Information Note on the Court’s case-law 52
April 2003
Nunes Dias v. Portugal (dec.) - 69829/01 and 2672/03
Decision 10.4.2003 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Service by public notice where the defendant cannot be traced: inadmissible
An action for damages was initiated against the applicant in respect of the loss resulting from a road traffic accident which had led to the death of a member of the claimants' family. The judge summoned the applicant to appear before him but the applicant, who in the meantime had moved home, could not be found at the address given by the claimant. The police informed the court that the applicant's new address was unknown. Thus, pursuant to the applicable legislation, the service of the summons was effected by public display and by publication of notices in a national newspaper stating that a claim for damages had been brought against the applicant. The applicant failed to enter an appearance and the hearing took place in his absence. In 1989, the court decided to make an order for damages against the applicant. In 1999, the applicant was notified that proceedings had been initiated against him to enforce the decision taken against him, which had become final. He initiated proceedings against the decision ordering him to pay damages, but without success. The applicant then lodged an objection against the enforcement of that decision and was successful in part before the lower courts. The higher courts dismissed his action, in particular the plea alleging that the summons in the main proceedings served by being publicly displayed was void.
Inadmissible under Article 6 § 1: The rules on the summoning of the applicant by means of public display applied in the present case – the rules relating to the procedures and time limits to be observed in bringing proceedings – were designed to ensure the proper administration of justice and compliance, in particular, with the principle of legal certainty. To extend proceedings indefinitely in order to find the address of one of the persons involved might prove to be inconsistent with those principles. The right of access to a court therefore does not prevent the Contracting States from making provision in their legislation for a procedure to apply in a situation of this type, provided that the rights of those concerned are properly protected. That is the position here, in the light of the facts in issue and the rules applied. The court ordered service by public display only when it was satisfied, after making enquiries of the police, that the applicant's address could not be found. Furthermore, persons in the same situation as the applicant have available a remedy in domestic law, which gives them the opportunity to challenge the validity of service by public display either during the main proceedings or within five years of the date on which the decision became final, or in the context of the subsequent enforcement proceedings. In the latter proceedings, the applicant was able to submit argument to demonstrate that such service should not have been ordered; in rejecting such argument, the national courts did not interpret the disputed procedural rules arbitrarily or unreasonably. Accordingly, there was no breach of the very substance of the applicant's right of access to a court: manifestly ill founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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