THIRD SECTION

DECISION

Applications nos. 6107/17 and 73808/17 Javier GARCÍA ESPINAR against Spain

The European Court of Human Rights (Third Section), sitting on 12 October 2021 as a Committee composed of:

Darian Pavli, President, María Elósegui, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above applications lodged on 12 January 2017 and 6 October 2017 respectively,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Javier García Espinar, is a Spanish national, who was born in 1974 and lives in Madrid.

2. The Government were represented by Mr Rafael-Andrés León Cavero , former Agent of the Kingdom of Spain before the European Court of Human Rights and Mr Alfonso María Brezmes Martínez de Villarreal, Agent of the Kingdom of Spain before the European Court of Human Rights.

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

4. Every year between 2004 and 2009, the Spanish police gave notice of a competitive examination for recruitment to the public service, which set, among other requirements, an age limit for candidates at 30.

5. The applicant, who turned 30 in 2004, applied as a candidate each of those years. Every time, the applicant was excluded on account of his age. The applicant lodged subsequent appeals with the Supreme Court, which were upheld in every case: in the respective judgments, the Supreme Court concluded that the applicant had been discriminated against on account of his age by not being allowed to participate in the competitive examination for the police forces, set aside the age requirement contained in the decisions giving notice of the competitive examinations, and decided that the applicant had the right not to be excluded from the recruitment process and that he should be allowed to apply and, in the event that he passed all the tests, be appointed police officer with retroactive effect (from the moment when the other successful applicants in the respective recruitment process had been appointed).

6. The specific way in which each of those Supreme Court judgments was to be executed was to be determined by the police forces with regards to the circumstances of the case.

7. In each case, the police forces decided to invite the applicant to take part in an ad hoc competitive examination, namely the first test, which was a physical fitness test. However, for different reasons, the applicant never took part in any of the proposed tests. On each occasion he lodged appeals and requested the domestic courts to declare the Supreme Court judgments non-enforceable, and to award him a financial compensation for not having been able to apply to the competition in the first place.

8. The present case joins two applications concerning two of those enforcement proceedings, namely the 2005 competition, and the 2007 and 2009 competitions.

9. The applicant lodged an appeal with the Supreme Court against the police forces’ decision to exclude him from the 2005 competitive examination, on account of the fact that he was over 30 years old. On 14 December 2012 the Supreme Court upheld his appeal, concluded that he had been discriminated against on account of his age, set aside the age requirement, and decided that the applicant had the right not to be excluded from the 2005 recruitment process. It decided he should be allowed to apply and, in the event that he passed all the tests, be appointed police officer with retroactive effect (from the moment that the other successful applicants in the 2005 recruitment process had been appointed).

10. The police invited the applicant to take part in an ad hoc competitive examination to join the police forces, which first consisted of a physical fitness test, scheduled for 26 April 2013.

11. The day before, the applicant sent an email to the police, informing them that it had not been possible to obtain medical certificates to prove that he was fit to take the physical fitness test, and that in any event he was not on an equal footing with the other applicants who had taken that test nearly eight years before, so he would not be taking the test.

12. As the applicant did not attend, the selection panel declared the applicant excluded from the competitive examination.

13. The Madrid High Court of Justice ( Tribunal Superior de Justicia ), in charge of the execution of the Supreme Court’s judgment, invited the applicant to put forward any arguments and warned him that if he did not provide any, the Supreme Court’s judgment would be considered executed and the proceedings would be terminated automatically.

14. The applicant argued that the Supreme Court’s judgment could not be considered to have been duly executed, because it would be unfair to compare his results in 2013 to those obtained by the others in 2005. Moreover, he argued that his personal circumstances (a mortgage, children, current employment) prevented him from properly preparing for the competitive examination. In sum, he contended that there was no fair way of enforcing the Supreme Court’s judgment that had recognised his discrimination, and that the only option available would be for the public authorities to pay him compensation for the damage he had suffered.

