The case of I.D.G. v. Spain. Views of the Committee on Economic, Social and Cultural Rights of 17 June 2015. Communication No. 2/2014.
In 2013, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The Committee on Economic, Social and Cultural Rights considered that the facts at its disposal indicated that the national court of the State party had not taken all reasonable measures to properly notify the author of the credit institution's foreclosure claim in order to ensure that the author was indeed informed about at the beginning of the proceedings in this case, and, as a result, the court deprived the author of the opportunity to properly defend his right to housing in court. Violations of the International Covenant on Economic, Social and Cultural Rights have been committed.
As seen from the text of the Considerations, the author argued that, in the light of her rights under the Covenant, the judicial authorities are obliged to ensure the effective implementation of judicial notifications. Despite this, after unsuccessful attempts to personally notify the author at her place of residence, the Madrid Court directly proceeded to notify by publishing an order, without using other forms or means of notification established in the Spanish Civil Procedure Code itself. As a result of this dishonesty in the work of the court, the author was not notified of foreclosure on the mortgaged property by the credit institution, nor of the initiation of enforcement proceedings, nor of any other communication preceding the order to hold the auction. The author drew attention to the fact that, in practice, the lack of notification did not allow her to take retaliatory legal measures and defend her right to housing in court, since she learned about the proceedings in this case only after the court issued an order to auction her housing. The author claimed that, as a result of the lack of timely and effective judicial protection, she found herself in a situation of helplessness, uncertainty and anxiety, which seriously affected her state of health. In the author's opinion, the lack of effective access to the courts of the State party prevented her from challenging the illegality of the contractual terms in court, in particular the way the credit institution calculated the interest amounts due (paragraphs 3.3 - 3.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the author claimed that due to a number of non-payments on her mortgage loan taken out to buy a home where she lived, in 2012, the credit institution began the procedure for collecting this loan, which the author was not properly notified about, as she learned about this collection only after after an order was issued to put her home up for auction. As a result, the author considered that in fact she had not received access to effective and timely judicial protection, which prevented her from challenging this claim and defending her right to housing in court, and therefore she is still in a state of helplessness, uncertainty and anxiety (paragraph 10.2 of the Considerations).
The State party argued that in her appeal, the author referred to another address belonging to her family members, in connection with which the above-mentioned dwelling was not her permanent place of residence; that the court sent the author notifications of the enforcement of this penalty in accordance with the law at the address that the author herself indicated in the notarized contract mortgage loans; that only after a number of unsuccessful attempts to notify the author personally, the court ordered the notification to be carried out by publishing an order in accordance with paragraph 3 of article 686 of the CPC (Code of Civil Procedure of Spain); and that notification by publishing a court order met the requirements of the right to effective judicial protection. In addition, the State claimed that the author allegedly voluntarily refused to receive notification of the appropriate penalty and the court's decision to initiate enforcement proceedings, as indicated in the notification dated September 28, 2012. Finally, the State party informed the Committee that the eviction, foreclosure or sale of the mortgaged housing had not been carried out in any case, since the author had submitted an ordinary remedy, on the basis of which the enforcement proceedings were suspended, that is, the author still lives in this dwelling and her rights were not infringed (paragraph 10.3 of the Considerations).
With regard to the nature of the mortgaged housing that was the subject of this communication, the Committee took note of the author's explanation that by another address belonging to members of her family, mentioned by her in the enforcement proceedings, she meant the housing of one of her family members, while she lived in housing, about which is in question; and that she was not the owner of any other housing. The documentation provided by the author, which was not disputed by the State party, supported her claims. The documentation submitted to the Committee indicated that the dwelling in question was the author's permanent residence and that she was not the owner of any other dwelling. Thus, in the light of the documents of the present case, as well as information received from the parties, the Committee considered the housing in question as the author's permanent residence (paragraph 10.4 of the Opinion).
With regard to the author's absence on September 28, 2012, when the notification of the filing of the claim of the credit institution and the court's decision to accept it for production was made, the Committee noted that neither the copy of the notification of the General Directorate of Judicial Notices and Law Enforcement Procedures of the City of Madrid dated September 28, 2012, submitted by the author, nor any other The document did not indicate that the author was in her permanent place of residence and refused to receive a notification made by order of the court (paragraph 10.5 of the Opinion).
In the light of the Committee's findings on the facts of the present case, the main legal question related to the present communication was whether the author's right to housing, as enshrined in article 11, paragraph 1, of the Covenant, had been violated as a result of the initiation by the State party of enforcement proceedings for foreclosure on a mortgage loan, as alleged by The author of the communication, she was not properly notified, which prevented her from defending her rights recognized in the Covenant (paragraph 10.6 of the Considerations).
