CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 avril 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sB3CC9E9B { margin-top:14pt; margin-left:31.2pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sE208486F { font-family:Arial; color:#ff0000 } .s8327E6A6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDFF2C5DA { width:9.8pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s3B786E84 { width:22.69pt; display:inline-block } .sEC241A8 { width:159.87pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s9C6A147F { width:184.21pt; display:inline-block }     THIRD SECTION DECISION Application no. 45367/16 Andres MARTINEZ LOPEZ-PUIGCERVER and Emilio MARTINEZ LOPEZ-PUIGCERVER against Spain   The European Court of Human Rights (Third Section), sitting on 20   April 2021 as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Georges Ravarani,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma, judges, and Milan Blaško, Section Registrar, Having regard to the above application lodged on 20 July 2016, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The applicants, Mr Andres Martinez Lopez-Puigcerver and Mr Emilio Martinez Lopez-Puigcerver, are Spanish nationals, who were born in 1948 and 1949 respectively and live in Alicante. They were represented before the Court by Mr M.A. Franco Duran, a lawyer practising in Alicante. 2.     The Spanish Government (“the Government”) were represented by their Agent, Mr A. Brezmes Martínez de Villarreal, State Attorney. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Inheritance proceedings in which the applicants’ mother was a party 4.     The applicants’ mother, Ms F.L.P.B., was a defendant in inheritance proceedings that concerned, in particular, an estate located within the boundaries of the municipality of Los Yébenes (in the province of Toledo). She also acted simultaneously as a party bringing counterclaims in the same proceedings. On 31 July 2004 the Orgaz Court of First Instance no. 2 ( Juzgado de Primera Instancia 2 de Orgaz ) ruled in favour of the claimants and rejected the counterclaims brought by the applicants’ mother and other defendants. 5.     Some of the parties who had brought counterclaims in the proceedings appealed against the first-instance judgment. The applicants’ mother, however, did not. 6.     The second-instance court, the Toledo Audiencia Provincial , overturned the first-instance judgment, dismissed the claim brought by the claimants and allowed the counterclaims which had originally been dismissed (the judgment of 17 September 2007). That judgment did not affect the applicants’ mother in any way, given that she had not appealed. 7.     The applicants’ mother passed away on 15 October 2007, while clarification of the second-instance judgment was pending. 8.     After Ms. F.L.P.B.’s death, the lawyer who represented both her and other defendants in the proceedings lodged a cassation appeal and an extraordinary appeal complaining of an infringement of procedural law with the Supreme Court, in their name. The original claimants also lodged a cassation appeal with the Supreme Court. 9.     The applicants’ mother’s lawyer lodged the above-mentioned appeals without informing the applicants of this or asking for their consent. The applicants were therefore unaware that an appeal had been lodged in their mother’s name. They were not summoned by the court that examined the appeals either. 10.     On 9 June 2011 the inheritance proceedings were finally decided by the Supreme Court, which found in favour of the original claimants. The judgment (no. 419/2011) dismissed the appeals, including the one lodged in the applicants’ mother’s name, and confirmed the first-instance judgment. The applicants’ inheritance rights were not diminished or altered in any way by that judgment, and their situation remained the same as it had been after the first judgment delivered by the Orgaz Court of First Instance no. 2, which had not been appealed against by their mother. In fact, the Supreme Court stated that the applicants’ mother did not have standing to present a cassation appeal or an extraordinary appeal complaining of an infringement of procedural law, because she had not appealed against the first-instance ruling. The Supreme Court ordered those parties who had had their appeals dismissed including the applicants’ mother to pay the costs and expenses of the proceedings. 11 .     The fact that the applicant’s mother had passed away was mentioned in the judgment of the Supreme Court of 9 June 2011. However, that court did not initiate proceedings for procedural succession in respect of her heirs as established in the Civil Procedure Act. It did not serve any notification on them concerning the proceedings either. The applicants’ appeal for annulment before the Supreme Court 12.     In February 2013, once the applicants were aware of the judgment of the Supreme Court of 9 June 2011, they lodged a motion for annulment. In a decision ( providencia ) of 23 April 2013, the Supreme Court stated that the appeal was inadmissible because it had been lodged outside the prescribed time-limit, which was twenty days from the date of notification of the judgment. The court relied on the fact that the applicants’ mother’s representative had been notified of the judgment on 21 June 2011. 