Article 47 - Right to an effective remedy and to a fair trial
On 6 March 2009, the Commercial Court No. 1 of Burgos concluded the ordinary procedure No. 548-2007, in which the appellant was a co-defendant in the amparo proceedings, but did not appear and was judged in absentia. The ordinary lawsuit was filed by Gerardo Moreno de la Hija, to claim from the commercial company The Quaid Project Limited, Christopher Frank Carandini Lee and Juan Francisco Aneiros Rodríguez, as representative of Christopher Lee's official website, payment of compensation for having used, for the diffusion on DVD of the film "JINNAH: The Movie", a painting made by him that became part of the poster of the film, without his permission and without having paid for the use of such artistic work. The three co-defendants were all domiciled in London, and both The Quaid Project Limited and Mr Carandini Lee were tried without their presence, after it was found impossible to give them a domicile and an official notice was served on them. At the time, only Mr. Aneiros was summoned in person, at the address set out in a contract concluded previously with the plaintiff. The judicial body understood that the exploitation by the co-defendants of the artistic work constituted an infringement of the exclusive rights held by Mr. Moreno de la Hija. The ruling required the payment of compensation for damages, taking into account the remuneration that he would have received if he had authorised such exploitation (Article 140 of the revised text of the Law on Intellectual Property, approved by Royal Legislative Decree 1 / 1996 of 12 April), the amount of which would have to be fixed at the appropriate procedural time, and an obligation to do so [art. 705 of the Law on Civil Procedure (LEC)] consisting of the publication of the judgment in a national newspaper, stating that "Mr Gerardo Moreno de la Hija, is the exclusive owner of the rights to the exploitation of the work "JINNAH", the object of painting and class of artistic work, that the reproduction, distribution and communication of that work, carried out by the defendants, by incorporating it into their work "JINNAH: The Movie" represents an infringement of the exclusive exploitation rights held by Mr. Gerardo Moreno de la Hija". On 24 September 2009, the plaintiff filed an application for enforcement of the judgment, following the corresponding procedure before Burgos Commercial Court No. 1, under case number 695-2009. The claim for enforcement contained the claim for the fulfilment of the
obligation to do so and the determination of the liquidation of damages in accordance with the provisions of Articles 713 and following. LEC, requesting that the compensation be set at 710,000 euros, in application of the provisions of art. 140 of the Law on Intellectual Property. The executant explains succinctly in his demand that, taking into account the distribution and exploitation channels of the work and the current market price of the same, as well as the economic valuation that was made at the time of the exploitation rights of the film, 710,000 Euros is the amount that Mr. Gerardo Moreno de la Hija would have requested as payment for his painting. The proceedings were concluded, without notice to the parties in default of appearance and without any adversarial proceedings having been instituted concerning the fixing of the compensation, by order of 26 October 2009, releasing the enforcement requested, ordering compliance with the obligation to make and requiring the three defendants to pay jointly and severally, within 30 days, the sum of EUR 710 000 in principal, to which must be added the subsequent payment of interest and costs. On 4 December 2009, and in order to notify the writ of despatch of execution to those who had been civilly sentenced in absentia, the court issued an order ordering the United Kingdom to release "letters rogatory" under Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service of judicial and extrajudicial documents in civil or commercial matters between the Member States of the European Union. The letters rogatory are issued in relation to the executed commercial "Christopher Lee Web", represented in the ordinary proceedings by Mr Juan Francisco Aneiros Rodríguez. A subsequent order, dated 29 December 2009, orders the service on the defendants, by registered letter with international acknowledgement of receipt, of the order for execution. The "list of certificates with acknowledgement of receipt" dated 4 January 2010 and present in the proceedings, states that the notifications were sent to the commercial company "Christopher Lee Web" through its representative, at the address designated by the executor, and to the commercial company "The Quaid Project Ltd.", without it being stated that any rogatory commission was drawn up to be notified personally to the appellant in amparo, Mr. Carandini Lee, nor that the relevant notification was sent by registered letter with acknowledgement of receipt. In any event, none of the notifications could be completed at the address designated by the appellant in the court proceedings. In the meantime, the plaintiff sought the seizure of the current accounts of the executed and of a farm owned by Mr Juan Aneiros. This request was rejected by order of 17 February 2010, among other reasons, because the result of the notification of the order dispatching the execution was not expressly recorded. The judicial body then understood that the executed could show their disagreement with the amount of the compensation as it was not liquid, but determinable in execution of the sentence according to the procedure of arts. 713 and following of the LEC. .