15 . On 5 November 2013 the applicant requested the suspension of the proceedings for the execution of the judgment, on the basis that other proceedings were pending before the Supreme Court which could be relevant for deciding the case at hand. He did not specify how or why the other proceedings could have an impact on his case.

16. On 5 December 2013 the High Court of Justice declared the Supreme Court’s judgment of 14 December 2012 executed. It reiterated that that judgment had merely recognised the applicant’s right to participate in the process regardless of his age, not that he should be automatically exempted from undergoing the tests; nor had it found that he should be compensated for having been excluded from the 2005 recruitment process.

17. The applicant lodged an application for review ( recurso de reposición ) of that decision with the High Court of Justice, which dismissed it on 11 April 2014 and also ordered him to pay the costs of the proceedings. The decision expressly stated that he had ten days in which to lodge a cassation appeal and warned that lodging such an appeal would require him to pay a deposit.

18 . The applicant applied to have the High Court of Justice’s decision of 11 April 2014 supplemented, since it had not expressly dismissed his request for the suspension of the proceedings (see paragraph 15). On 23 June 2014 the High Court of Justice dismissed the application to have the decision supplemented; the dismissal was notified on 18 July 2014. It expressly stated that “given that the authorities have already executed the Supreme Court’s judgment [of 14 December 2012], it is not appropriate to suspend these proceedings pending another court’s decision in other proceedings, notwithstanding the applicant’s right to lodge appeals with that other court”. The High Court of Justice imposed a costs order on the applicant.

19 . Following the imposition of the costs order, on 15 September 2014 the applicant lodged an application for legal aid. Since he was representing himself, the application was limited to an exemption from the obligation to pay court fees to institute proceedings and to pay deposits for an appeal, and from any liability for costs in the event of his appeals being dismissed.

20 . Also on 15 September 2014 the applicant lodged a request for suspension of the execution proceedings while his application for legal aid was being decided, so that the time-limits for appeal would not expire in the meantime. He expressed his intention to appeal.

21 . The High Court of Justice issued a decision on 4 November 2014, ordering the continuation of the execution proceedings without further explanation. The decision itself stated that it could be subject to an application for review ( recurso de reposición ) but that a deposit of 25 euros (EUR) was required.

22 . The applicant first lodged a request for clarification of the above-mentioned decision as to whether “continuation” of the proceedings meant the dismissal of his request for suspension of the proceedings. This also required a deposit of EUR 25, which he paid. The request for clarification was dismissed by the High Court of Justice in a decision of 7 January 2015, which expressly stated that it was a final decision against which no appeal could be lodged.

23 . The applicant then lodged an application for review ( recurso de reposición ) of the decision of 4 November 2014 and paid the deposit of EUR 25. The application was dismissed in a decision of 27 April 2015, which stated that under the applicable legislation, an application for legal aid did not suspend proceedings as a general rule, and that in that case the criteria for an exception had not been met.

24. On 15 December 2014 the Madrid legal aid board dismissed the applicant’s request because he had sufficient resources to litigate. He appealed against the refusal and legal aid was eventually granted to him by the High Court of Justice in a decision of 26 May 2015 because he was only requesting an exemption from having to pay fees, deposits and costs.

25. By that time, the granting of legal aid no longer served any purpose since the time-limits for lodging the intended appeals had already expired. The applicant never lodged the appeals, as he had intended (see paragraph 20 above).

26. On 16 June 2015 the High Court of Justice observed that, given that the decision of 5 December 2013 (upheld by a decision of 11 April 2014) had become final, the Supreme Court judgment of 14 December 2012 was to be considered executed.

27. The applicant lodged an amparo appeal with the Constitutional Court. He complained that his request to have the proceedings suspended while he was seeking legal aid had been refused, and that as a result, the decision to consider whether the Supreme Court’s judgment of 14 December 2012 had been declared executed had become final without his being able to appeal against it. He argued that this had violated his right of access to a court, in particular because legal aid had been granted to him after the time-limit for lodging the appeal had already expired.

