THIRD SECTION
CASE OF KARESVAARA AND NJIE v. SPAIN
(Application no. 60750/15)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
15 December 2020
 
This judgment is final but it may be subject to editorial revision. In the case of Karesvaara and Njie v. Spain,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Georgios A. Serghides, President,
 Georges Ravarani,
 María Elósegui, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 60750/15) 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 Finnish national, Ms Katarina Kirsi Kristiina Karesvaara, and a Gambian national, Mr Sulayman Njie, (“the applicants”), on 3 December 2015;
the decision to give notice to the Spanish Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 24 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the applicants’ right of access to a court in the framework of eviction proceedings in the context of a private civil dispute, where the summons had not been personally served on them. THE FACTS
2. The applicants were born in 1976 and 1972 respectively and live in Torremuelle (Málaga). Both of them hold a legal residence permit in Spain. The applicants were represented by Mr F. Verdún Pérez, a lawyer practising in Fuengirola. 3. The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney. 4. The Finnish Government, who had been invited to submit written observations on the case, did not express any wish to exercise that right (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court). 5. The facts of the case, as submitted by the parties, may be summarised as follows. Background of the case
6. Caja de Ahorros del Mediterraneo, a bank (hereinafter “the bank”), was the owner of two apartments in Fuengirola (Málaga). One of the apartments was located on Calle Salvador Postigo and the other one on Avenida de Mijas. 7. On 1 July 2010 the applicants, jointly, entered into two lease-purchase agreements with the bank to rent the two apartments. Pursuant to clause 13 of both of the contracts they agreed that for any future communication regarding the agreement the address for service of the tenants would be the address of the relevant apartment and that any communication sent to that address would be considered validly served. Pursuant to clause 4 of both of the contracts the parties agreed that the apartments would only be used as the habitual and permanent residence of the tenants. On the header of the contracts another address of the applicants – Calle Las Viñas, Fuengirola – was mentioned. 8. On 3 January 2012 the insurance company of the bank sent a certified fax (burofax) to the apartment on Avenida de Mijas (hereinafter “the Avenida de Mijas apartment”), demanding payment of arrears on the part of the applicants from May 2011 amounting to 3,950.80 euros (EUR). In their absence, a missed-delivery slip was left in the letterbox indicating that the applicants had post waiting for them in the post office. There is evidence that the applicants did not collect that post from the post office and that it was no longer accessible a month later. Eviction proceedings
9. On 11 April 2012 the bank initiated eviction proceedings against the applicants in respect of the Avenida de Mijas apartment. In those proceedings the bank requested the eviction of the applicants from the Avenida de Mijas apartment and claimed EUR 6,215.44 in respect of arrears. The proceedings were brought before the Fuengirola Court of First Instance no. 2 (Juzgado de Primera Instancia nº 2 de Fuengirola – hereinafter “the first-instance court”). The bank designated the address of the rented apartment as the address for service of documents on the applicants. 10. On 15 October 2012 the court officer went to the Avenida de Mijas apartment to serve the summons. He found nobody there, so he left an official notice in the letterbox with a deadline for the applicants to pick up the summons at the court-house. On the court document the court officer wrote that he had attempted to summon the applicants for the second time and that he had noted that the names of individuals other than the applicants had appeared on the letterbox corresponding to the rented apartment. On expiry of the deadline, the applicants had not collected the summons. 11. On an undetermined date between October and December 2012 the first-instance court ordered that notice be served by means of a public announcement, by attaching the summons to the bulletin board at the court-house. When the period for service expired, the applicants had not appeared and had not opposed the claim of the bank. 12. On 9 January 2013, based on the lack of response, the first-instance court allowed the claims of the bank, specifically to proceed with the eviction of the applicants and to hold them liable for the arrears owed to the bank. The eviction date was set for 5 March 2013. This decision became final five working days later because none of the parties appealed. 13. On 4 March 2013 the bank, for unknown reasons, applied for the suspension of the eviction. The first-instance court allowed the application. Enforcement proceedings
14. On 12 September 2013 the bank instituted enforcement proceedings against the applicants, aimed at executing the final decision of 9 January 2013. In those new proceedings, the bank claimed EUR 15,840.16 in respect of arrears, plus EUR 5,000 in respect of costs and expenses. The bank again designated the address of the Avenida de Mijas apartment as the address for service of documents on the applicants. 15. On 16 October 2013 the first-instance court issued an enforcement order, giving the applicants ten days to contest the enforcement. In a separate decision, the same day, the first-instance court ordered the seizure of the applicants’ assets. To give effect to the seizure order, the first-instance court carried out a search of the public registries through an internal information system of the Spanish courts to find out what assets the applicants held. The search gave as a result that they were the owners of an apartment on Calle Las Viñas, Fuengirola, as well as other real estate and movable goods. The search also showed that they had been registered as sole traders since 2003 and 2006 respectively, and that they had designated the address on Calle Las Viñas, Fuengirola as their fiscal address. On their driving-licence registration they had equally designated that same address as their residence. Lastly, the search revealed a bank account in Mr Njie’s name with a balance of EUR 864.76. 16. On 15 November 2013 Mr Njie learned that his bank account had been frozen by order of the first-instance court. The EUR 864.76 balance had been transferred from his bank account to the court’s account. On the same day he went to the court-house, where the two decisions of 16 October 2013 were served on him for the first time, which meant that the ten days for contesting the enforcement started to run on that day. He provided an address in Mijas (Málaga) as his address for future correspondence (hereinafter “the current address”). Application for annulment of the eviction proceedings
17. On 3 December 2013 the applicants applied for access to the case file of the previous eviction proceedings and the first-instance court granted access. At that moment, they learned for the first time of the eviction proceedings and, in particular, of the final decision of 9 January 2013, by which the first-instance court allowed the eviction application of the bank and held the applicants liable for paying the rent arrears. 18. On 17 December 2013 the applicants lodged an action for the annulment of proceedings in respect of the eviction proceedings. In it they argued that they had delivered the keys of the Avenida de Mijas apartment to the bank long before the eviction proceedings had started; the bank was thus well aware that they did not live in that apartment. They complained that the summons had not been served on them at any time. They pointed out that they had got notice of the proceedings only on 15 November 2013, and that the lack of notice had meant that they had not been able to oppose the claim of the bank. In support of their arguments, they provided copies of their tax returns for the years 2010, 2011 and 2012, showing the address on Calle Las Viñas, Fuengirola, as their home address. They also submitted a copy of the residence-permit card of Mr. Njie, which had the same address. Lastly, they submitted their census certificate, which indicated that since 5 October 2011 they had been registered with their two children at the current address in Mijas. 19. On 7 February 2014 the first-instance court dismissed the applicants’ appeal. It stated that they could have used the term for contesting the enforcement in order to request the annulment of the proceedings, instead of lodging a separate action. It furthermore stated that the attempts to summon the applicants had been made in accordance with the relevant procedural law and at the address for service that the parties had agreed in the contract. Accordingly, it concluded that those attempts had been carried out in accordance with the law and had been effective. 20. On 2 April 2014 the applicants lodged an amparo appeal with the Constitutional Court. In it the applicants relied on Article 24 of the Spanish Constitution (right to a fair trial). 21. On 2 February 2015 the Constitutional Court declared the amparo appeal inadmissible owing to the lack of special constitutional significance. 22. On 4 March 2015 the public prosecutor attached to the Constitutional Court lodged a súplica appeal, stating that the amparo appeal of the applicants had indeed a special constitutional significance and that it shouldn’t have been declared inadmissible for that reason. 23. On 1 June 2015 the Constitutional Court dismissed the súplica appeal, reiterating its decision that the amparo appeal lacked special constitutional significance. In particular, the Constitutional Court stated that the particular perspective of the right of access to court on which the applicants had focused, challenging the findings of the decision of 7 February 2014 of first-instance court, did not fall within any of the areas that according to the case-law of the Constitutional Court would have special constitutional significance. Subsequent events in the eviction proceedings
24. On 9 September 2016, in the framework of the eviction proceedings, the bank applied to the first-instance court to resume the eviction. 25. On 16 December 2016 the first-instance court allowed the bank’s application and set the eviction date for 3 April 2017. 26. On 3 April 2017 the first-instance court suspended the eviction, given that the defendants had not been informed of the eviction decision. 27. On 25 April 2017 a third party subrogated to the position of the bank in the eviction proceedings. 28. On 19 September 2017, in reply to an application on the part of the third party to resume the eviction, the first-instance court dismissed the application, stating that the eviction proceedings had been finalised by the decision of 9 January 2013 without prejudice to the third party’s right to initiate enforcement proceedings. RELEVANT LEGAL FRAMEWORK AND PRACTICE