13 .     The Supreme Court pointed out that the applicants’ mother’s procedural representative had at no point made its relevant chamber aware of the fact that she had died, and that the only proof of this had been a mere statement made by one of the other parties’ representatives in his written submissions to the court, and later, another mention in his statement opposing the appeals. The Supreme Court also stated “the possible defect of substance ( defecto material ) in the present case as regards procedural succession in respect of the deceased claimant would in any event not [entail] the amendment of the ratio decidendi of the challenged judgment and the subsequent ruling. This is without prejudice to a party relying on that defect of substance in the event of an assessment of the costs and expenses incurred before this chamber”. 14.     The decision of 23 April 2013 was not served on the applicants or their lawyer, but on their mother’s representative. Proceedings for the assessment of costs and expenses before the Supreme Court 15.     Once the Supreme Court’s ruling of 9 June 2011 was final, the claimants in the original proceedings applied for an assessment of costs and expenses, including those to be paid by the applicants as Ms. F.L.P.B.’s heirs. In particular, the claimants requested that the Supreme Court state that they could claim a third of the costs and expenses from the applicants. 16.     In a decision ( providencia ) of 21 October 2014, the Supreme Court dismissed that request, with reference to its previous decision of 23 April 2013. In   particular, the court stated that that decision should be taken into account, in so far as it acknowledged that Ms. F.L.P.B.’s heirs might rely on the defect of substance in the case to oppose the obligation for them to pay costs and expenses. The Supreme Court held that “at the [material] time Ms.   F.L.P.B.’s heirs were not considered her successors in the proceedings, so that it is not appropriate to declare that they are obliged to pay any amount for costs and expenses; this is without prejudice to a party who is owed costs and expenses requesting payment [of what he is owed] by means of proceedings that [he] consider[s] most appropriate, if [he] consider[s] that the above-mentioned heirs owe [him] any amount”. 17.     The applicants were not notified at the time of either the initiation of the separate proceedings for the assessment of costs or any decisions issued in those proceedings. 18.     Upon their request, in July 2015 the applicants were served with a copy of the above-mentioned decisions of 23 April 2013 and 21 October 2014. Amparo Appeal 19.     On 8 September 2015 the applicants lodged an amparo appeal with the Constitutional Court, alleging a breach of Article 24 § 1 of the Constitution (the right to effective protection by judges and courts). 20.     On 23 November 2015 the Constitutional Court declared the appeal inadmissible, owing to the “evident lack of a violation of a fundamental right covered by an amparo appeal” (section 44 of the Constitutional Court Act). The decision was served on the applicants on 1 December 2015. 21.     The Public Prosecution Service lodged an appeal ( súplica ) with the Constitutional Court, arguing that the applicants had suffered a violation of their right to effective protection by judges and courts. The applicants participated in those appeal proceedings. 22.     In a decision of 8 February 2016, the Constitutional Court dismissed the appeal. The court reiterated that not all breaches of procedural rules constituted a violation of Article 24 of the Constitution. In the case at hand, although it was clear that the Supreme Court had disregarded the obligation to call the applicants under section 16(2) of the Law on Civil Procedure, neither the applicants nor the public prosecutor had proved the existence of material and effective defencelessness, that is, effective prejudice suffered by the applicants owing to the fact that they had not been summoned to take part in the proceedings when their mother had died. The court concluded, in line with its case-law, that there could not be a violation of the right to judicial protection by judges and courts. Proceedings to enforce the payment of costs and expenses 23.     In the meantime, once the proceedings for the assessment of costs and expenses had finished at the Supreme Court, the claimants in the original proceedings had lodged an application for enforcement with the Orgaz Court of First Instance no. 2, claiming from the applicants the costs and expenses of the proceedings before the Supreme Court which had resulted in the judgment of 9 June 2011 against the applicants’ mother. In   particular, they claimed 105,647.52 euros (EUR), plus EUR 31,694 for legal costs and interest, for the proceedings originating from the cassation appeal and the extraordinary appeal complaining of an infringement of procedural law which had been lodged with the Supreme Court. They argued that these amounts had been established in the proceedings for the assessment of costs and expenses before the Supreme Court, and that the applicants were liable to pay these amounts, as the heirs of Ms. F.L.P.B. 24.     