CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juillet 2024

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Nicolás Martínez, co-agent, Representative of Spain to the European Court of Human Rights; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the admissibility requirements for an action for annulment before an administrative court. The issue in the case is whether the regulation and interpretation of the requirements to lodge such an action prevented the applicant from obtaining access to a court, in breach of Articles   6 § 1 and 13 of the Convention. 2.     In 2015 the applicant, an irrigation community [1] ( comunidad de regantes ) claimed compensation for State liability before the Audiencia Nacional . The applicant complained that the State had made an unforeseeable change in the assessment criteria for granting of public funding for an upgrade of irrigation infrastructure. The applicant relied on the principles of protection of legitimate expectations, legal certainty and the prohibition of inconsistent behaviour to the detriment of others, claiming that the actions of the different public and private entities involved in the administrative procedure had created a legitimate expectation that the applicant would be allocated funding. It   claimed compensation for the amount that should have been financed by the State. 3.     In a judgment of 18 May 2017, which was notified to the applicant on 14 June 2017, the Administrative Chamber of the Audiencia Nacional , acting as a first-instance court, rejected the applicant’s claim for State liability, due to a lack of causal link between the actions of the different public and private entities and the alleged damage. In the reasoning it was noted, inter alia , that one agreement signed with a private entity involved in the administrative procedure was not enforceable. 4.     On 26 July 2017 the applicant lodged an appeal on points of law with the Supreme Court. It contested the assessment of evidence and the nature of the irrigation infrastructure project (whether it was only an upgrade or also an enlargement of the irrigation infrastructure), while relying on the principle of legitimate expectations. In addition, the applicant alleged a breach of the right to present evidence. The appeal was declared inadmissible for lack of objective cassational interest in a decision notified on 10 September 2018. 5.     On 8 October 2018 the applicant lodged an action for annulment with the first-instance court (the Audiencia Nacional ), using the Supreme Court’s case-law that establishes the suspension of the statutory 20-day time-limit to bring an action for annulment until the decision on the appeal on points of law is notified to the claimant. In the action for annulment, the applicant complained about a breach of the principle of consistency in the judgment of the Audiencia Nacional . The applicant argued in particular that the Audiencia Nacional had failed to decide on the cause of action ( preterición de la causa petendi ) specified in the State liability claim, namely that a legitimate expectation of funding had been produced by the combined actions and the perceived approvals of the different public and private sector entities involved in the funding procedure. In the applicant’s understanding, the Audiencia Nacional rejected the State liability claim for the sole reason that the expectation of funding had been based on a particular non-enforceable agreement. For the applicant, this amounted to a failure of consistency of the judgment with the cause of action. 6.     On 16 October 2018 the Audiencia Nacional declared the inadmissibility of the action for annulment for two reasons: firstly, there had been a prior remedy against the judgment, namely, the appeal on points of law; secondly, the action for annulment had been lodged out of the statutory time-limit because the judgment had been notified to the applicant on 14   June 2017. 7.     The applicant lodged an amparo appeal and alleged: (i) a violation of the principle of consistency in the judgment of the Audiencia Nacional ; (ii) a violation of the right to access to a court, complaining of the inadmissibility decision on the action for annulment as being allegedly contrary to the Supreme Court’s case-law cited above in paragraph 5 on the suspension of the statutory time-limit to bring an action for annulment. The amparo appeal was declared inadmissible for lack of constitutional relevance. 8.     On 23 September 2019 the prosecutor before the Constitutional Court requested that the inadmissibility decision on the amparo appeal be reviewed ( recurso de súplica ) with regard to the second complaint raised in the amparo appeal. 9.     On 10 March 2021 the Constitutional Court confirmed its inadmissibility decision of the amparo appeal, stating that it had ruled before on a similar case and established sufficient case-law for the ordinary courts to be able to decide in a harmonised manner on the admissibility of an action for annulment and its interconnexion with a pending appeal on points of law. 10.     The applicant alleged before the Court that the lack of clear rules combined with an excessive formalism in interpreting the admissibility requirements of the appeal on points of law, the action for annulment and the amparo appeal hindered its right of access to a court under Article   6 §   1 of the Convention. Furthermore, it relied on Article 13 and complained about the combined inadmissibility of the appeal on points of law, the action for annulment and the amparo appeal, which frustrated its right to an effective remedy. THE COURT’S ASSESSMENT 11.     