THIRD SECTION

DECISION

Application no. 60484/16 IMMOTERRA INTERNATIONAL DENIA, S.L . against Spain

The European Court of Human Rights (Third Section), sitting on 26 May 2020 as a Committee composed of:

Helen Keller, President, María Elósegui , Ana Maria Guerra Martins, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 10 October 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Immoterra International Denia , S.L. (“the applicant company”), is a company registered in Denia . It was represented before the Court by Mr G. Ripoll, a lawyer practising in Valencia.

2 . The Spanish Government (“the Government”) were represented by their Agent, Mr R.A. León Cavero , State Attorney.

3 . The applicant company is owned by a German couple, Mr MKE and Ms IBE. On 31 May 2004 the applicant company bought a house in Denia (Alicante) that became the permanent residence of the couple. The address of the house is Calle Lledoner , 12.

4 . To finance the acquisition, the applicant company signed a mortgage loan with Banco de Valencia, S.A . On page 20 of the agreement the parties declared that the address for service of any communication would be the address of the house.

5 . On 21 April 2009 the applicant company signed an agreement with the bank, extending the period of the mortgage by two years and providing that for a period of two years after the signing of the agreement only interest would be paid.

6 . On 9 June 2011 the applicant company signed another agreement with the bank, the content of which has not been submitted to the Court.

7 . On 16 July 2013 Banco de Valencia, S.A. merged with Caixabank , S.A. and the former adopted the name of the latter.

8 . On 27 December 2013 the then representative of Mr MKE sent a letter to Caixabank , S.A. stating that Mr MKE would only hold a meeting with the bank if the latter was willing to accept his proposal that for a period of three years he would only pay the interest of the mortgage debt.

9 . On 10 and 22 December 2014 Caixabank , S.A. sent several certified faxes ( burofaxes ) to both the applicant company and Mr MKE, stating that due to the lack of payment it had decided to terminate the contract. The postal service was made on the applicant company ’ s address, Calle Lledoner , 12, on 11, 12, 23 and 26 December. In the absence of the owners of the company or anybody else on its behalf, a notice was left in the letterbox. There is no evidence that Mr MKE or anybody else on behalf of the applicant company ever went to the post office to collect that correspondence.

10 . On an undetermined date in 2015, Caixabank , S.A. initiated civil foreclosure proceedings against the applicant company for non-payment of the repayment instalments. The proceedings were brought before the Court of first instance no. 3 of Denia ( Juzgado de Primera Instancia Nº 3 de Denia , hereinafter “the court”). The court attempted to summon the applicant company at Calle Lledoner , 12 on 24 April 2015. Nobody was found at the house and the court officer left a notice in the letter box. A deadline was set in the notice for the applicant company to pick up the summons at the court. On expiry of the deadline, the applicant company had not collected the summons.

11 . In view of the failure to summon the applicant company, on 29 April 2015 the court searched for any alternative addresses. They found an alternative address located in Calle Frígola , 8. The court attempted to summon the applicant company at this address, unsuccessfully.

12 . On 22 May 2015 the court ordered the notice to be served by means of public announcement, by attaching the summons to the bulletin board at the court office. When the period for service expired, the applicant company had not appeared and had not opposed the claim of the bank.

13 . As a consequence, the proceedings were pursued without the opposition of the applicant company.

14 . On 27 October 2015, when in view of the lack of payment of the applicant company a public auction had been announced to sell the house, the applicant company lodged an action for the annulment of proceedings. In it, the applicant company claimed that it had only acquired the notice of the proceedings on 23 October 2015, by chance. It complained that the summons had not been served on it at any time and that the lack of notice had meant that the applicant company had not been able to oppose the claim.

15 . On 30 November 2015 the court dismissed the applicant company ’ s appeal. It stated that two attempts had been made to summon the applicant company and that, according to the case- file, they had been both correct and effective. Consequently, the court considered that the procedural rules had been complied with at all times.

16 . On 20 January 2016 the applicant company lodged an amparo appeal with the Constitutional Court. In it the applicant company relied on a rticle 24 of the Spanish Constitution, concerning the ri ght to a fair trial. On 13 April 2016 the Constitutional Court declared the amparo appeal inadmissible owing to the lack of reasoning regarding the special constitutional significance of the appeal.

17 . An attempt to sell the building by auction failed, and on 5 April 2016 ownership of the house was awarded to Caixabank , S.A . The nominal acquisition price equalled the amount of the applicant ’ s debt, which was subsequently cancelled.

Article 155

Notices to parties that have not yet entered an appearance or that are not represented by a procurator. Address.

“1. Where the parties involved are not represented by a procurator or where the notice is an initial summons or order to attend, notices shall be sent to the litigants ’ address. ...