The claim was allowed in a decision of 4 January 2016. The court dismissed the applicants’ objections to paying for the costs and expenses, relying on the judgment and decisions of the Supreme Court that had declared that their mother was liable to pay for the costs and expenses of the proceedings, a judgment and decisions which had not been annulled. It stressed that if there was a defect in the Supreme Court’s judgment of 9   June 2011, it was for that court to correct it, and no such correction had been made. 25.     On 20 July 2016 the applicants lodged the present application with the Court. 26.     On 4 November 2016 the applicants lodged an appeal against the decision of 4 January 2016 of the Orgaz Court of First Instance no. 2. 27.     In a decision of 1 March 2018, the Toledo Audiencia Provincial upheld the applicants’ appeal and quashed the first-instance decision, ruling that the applicants were not liable to pay for the costs and expenses of the proceedings before the Supreme Court. The Audiencia Provincial relied on the decision of the Supreme Court of 21   October 2014, in which Ms.   F.L.P.B.’s heirs had been excluded from the obligation to pay for the costs and expenses of the proceedings. The Audiencia Provincial specified that the decision of 21 October 2014 did not deny the applicants the status of heirs but denied their status as debtors. That decision found that the applicants’ mother’s status as a person who owed costs and expenses could not be considered to have been transferred to her heirs, because after the proceedings for annulment she had not been considered an appellant in the cassation proceedings which had resulted in the debt. Relevant domestic law 28.     The relevant provision of the Spanish Constitution reads as follows: Article 24 “1. Every person has the right to the effective protection of judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended. Likewise, every person has the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against him or her; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to his or her defence (...)...” 29.     The relevant provisions of Law 1/2007 of 7 January 2007 on Civil Procedure read as follows: Section 16 – Procedural succession owing to death “1.   When the subject matter of the hearing is transferred mortis causa , the person or persons who succeed the claimant may continue to occupy his position in the hearing for all purposes. Upon being notified of the death of any litigant by the party who succeeds him, the court clerk shall agree to the suspension of the proceedings and shall inform the other parties. Once the death and the right to succession are officially recognised and the pertinent formalities have been complied with, the court clerk shall consider, in any case, that the successor appears on behalf of the deceased litigant, and the court shall take this into account in the judgment. When the court responsible for the case becomes aware of the death of a litigant and the successor does not appear within five days [of the court becoming aware of the death], the court clerk, through an order to progress the proceedings, shall allow the other parties to request that the [successors] be notified of the proceedings and identified, along with their addresses, [and] required to appear within ten days. In that decision concerning notification, the court clerk shall agree to the suspension of the proceedings until the successors appear or the time-limit for them to appear expires. When the deceased litigant is the defendant and the other parties do not know the successors, or the [successors] either cannot be located or do not want to appear, the proceedings shall continue, and the defendant shall be declared in contempt of court by the court clerk. If the deceased litigant is the claimant and his successors fail to appear owing to any of the first two circumstances stated in the preceding paragraph, an order shall be pronounced by the court clerk in which the claimant shall be considered to have discontinued his claim, [and] the proceedings shall be put on file unless the respondent challenges this, in which case the provisions set forth in the third paragraph of section 20 shall apply. If the successors’ failure to appear is owing to the fact that they do not wish to appear, it shall be understood that the claimant waives the action.” COMPLAINT 30.     The applicants complained under Article 6 § 1 of the Convention about the lack of notification regarding the pending appeal before the Supreme Court, and the fact that they were not called, which prevented them from deciding on maintaining the appeal. THE LAW 31.     