THIRD SECTION
CASE OF GIL SANJUAN v. SPAIN
(Application no. 48297/15)
 
 
JUDGMENT
Art 6 § 1 (civil) • Access to court • Appeal on points of law declared inadmissible for notice of appeal failing to comply with new formal requirement originating in subsequent case-law development • Issue concerning the principle of legal certainty • Retroactive application unforeseeable • No perceptible line of case-law development at time of introduction • No opportunity for the applicant to remedy any possible deficiencies in the notice of appeal to meet the new requirement • Excessive formalism
 
STRASBOURG
26 May 2020
 
FINAL
 
26/08/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gil Sanjuan v. Spain,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President,
 Georgios A. Serghides,
 Alena Poláčková,
 María Elósegui,
 Gilberto Felici,
 Erik Wennerström,
 Ana Maria Guerra Martins, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application 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 Spanish national, Ms Maria Gil Sanjuan (“the applicant”), on 21 September 2015;
the decision to give notice to the Spanish Government (“the Government”) of the complaint under Article 6 § 1 of the Convention concerning the decision of the Supreme Court to declare the applicant’s appeal inadmissible, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 5 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The application concerns the Supreme Court’s decision to declare the applicant’s appeal on points of law inadmissible owing to non-compliance of the notice of appeal with the formal requirements set out in the law. The applicant complained that the Supreme Court had declared her appeal inadmissible on the basis of the retroactive application of a new interpretation of a procedural requirement not provided for by law but established by a decision of the Supreme Court rendered after her appeal had been submitted, without her having been given the opportunity to remedy any possible deficiencies which might have arisen as a result of the new interpretation. The principal issue is whether the applicant’s right of access to a court under Article 6 § 1 of the Convention has been respected. THE FACTS
1. The applicant was born in 1937 and lives in Murcia. She was represented by Ms Martínez García, a lawyer practising in Murcia. 2. The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant owned a plot of land that was affected by a ministerial order of 27 September 2007, namely a decision of the Ministry of the Environment approving the delineation of the coastal area (zona marítimo terrestre) in accordance with the Coasts Act (Ley de Costas). In response, the applicant instituted judicial proceedings in the Audiencia Nacional against the delineation resulting from the ministerial order. The Audiencia Nacional ruled against the applicant in a judgment of 8 October 2010. 5. On 4 November 2010 the applicant submitted a notice of appeal (escrito de preparación) on points of law against the judgment of 8 October 2010 – a requirement prior to lodging an appeal on points of law (recurso de casación) with the Supreme Court (Administrative Chamber) – based on paragraphs (c) and (d) of section 88(1) of Law 29/1998 regulating judicial proceedings in administrative matters (Ley reguladora de la Jurisdicción Contencioso-administrativa). The Audiencia Nacional deemed the appeal prepared on 11 November 2010 and referred the case file to the Supreme Court. 6. On 4 January 2011 the applicant lodged an appeal on points of law with the Supreme Court. 7. On 28 October 2011 the Supreme Court informed the applicant of the possible existence of grounds for inadmissibility in the notice of appeal, specifically the lack of a reference to the grounds of appeal and to the corresponding legal rules or case-law that had allegedly been infringed by the impugned judgment. The court based the decision on sections 88(1), 89(1) and 93(2)(a) of Law 29/1998, as well as a Supreme Court decision (auto) of 10 February 2011. It granted a time-limit of ten days for the applicant to make comments in this connection. 8. On 21 November 2011 the applicant submitted comments arguing against declaring the appeal inadmissible. Nonetheless, by a decision of 9 February 2012 the Supreme Court (Administrative Chamber, First Section) declared the appeal inadmissible pursuant to section 93(2)(a) of Law 29/1998 owing to non-compliance of the notice of appeal with the formal requirements set forth in Law 29/1998. In the court’s view, the notice of appeal had only announced the grounds of appeal (from among those prescribed in section 88(1) of Law 29/1998), but had failed to make any reference to the provisions or case-law that had allegedly been infringed or to the substance of the breaches of legal rules or case-law to be complained of in the appeal on points of law. Making reference to section 89(1) read in conjunction with section 88(1) of Law 29/1998, the court stated that such references were required in order to appeal against decisions of both the High Courts of Justice and the Audiencia Nacional on the basis of any of the grounds provided for in section 88(1) of Law 29/1998 – in line with the case-law of the Supreme Court as clearly set out in that court’s decision of 10 February 2011, followed by subsequent decisions such as that of 26 May 2011. In response to the comments submitted by the applicant as to the compliance of the notice of appeal with the requirements set forth in the law as interpreted at the time it had been lodged, the Supreme Court held that the case-law adduced by the applicant had been “superseded by the aforementioned recent doctrine”. 