According to the documents of the present case, on June 21, 2012, the court initiated enforcement proceedings to foreclose on the author's mortgaged real estate. However, the author only found out about this on April 4, 2013, when she received a notification of an order to auction her real estate, without being able to defend her rights during enforcement proceedings. In September and October 2012, four unsuccessful attempts were made to notify the court of the decision to accept the claim for production, since the author was absent from her place of residence, the address of which she indicated for sending notifications. The bailiff confirmed that her name was on the mailbox in the relevant building; and that the concierge was present there at least twice, as noted in the documents of the General Directorate of Judicial Notices and Law Enforcement Procedures of the City of Madrid, which, therefore, the court took or should have taken note of. On October 30, 2012, the court granted permission for the publication of its order on the bulletin board in order to implement the notification, which was not brought to the attention of the author in a timely manner (paragraph 13.2 of the Opinion).
The Committee paid tribute to the court's repeated efforts aimed at personally notifying the author of the court's decision to proceed with the foreclosure of her mortgaged real estate. However, the Committee considered that the State party had not proved that Court No. 31 had exhausted all available means of making a personal notification (for example, it did not explain the reasons why court No. 31 did not notify the author by leaving a note or notification in her mailbox, or by any other means provided for in the CPC, such as serving a notification to the concierge or a neighbor from the nearest apartment), and limited itself to indicating that after unsuccessful attempts to notify the author, notification in accordance with the law was carried out by publishing an order. In addition, the State has not provided any serious justification for its claim that during one of the notification attempts, the author allegedly hid so that the notification would not be handed to her personally. Thus, the Committee concluded: even if it can be concluded that the notification of the author by publishing the order was in accordance with the CPC, such a notification of foreclosure on mortgaged property must in any case be appropriate in accordance with the Covenant norms relating to the right to housing, which in this case were not respected, that is, the notification was inappropriate (paragraph 13.3 of the Opinion).
This violation in the notification procedure would not constitute a violation of the right to housing if it did not have significant consequences for the protection of the author's right to the effective use of his home, for example, if the person concerned could have resorted to another appropriate procedural mechanism to protect his rights and interests. The State party's position appears to be precisely this, since it argued, without giving serious justification, that the author's loss of the opportunity to participate in enforcement proceedings had no serious consequences, since in any case, the debtor's legal protection options during enforcement proceedings are very limited, but he, in turn, had the option of ordinary proceedings is available, allowing him to challenge the payment of a mortgage loan without any restrictions; and that the author submitted a written statement in accordance with paragraph 3 of Article 695 of the CPC, referring to the illegality of a number of provisions of the mortgage loan agreement, and she even managed to get the suspension of enforcement proceedings and the sale of her home, since, by virtue of the decision of the European Court, these ordinary remedies allow, inter alia, to suspend foreclosure on mortgaged property and its sale (paragraph 13.4 of the Considerations).
In the context of the present communication, due to the specifics of the issue of improper notification raised by the author, it was not the task of the Committee to generally consider whether the internal rules of the State party governing the foreclosure of mortgaged real estate (in particular, a house or apartment) and its subsequent sale comply with the right to housing. In the present case, the Committee limited itself to considering whether, by virtue of the already established improper notification of the author, her right to protection was significantly affected, which would mean a violation of the right to housing (paragraph 13.5 of the Opinion).
According to the CPC in force at the time of these events, the debtor can challenge the auction on very limited grounds, such as repayment of a mortgage pledge or a corresponding obligation, as part of the enforcement procedure of a court decision. As part of this process, he cannot challenge, for example, illegal provisions of the contract. On the contrary, ordinary proceedings provide the debtor with broad and open grounds for challenging the relevant loan. In this case, it can be argued that failure to appear for enforcement proceedings is not necessarily a particularly serious circumstance, since in any case, the debtor has at his disposal the option of ordinary proceedings to assert his rights. But in order for this provision to be justified, ordinary proceedings should make it possible to suspend enforcement proceedings and put up for auction a real estate object, because otherwise protection through ordinary proceedings will not be enough to ensure the right to housing, since the relevant person will not be able to prevent the sale of his real estate; he will have the opportunity to receive in the end, only compensation or the return of property, if possible. The Committee considered that the author was deprived of the opportunity to protect her interests during the enforcement proceedings in order to prevent the auction from taking place, and at the time of improper notification, ordinary proceedings could not even be considered as an adequate possible alternative mechanism, since it did not allow the suspension of enforcement proceedings (paragraph 13.6 of the Opinion).
The Committee pointed out that this improper notification at that time constituted a violation of the right to housing, which was not subsequently corrected by the State party, since the author was refused both the annulment of the court decision on the auction and the amparo procedure, according to which she appealed to the Constitutional Court (paragraph 13.7 of the Opinion).
Taking into account all the materials submitted, the Committee considered that the facts at its disposal indicated that the court had not taken all reasonable measures to properly notify the author of the claim of the credit institution for foreclosure on mortgaged property in order to ensure that the author was indeed informed about the commencement of proceedings on in this case, and as a result, the court deprived the author of the opportunity to properly defend his right to housing in court (paragraph 14 of the Opinion).
The Committee's conclusions: By failing to comply with its obligation to provide the author with an effective remedy, the State party violated her rights under article 11, paragraph 1, of the Covenant, read in conjunction with article 2, paragraph 1, of the Covenant.