FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42957/98

by Josefa RUIZ SANTILLAN and others

against Spain

The European Court of Human Rights ( Fourth Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr I. Cabral Barreto

Mrs N. Vajić , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 June 1998 by Josefa RUIZ SANTILLAN and others  against Spain and registered on 26 August 1998 under file no. 42957/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, whose list is appended, are Spanish nationals. They are all civil servants from the city of Madrid.

They are represented before the Court by Mr Jesús Castrillo Aladro , a lawyer practising in Madrid.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 17 June 1983 the mayor of Madrid issued a decree ordering the appointment of 37 assistants ( Auxiliares Administrativos ) as office workers ( Administrativos ) .   The applicants are 32 of that group of 37 persons.

Several civil servants of the town of Madrid lodged an administrative appeal (No.725/84) to the Audiencia Territorial of Madrid against both the city council of Madrid and  the applicants (as co-defendants),  requesting inter alia ,

a) Declaration of nullity of the decree of 17 June 1983;

b) Declaration of the obligation of the city council of Madrid to fill the 37 vacancies of the sub-group of office workers of the General Administration ( Subgrupo de Administrativos de Administracion General ) through a legal selection process.

By a judgment of 3 June 1988, the Audiencia Territorial of Madrid partially upheld the claim, declared  the decree null and void and ordered that a contest be held for the vacancies of the sub-group of office workers of the General Administration.

On 28 April 1995 the city council of Madrid, following a request made by the Tribunal Superior de Justicia of Madrid on 22 March 1995, ordered the execution of the judgment of 3 June 1988.  This decision was developed by another decision adopted by the mayor of Madrid on 8 November 1995.

As these decisions remained unexecuted , the Tribunal Superior de Justicia of Madrid, by a judgment of 21 February 1996, ordered the execution « without excuse, of the judgment of 3 June 1988 ... within a period of not more than 30 days ... ».

In order to proceed to the execution, the local authorities, on 20 March 1996, issued a decree fixing the conditions of the contest to fill the 35 vacancies.

The applicants and the other civil servants (applicants in appeal 725/84) applied for the contest.  The applicants maintain that, despite the fact that the latter had applied for the contest allegedly without any reservation, they complained to the Tribunal Superior de Justicia of Madrid, seeking changes in the decree of 20 March 1996. According to the applicants,  the city council was informed of this complaint and it therefore replied to the claim. The applicants allege that in spite of being co-defendants in appeal 725/84, they were not informed of this complaint and therefore they were not given the chance to respond to this claim and defend their rights.

In response to the alleged complaint, the Tribunal Superior de Justicia issued two decisions dated 28 May and 19 July 1996 that substantially modified the decree of 20 March 1996.  These decisions were not notified to the applicants in time. After the modifications, the applicants did not fulfil the requirements to participate in the contest.

The applicants lodged an appeal ( recurso de suplica ) with the Tribunal Superior de Justicia against the execution proceedings of the judgment of 3 June 1988. They also requested the annullment ( incidente de nulidad ) of the judgments of 28 May and 19 July 1996 on the grounds that they, as co-defendants in appeal 725/84, had been ignored in those proceedings.   By a decision of 24 February 1997, the Tribunal Superior de Justicia   admitted the appeal against the execution proceedings and ordered the notification of the judgments of 28  May and 19 July 1996 to the applicants to give them the opportunity to submit their obervations .

The applicants appealed against the decision of 24 February 1997 ( recurso de suplica ), insisting on the nullity of the judgments . On 25 June 1997, the Tribunal Superior de Justicia rejected the appeal, stating that the decision of 24 February 1997 had ordered notification, which implied the retrospective effect of the proceedings, which, in turn, allowed the applicant to challenge the decisions. Furthermore, the court added that the applicants had not, after notification, appealed against the content of those decisions, but had insisted on their nullity solely on the grounds of the already claimed lack of notification.

The applicants lodged an amparo appeal with the Constitutional Court, relying on Article 24.1 of the Spanish Constitution (right to a fair trial). The Constitutional Court, by decision of  4 March 1998, decided that there was no violation of Article 24, on the ground that the initial lack of defence was later corrected by the court and the applicants were given the opportunity to impugn the decisions that they  considered in breach of their rights.

COMPLAINTS

Invoking Article 6 § 1 of the Convention, the applicants complain that, as co-defendants in the administrative appeal 725/84, they were ignored in the execution proceedings of the judgment of 3 June 1988. The Tribunal Superior de Justicia   adopted two decisions, on 28 May and 19 July 1996,  that modified the basis of the contest, and they were not given the opportunity to present observations before the decisions were issued. They point out that after the modification of the decree, they no longer fulfilled the requirements for participating in the contest and consequently were relegated for life to assistant office workers, with serious economic and moral consequences.

The applicants complain that the Constitutional Court, rejecting the amparo appeal,  did not acknowledge the serious error committed in the proceedings by the Tribunal Superior de Justicia and furthermore breached Article 6 § 1 of the Convention.

THE LAW

1. The applicants complain about a violation of their right to a fair trial as they were ignored in the proceedings for the execution of the judgment of 3 June 1988 and the two decisions adopted by the Tribunal Superior de Justicia were not notified to them. They invoke Article 6 § 1 of the Convention which provides :

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ... ”

The Court does not consider it necessary to decide whether the dispute concerned the determination of the applicants’ civil rights and obligations, since the applications can in any event  be rejected as manifestly ill-founded for the following reasons.

According to the established case-law of the Convention organs, the question of whether proceedings have been conducted in accordance with the requirements of a fair trial, as provided for in Article 6 § 1 of the Convention, must be decided on the basis of an assessment of the proceedings as a whole (see Eur. Comm., application no 12952/87, Dec. 6.11.1990, D.R. 67, p. 175). Moreover, the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that the proceedings should be adversarial (see in particular, mutatis mutandis , Ruiz-Mateos v. Spain judgment of 23 June 1993, Series A no. 262, p. 25, § 63). That implies that anyone who is a party to civil 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” (see Eur. Comm., application no. 7450/76, Dec. 28.2.1977, D.R. 9, p. 108).

In the light of the foregoing considerations,  the Court notes that the initial error in the proceedings, related to the execution of the judgement of 3 June 1988 and in particular the decisions dated 28 May and 19 July 1996, was corrected by the Tribunal Superior de Justicia , which admitted the error and corrected it by ordering the notification to the applicants of the impugned judgements to allow them to submit the arguments they considered relevant to the defence of their interests. As the Constitutional Court stated in its decision of 4 March 1998, the right to a fair trial is not breached merely by the existence of an error in the proceedings, but only when the error caused effective and real prejudice to the possibilities of defence, which is not the case. Consequently, the Court considers that the applicants were given the opportunity to present whatever arguments they considered useful in support of their claims.

The Court concludes that nothing in the file suggests that the applicants did not enjoy a fair trial, so that these complaints do not disclose any appearance of a violation of any of the rights and freedoms set out in Article 6 § 1 of the Convention.

The Court concludes that this part of the application must be rejected as being  manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicants complain that the Constitutional Court, in rejecting the amparo appeal,  did not acknowledge the serious error committed in the  proceedings by the Tribunal Superior de Justicia and furthermore breached Article 6 § 1 of the Convention.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President