CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 novembre 2016

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } Communicated on 25 November 2016   THIRD SECTION Application no. 48297/15 Maria GIL SANJUAN against Spain lodged on 21 September 2015 STATEMENT OF FACTS The applicant, Ms Maria Gil Sanjuan, is a Spanish national, who was born in 1937 and lives in Murcia. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant owned a piece of land that was affected by a Ministerial Order of 27 September 2007, a decision of the Ministry of the Environment approving the delineation of the coastal area (zona marítimo terrestre) . A part of her plot of land became public property in accordance with the Coasts Act (Ley de Costas) . In response, the applicant instituted judicial proceedings against the delineation carried out by ministerial decree before the Audiencia Nacional . The Audiencia Nacional ruled against the applicant in its judgment of 8 October 2010. 2.     On 4 November 2010 the applicant submitted a notice of appeal against the judgment of 8 October 2010, a requirement prior to lodging an appeal on points of law ( recurso de casación ). The Audiencia deemed the appeal prepared and referred it to the Supreme Court. On 4 January 2011 the applicant lodged an appeal on points of law with the Supreme Court. 3.     By a decision of 28 October 2011 the Supreme Court informed the applicant of the possible existence of grounds for inadmissibility in the notice of appeal, specifically the lack of a reference to the grounds for appeal and the relevant legal rules or case-law allegedly infringed by the Audiencia Nacional ’s judgment. The Court based the decision on sections   88(1), 89(1) and 93(2) of Law 29/1998 regulating judicial procedure in administrative matters ( Ley reguladora de la Jurisdicción Contencioso-administrativa ) as well as the Supreme Court’s decision ( auto ) of 10   February 2011. It granted a time-limit of ten days for the applicant to make comments in this connection. 4.     The applicant submitted her comments against the Supreme Court’s decision, arguing that a decision of inadmissibility would be in breach of her right of access to a court and to judicial remedies since the notice of appeal had complied with the requirements set forth in the law as interpreted at the time it had been lodged. Nevertheless, on 9 February 2012 the Supreme Court declared the appeal inadmissible owing to non-compliance of the notice of appeal with the requirements set forth in the Law 29/1998, in particular section 89(1) read in conjunction with section 88(1), as interpreted by the Supreme Court’s decision of 10 February 2011. The applicant announced the grounds for appeal (among those prescribed in section 88(1) of Law 29/1998), but she did not make reference to the specific provisions or case-law allegedly infringed or to the content of the breach of legal rules or case-law to be alleged and developed within the appeal on points of law. 5.     The applicant lodged an “appeal for annulment” ( incidente de nulidad ) that was dismissed by the Supreme Court on 13 September 2012. 6.     The applicant subsequently lodged an amparo appeal claiming that the notice of appeal complied with the requirements set forth in Law 29/1998 as interpreted in the case-law at the time it was lodged (4   November 2010). The applicant argued that the retroactive application of an ex novo requirement not provided for by law but established by the decision of 10   February 2011 – after her appeal had been submitted and without having given her the possibility to remedy any possible deficiencies which may have arisen as a result of the new criteria – had been in breach of Article 24 of the Spanish Constitution (right to fair trial) and Article 6 of the Convention. She relied on the Court’s findings in the case of Saez Maeso v.   Spain (no.   77837/01, 9 November 2004). 7.     The Constitutional Court dismissed the applicant’s amparo appeal by a judgment of 16 March 2015 (served on the applicant on 23 March 2016). The Constitutional Court’s findings may be summarised as follows:   (i)     Requiring the notice of appeal to contain a reference to the legal provisions and case-law allegedly infringed was within the authority of the Supreme Court. The Supreme Court’s criteria outlined in the impugned decisions was considered proportionate and a legitimate exercise of its powers of interpretation. It had sufficiently weighed up the purpose of the rule and the consequences on the applicant. The Constitutional Court noted that deciding on the admission of appeals on points of law as well as on the application and interpretation of their admissibility requirements was primarily a task for the Supreme Court. Hence, the Constitutional Court should not intervene unless unreasonableness or arbitrariness was found in the Supreme Court decisions. The court made reference to the Strasbourg Court’s case-law and decisions, in particular the cases of Brualla Gómez de la Torre v. Spain (19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII), Puchol Oliver v. Spain (dec.) (no. 17823/03, 25 January 2005), Sociedad General de Aguas de Barcelona S.A. v. Spain (dec.) (no.   46834/99, 25 May 2000), Llopis Ruiz v. Spain (dec.) (no. 59996/00, 7   October 2003) and Ipamark v. Spain (dec.) (no. 38233/03, 17   February   2004).   (ii)     Case-law was not a source of law in the Spanish legal system. Making reference to its previous judgment (judgment no. 95/1993 of 22   March), the Constitutional Court highlighted that a judgment introducing a change in the case-law interpreted what a legal rule had meant since its creation; it could not thus be understood that the previous, contradictory case-law had changed such rules or could be imposed as customary law. Relying on the Strasbourg Court’s case-law, the Constitutional Court reiterated that the requirement of judicial certainty and the protection of legitimate expectations did not involve the right to an established jurisprudence ( Unédic v. France , no. 20153/04, § 74, 18 December 2008) and noted that case-law development was not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolving approach would risk rendering it a bar to reform or improvement ( Atanasovski v. the former Yugoslav Republic of Macedonia , no. 36815/03, §   38, 14 January 2010).   (iii)     Lastly, there had been no exceptional circumstances such as those found in a similar case in which the Constitutional Court upheld an amparo appeal in judgment no. 7/2015 of 22 January 2015. Unlike that previous case, the applicant had not amended the notice of appeal as soon as she was aware of the new criteria of the Supreme Court as regards the requirements for admissibility; not even after the Supreme Court had informed the applicant of the possible existence of grounds for inadmissibility within the notice of appeal.   8.     