Resolution CM/ ResDH (2011)267 [1]

Execution of the judgment of the European Court of Human Rights

Diaz Ochoa against Spain

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)

Judgment of

Final on

Diaz Ochoa No 423/03

22/06/2006

22/09/2006

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the a p plicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)267

Information about the measures to comply with the judgment in the case of

Diaz Ochoa against Spain

ORIGINAL FRENCH

ACTION REPORT

CASE: DÍAZ OCHOA against SPAIN

APPLICATION No.: 423/03

JUDGMENT DATE: 22/06/2006

DATE OF TRANSMISSION FOR EXECUTION: 22/09/2006

CIRCUMSTANCES OF THE CASE

This case concerns a violation of the applicant ’ s right of access to a court (violation of Article 6§1).

In particular, the applicant was not informed of proceedings brought against him in 1991 as co-defendant before Labour Tribunal No. 7 of Valencia, which resulted in his being ordered in 1992 to pay certain sums. The applicant did not become aware of the proceedings until October 1998, when his wages were first seized in payment of the sums owed to the social security (a total of 17.183 EUR). He applied for an order setting aside the judgment against him on the ground that he had not been notified of the proceedings but his application was dismissed as being out of time. The applicant also applied for a review and lodged an amparo appeal, both without success.

The European Court drew attention to the highly unusual combination of events in this case insofar as the applicant had had no reason to suspect that proceedings had been brought against him, as his address was on the case file that had been before the judge on the merits. In addition, the courts seized to set aside the original order or at appeal had failed to remedy the situation caused by the applicant ’ s absence from the main proceedings because of their unduly narrow construction of the law (§ 50 of the judgment).

(1) INDIVIDUAL MEASURES AND JUST SATISFACTION

Applicant ’ s situation

- 24/10/2006: only a month after the judgment of the European Court became final, and as a result, Social Affairs Court No. 7 of Valencia provisionally suspended the seizure. Up to that date, the sums seized amounted to 7036,39 EUR (5661,20 EUR plus 1375,19 EUR interest).

- 11/04/2008: The social security authorities decided to ask for the execution of the order against the applicant to be stopped.

- 29/05/2008: The Social Affairs Court No. 7 of Valencia pronounced on the request to cease execution and officially ended it.

- 25/11/2008: The social security authorities made a payment in the applicant ’ s favour for the sum of 7036,39 EUR.

Throughout the administrative and judicial proceedings following the European Court ’ s judgments, the applicant retained and exercised his right to appeal against decisions adopted by the Spanish administrative and judicial authorities.

This possibility was ultimately realised with the appeal, introduced on 21/01/2009 before the Constitutional Court (CC) against the decision by the Social Affairs Court No. 7 of Valencia of 1992.

This appeal was declared inadmissible by the CC on 9/09/2009 for lack of constitutional relevance of the applicant ’ s claims.

The judgment was disseminated as widely as possible and published as an additional means of moral redress for the damage sustained.

The European Court granted the sum of 6000 EUR in respect of “loss of opportunity and non ‑ pecuniary damages” as well as 5700 EUR costs and expenses. These sums were paid to the applicant on 08/10/2006.

Spain considers that there is no need to adopt further individual measures.

(2) GENERAL MEASURES

Spanish law recognises without restriction the need for a proper summons and the respect of the appropriate conditions for the delivery thereof, which guarantee effective judicial protection and the right to appeal provided by Article 6 of the European Convention on Human Rights. Such a right is moreover repeatedly recognised in the case-law of the CC. In this connection, mention should be made of Judgment TC 135/1997 of 21 July (subsequent to the facts in the present case). In this judgment it is established that: “Article 24 CE requires that parties should be duly summonsed by means of an act of communication established by law. Presence at proceedings makes it possible to defend oneself: this constitutional precept in general terms prevents substantive judicial decisions inaudita parte [ ... ]. This Court has insisted since its earliest decisions on the need for judicial organs to exercise the greatest care and respect for procedural norms in carrying out their acts of communication with parties.” This declaration is reinforced by a reference to Article 6§1 of the Convention and to Committee of Ministers ’ Recommendation (75) 11 of 21 May 1975 on additional requirements in criminal proceedings.

The same position was taken in subsequent judgments. In this connection it suffices to recall Judgment TC 255/2006 of 11 September 2006, in which it is established that:

“Having regard to the diligence with which judicial bodies should deal with summonses, it is emphasised that they must be carried out in conformity with the law by satisfying the procedural conditions, in order that the act or decision thus notified is brought to the knowledge of the applicant party and that, by the same token, the court may have the certainty that the required legal conditions have been fulfilled and the communication has indeed been received by its addressee.”

The state of affairs found by the European Court in its judgment does not call for further general measures, as it constituted a deviation in the application of the statute and case-law in the present case. It was an isolated occurrence.

As regards the question of the excessive formalism of Spanish courts in applying procedural rules (leading in this case to the dismissal of the applicant ’ s plea of nullity and amparo appeal through an excessively restrictive interpretation of the law by national courts), this is being dealt with in the context of the Stone Court Shipping (55524/00) group of cases.

In the light of the above, Spain considers that no further general measures are required.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.