The applicants complained that the failure to notify them of the existence of the proceedings in which their late mother had been a party, and the omission to institute proceedings for procedural succession as established in law, had violated their right to a fair trial as provided for in Article 6 § 1 of the Convention, which reads as follows:   “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 32.     The Government submitted first that the applicants had not suffered a significant disadvantage. They conceded that, in fact, at the time of the application before this Court the applicants had faced risk of suffering damage. However, that risk was neither specific nor did it materialise at that time in as much as the judgment ordering them to pay costs and expenses had not been final. Moreover, as long as the potential damage had been the result of a negligent procedural action taken by the applicants’ mother’s lawyer and court representative, the applicants could sue that lawyer and representative for the damage caused by their negligence. The Government noted that the decision of 1 March 2018 exonerated the applicants from paying for the costs and expenses of the disputed proceedings. 33.     The Government further submitted that the available domestic remedies had not been exhausted. They stressed that the present case had involved two separate sets of proceedings, the first before the Supreme Court, and the second – for enforcement of the order to pay costs and expenses – before the Orgaz Court of First Instance no. 2. They pointed out that the alleged infringement of Article 6 § 1 would have taken place within the framework of the second set of proceedings. At the moment when the present application had been lodged, the decision of the Orgaz Court of First Instance no. 2 dismissing the objection raised by the applicants had not been final. In fact, the applicants had lodged an appeal against it after lodging the application before this Court. 34.     The Government lastly claimed that the applicants had concealed from the Court the existence of ongoing court proceedings regarding the costs and damages (around EUR 105,000) that they had been ordered to pay. On 20 July 2016, at the time when the present application had been introduced, the appeal against the decision of the Orgaz Court of First Instance no. 2 dismissing the objection raised by the applicants had not been lodged. However, it had been lodged afterwards (on 4 November 2016), and the applicants had not informed the Court of either the fact that the decision had not been final at the time of this application, or the filing of the appeal, leading the Court to suppose that all domestic remedies had been exhausted. As a result, there had been an abuse of the right of application, and the application should be declared inadmissible pursuant to Article 35 § 3   (a)   of the   Convention. Absence of a significant disadvantage 35.     In response to the Government’s objections, the applicants argued that they had suffered damage as a result of the Supreme Court’s infringement of Article 6 § 1 of the Convention, and that such damage did not consist of only the costs and expenses of the proceedings, but also the psychological damage resulting from them being ordered to pay the costs and expenses of proceedings in which they had not participated and of which they had not been aware, and the economic damage resulting from hiring a lawyer to represent them before the Constitutional Court, in the enforcement proceedings concerning costs, and before this Court. They added that the negligent conduct of their mother’s representative in filing the appeal without their consent did not exonerate the Spanish courts from their responsibility, because the Supreme Court had been aware of the fact that the applicants’ mother had died, and nonetheless had not initiated proceedings for procedural succession. 36.     The Court points out that the purpose of the “significant disadvantage” admissibility criterion is to enable the more rapid disposal of unmeritorious cases and thus allow it to concentrate on its central mission of providing legal protection of the rights guaranteed by the Convention and its Protocols (see Gagliano Giorgi v. Italy , no. 23563/07, § 54, ECHR 2012 (extracts)). The Court has previously considered that the rule of Article 35 §   3 (b) of the Convention, as it stands until the entry into force of Protocol No. 15, consists of three elements. Firstly, has the applicant suffered a   “significant disadvantage”? Secondly, does respect for human rights compel the Court to examine the case? Thirdly, has the case been duly considered by a domestic tribunal (see Smith v. the United Kingdom (dec.), no. 54357/15 , §   44, 28   March 2017)? The main element of the criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage, the assessment of which may be based on criteria such as the financial impact of the matter at issue or the importance of the case for the applicant (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1   June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1   July 2010). 37.     