28. The amparo appeal was declared inadmissible on 2 December 2015 because no appearance of a violation of any fundamental right was found. The public prosecutor appealed against the decision on the grounds that the decisions refusing the applicant’s request to have the proceedings suspended while the application for free legal aid was being decided were not sufficiently reasoned, and that they should have provided more detailed grounds for refusing such a suspension.

29. The Constitutional Court confirmed the inadmissibility of the applicant’s amparo appeal by a decision of 4 July 2016. It emphasised that the applicant had had effective access to the appeals procedure; the decision which had declared that the Supreme Court’s judgment was executed had been appealed against twice, and those appeals had been dismissed. The Constitutional Court considered that the fact that the proceedings had not been suspended while the request for free judicial assistance was pending did not have much impact on his access to the appeals. It also found that the decisions which had denied, and upheld the denial of, the suspension of the proceedings had been succinctly but sufficiently reasoned.

30. The applicant lodged two appeals with the Supreme Court against the police forces’ decisions to exclude him of the 2007 and the 2009 examinations for recruitment, on account that he was over 30 years old.

31. On 21 March 2011 the Supreme Court gave two judgments, setting aside the set age limit and upholding the applicant’s request to be able to apply for both competitions regardless of his age.

32. The applicant applied to have the Supreme Court’s judgments of 21 March 2011 supplemented, including by way of a recognition of his right to compensation for the non-pecuniary damage he had suffered. The Supreme Court rejected his application, establishing that the judgments recognising his right to participate in the recruitment process were already sufficient reparation.

33. The panel decided to invite the applicant to undergo the physical fitness test, scheduled for 7 February 2012. That test was organised on an ad hoc basis specifically for him. On 24 January 2012, two officers went in person to the address provided by the applicant to notify him of the invitation, but according to the official record, the door was not opened to them and so they left the notice inviting him to the test in a letter box. On 26 January 2012 the police sent a slip to the appl icant to notify him of a certified fax ( burofax ), which legally had to be collected within thirty days from the post office. The applicant did not collect the fax until 25 February 2012, by which time the date of the physical test had already passed.

34. The notification attempts took place at the applicant’s registered address for notification purposes in the proceedings, namely his parents’ apartment. The applicant had not informed the court or the administrative authorities of any change of address.

35. The panel for the recruitment met on 7 February 2012. Since the applicant had not attended the test, he was declared excluded from the examination.

36. On 1 March 2012 the applicant applied to the Supreme Court for a declaration that its judgments of 21 March 2011 had not been executed, and requested it to activate the “non-execution of judgments procedure”, by which, if it was impossible to execute a judgment, the execution was substituted by monetary compensation. He also requested the Supreme Court to declare void the invitation to the physical fitness test, as well as his exclusion from the 2007 and 2009 competitive examinations on the basis that he had not attended the physical fitness test.

37 . On 12 February 2014 the Supreme Court rejected the requests, on the basis that the judgments had recognised only the applicant’s right not to be excluded from the recruitment process on account of his age, and that therefore the only duty of the administrative authorities in the execution of the judgments had been to allow the applicant to participate in the recruitment process. The Supreme Court considered that awarding him compensation instead would amount to changing the terms of the judgments. On 10 July 2014 the Supreme Court supplemented that decision, adding that granting the compensation requested by the applicant exceeded the terms of the judgments.

38. On 20 July 2015 the applicant lodged an application for review ( recurso de reposición ) of the decisions of 10 July and 12 February 2014. The application was dismissed by a decision which concluded that his arguments were the same as those already stated and led to the same outcome.

39. The applicant then lodged a plea of nullity ( incidente de nulidad ) against that decision; his plea was dismissed.

40. The applicant lodged an amparo appeal with the Constitutional Court. On 13 March 2017 the Constitutional Court dismissed the amparo appeal as inadmissible, on the basis of the lack of constitutional relevance.