The Government submitted in particular that the applicant had failed to complain about the inconsistency of the judgment before the Supreme Court. Furthermore, they argued that the applicant had had a prior remedy to complain about the inconsistency, namely a motion to supplement the judgment ( petición de aclaración o complemento ). In their view, moreover, the applicant had suffered no significant disadvantage. 12.     The applicant disagreed, arguing that it had mentioned the failure to decide on the cause of action in the appeal on points of law and that in any event a motion to supplement was not an available remedy. Furthermore, the Supreme Court could not rule on the breach of a fundamental right due to the restricted nature of the appeal on points of law under administrative law. In   essence, it argued that the existing system of appeals (appeal on points of law, action for annulment and amparo appeal) currently in force, along with a strict interpretation of the rules of access to an action for annulment breached its right of access to a court and the right to an effective remedy. 13.     At the outset, the Court notes the special, mixed public-private-law status of the applicant, an irrigation community. However, even assuming that it is a non-governmental organisation within the meaning of Article 34 of the Convention and can thus claim to be a victim of a violation of its Convention rights, the application is in any case inadmissible for the following reasons. 14.     The Court considers that the applicant’s complaints under Article   13 should be considered to be absorbed by the safeguards of Article 6   § 1, which are stricter than those of Article 13 (see Kudła v. Poland [GC], no. 30210/96, §   146, ECHR 2000-XI, and Brualla Gómez de la Torre v. Spain , 19   December 1997, § 41, Reports of Judgments and Decisions 1997-VIII). 15.     The general principles under Article 6 § 1 regarding access to a court including the right to access to the superior courts have been summarised in Zubac v. Croatia [GC], no. 40160/12, §§ 76-99, 5 April 2018. 16.     The Court notes that the action for annulment that the applicant brought before the Audiencia Nacional is an exceptional remedy which legitimate or potentially legitimate parties may request in writing before the courts so that judicial decisions be declared null and void on the grounds of a violation of a fundamental right (see Olivares Zúñiga v. Spain , no.   11/18, §   14, 15   December 2022). It can only be actioned if there is no other ordinary or extraordinary appeal or remedy against the decision that is considered to have violated a fundamental right. 17.     In the present case, the applicant’s action for annulment was declared inadmissible for two reasons: in essence, for non-exhaustion of the requisite prior remedies such as the appeal on points of law and, additionally, as it was deemed belated. 18.     The Court does not consider it necessary to examine the applicant’s arguments concerning the belated character of the action for annulment, because the other ground indicated by the Audiencia Nacional was equally eliminatory and hence alone sufficient to prevent the examination of the action for annulment. 19.     Turning to this latter consideration regarding the non-exhaustion of the appeal on points of law, the Court observes that the applicant availed itself of this remedy on 26 July 2017, arguing various matters but not specifically the problem of inconsistency of the Audiencia Nacional ’s judgment with the original cause of action (see paragraph 4 above). The Audiencia Nacional ’s rejection by way of referring to the appeal on points of law can be understood as pointing to this state of affairs. In these circumstances, the Court finds that the Audiencia Nacional ’s ruling – which implied that the applicant had not properly pursued an appeal on points of law in regard to the matter that it subsequently brought before the Audiencia Nacional – was devoid of arbitrariness, also taking into account the exceptional nature of the action for annulment (see paragraph 16 above). At this juncture, the Court would reiterate that the manner in which Article 6 § 1 applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order (see, mutatis mutandis, Brualla Gómez de la Torre , cited above, §§ 37-39) . 20.     The applicant further submitted that the inadmissibility decision on its amparo appeal, combined with the inadmissibility of the action for annulment, compounded its grievances. The Court reiterates that in view of the special role played by the Constitutional Court as the court of last resort for the protection of fundamental rights, it can also be accepted that proceedings before it may be more formal (see Arribas Antón v. Spain , no.   16563/11, § 50, 20 January 2015). In the present case, the Constitutional Court declined to deal with the applicant’s case in essence for the reason that the procedural ambiguities it alleged had already been sufficiently elucidated. 21.     The Court is therefore satisfied that the manner in which the Spanish superior courts dealt with the applicant’s appeals does not indicate any appearance of a violation of its right to access to a court or disclose any indication that the proceedings were otherwise unfair. In these circumstances, it is not warranted to examine the further grounds of inadmissibility suggested by the Government. 22.     It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a), and must be rejected, pursuant to Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 29 August 2024.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President     [1] The applicant is an “irrigation community”, an association of persons who, within a territory and under certain conditions, are allowed to make use of public domain water for the purpose of irrigation of agricultural lands.