European Court of Human Rights

 

 

 

THIRD SECTION

 

 

 

 

 

 

 

 

CASE OF COMUNIDAD DE PROPRIETARIOS PANDO

NÚMERO 20 v. SPAIN

 

(Application no. 64204/10)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

20 December 2016

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




In the case of Comunidad de Proprietarios Pando Número 20 v. Spain,

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

          Helen Keller, President,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 29 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 64204/10) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a community of owners called Comunidad de Proprietarios Pando Número 20 (“the applicant”) on 28 October 2010.

2.  The applicant was represented by Mr M. García Caballero, a lawyer practising in Madrid, currently retired. The Spanish Government (“the Government”) were represented by their Agent, Mr R.A. León Cavero, a State Attorney.

3.  On 12 September 2013 the complaint concerning the length of proceedings was communicated to the Government, and the remainder of the application was declared inadmissible by the President of the Section, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant is a community of owners of a building located in Madrid.

5.  On 13 June 1991 L., the co-owner of a house located next to the applicant’s building, filed a complaint before the Madrid municipality, complaining that a dividing wall belonging to the applicant’s building and two other buildings located next to it was in poor condition.

6.  On 25 April 1994, in view of the “serious risk of harm” posed by the poor condition of the wall, the municipality repaired it motu proprio.

7.  On 30 August 1994 the applicant received a decree issued by the municipality on 29 July 1994, informing it that the repairs had been carried out in view of the “serious risk of harm” posed by the condition of wall in question, and ordering it to pay a provisional amount of 18,030.36 euros (EUR).

8.  On 21 October 1994 the applicant initiated proceedings opposing the municipality’s demand, contesting the necessity of the urgent repairs.

9.  On 29 October 1994, before the Madrid High Court of Justice, the applicant brought a first set of judicial administrative proceedings (recurso contencioso-administrativo) against the decree of 29 July 1994, complaining of the shortcomings of the procedure which had led to the municipality repairing the wall.

10.  On 18 March 1996 the municipality asked the applicant to pay the remainder of the amount owed: the final cost of the repairs minus the amount already paid as a provisional amount.

11.  On 16 July 1996, before the Madrid High Court of Justice, the applicant initiated a second set of judicial administrative proceedings (recurso contencioso-administrativo), contesting the amount of the requested payment and asking for a suspension of its obligation to pay that amount.

12.  On 20 November 1996 the application to suspend its obligation to pay was rejected. That decision was confirmed by the Madrid High Court of Justice and the Supreme Court on 11 July 1997 and 23 February 2001 respectively.

13.  On 6 March 1998 both sets of judicial administrative proceedings were joined.

14.  On 9 December 2004 the Madrid High Court of Justice ruled against the applicant, on the grounds that the repairs had been carried out by the municipality in view of the poor condition of the wall and the “serious risk of harm” present at that time, which had given the municipality no other choice but to repair it and then ask the applicant for payment in respect of the costs incurred. The Madrid High Court of Justice also confirmed the amount set for the costs of the repairs.

15.  On 3 March 2005 the applicant lodged a cassation appeal with the Supreme Court, which was declared inadmissible more than four years later on 29 May 2009. This decision was served on the applicant on 9 June 2009.

16.  On 10 December 2009 the applicant lodged an amparo appeal with the Constitutional Court.

17.  On 31 January 2010 the community of owners agreed to authorise Mr. García Caballero to act on its behalf in the framework of the judicial proceedings concerning the costs of the repairs to the wall.

18.  By a decision of 28 April 2010 the Constitutional Court declared the amparo appeal inadmissible on the grounds that “the constitutional significance of the appeal had not been justified”. This decision was served on the applicant on 6 May 2010.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

19.  The applicant complained that the length of the proceedings before the Madrid High Court of Justice and the Supreme Court had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

20.  The period to be taken into consideration began on 29 October 1994, when the applicant brought the first set of judicial administrative proceedings (recurso contencioso-administrativo) against the decree of 29 July 1994 before the Madrid High Court of Justice, and ended on 9 June 2009, when the decision by the Supreme Court was dispatched and served to the applicant. The relevant period therefore lasted fourteen years and seven months, during which time the case came before two judicial bodies.

A.  Admissibility

21.   Firstly, the Government submitted that Mr García Caballero had no locus standi to act on behalf of the applicant, since all the members of the community of owners, with the exception of himself, had declared their wish to withdraw from all the judicial proceedings.

22.  Mr García Caballero, acting as the representative of the applicant, disagreed. He argued that, in view of the fact that the rest of the members of the community did not want to bear the costs of the judicial proceedings (before the domestic courts and this Court), they had all agreed to authorise him to act on behalf of the community and bear all the costs of the judicial proceedings. For that purpose, all the members of the community had signed several documents authorising Mr García Caballero to act on behalf of the community before the domestic courts and this Court.

23.  The Court notes that, indeed, on 31 January 2010 the community of owners agreed to authorise Mr. García Caballero to act on its behalf in the framework of the judicial proceedings concerning the costs of the repairs to the wall. This authorization should be deemed sufficient to prove Mr. Garcia Caballero’s locus standi to act on behalf of the applicant. Furthermore, the Court observes that on 21 May 2014 the applicant submitted an additional document containing all the signatures of the members of the community of owners, specifically authorising Mr. García Caballero to represent the applicant before this Court.

24.  In view of the above, the Court considers that Mr. García Caballero has locus standi to act on behalf of the applicant. The Government’s objection is thus dismissed.

25.  Secondly, the Government contended that the applicant had failed to exhaust the domestic remedies available, since it could have brought a claim regarding the malfunctioning of the domestic administration of justice, in accordance with section 292 et seq. of the Judicature Act of 1 July 1985 and section 139 et seq. of Law no. 30/1992 of 26 November 1992 on the rules governing public authorities and common administrative procedure.

26.  The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

27.  Additionally, according to the Court’s case-law, an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (Günaydin v. Turkey (dec.), no. 27526/95, 25 April 2002; and Anagnostopoulos v. Greece, no. 54589/00, § 32, 3 April 2003).

28.  In the instant case, the Court observes that the applicant lodged an amparo appeal with the Constitutional Court, complaining of the excessive length of the proceedings before the Madrid High Court of Justice and the Supreme Court. The amparo appeal was declared inadmissible by a decision of 28 April 2010. The Court notes that the amparo appeal was the main legal resource available to the applicant to obtain the redress sought.

29.  The Court observes, as it found in the judgment in the case of García Mateos v. Spain, n^o 38285/09, 19 February 2013, that it would be excessive to ask the applicant to pursue yet another set of proceedings in order to be awarded compensation for the excessive length of proceedings (García Mateos v. Spain, cited above, § 31).

30.  It follows that the application cannot be rejected for non-exhaustion of domestic remedies, and the Government’s objection is therefore dismissed.

31.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

32.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

33.  The Court observes that the judicial proceedings in the present case concerned the applicant’s obligation to pay a specific amount for the costs of repairing a dividing wall belonging to its building. It therefore cannot be considered that the case was of some complexity.

34.  Turning to the conduct of the parties, it does not appear that the applicant significantly contributed to the length of the proceedings.

35.  However, the Government claimed that the excessive length of the proceedings was due to the applicant’s conduct, in that it lodged several appeals against the decision refusing its application to suspend the obligation to pay the provisional amount (see paragraphs 10 and 11). The Government also maintained that, when lodging the second set of judicial administrative proceedings (see paragraph 11), the applicant should have asked for the two sets of proceedings to be joined, something which would have helped to speed up the proceedings.

36.  As regards the Government’s first observation, the Court considers that those appeals were independent of the main proceedings, and in any event cannot justify the ten years the proceedings spent at just one level of jurisdiction. As regards the Government’s second observation, the Court finds that, as both set of proceedings had a different purpose, they could have been treated separately without causing any mutual delay. Additionally, the Court observes that the Madrid High Court of Justice could also have decided to join the applications ex officio, something which was done only two years after the second set of proceedings had been lodged.

37.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to those in the present case (see Frydlender, cited above).

38.  Having examined all the material submitted, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

Accordingly, there has been a breach of Article 6 § 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

40.  The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage.

41.  The Government submitted that there was no causal link between the violation found and the non-pecuniary damage alleged, and that in any event the amount claimed was excessive.

42.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicant EUR 16,000 under that head.

B.  Costs and expenses

43.  The applicant also claimed EUR 10,000 for costs and expenses incurred before the domestic courts and the Court.

44.  The Government submitted that a finding of a violation would constitute sufficient just satisfaction in this case. They also contended that the costs incurred and fees paid in the domestic proceedings were not related to the complaint regarding the length of proceedings.

45.  According to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96 § 54, ECHR 2000-XI). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).

46.  Regard being had to the above-mentioned criteria, the Court considers it reasonable to reject the applicant’s claim under this head.

C.  Default interest

47.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

 (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                         Helen Keller
Deputy Registrar                                                                       President