9. On 11 April 2012 the applicant lodged an application for annulment (incidente de nulidad). She complained that the decision to declare her appeal on points of law inadmissible had constituted a breach of her right to a fair trial on the basis that it had applied retroactively a new interpretation of a procedural requirement not provided for by law but developed in case-law after she had submitted her appeal, and without her having been given the opportunity to remedy any possible deficiencies which might have arisen as a result of the new criteria. The application for annulment was dismissed by the Supreme Court on 13 September 2012. The court noted the following:
“Certainly, the doctrine reiterated by this Chamber since the decision [auto] of 10 February 2011 (appeal 2927/2010) incorporates new requirements into the notice of appeal on points of law with respect to [the requirements] contained in the criteria systematically set out in precedents of this Chamber, as has been stated in the reasoning of the decision whose annulment is sought, thus completing the case-law development that had already been pointed out in this Chamber’s decision of 14 October 2010 (appeal no. 951/2010) ... Consequently, this Chamber shall apply the new judicial criterion to any case or legal situation submitted before it, regardless of the time when the appeal was lodged ...”
10. The applicant subsequently lodged an amparo appeal with the Constitutional Court, arguing that the notice of appeal had complied with the requirements set forth in Law 29/1998 as interpreted in the case-law at the time it had been lodged (4 November 2010). The applicant argued that the retroactive application of an ex novo requirement not provided for by law but established by the decision of 10 February 2011 – after her appeal had been submitted and without her having been given the opportunity to remedy any possible deficiencies which might have arisen as a result of the new criteria – had been in breach of Article 24 of the Spanish Constitution (right to a fair trial) and Article 6 of the Convention. 11. The Constitutional Court dismissed the applicant’s amparo appeal by a judgment of 16 March 2015 (served on the applicant on 23 March 2015). The Constitutional Court firstly noted the development of the Supreme Court’s case-law as regards the admissibility requirements for a notice of appeal (see paragraphs 15 and 16 below). As for the merits, the Constitutional Court, making extensive reference to the Strasbourg Court’s case-law, held as follows. (i)  The Supreme Court’s criteria as outlined in the impugned decisions were proportionate and a legitimate exercise of its powers of interpretation. Firstly, the Constitutional Court noted that deciding on the admissibility of appeals on points of law and on the application and interpretation of the admissibility requirements for such appeals was primarily a task for the Supreme Court, and thus the Constitutional Court should not intervene unless the Supreme Court’s decisions were found to be unreasonable or arbitrary. In the court’s view, requiring the notice of appeal to contain a reference to the legal provisions and case-law allegedly infringed was within the authority of the Supreme Court. Secondly, the Constitutional Court considered that the Supreme Court had sufficiently weighed up the purpose of the rule and the consequences for the applicant. (ii)  The requirement of legal certainty and the protection of legitimate expectations did not involve the right to established case-law, and thus case-law development was not, in itself, contrary to the proper administration of justice. In this connection, the Constitutional Court noted that case-law was not strictly a source of law in the Spanish legal system. Making reference to one of its previous judgments (judgment no. 95/1993 of 22 March 1993), it highlighted that a judgment introducing a change in the case-law interpreted what a legal rule had meant since its creation. It could therefore not be inferred that the previous, contradictory case-law had changed such rules or could be imposed as customary law. (iii)  In the instant case there had been no exceptional circumstances such as those found in a similar case in which the Constitutional Court had upheld an amparo appeal (judgment no. 7/2015 of 22 January 2015). Unlike in that previous case, the applicant had not supplemented the notice of appeal as soon as she had become aware of the new criteria applied by the Supreme Court as regards the admissibility requirements, not even after the Supreme Court had informed her of the possible existence of grounds for inadmissibility within the notice of appeal. 