2. ... the claimant should indicate as much information about the defendant as they are aware of and which may be of use to locate them, such as telephone and fax numbers, or similar.

...

3. For the purposes of giving notice, the address appearing on the municipal registry of inhabitants or in any other official records for other effects may be designated, as may an address appearing in an official registry or in the publications of professional associations in the respective cases of companies and other entities and persons exercising a profession requiring membership of a professional association. The place where professional or work activities are carried out on a non-temporary basis may also be designated as the address.

...

If the claim is addressed to a corporate entity, the address of any person appearing as director, manager or attorney of the trading company, or the president, member or manager of the board of any association appearing on an official register may be given.

...”

Article 156

Investigations by the court about the address.

“1. In cases where the claimant states that he is unable to designate the defendant ’ s address or place of residence for the purposes of entering an appearance, the court clerk shall use any suitable means to find it and may, as appropriate, get in contact with the registries, organisations, professional associations, entities and companies referred to in paragraph 3, article 155.

...

4. Should these investigations turn out to be fruitless, the court clerk shall issue an order stating that notice shall be served by means of public announcement.”

Article 158

Notice through personal delivery.

“Where, in the cases set forth in paragraph 1, article 155, it is impossible to obtain proof that the addressee has been duly served with a notice aimed at the defendant entering an appearance in the proceedings or the party personally performing or taking part in some procedural actions, such notice shall be served in the manner set forth in article 161.”

Article 161

Notices by way of copy of the decision or summons.

“1. Service to the consignee of notice of the copy of the decision or summons will be made in the court or to the address of the person who must be notified, summonsed, cited or required to appear.

...

4. Should nobody be found at the address at which notice is meant to be served, the court clerk or designated civil servant shall make an effort to find out if the consignee resides there.

...

Should it turn out to be impossible to find out the defendant ’ s address through these means and should the claimant fail to designate any other possible addresses, the court shall proceed in accordance with provisions of article 156.”

Article 164

Notification by public announcement.

“In the event of the investigations referred to in article 156 being carried out and it is not possible to know the address of the consignee of the notice, or when the notice with all its effects cannot be served in accordance with the provisions of the preceding articles, or when so agreed in the case referred to in paragraph 2 of article 157, the court clerk, having recorded such circumstances, shall order notice to be served by attaching the decision or the summons to the bulletin board at the court office ...”

Article 166

Nullity and rectification of notices.

“1. Notices which are not made in accordance with the provisions in this chapter and may lead to the lack of proper defence shall be null and void.

2. However, when the person notified, summoned or ordered to attend is aware of the case and fails to report the nullity of the notice procedure at his first appearance before the court, from that time, the notice shall take full effect, as if it had been served in keeping with the law.”

COMPLAINTS

19 . The applicant company complains under Article 6 § 1 of the Convention that it did not have a fair trial, because the Court of first instance no. 3 of Denia did not observe the procedural rules concerning the summons of the applicant company. It claims that no diligence was observed by the court when serving the summons to the applicant company ’ s address and that the court did not even try to summon the applicant through the public announcement. Moreover, it claims that no previous request had been sent by the bank and that the second address where the court tried to summon the applicant company was completely unknown. As a result, the applicant company did not have the opportunity to appear at the proceedings and defend its position.

20 . Under Article 13 of the Convention the applicant company complains of the lack of an effective remedy. It claims that in spite of the previous irregularities, the court did not correct the situation upon the applicant company ’ s action for the annulment of proceedings, rendering ineffective the only possibility to remedy the breach of its rights.

THE LAW

21 . The Government submitted that the applicant company lacked victim status, because the company itself was responsible for the situation of which it complained.

23 . The Government also alleged that the application should be rejected for non-exhaustion of domestic remedies, in view that the Constitutional Court had declared the amparo appeal of the applicant company inadmissible for not demonstrating the special constitutional significance of the appeal. They argued that, at the time when the applicant company had lodged the amparo appeal, the requirement to demonstrate the special constitutional significance of the appeal had been clear in light of the law and the case-law of the Constitutional Court. Therefore, according to the Government, the fact that the applicant company “had not used a single line of its amparo appeal to argue on the constitutional significance” meant that it had failed to properly exhaust domestic remedies owing to a mistake of its representative.

