AS TO THE ADMISSIBILITY OF
Application No. 19859/92
by José Maria MALDONADO NAUSIA
and Maria Clorinda TRINCHANT TRINCHANT
against Spain
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 May 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 April 1992 by
José Maria MALDONADO NAUSIA and Maria Clorinda TRINCHANT TRINCHANT
against Spain and registered on 16 April 1992 under file No. 19859/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are a married couple, both Spanish citizens living
in Madrid.
The facts, as submitted by the applicants, may be summarised as
follows.
In December 1984 the legal counsel of the owners' association of
Monteprincipe Estate, with its chairman Mr. J.D.G.M. acting on its
behalf, filed a pecuniary claim in declaratory proceedings before the
Court of first instance of Mostoles (Madrid), against the applicants.
The legal notice was sent to the applicants' address which was known
to the owners' association. As the applicants had meanwhile moved to
an unknown address, the Court decided that the applicants should be
notified by publication of edicts on the notice board of that Court and
in the Official Gazette of the Regional Government of Madrid. Once the
time-limit granted in the summons had expired, the Mostoles Court of
first instance declared the applicants in default and ruled that
proceedings for reply to the claim were precluded.
On 31 July 1986 the Civil Court of first instance ordered the
applicants, in a judgment by default, to pay a sum of 22,143,196
pesetas as community charges accrued on their lots in Monteprincipe
Estate, with legal interest and procedural costs.
In September 1986 the first applicant, having been informed of
the claim against him, asked the Court of Mostoles for notification of
all the decisions handed down in the proceedings in question, following
which he lodged an appeal before the Audiencia Territorial of Madrid.
In his writ to the appeal court he submitted two preliminary
objections alleging lack of jurisdiction of the Court of first instance
of Mostoles and lack of locus standi of the plaintiff. The Audiencia
Territorial dismissed both pleas and, by decision of 14 November 1988,
the appeal against the ruling of the Court of first instance was also
dismissed on the merits.
As soon as the Audiencia Territorial of Madrid served notice of
its ruling on the applicants, they brought an appeal on points of law
before the Supreme Court. The second applicant requested, in an
additional petition, that further evidence be taken, as she had not
been a party to the proceedings held in the Court of first instance or
the appeal to the Audiencia Territorial. The Supreme Court dismissed
both the appeal and the petition on 5 March 1991.
The applicants then sought relief before the Constitutional Court
and lodged an appeal of "amparo", alleging a violation of Article 24
paras. 1 and 2 of the Spanish Constitution, which grants the right of
effective judicial protection and defence. The Constitutional Court
declared the appeal inadmissible on 14 October 1991, finding that the
applicants had had recourse to the appeal proceedings and had been able
to produce such evidence as they deemed fit.
COMPLAINTS
The applicants complain that in giving judgment against them by
default the Court of first instance of Mostoles infringed their right
to effective judicial protection, insofar as no diligence was shown in
tracing them before serving notice of the proceedings by edicts. They
allege a breach of their right to effective judicial protection and of
their defence rights. The applicants complain further that the
Audiencia Territorial of Madrid dismissed their preliminary objections
of lack of jurisdiction of the Court of first instance and lack of
locus standi of the plaintiff. They invoke Articles 6 para. 1 and 14
of the Convention.
THE LAW
1. The applicants consider that they have been ordered to pay a sum
without being heard, the Court of first instance having given judgment
by default. They invoke Article 6 para. 1 (Art. 6-1) of the Convention.
The relevant part of that provision states:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law..."
The Commission recalls with regard to the default proceedings
complained of that the right to a fair hearing requires that everyone
who is a party to such proceedings shall have a reasonable opportunity
of presenting his case to the court under conditions which do not
place him at a substantial disadvantage vis-à-vis his opponent
(No. 2804/66, Dec. 16.7.68, Collection 27 p. 61 at p. 73 with further
references).
The Commission notes that, in the present case, the applicants
have had the opportunity to submit to the appeal court the preliminary
objections and documentary evidence they thought relevant to their
claim. They were all considered and rejected, as well as the appeals
themselves, after due reasoning by that court.
The second applicant complains that she was a party neither to
the proceedings before the first instance court, nor to the appeal
before the Audiencia Territorial of Madrid.
The Commission notes, however, that she is the wife of the first
applicant, who participated very actively in the appeal lodged before
the Audiencia Territorial, and that they live together at the same
address. Her position in the case derives from that of her husband, so
that, notwithstanding the fact of not having been notified of the first
instance court ruling, and not having taken part in the appeal before
the Audiencia Territorial, she cannot be seen as having been deprived
of her right of defence. The situation of which she complains must be
considered as a result of her own attitude.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicants also allege a violation of Article 14 (Art. 14)
of the Convention, which reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Besides the fact that the applicants have not sufficiently
explained in what way the principle of non-discrimination applies to
their case, and even examining it together with Article 6 para. 1
(Art. 6-1) of the Convention, the Commission notes that this complaint
was not raised by the applicants before the Constitutional Court.
Therefore, the Commission concludes that the applicants have not
exhausted the domestic remedies open to them in Spanish law.
It follows that this part of the application must be rejected
under Article 26 in conjunction with Article 27 para. 3 (Art. 26+27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy