EDIFICACIONES MARCH GALLEGO S.A. v. SPAIN

• Judgment Date: 19 February 1998
• ECLI: ECLI:CE:ECHR:1998:0219JUD002802895
• Respondent State: España
• Date: 19 February 1998
• Application Number: 28028/95
• Court: Chamber (European Court of Human Rights)
• Counsel: N/A
• Applied Rules: 6;6-1
• Official Gazette Publication: [object Object]

CASE OF EDIFICACIONES MARCH GALLEGO S.A. v. SPAIN

(7/1997/791/992)

JUDGMENT

STRASBOURG

19 February 1998

The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

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SUMMARY⁰

Judgment delivered by a Chamber

Spain – application to set aside proceedings for payment of bill of exchange inadmissible owing to a mistake made when application was submitted

ARTICLE 6 § 1 OF THE CONVENTION

Recapitulation of case-law: primarily for national authorities to resolve problems of interpretation of domestic legislation – ordinary courts and Constitutional Court had considered that the mistake made when application to set aside was submitted had not been a straightforward clerical error but represented a want of diligence that could not be remedied and that the lack of any possibility of rectifying the mistake in the proceedings in question did not infringe the right to effective protection by the courts – Court’s task was confined to determining whether consequences of the courts’ decision were in conformity with Convention.

Recapitulation of case-law on “right to a court” – decision of Spanish courts in instant case had taken account of seriousness of mistake made and of special features of procedure for applying to set aside proceedings for payment of a bill of exchange, in which the time-limits were mandatory and no extensions of time could be granted – legitimate purpose of strict time-limits, namely to speed up payment of sums in issue, the proceedings not being designed to determine merits of claim – no interference with right of access to a court.

Conclusion: no violation (unanimously).

COURT’S CASE-LAW REFERRED TO

22.2.1996, Bulut v. Austria; 19.12.1997, Brualla Gómez de la Torre v. Spain

In the case of Edificaciones March Gallego S.A. v. Spain⁰,

The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A⁰, as a Chamber composed of the following judges:

Mr R. Bernhardt, President,
Mr F. Gölcüklü,
Mr C. Russo,
Mr A. Spielmann,
Mr I. Foighel,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr M.A. Lopes Rocha,
Mr J. Makarczyk,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 28 November 1997 and 29 January 1998,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 21 January 1997, within the three‑month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 28028/95) against the Kingdom of Spain lodged with the Commission under Article 25 by a public limited company incorporated under Spanish law, Edificaciones March Gallego S.A., and its sole director, Mr Federico March Olmos, on 19 May 1995. Mr March died in October 1995. As referred to the Court, the case concerns solely Edificaciones March Gallego S.A.

The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Spain recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.

2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant company stated that it wished to take part in the proceedings and designated the lawyer who would represent it (Rule 30). The lawyer was given leave by the President of the Chamber, Mr R. Bernhardt, to use the Spanish language (Rule 27).

3. The Chamber to be constituted included ex officio Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43 of the Convention), and Mr Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 21 February 1997, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr C. Russo, Mr A. Spielmann, Mr I. Foighel, Mr A.B. Baka, Mr M.A. Lopes Rocha and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21 § 5).

4. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Spanish Government (“the Government”), the applicant company’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence on 12 March 1997, the Registrar received the Government’s memorial on 14 August 1997 and the applicant’s memorial on 27 August 1997.

5. On 17 October 1997 the Commission produced various documents which the Registrar had requested on the instructions of the President of the Chamber.

6. In accordance with the decision of the President of the Chamber, who had also given the Agent of the Government leave to address the Court in Spanish (Rule 27 § 2), the hearing took place in public in the Human Rights Building, Strasbourg, on 24 November 1997. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government
Mr J. Borrego Borrego, Head of the Legal Department
for the European Commission and Court
of Human Rights, Ministry of Justice, Agent;

(b) for the Commission
Mr J.-C. Soyer, Delegate;

3. for the applicant company
   Mr J.L. Benedicto Gil, of the Alicante Bar, Counsel.

The Court heard addresses by Mr Soyer, Mr Benedicto Gil and Mr Borrego Borrego. Mr Benedicto Gil produced various documents at the hearing.

AS TO THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. Edificaciones March Gallego S.A. is a public limited company set up in 1985 and its registered office is at Benidorm (Alicante). Mr Federico March Olmos was its sole director.

8. On 11 December 1989 proceedings for payment (juicio ejecutivo cambiario) were brought against the applicant company and, as guarantor, Mr March in Valencia Court of First Instance no. 10 by another company, Manuel Codesido Marí S.L., which claimed the sum of 4,367,842 pesetas on a bill of exchange. The court registry was instructed to inform the defendants that in default of payment their property would be seized and that they could apply to have the proceedings set aside.

9. As the applicant company did not have its registered office at the address indicated on the bill of exchange, the plaintiff company requested the court on 21 February 1990 to order, under Articles 1444 and 1460 of the Code of Civil Procedure, that the applicant company’s property should be seized without any prior demand for payment and to summon the company to appear by edictos (see paragraph 24 below).

10. On 26 February 1990 Mr March appeared before the Court of First Instance, which assessed what part of his property could be seized and gave him three days in which to indicate that he intended to apply to have the proceedings set aside, if he so wished (see paragraph 24 below). Notice of the proceedings and of the property to be seized was served on Mr March’s wife.

11. On 1 March 1990 Edificaciones March Gallego S.A. appeared before the same court and declared their intention of applying to have the proceedings against the company set aside. The document giving notice of that intention, which was submitted by the company’s lawyer (procurador), Mrs I., stated “… on 26 February last the summons and copies of the application for proceedings for payment were handed to my client…”.

12. On 6 March 1990 the applicant company was given four days by the court to make its submissions, adduce evidence and apply to set aside, in accordance with Article 1463 of the Code of Civil Procedure (see paragraph 24 below). The court noted that Mr March had not appeared within the three-day period he had been granted on 26 February 1990 and declared that he was in default.

13. On 9 March 1990 Mrs I., acting on behalf of Mr March in accordance with “the authority to act in the file of the proceedings” formally applied to have the proceedings in question set aside, within the four-day period granted to the applicant company by the court. In the application to set aside the court was requested to declare that the bill of exchange in question was void since, in view of the amount for which it had been drawn up, an insufficient amount had been paid in compulsory tax on bills of exchange.

14. On 15 March 1990 the court held that the application to set aside was inadmissible (se tuvo por no formulada) on the following grounds:

“1. Mr Federico March Olmos did not appear timeously or comply with formal requirements;

2. the lawyer [who submitted the application to set aside] had not received authority to act from the aforementioned person [Mr March] or, at the very least, that authority had not been...