29. Under Spanish legislation, the summons procedure is regulated in Chapter V, on court notices, of Law 1/2000 of 7 January 2000 on civil procedure (Ley de Enjuiciamiento Civil – hereinafter “the LEC”). For the relevant sections of the LEC concerning the summons procedure, see Immoterra International Denia S.L. v. Spain ((dec.) [Committee], no. 60484/16, § 18, 26 May 2020). 30. The Spanish Constitutional Court, in its judgments no. 30/2014, of 24 February 2014, no. 181/2015, of 7 September 2015, and no. 137/2017, 27 November 2017, interpreted the content of the above-mentioned sections of the LEC, to clarify their meaning in the light of the amendments introduced by Law 19/2009, of 23 November 2009. In them, the Constitutional Court concluded that the fact that section 155(3) of the LEC established the address of the rented home as the default address for service of documents on the defendant in eviction proceeding does not release the courts from their obligation to inform the defendant of the proceedings in accordance with sections 155 and 156 of the LEC. 31. Concerning the reasons for contesting the enforcement of a court decision, they are equally regulated in the above-mentioned LEC. The relevant sections read as follows:
Section 556
Contesting the enforcement of court rulings, arbitration awards
or mediation agreements. “1. If the enforcement title is a court or arbitration ruling or a mediation agreement, the enforcement debtor shall have ten days in which to lodge an objection in writing, counted from the date of service of the enforcement order, alleging payment or fulfilment of the instructions contained in the judgment, which shall be proven by means of documents. The expiry of the enforcement action and the agreements and settlements reached in order to avoid enforcement may also be alleged, provided that such agreements and settlements are recorded in public instruments.
...”
Section 559
Substantiating objections on the grounds of procedural defects and decisions
on them. “1. The enforcement debtor may also object to the enforcement by alleging the following defects:
(i) The enforcement debtor lacks the status or the representation in which the claim is lodged against him or her. (ii) Lack of capacity or representation of the enforcement creditor or failing to prove the status or representation in which the claim is lodged. (iii) Absolute nullity of the enforcement order due to the judgment or arbitration award not containing any statement of sentence, or because the award or mediation agreement does not meet the legal requirements for enforcement, or owing to a breach of the provisions of section 520 when ordering enforcement. (iv) If the enforcement title is an arbitration award not officially recorded with a notary public, the lack of authenticity of such a title.
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
32. The applicants complained that their right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ failure to ensure that the applicants had been informed of the eviction proceedings against them. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
AdmissibilityObjection on grounds of “non-exhaustion”

33. The Government submitted that the applicants had failed to exhaust the available domestic remedies, because once they had learned of the enforcement proceedings against them, they had not contested the enforcement within ten days. Instead, they had lodged an action for the annulment of proceedings after the ten-day period for contesting had expired. 34. The applicants contested the Government’s arguments. They argued that the Constitutional Court had declared their amparo appeal inadmissible owing to the lack of special constitutional significance and it saw no reason for inadmissibility with respect to the exhaustion of previous remedies. They furthermore stated that the period given to contest the enforcement had been independent from the eviction proceedings in which the alleged violation of their rights had taken place. 35. The Court notes that the ten-day period for contesting was given to the applicants within the framework of the enforcement proceedings. Within the ten-day period, the applicants had the opportunity to challenge the enforcement, but only on the grounds provided for in section 556 of the LEC, in respect of the substance, and in section 559, in respect of the procedure. None of these sections provided for a possibility for the applicants to challenge the enforcement title itself, specifically the decision of the first-instance court of 9 January 2013, which had become final, nor any other aspect of the initial eviction proceedings. The two proceedings – the eviction proceedings and the enforcement proceedings –, although connected, were formally separate proceedings. Therefore, the fact that the applicants had the chance to contest the enforcement for the reasons restrictively listed in sections 556 and 559 of the LEC did not mean that they could challenge any of the decisions that had been adopted in previous separate proceedings. 36. In these circumstances, it is reasonable to conclude, as the applicants did, that contesting the enforcement did not constitute an effective remedy to complain of a violation of the right to a fair trial that had allegedly occurred in the framework of the eviction proceedings. The applicants lodged an action for the annulment of the eviction proceedings, followed by an amparo appeal, and can therefore be considered to have exhausted the domestic remedies. 