DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGE STRÁŽNICKÁ

(Translation)

1 . I have not voted with the majority. In my opinion, Article 6 § 1 of the Convention has been infringed in this case.

2 . In finding that there has been no violation, the Court followed the Government’s argument based on the Constitutional Court’s interpretation of section 64 of the Administrative Courts Act. According to the Constitutional Court: “... it was reasonable to presume that the applicant had constructive notice of the case and had been prevented from taking part in the proceedings by her own lack of diligence ” . It also referred to the vast number of people concerned by the appeals [see paragraphs 39 and 40 of the judgment].

3 . I am unable to agree with that assessment. Rules of procedure are jus cogens ; they are mandatory and litigants must be able to rely on their being complied with and applied. In the present case, section 64 of the Administrative Courts Act is unambiguous, clear and precise and – to my mind – has no need of interpretation: “Everyone appearing to have an interest in the dispute shall be immediately informed of any decision ... and summoned within nine days to attend the hearing ...” . In any event, since the issue here concerns the principle of legal certainty, it is not simply a question of ordinary legal interpretation, but of whether the unreasonable construction of a procedural requirement has prevented the applicant from exercising her right of access to a court and defending her legitimate rights [see Miragall Escolano and Others v. Spain , nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98 , § 37, ECHR 2000-I].

4 . I fail to see how one can accuse the applicant of any negligence (when she was not informed of a decision that directly concerned her interests or summoned to attend the hearing) and at the same time disregard the negligence of the judicial and administrative authorities. In the present case, the Higher Court of Justice of Andalusia directed the Department of Education and Science to furnish a list of the candidates in the competition, to forward the administrative file and to serve notice on interested third parties so that they could take part in the proceedings [see paragraph 14 of the judgment]. When the Department failed to supply the list of interested third parties, the Higher Court of Justice did nothing to rectify that omission and those concerned were not summoned. The Government’s argument that personal service on all interested parties would have required several hundred notices to be sent out [see paragraph 29 of the judgment], does not appear to me to be relevant. When it comes to collecting taxes

and fines, the authorities have no difficulty in sending out thousands or even tens of thousands of demands for payment. To assert that information published in the press constitutes constructive notice that can permit a mandatory procedural rule – such as the rule requiring interested parties to be summoned to attend the hearing – to be dispensed with is not, in my view, acceptable.

5 . Litigants are expected to know and comply with the rules of procedure and the same applies to the courts. When dealing with time-limits for making applications or appealing, the judicial system applies the rules of procedure set out in the relevant codes strictly. The principle of legal certainty must be strictly imposed on and observed by all concerned with equal rigour [see Miragall Escolano and Others (cited above); Tejedor García v. Spain , judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII; Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports 1997-VIII; and Edificaciones March Gallego S.A. v. Spain , judgment of 19 February 1998, Reports 1998-I, which all concern time-limits for acting or lodging appeals].

6 . In the instant case, in his submissions to the Constitutional Court on the amparo appeal, State Counsel recommended allowing the applicant’s appeal in part, on the ground that there had been a violation of Article 24 of the Constitution. In so doing, he referred to the Constitutional Court’s previous case-law, in which it had held: “... evidence establishing that the appellant was aware of the proceedings ...” could justify dismissing the application [see paragraphs 20 and 23 of the judgment]. Apart from the information that was allegedly published in the press, there was no evidence to show that the applicant was aware of the proceedings that jeopardised her legitimate interests and which ultimately caused her to lose her post as a senior secondary-school teacher without being given an opportunity to defend her interests.