41. The applicant had also appealed against other notices of recruitment processes for the police forces, for the same reasons relating to the age-limit.

42 . To sum up, the applicant’s right to participate, regardless of his age, in recruitment processes to join the police forces has been recognised in the context of various proceedings at domestic level in relation to the competitions launched in 2004, 2005, 2006, 2007, 2008 and 2009. To date, he has not participated in any of the ad hoc tests to which he has been invited.

43 . Sections 86 and 87 of Law no. 29/1998 of 13 July 1998 regulating judicial proceedings in administrative matters ( Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-administrativa ) establish the judgments and decisions which can be appealed in cassation in administrative proceedings. Section 105 § 2 establishes that, where it is physically or legally impossible to execute a ruling, the court may take other measures, notably compensation, to ensure that the enforcement is as effective as possible.

44 . The relevant part of Section 16 of Law no. 1/1996 of 10 January 1996 on legal aid ( Ley 1/1996, de 10 de enero, de asistencia jurídica gratuita ) provides that an application for recognition of the right to legal aid shall not suspend the course of the proceedings, except when the expiry of the time-limits while the request is pending could cause a procedural step to be precluded or any of the parties to go undefended, in which case the court may exceptionally order a suspension of its own motion or at the request of the parties.

45. The procedure for notifications is regulated under Law no. 30/1992 of 26 November 1992 on the legal regime applicable to public authorities and the common administrative procedure ( Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común ). As in force in 2012, Section 59 established that in proceedings initiated at the request of the person concerned, notification shall be effected at the location given for that purpose in the request.

46. The Law no. 6/1985 of 1 July 1985 on the Judiciary ( Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial ) specifically provides in its Section 18 § 2 that rulings shall be enforced on their own terms, and if enforcement proves impossible, the judge or court shall adopt the necessary measures to ensure that enforcement is as effective as possible, and shall in all cases determine the compensation which may be appropriate for the portion in respect of which full compliance cannot be attained.

COMPLAINTS

47. The applicant makes three complaints, all of which concern an alleged violation of Article 6 § 1 of the Convention.

48. His first and second complaints (concerning application no. 6107/17) relate to his right to fair proceedings as well as his right of access to a court and to judicial remedies, in the context of proceedings aimed at the execution of a judgment. According to the applicant, the domestic court decided not to suspend the time-limit to lodge an appeal while his request for legal aid was pending without providing sufficient motivation; moreover, the applicant alleged that, as a consequence of the above, he had not been able to appeal against the decisions given within the proceedings because the time-limit for doing so had expired by the time legal aid had been granted.

49. The third complaint (application no. 73808/17) relates to the fact that two judgments in his favour have not been duly enforced, and that he has not been compensated as a result of the inability to enforce them.

THE LAW

50. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

51. The applicant complained of an infringement to his right to fair proceedings and his right of access to court as provided in Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

52. The Government contended, first, that the High Court of Justice’s decision of 7 January 2015 had provided sufficient reasoning, especially given that the applicant was a lawyer.

53. They also submitted that the issue at stake here was merely whether that favourable ruling had been executed, not whether the execution could be substituted by monetary compensation as intended by the applicant.

54 . In the Government’s view, given that the last judicial decision had been notified to the applicant on 18 July 2014, he had had ten working days in which to lodge a cassation appeal with the Supreme Court. He had not lodged such an appeal, and it had been only on 15 September 2014 that he had requested legal aid, by which time the time-limit for appeal had anyway expired (see paragraph 18 above).

55. In sum, the Government argued that the fact that the suspension had not been granted in the case at hand had not violated the terms of Article 6 § 1 of the Convention.

56. The applicant reiterated that the High Court of Justice’s decision of 4 November 2014 ordering the continuation of the execution proceedings (see paragraph 21 above) had provided no reasoning, and his request for clarification of that decision had been answered without sufficient justification in a decision of 7 January 2015 (see paragraph 22 above). The applicant argued that the decision should have offered further explanations as to why it was considered that the exception was not applied, as provided by section 16 of the Law on legal aid (see paragraph 44 above).