12. The Constitutional Court’s judgment contained a joint dissenting opinion of two judges (of a six-judge panel), who expressed the view that the amparo appeal should have been upheld for the same reasons as set out in a previous dissenting opinion attached to the Constitutional Court’s judgments no. 7/2015 of 22 January 2015 and no. 16/2015 of 16 February 2015. In short, those dissenting opinions noted firstly that the new interpretation by the Supreme Court as to the requirements of the notice of appeal was unreasonable because such new requirements were not provided for by law. They further stated that the right to a fair trial and, more particularly, the right of access to a court and to judicial remedies might be breached if a new interpretation of formal requirements developed in case-law was applied to the examination of an appeal lodged when the new criteria had not existed or had not been known to exist, and the applicant had not been given any opportunity to remedy any newly arising deficiencies in the notice of appeal. The dissenting judges stressed that any other conclusion would be unreasonable and contrary to the principles of legal certainty and good faith and would raise an issue as to the foreseeability of judicial interpretation. RELEVANT LEGAL FRAMEWORK AND PRACTICE
13. The relevant provisions of the Constitution read as follows:
Article 24
“1. Everyone has the right to obtain effective protection by the judges and the courts in the exercise of his or her rights and legitimate interests, and in no case may he or she go undefended. 2. Likewise, everyone has the right to be heard by a court established by law, to be defended and assisted by a lawyer, to be informed of any charges brought against him or her, to a public trial without undue delay and with full guarantees, to make use of evidence relevant to his or her defence, not to incriminate him or herself, not to declare him or herself guilty, and to be presumed innocent.”
14. The relevant provisions of Law 29/1998 regulating judicial proceedings in administrative matters (Ley reguladora de la Jurisdicción Contencioso-administrativa) as in force when the applicant lodged her notice of appeal and the appeal on points of law – which were later amended by Organic Law no. 7/2015 – read as follows:
Section 88
“1. An appeal on points of law [recurso de casación] shall be based on one or more of the following grounds:
(a) abuse, excess or a defect in the exercise of jurisdiction;
(b) lack of competence or inappropriateness of the procedure;
(c) failure to observe essential procedural requirements owing to a breach of the rules regulating judgments or those governing procedural acts and guarantees provided that, in the latter case, the party has gone undefended;
(d) breach of the legal rules or of the case-law applicable to resolve the issues at stake.
...”
Section 89
“1. An appeal on points of law shall be prepared within a ten-day time-limit before the Chamber which rendered the impugned decision ... by submitting a notice [of appeal] expressing the intention to lodge an appeal [on points of law], including a brief statement on its compliance with the formal requirements ...”
Section 90
“1. If the notice of appeal meets the requirements laid down in the preceding section, and concerns a decision subject to [appeal on points of law], the court registrar shall deem the appeal prepared ...”
Section 92
“1. Within the time-limit, the appellant shall ... lodge the appeal on points of law with the Administrative Chamber of the Supreme Court, which shall give reasons on the ground or grounds on which it is based, citing the legal rules or case-law allegedly infringed.
...”
Section 93
“2. The Chamber shall render a decision of inadmissibility in the following cases:
(a) when, despite the appeal having been deemed prepared, ... the requirements [of the notice of appeal] are not met or the impugned decision is not subject to appeal on points of law ...;
(b) when the ground or grounds invoked in the appeal [on points of law] are not among those prescribed in section 88; when the legal rules or case-law allegedly infringed are not cited; when [the legal rules or case-law cited] bear no relation whatsoever to the issues at stake; or when, a request to remedy the defect having been necessary, there is no evidence of [any such request] having been made;
(c) when other appeals [which were] substantially the same have been dismissed on the merits;
(d) when the appeal is manifestly ill-founded;
... 3. The Chamber, before giving its decision, shall succinctly state the possible [existence of] grounds for inadmissibility in the appeal to the parties concerned for them to make, within a ten-day time-limit, the comments [they] consider appropriate.
...”
15. The criteria as regards the admissibility requirements for a notice of appeal which were applicable when the applicant lodged her notice of appeal were established by the Supreme Court’s decisions of 14 October 2010 (appeals nos. 951/2010 and 573/2010), later confirmed by a number of subsequent decisions – some of them rendered after the applicant’s notice of appeal had been submitted (for instance, on 18 November 2010, appeal no. 3461/2010, and on 2 December 2010, appeal no. 3852/2010). The decisions of 14 October 2010 noted certain divergences in the Supreme Court’s case-law concerning the formal requirements for the notice of appeal – in particular as regards the requirement to state the specific grounds on which the appeal on points of law was to be based – and considered it necessary to clarify the Supreme Court’s own case-law in this connection. They read as follows:
“... [E]ven though section 89(1) of the Law [29/1998] does not establish a list of formal requirements to be met by the notice of appeal, the Supreme Court has in a number of decisions noted the need to state already in that document, first, the appealable nature of the decision to be contested; second, the legitimacy of the appellant; third, the compliance with the time-limit set for submitting the notice of appeal; and fourth, the intention to lodge an appeal on points of law against the impugned judgment or decision ... [T]o these requirements should be added the need to put forward within the notice of appeal the specific grounds – from among those provided for in section 88(1) [of Law 29/1998] – on which the appeal on points of law is to be based ...
...
[There is] settled and uniform case-law declaring in a number of decisions ... that when there is an intention to appeal on points of law against judgments rendered by the Administrative Chambers of the High Courts of Justice and the appeal on points of law is based on a breach of legal rules or of the case-law applicable to resolve the issues at stake (section 88(1)(d) [of Law 29/1998]), in the notice of appeal ... not only must the grounds [of appeal] be set out but sufficient justification must be given as to how the breach of a State or European Union legal rule has been relevant and decisive for the operative part of the judgment ... This ... is not applicable in respect of judgments rendered by the Administrative Chamber of the Audiencia Nacional, or of course in respect of decisions [autos].
... Hence, [the Chamber] considers it necessary to clarify the case-law in relation to this issue, redirecting it in accordance with the following considerations. (a) ... [I]t is for the appellant on points of law to state [within the notice of appeal] the specific ground or grounds on which the appeal [on points of law] will be based ... (b) ... [T]he general rule applicable in all cases and to all grounds [of appeal on points of law] (section 89(1) [of Law 29/1998]) is that the ground [from among those] in section 88(1) [of Law 29/1998] on which the appeal on points of law will be based must be announced [within the notice of appeal]; moreover, there is a specific case ... concerning [appeals against] judgments rendered by the High Courts of Justice based on the ground provided for in [section 88(1)(d)], in which a further step is required in the notice of appeal, not only [entailing] the announcement of the ground but also the justification, succinctly but in any event sufficiently, of the relevance of the breach of a State or European Union legal rule on which that ground is to be based ...”
16. On 10 February 2011 (appeal no. 2927/2010) the Supreme Court gave a further decision concerning the admissibility requirements for a notice of appeal. The court began by reiterating its recent case-law (see paragraph 15 above), but it considered it appropriate to “further clarify” the case-law in order to “specify” the scope of the requirement to state within the notice of appeal the ground(s) on which the appeal on points of law is to be based. The court stated the following:
“[I]t is for the appellant on points of law to state [within the notice of appeal] the specific ground or grounds on which the appeal [on points of law] will be based ... with reference to the specific provisions or case-law allegedly infringed or to the substance of the breaches of the legal rules or case-law to be raised and developed within the appeal on points of law, even if briefly ... This requirement to state the specific breaches of legal rules or case-law within the notice of appeal applies when the impugned decision is given either by the High Courts of Justice or by the Audiencia Nacional, whatever the ground [from among those] in section 88(1) [of Law 29/1998] that has been alleged.”