In   relation to the present case, the Court refers to the decisions of 23   April 2013 and 21 October 2014, which acknowledged the defect of substance and excluded the applicants from the obligation to pay the costs and expenses of the proceedings. Furthermore, as pointed out by the Constitutional Court, the applicants should have been called to participate in the proceedings, in conformity with section 16 of the Law on Civil Procedure. Notwithstanding this procedural defect, that same court observed that the applicants had not suffered any effective defencelessness and so no violation of the Constitution could be found. 38.     Furthermore, the Court observes that the parties do not dispute the fact that ultimately the applicants were not obliged to pay the costs and expenses of the proceedings. Indeed, the decision of 1 March 2018 of the Toledo Audiencia Provincial upheld the applicants’ appeal and quashed the first-instance decision, ruling that they were not liable to pay for the costs and expenses of the proceedings before the Supreme Court. 39.     The Court also notes that the applicants have neither specified nor substantiated any amount incurred in the proceedings they went through. In this regard, the Court reiterates that it should be able to discern elements in the materials in its possession to suggest that such a limitation had a “serious adverse effect” on the applicants’ life, the applicants’ subjective perception alone not sufficing to conclude that they suffered a significant disadvantage: it must be justified on objective grounds (see Ladygin v.   Russia (dec.), no. 35365/05 , 30   August   2011). Moreover, costs and expenses must be considered an ordinary part of court proceedings, and the fact that an appeal is needed to remedy an erroneous decision does not, by itself, lead to a violation of the Convention. 40.     The Court reiterates that financial prejudice is not the only element which has to be taken into consideration and that a violation of the Convention may concern important questions of principle for the applicant and thus cause a significant disadvantage regardless of pecuniary interest ( Giuran v. Romania , no. 24360/04, §§   17-25, ECHR 2011 (extracts)). Turning to the present case, the Court notes that although it could be conceded that the applicants’ confidence in the workings of justice has been undermined owing to their absence from the proceedings (see, mutatis mutandis , Fridman v. Lithuania , no. 40947/11, §   29, 24 January 2017), it is still true that they had the opportunity to claim damages from their mother’s representatives in the proceedings before the Supreme Court. However, they did not take advantage of this opportunity. Although they claimed to have suffered “psychological damage”, there is no evidence to that effect, nor is it possible to generally infer any sort of psychological injury from a civil order to pay a certain amount, an order which has never become final or subject to enforcement. 41.     Accordingly, in the circumstances of the present case, the Court cannot discern objective grounds to hold that the applicants suffered important adverse consequences as a result of their absence from the proceedings before the Supreme Court and the order against their late mother. 42.     The second element contained in Article 35 § 3 (b) of the Convention obliges the Court to examine a case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify a State’s obligation under the Convention or induce the respondent State to resolve a structural deficiency (see Smith , cited above, § 46). The Court does not discern any compelling reason warranting the examination of the applicants’ complaint on the merits. The Court thus finds that respect for human rights does not require an examination of this case. 43.     Lastly, Article 35 § 3 (b) of the Convention, as it currently stands, does not allow the rejection of an application on account of the lack of a   significant disadvantage if the case has not been duly considered by a   domestic tribunal. In this regard, the Court notes that the applicants’ complaints were examined on the merits by the Supreme Court, the Constitutional Court and the Toledo Audiencia Provincial , and that the applicants were able to submit their arguments in adversarial proceedings. Ultimately, the Audiencia Provincial upheld their appeal and quashed the first-instance decision, ruling that the applicants were not liable to pay for the costs and expenses of the proceedings before the Supreme Court. Consequently, the third element for rejection of an application under the above admissibility criterion has been satisfied. B.   Other inadmissibility objections and conclusion 44.     In view of the above it follows that the application must be declared inadmissible in accordance with Article 35 §§ 3 (b) and 4 of the Convention. This conclusion obviates the need to consider if other admissibility requirements have been complied with. For these reasons, the Court, by a majority, Declares the application inadmissible. Done in English and notified in writing on 27 May 2021.   {signature_p_2}   Milan Blaško   Paul Lemmens   Registrar   President