24 . The Court observes that, indeed, in its amparo appeal the applicant company did not include any statement to defend the special constitutional significance of the appeal. Due to the lack of respect of the formal requirement set down in to article 49 § 1 of the Organic Law on the Constitutional Court, the Constitutional Court did not examine the substance of the amparo appeal of the applicant company and declared it inadmissible. Nevertheless, as the Court stated in the cases of Arribas Antón v. Spain (no. 16563/11, § 51, 20 January 2015), and Saber and Boughassal v. Spain (nos. 76550/13 and 45938/14, § 30, 18 December 2018), the fact that the Constitutional Court declared an amparo appeal inadmissible owing to the lack of special constitutional significance, or when applicable, for not demonstrating such significance, does not prevent the Court from examining the admissibility and the merits of an application lodged before it. The same applies in the present case.

25 . In any event, in the present case, the Court does not consider it necessary to further examine this objection, taking into account that the application fails to meet the admissibility criteria for other reasons.

27 . In response, the applicant company submitted that, before the judicial proceedings started, the company and the bank had a verbal agreement by which, during a period of two years, the applicant company would only pay the interest on the debt. Furthermore, the applicant reiterated that the Court of first instance no. 3 of Denia had failed to comply with the rules regulating the summoning procedure.

28 . The relevant general principles of the Court ’ s case-law concerning the right to present one ’ s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, are summarised in Gankin and Others v. Russia (nos. 2430/06, 1454/08, 11670/10 and 12938/12, §§ 25-28 and 35-39, 31 May 2016), and Bartaia v. Georgia (no. 10978/06, §§ 26-29, 26 July 2018).

29 . From these general principles it follows that the questions to be addressed in the present case are: ( i ) whether or not the authorities were diligent in informing the applicant company of the proceedings, and whether or not the company can be considered to have waived its right to appear before the court and to defend itself; and, if the response is negative, (ii) whether or not the domestic law provided the applicant with the appropriate means to secure a fresh adversarial hearing, once it learnt of the default decisions (see Dilipak and Karakaya v. Turkey , nos. 7942/05 and 24838/05, § 80 , 4 March 2014; and Aždajić v. Slovenia , no. 71872/12, § 53 , 8 October 2015 ).

30 . In the present case, the Court observes that the Court of first instance no. 3 of Denia attempted to serve the summons at the address designated by the applicant company in the mortgage loan agreement, which was also the one appearing in the business register, and the residential address of the company managers. When the attempt to serve the summons did not give any result, the national court found an alternative address at Calle Frígola , 8, which was the applicant company ’ s former address. When both attempts to summon the applicant company had failed and no other alternative address could be found in the public registries, the court proceeded with serving notice by means of public announcement.

31 . The Court notes that the Court of first instance no. 3 of Denia used all means available under the relevant national law governing the summoning procedure. In these circumstances, the Court does not share the view of the applicant company that the behaviour of the national authorities in informing the applicant of the proceedings was not diligent.

32 . On the other hand, notwithstanding the applicant company ’ s allegations that it had no previous notice that the bank had intended to claim the debt, the documents submitted by the applicant company clearly show that there was a dispute between the applicant company and the bank about the payment of the mortgage (see paragraph 8 above). In this situation, the applicant company cannot claim to have been completely unaware of the possibility of ensuing procedures.

33 . In any case, the applicant company could reasonably have been expected to have ready access to any mail directed to its registered address. Taking into account the attempts taken to notify the company about the instituted proceedings, the authorities cannot be held responsible for barring the applicant company ’ s access to a court, because the latter had failed to take the necessary steps to ensure receipt of its mail (see Hennings v. Germany , 16 December 1992, § 26, Series A no. 251 ‑ A; and Perihan and Mezopotamya Basın Yayın A.Åž. v. Turkey , no. 21377/03, § 38, 21 January 2014). In this sense, the Court is of the view that the applicant company contributed, as a result of its inaction and lack of diligence, to bringing about the situation of which it complained before the Court (see Avotiņš v. Latvia [GC], no. 17502/07, § 124, 23 May 2016).

34 . In view of these circumstances, the Court concludes that the authorities were diligent in informing the applicant company of the proceedings. It was given a reasonable opportunity to have knowledge of the proceedings and, in the circumstances, it may be considered to have waived its right to appear before the court.

35 . It follows that the complaint under Article 6 § 1 is inadmissible as manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

36 . The applicant company also complained of the lack of an effective remedy.

37 . As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. However, the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant company (see Nikitin and Others v. Estonia , nos. 23226/16 and 6 others , § 206, 29 January 2019).

38 . In view of the above findings (see paragraphs 28–35 above), the Court finds that the applicant company availed itself of a potentially effective remedy. The fact that the outcome of the remedy was not in its favour does not render it ineffective, especially given that, as it appears, the Court of first instance no. 3 of Denia dismissed the applicant company ’ s appeal on reasonable grounds.

39 . Accordingly, the complaint under Article 13 must also be rejected as manifestly ill-founded, according to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 June 2020.

Olga Chernishova Helen Keller Deputy Registrar President