17. The Supreme Court has consistently reiterated that the notice of appeal is subject to the formal requirements set out in section 89 of Law 29/1998 and, owing to the extraordinary nature of an appeal on points of law, failure to comply with section 89(1) of Law 29/1998 is not a deficiency that can be remedied, since it cannot be regarded as a mere formal defect as it affects the very essence of the appeal on points of law (see, among many other authorities, the aforementioned Supreme Court decision of 10 February 2011, appeal no. 2927/2010, and more recently its decision of 5 May 2016, appeal no. 102/2015, with further references). 18. In connection with the ten-day time-limit for the parties to the proceedings to make comments on the possible existence of grounds for inadmissibility in the notice of appeal or the appeal on points of law pursuant to section 93(3) of Law 29/1998 (see paragraphs 7 and 14 above), the Supreme Court reiterated in a decision of 25 November 2010 (appeal no. 2990/2010) the following:
“... [A]s this Chamber has reiterated, the comments provided for in section 93(3) of [Law 29/1998] can only be aimed at maintaining that the notice of appeal or the appeal on points of law, as they have been submitted, do not fall within the scope of the ground for inadmissibility subject to debate; therefore, this [procedural] step does not constitute an appropriate stage of the procedure for remedying the possible defects and omissions affecting such submissions ...”
19. The judgments of the Constitutional Court no. 7/2015 of 22 January 2015 (sitting in plenary) and no. 16/2015 of 16 February 2015 – referred to by the Constitutional Court in the judgment rendered in the case at hand (see paragraphs 11 and 12 above) – and judgment no. 139/2015 of 22 June 2015 dealt with cases raising issues similar to the one in the present case. The Supreme Court had also declared appeals lodged against judgments of the Audiencia Nacional inadmissible owing to non-compliance of the notices of appeal with the formal requirements set forth in the law as interpreted by the Supreme Court’s decision of 10 February 2011 (rendered after the appellants’ notices of appeal had been submitted). In the cases giving rise to judgments nos. 7/2015 and 139/2015 – unlike in the present case – the Constitutional Court ruled in the appellant’s favour, and found a breach of the right to a fair trial, on the basis that the appellant had submitted a fresh notice of appeal (including a reference to the legal rules or case-law allegedly infringed) to comply with the new requirements soon after the appellant had known about the new criteria adopted by the Supreme Court, and that the Supreme Court had failed to consider that fact and take it into account in its decision to declare the appeal inadmissible. In this connection, it is important to note that in both cases the appellants had supplemented the notice of appeal before the Supreme Court had noted the possible existence of grounds for inadmissibility in accordance with section 93(3) of Law 29/1998. In the case giving rise to judgment no. 16/2015, the appellant had not supplemented or submitted a new notice of appeal, and accordingly – as in the instant case – the appeal to the Constitutional Court was dismissed. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20. The applicant complained that her notice of appeal had complied with the requirements set forth in Law 29/1998 as interpreted in the case-law existing at the time she had submitted it. Accordingly, the decision to declare her appeal on points of law inadmissible had constituted a retroactive application of a new interpretation of a procedural requirement not provided for by law but established by the Supreme Court’s decision of 10 February 2011 (after her appeal had been submitted) – without having given her the opportunity to remedy any possible deficiencies which might have arisen as a result of the new criteria – and had breached her right of access to a court as provided in Article 6 § 1 of the Convention, which in its relevant part reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
21. The Government asserted that the complaint should be declared inadmissible as being manifestly ill-founded. They argued that Article 6 § 1 of the Convention did not guarantee a right to a second level of jurisdiction in civil or administrative matters, and that in any event the applicant’s case had followed administrative procedure with all the attendant safeguards, including an administrative appeal, and had been reviewed by a court (the Audiencia Nacional) before which she had been able to make any comments and submit any evidence she considered appropriate in defence of her rights. The Government further stated that the conditions of admissibility for an appeal on points of law could be stricter than for an ordinary appeal, and that the Supreme Court’s interpretation as to the formal requirements for lodging an appeal on points of law was reasonable and in the interests of the proper administration of justice. Lastly, they asserted that the applicant had been given the opportunity to remedy the deficiencies found in her notice of appeal. 22. The applicant contested those arguments. 23. The Court considers that this complaint raises complex issues of law and fact which cannot be determined without an examination on the merits. It follows that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court therefore dismisses the Government’s objection. 24. The Court further notes that the complaint is not inadmissible on any other grounds and that no other preliminary objection was raised by the Government in that regard. It must therefore be declared admissible. MeritsThe parties’ submissions

