Resolution ResDH (2001)84 concerning the judgment of the European Court of Human Rights of 28 October 1998 in the case of Pérez de Rada Cavanilles against Spain

(Adopted by the Committee of Ministers on 23 July 2001 at the 760 th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Pérez de Rada Cavanilles case delivered on 28 October 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 28090/95) against Spain, lodged with the European Commission of Human Rights on 20 June 1995 under former Article 25 of the Convention by Ms María Gloria Pérez de Rada Cavanilles , a Spanish national, and that the Commission declared admissible the complaint that the particularly strict application of a procedural rule by the domestic courts leading to the dismissal of the applicant’s reposición application as being out of time, had deprived her of the possibility of appealing and of thereby defending her legitimate interest in the courts;

Recalling that the case was brought before the Court by the Commission on 15 December 1997;

Whereas in its judgment of 28 October 1998 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- held that the present judgment constituted in itself sufficient just satisfaction for the non-pecuniary damage;

- held that the Government of the respondent state was to pay the applicant, within three months, 1 000 000 pesetas in respect of costs and expenses and that simple interest at an annual rate of 7,5% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11;

Having invited the Government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 28 October 1998, having regard to Spain’s obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgment (this information appears in the appendix to this resolution);

Having satisfied itself that on 14 December 1998, within the time-limit set, the Government of the respondent state paid the applicant the sum provided for in the judgment of 28 October 1998,

Declares, after having taken note of the information supplied by the Government of Spain, that it has exercised its functions under Article 46 (former Article 54) of the Convention in this case.

Appendix to Resolution ResDH (2001)84

Information provided by the Government of Spain during the examination of the Pérez de Rada Cavanilles case

by the Committee of Ministers

The Government of Spain informed the Committee of Ministers that new Act No. 1/2000 Ley de Enjuiciamiento Civil , which came into force on 7 January 2001, has introduced amendments that will avoid the repetition of similar type of violations as to that found in the present case.

New Article 452 extends from three to five days the time-limit to file a “ reposición ” appeal. Furthermore, new Article 135 concerning the presentation of documents extends the means of presenting documents before national courts by allowing all technical means with the sole condition that the authenticity of the document and the effective date of delivery can be confirmed. Finally, new Article 130 contains details of what is meant by working days/hours as far as the presentation of documents is concerned.

The Government further informed the Committee of Ministers that the judgment of the European Court of Human Rights has been published in the Information Bulletin of the Spanish Ministry of Justice (supplement to Edition No. 1482 of 1 April 1999, page 938), the Otorosi review of the legal Society of Madrid (Edition February 1999) and other legal reviews, apart from being disseminated to the Constitutional Court, the “ Consejo General del Poder Judicial ” and all the authorities concerned by the present case.

The Spanish Government considers that, apart from the legal changes introduced, in view of the direct effect given to the European Convention on Human Rights and to the case-law of the European Court in Spanish law, domestic courts will themselves be able to prevent new violations similar to that found in the present case.

It therefore considers that there is no longer a risk of repetition of the violation found in the present case and that, therefore, it has fulfilled its obligations under Article 46 (former Article 53) of the Convention.