37. Besides, the Court accepts the applicants’ argument that the fact that the Constitutional Court declared the amparo appeal inadmissible owing to reasons related to the merits implies that the formal requirements, such as the exhaustion of previous remedies, had been validated by the Constitutional Court. Indeed, special constitutional significance is a requirement that is both related to the form and to the merits, and it forms part of the criteria that the Constitutional Court employs to examine the admissibility of the amparo appeals lodged before it. In its formal aspect, appellants are required to argue that there is the special constitutional significance in their amparo appeal; on its substantive aspect, the amparo appeal must be of such special constitutional significance in order to be examined on the merits by the Constitutional Court. 38. In the present case, in its decision of 1 June 2015 the Constitutional Court deliberated on whether the amparo appeal of the applicants was or was not of special constitutional significance, which relates to the substantive aspect of such criterion. The Constitutional Court only examines the substantive aspects after having checked that the formal requirements have been complied with. Therefore, it can be concluded that in the domestic system, too, the question of whether the applicants have exhausted available remedies has been answered in the affirmative. 39. Consequently, the Government’s objection must be dismissed. Objection on grounds of lack of “victim status”
40. The Government also alleged that the applicants lacked victim status because the first-instance court had attempted to serve the summons at the address the applicants had expressly designated in the lease-purchase agreement. 41. The applicants considered that there was no doubt of their victim status and that the Government’s arguments were not related to that status. 42. In the present case, the applicants were the unsuccessful party in the civil proceedings before the national courts. For that reason, they are entitled to claim to be victims of an alleged violation of Article 6 § 1 and the Government’s objection regarding their lack of victim status must therefore be rejected (see, as an example of similar reasoning, Immoterra International Denia S.L. v. Spain (dec.) [Committee], no. 60484/16, § 22, 26 May 2020). Objection on grounds of “no significant disadvantage”
43. The Government raised another objection on the grounds of lack of significant disadvantage, claiming that the applicants “ha[d] only paid the amounts owed in accordance with the lease agreement as well as the procedural costs”, without claiming that the amount was wrong and without the existence of any non-pecuniary damage. 44. The applicants argued that, as a consequence of the alleged violation, they suffered undeniable and significant pecuniary as well as non-pecuniary damage. They added that the means of appeal they had availed themselves of were not the proper mechanisms to contest the amount. 45. The Court notes that the question of whether the applicant has suffered any significant disadvantage represents the main element of the criterion set forth in Article 35 § 3 (b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, § 39, 1 June 2010, and Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). The Court has held that the absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Konstantin Stefanov v. Bulgaria, no. 35399/05, § 44, 27 October 2015). 46. In the present case, the consequences of the lack of proper service of the summons on the applicants cannot be underestimated. As a result of the default eviction proceedings, the applicants faced a pecuniary claim of over EUR 20,000 and had their bank accounts frozen, with EUR 864.76 seized from their bank account, apart from several other non-pecuniary implications. Accordingly, there are no grounds for concluding that the applicants have suffered no significant disadvantage. Conclusion
47. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ arguments

48. The applicants submitted that the first-instance court had not observed the procedural rules when summoning them. In particular, they complained that service had only been attempted at one address and that, in spite of that attempt having been unsuccessful, the first-instance court had not even carried out a minimal search to find out any alternative addresses of the applicants. They furthermore argued that on the header of the lease-purchase agreement they had indicated a different address for service, to which the first-instance court had never sent the summons. Concerning the address for service designated on clause 13 of the agreement, they claimed that it had not been expressly negotiated by the parties, because the contract had been a standard type of contract, as shown by the fact that on clause 4 of both lease-purchase agreements it had been established that each apartment would be their habitual residence, which would of course have been impossible. Lastly, they stated that they had left the Avenida de Mijas apartment and had handed the keys to the bank on May 2011, and that, owing to the failure of the first-instance court to inform them of the eviction proceedings, they had been unable to defend themselves. 49. The Government submitted that the attempts to summon the applicants had been carried out in accordance with the relevant procedural law. They argued that the summons had been served at the address that the applicants had expressly designated for service under clause 13 of the agreement and that the first-instance court had not been required to carry out any other searches. They also pointed out that the applicants had not submitted any evidence showing that the keys had been handed back to the bank in 2011, which should have been easy for them to prove. The Government lastly stated that it had been solely the lack of diligence on the part of the applicants that had resulted in the proceedings advancing without their involvement.

Article of the Convention at issue: Article 6
Outcome: violation