25. The applicant maintained that, as reiterated by the case-law of the Supreme Court at the time, when she had lodged the notice of appeal on points of law there had been no requirement to state the legal rules or case-law that had allegedly been infringed. This was shown by the fact that the Audiencia Nacional itself had deemed the appeal prepared – after verifying that the notice of appeal had met the requirements provided for by law – and referred it to the Supreme Court. By declaring her appeal inadmissible, the Supreme Court had automatically applied a new interpretation of formal requirements developed through case-law to the examination of an appeal that had been lodged when the new criteria had not existed. In her view, such criteria had not been foreseeable when she had submitted the appeal, and the Supreme Court had not had regard to the particular circumstances of the case – namely that the case had only been examined at one national judicial level, that the judgment of the Audiencia Nacional had affected her right to protection of property, and that the appeal to the Supreme Court had been based on an alleged breach of her right to a fair trial in the judicial proceedings. 26. The applicant further stated that she had not been given the opportunity to remedy any possible deficiencies which might have arisen as a result of the new criteria. The purpose of the time-limit granted by the Supreme Court in the decision of 28 October 2011 was – as provided for by section 93(3) of Law 29/1998 – to allow comments to be made on the possible existence of grounds for inadmissibility in the notice of appeal. Hence, the decision had not granted a time-limit for the applicant to remedy the notice of appeal, and moreover, that would not have been possible at that stage of the proceedings in the light of the case-law of the Supreme Court (see paragraphs 17 and 18 above). The applicant contested the assertion that in cases similar to the present one the Supreme Court had allowed appellants to remedy the notice of appeal within the ten-day time-limit for making comments on possible grounds for inadmissibility. She further noted that in the only relevant cases in which the Constitutional Court had upheld amparo appeals (see paragraph 19 above), the appellants had remedied the appeal on points of law before the Supreme Court had granted a time-limit for making comments on possible grounds for inadmissibility in the notice of appeal. 27. Reiterating their arguments relating to the admissibility of this complaint (see paragraph 21 above), the Government, for their part, submitted that the Supreme Court’s criterion requiring the notice of appeal to contain a brief reference to the legal provisions or case-law allegedly infringed was not arbitrary or unreasonable, and was furthermore foreseeable in the light of the development of the Supreme Court’s case-law in this connection – which was becoming stricter when it came to interpreting the formal requirements for submitting an appeal on points of law. Such an interpretation stemmed from a combined reading of the relevant provisions of the law (see paragraph 14 above), and accordingly was provided for by law. The Government further cast serious doubts as to the compliance of the applicant’s notice of appeal with the formal requirements. 28. The Government also argued that the Supreme Court, in view of the deficiencies found in the notice of appeal on points of law, had granted a ten-day time-limit for the applicant to make comments, and accordingly she had been given an opportunity to remedy such deficiencies, but instead of doing so, she had insisted that the notice of appeal submitted should have been declared admissible. Hence, in their view, this procedural step had provided the applicant with the possibility of remedying deficiencies in her notice of appeal. Making reference to judgments of the Constitutional Court (see paragraph 19 above), the Government stated that in all cases similar to the present one in which appellants on points of law had made use of such an opportunity to remedy their notice of appeal in order to comply with the Supreme Court’s new criteria, either the Supreme Court had declared the appeals admissible or the Constitutional Court had ruled in the appellants’ favour.

Outcome for Article 6: violation