57. In the present case, the applicant complained that the execution of judgment proceedings were not suspended, despite his request, while the decision to grant him legal aid was pending. The Court will leave aside the question of whether Article 6 § 1 in its “civil” limb is applicable, i.e. whether there was a genuine and serious dispute and the results of the proceedings were directly decisive for the right in question (see, among many other authorities, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015), as it considers that the complaint is in any event inadmissible for the reasons outlined below.

58. The Court has already stated that Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument. It has also held that, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I).

59. The Court also reiterates that the conditions of admissibility of an appeal by their very nature call for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Luordo v. Italy , no. 32190/96, § 85, ECHR 2003 ‑ IX, and Zubac v. Croatia [GC], no. 40160/12, §§ 107-09, 5 April 2018) as long as the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.

60. In the case at hand, the Court observes that the applicable legislation (see paragraph 44 above) provides that a suspension is to be granted if the application for legal aid is made before the initiation of a legal action; when it is made during the proceedings, a suspension will only be granted where the applicant proves that he or she unexpectedly has no resources to litigate and where that may cause the applicant to go undefended or a procedural step to be precluded. The Court considers that the decision not to suspend the execution proceedings in the applicant’s case was within the domestic court’s margin of appreciation, and in any event did not restrict the very essence of his right of access to appeal.

61. Furthermore, the applicant requested legal aid and the suspension of the proceedings after the time-limit for lodging the cassation appeal to the Supreme Court had already expired.

62. The Court finds in the light of the foregoing considerations, the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto and that the admissibility criteria set out in Articles 34 and 35 of the Convention have not been met. The complaints are inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.

63. The applicant complained of an infringement of his right to enforcement of a final domestic court judgment as provided in Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

64. The Government maintained that, even if it had been true that the applicant no longer lived at the address where the notification had been attempted, that was the address that he had officially provided. They also emphasised that the applicant’s attempt to circumvent the procedure for serving notifications was not an isolated case, but had been his usual practice to avoid having to take the physical tests, and to try to turn the Supreme Court’s judgments into an opportunity to claim compensation from the authorities.

65. In sum, in the Government’s view, the domestic authorities had complied with their obligation to execute the Supreme Court judgments, since (i) a new physical fitness test had been organised for the applicant to assess whether or not he was physically fit and (ii) the applicant had been notified in due time of the date of that test, so that he could take part in the recruitment process regardless of his age.

66. The applicant submitted that the failed attempt of 24 January 2012 to notify him had taken place at his parents’ address, where he no longer lived, and that he had had thirty days after receiving notification of a failed delivery in the letter box to collect the certified fax from the post office. The fact that the physical fitness test had been held before the thirty-day period had elapsed amounted to a violation of his rights under Article 6, because it had prevented the judgments of 21 March 2011 from being properly executed.

67. The Court observes, at the outset, that the applicant did in fact provide that very address in his application to the Court, as well as in his other applications, and has received correspondence from this Court at that address. There is no evidence that any change in address has been notified by the applicant to the domestic authorities. Taking into account the attempts taken to notify the applicant about the test, the Court concludes that the authorities were diligent in informing the applicant and thus taking steps to execute the judgments.

68. Insofar as the applicant can be understood to ask the Court to determine how the Supreme Court judgments of 21 March 2011 should be enforced, the Court recalls that the choice of specific means to enforce judicial decisions is within the domestic courts’ competence. Moreover, the Supreme Court has already rejected several similar requests from the applicant (see paragraphs 42-42 above); these decisions do not appear to raise any issue as to their reasonableness or justification.

69. The foregoing considerations are sufficient to enable the Court to conclude that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as being manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4.

70. This conclusion obviates the need to consider if other admissibility requirements have been complied with.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 18 November 2021.

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Olga Chernishova Darian Pavli Deputy Registrar President