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MALDONADO NAUSIA AND TRINCHANT TRINCHANT v. SPAIN

Doc ref: 19859/92 • ECHR ID: 001-1589

Document date: May 5, 1993

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 1

MALDONADO NAUSIA AND TRINCHANT TRINCHANT v. SPAIN

Doc ref: 19859/92 • ECHR ID: 001-1589

Document date: May 5, 1993

Cited paragraphs only

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)

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