down for trial on 18 March 1988. The driver of the car was acquitted in a judgment of 21 March 1988. The applicants, who were resident in France, had no knowledge of the summons to attend the hearing or of the judgment itself, these having been published only in the Official Gazette of the province of Malaga. In November 1990, not having had any news of the trial, the applicants made an application to join the proceedings, among other requests. That application was rejected by the magistrate on the ground that the proceedings had been closed on 26 October 1988, since the judgment delivered on 21 March 1988 had become final in the interim as no appeal had been entered. In a decision of 1 February 1991, served on 6 February 1991, the magistrate dismissed a request by the applicants that he reconsider his decision (recurso de reforma), but nevertheless informed them of all the stages of the proceedings leading up to the decision to close the file after the judgment delivered on 21 March 1988 had become final on 26 October 1988. He also dismissed an appeal lodged by the applicants against the decision of 1 February 1991, as the law did not provide for such a remedy, and ordered that copies of the documents requested by the applicants be sent to them. Despite three requests for execution of that decision, the applicants did not receive copies of the court file until 8 November 1994. On 11 November 1994 an application by the applicants to have the part of the proceedings after the case had been set down for trial declared void, was declared inadmissible. In a judgment of 22 January 1995, even though State counsel had made submissions in favour of the applicants, the Constitutional Court rejected a recurso de amparo lodged by the applicants on 2 December 1994 as being out of time. It held that the recurso de amparo should have been lodged within twenty days from service of the decision of 1 February 1991, in accordance with its established case-law to the effect that the time allowed for lodging a recurso de amparo began when the persons who should have appeared as parties to proceedings had sufficient knowledge of the existence and material content of the judgment which they sought to challenge. In the instant case they had obtained that information on 6 February 1991, when they were served with the decision of 1 February 1991. The applicants, although assisted by a lawyer, had not lodged the recurso de amparo until 2 December 1994.
Inadmissible under Article 6 § 1 (non-exhaustion): Referring to the grounds given by the Constitutional Court for its decision to dismiss the recurso de amparo as being out of time, the Court held that the point at which time began to run could not be left to the free choice of applicants who would thus have great latitude to put off exercise of the right to commence constitutional proceedings indefinitely. Under Article 35 of the Convention the Court could only deal with a matter after all domestic remedies had been exhausted. According to the established case-law of the Convention institutions that requirement was not satisfied where a remedy had been declared inadmissible because an applicant had failed to comply with a legal formality. In this case, the recurso de amparo lodged with the Constitutional Court had been rejected as being out of time, the applicants having let the time allowed expire while using remedies which were not relevant: non-exhaustion of domestic remedies.
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