The Constitutional Court’s judgment contained a joint dissenting opinion of two judges (out of six) claiming that the amparo appeal should have been upheld for the reasons set out in a previous dissenting opinion attached to the Constitutional Court’s judgments no. 7/2015 of 22 January 2015 and no. 16/2015 of 16 February. In short, the dissenting opinion stated that the right to a fair trial and, more particularly, the right of access to a court and to judicial remedies might be breached if a new interpretation of formal requirements developed in case-law was applied to the examination of an appeal lodged when the new criteria had not existed or had not been known to exist and the applicant had not been given any opportunity to remedy any newly arisen deficiencies in the notice of appeal. The dissenting judges stressed that another conclusion would be unreasonable and contrary to the principles of legal certainty and good faith and would raise an issue as to the foreseeability of judicial interpretation ( Alimuçaj v. Albania , no.   20134/05, §§ 150 and 156, 7 February 2012, and Del Río Prada v. Spain [GC], no. 42750/09, § 93, ECHR 2013). B.     Relevant domestic law and practice 9.     The relevant provisions of the Constitution read as follows: Article 24 “1. Everyone has the right to obtain effective protection by the judges and the courts in the exercise of his or her rights and legitimate interests, and in no case may he or she go undefended. 2. Likewise, everyone has the right to be heard by a court established by law, to the defence and assistance of a lawyer, to be informed of any charges brought against him or her, to a public trial without undue delay and with full guarantees, to make use of evidence relevant to their defence, not to incriminate him- or herself, not to declare him- or herself guilty, and the right to be presumed innocent.” 10.     The relevant provisions of Law 29/1998 regulating judicial procedure in administrative matters ( Ley reguladora de la Jurisdicción Contencioso-administrativa ) as in force when the applicant lodged her appeal on points of law read as follows: Section 88 “1.     An appeal on points of law shall be based on one or more of the following grounds: a)     Abuse, excess or a defect in the exercise of jurisdiction. b)     Lack of competence or inappropriateness of the procedure. c)     Failure to observe essential procedural requirements due to a breach of the rules regulating judgments or those governing procedural acts and guarantees provided that, in the latter case, the party has gone undefended. d)     Breach of the legal rules or of the case-law applicable to resolve the issues at stake ...” Section 89 “1. An appeal on points of law shall be prepared ... within ten days ..., by submitting a notice [of appeal] expressing the intent to lodge an appeal [on points of law], including a brief statement on its compliance with the formal requirements ...” Section 93 “2. The Chamber shall render a decision on inadmissibility in the following cases: a)     When, despite having deemed the notice of appeal prepared, the requirements are not met or the impugned decision is not subject to appeal on points of law ...” 11.     The Constitutional Court noted in its judgment the development of the Supreme Court’s case-law as regards the admissibility requirements of the notice of appeal. The criteria which had been in effect when the applicant had lodged the notice of appeal had been established by the Supreme Court’s decisions of 14 October 2010 (no. 952/200 and 573/2010), later confirmed by a decision of 18 November 2010 (no. 3461/2010). The Supreme Court’s decision of 14 October 2010 reads as follows: “Even though section 89(1) of the Law [29/1998] does not establish a list of formal requirements to be met by the notice of appeal, this Supreme Court has in a number of decisions highlighted the need to state already in that document, first, the appealable nature of the decision to be contested; second, the legitimacy of the appellant; third, the compliance with the time-limit established to submit the notice of appeal; and fourth, the intent to lodge the appeal on points of law against the impugned judgment or act ... To these requirements should be added the need to advance within the notice of appeal the specific grounds – among those foreseen in section 88(1) [of Law 29/1998] – on which the appeal on points of law will be based ... There is settled and uniform case-law declaring ... that when it is intended to appeal on points of law against judgments rendered by the Administrative Chamber of the High Courts of Justice and the appeal on points of law is based on a breach of legal rules or of the case-law applicable to resolve the issues at stake (section 88(1)(d) [of Law 29/1998]), in the notice of appeal ... not only must the grounds [for appeal] be set out but they must also be sufficiently justified ... This ... is not applicable in respect of judgments rendered by the Administrative Chamber of the Audiencia Nacional , nor, of course, in respect of decisions ...” 12.     On 10 February 2011 (appeal on points of law no. 2927/2010) the Supreme Court rendered a new decision aimed at clarifying its case-law in this connection stating that: “[I]t is for the appellant ... to state within the notice of appeal the grounds on which the appeal will be based ... with reference to the specific provisions or case-law allegedly infringed or to the content of the breach of the legal rules or of the case-law to be alleged and developed within the appeal on points of law, albeit briefly ...” COMPLAINT The applicant complains under Article 6 § 1 of the Convention that the notice of appeal complied with the requirements set forth in Law 29/1998 regulating judicial procedure in administrative matters as interpreted in the case-law extant at the time of lodging it (4 November 2010). The applicant argues that the retroactive application of a new interpretation of a procedural requirement not provided for by law but established by the Supreme Court’s decision of 10 February 2011 (after her appeal was submitted) and without having given her the possibility to remedy any possible deficiencies which had arisen as a result of the new criteria was in breach of her right of access to a court and to judicial remedies. QUESTION TO THE PARTIES Did the applicant have a fair trial in accordance with Article 6 § 1 of the Convention having regard to the fact that the Supreme Court applied a new interpretation of the admissibility requirements that were developed after the date on which the notice of appeal had been lodged by the applicant? Was this retroactive application of procedural requirements in breach of the applicant’s right of access to a court and to judicial remedies, bearing in mind that it was applied automatically and without having given her the possibility to remedy any possible deficiencies that had arisen as a result of the new criteria?