The procedural representation of the executant requested the practice of the notifications by means of edicts, through a written document dated March 4, 2010, based on the lack of knowledge of an address of the executed where to practice the personal notification, different from the one previously notified to the court. An order dated April 26, 2010, upheld the claim, and agreed to service by means of notices on the court's bulletin board, since it was not possible to serve the executed parties personally. The publication was made by means of an edict dated April 26, 2010. On September 6, 2010, the seizure of the defendants' current accounts was decreed, requesting information about them from different banking entities and concluding such diligence in an unsuccessful manner, since there were no accounts of the executed in the required banking entities. By means of two orders, dated September 17, 2012 and February 18, 2013, the court clarified that the execution proceedings were directed against Mr. Juan Francisco Aneiros Rodríguez, representative of the company "Christopher Lee Web", against the company "The Quaid Project Ltd" and against Mr. Christopher Frank Carandini Lee himself, amounting to 213,000 Euros, which were added to the 710,000 Euros in which the damages suffered by the executor were estimated. By means of a writ registered on September 15, 2010, Mr. Moreno de la Hija requested, on the one hand, that a writ of attachment be issued for a real estate property owned by Mr. Aneiros and that a series of accounts be seized until the execution office is covered, and on the other hand, that, to the extent that the executed persons may have assets in countries belonging to the European Union, the writ of attachment of October 26, 2009 be certified as a European enforcement order (EEO), in accordance with Regulation (EC) No. 805/2004 of the European Parliament and of the Council, of 21 April 2004, creating a European Enforcement Order for uncontested claims. The court ordered the certificate to be issued by decree dated 17 November 2010, and the certification was issued on 13 June 2011. The European Enforcement Order certificate was rectified on October 14, 2013, due to some material errors in the names of the executed persons. Having received extra-procedural knowledge of the execution procedure through a letter from the lawyers of the executor, through an office located in London and to an address that had not appeared before in the proceedings, Mr. Carandini Lee went to the Commercial Court No. 1 in Burgos on 11 February 2014, requesting to be a party to the proceedings, and asking for a copy of everything that had been done. His request was admitted by the court on February 13, 2014, notified on February 18, 2014, after which he filed two incidents of nullity of proceedings and a request for revocation of the European enforcement order. The first incident of nullity of proceedings, denouncing the violation of Article 24 of the Spanish Constitution, requested the nullity of the proceedings in declaratory procedure No. 548-2007, since the edictual notification of the same was ordered, as the plaintiff considered that an irregularity had occurred in the notifications made in the procedure. In view of the rejection of the first incident and the inadmissibility of the consequent appeal for protection by the Constitutional Court, the appellant raised a second incident of nullity of proceedings, this time against the order of the execution office, dated 26 October 2009,
highlighting the defects in the notification of the order, and the lack of hearing of the interested party in the determination of the amount of the damages to which he was sentenced, denouncing the formal and material defencelessness suffered, and therefore the "violation of the fundamental right to effective judicial protection proclaimed by Article Article 24 Spanish ConstitutionC in that it provides for a procedure with full guarantees'. In addition to the two aforementioned incidents of invalidity, at the time the appellant appeared in person in the enforcement proceedings, he also raised the revocation of the European Enforcement Order certificate in application of Article 10.1 b) of Regulation (EC) No. 805/2004 of the European Parliament and of the Council, of 21 April 2004, on the grounds that such certification was manifestly improper in accordance with the requirements set out in the regulation.
The accumulated appeals for protection numbers 4657-2014 and 442-2015, have been promoted by Mr. Christopher Frank Carandini Lee, represented by the attorney of the courts Mr. Antonio Ortega Fuentes and defended by the lawyers Mr. Andrés Reina Agero and Mr. Alejandro Jiménez Miles. The plaintiff in protection has been succeeded, at his death, by his wife Ms. Birgit Lee. The first of the appeals was filed against the order of execution of October 26, 2009, from the Commercial Court No. 1 of Burgos, and against the order of June 3, 2014, which dismissed the incident of nullity of proceedings filed against the first resolution and resolved by the same judicial body. The second appeal for protection was filed against the order of Burgos Commercial Court No. 1 of June 3, 2014, which rejected the petition to revoke the European enforcement order certificate, and against the order of the same court of July 31, 2014, which rejected the appeal for reversal of the previous one. Mr. Gerardo Moreno de la Hija has been a party to both proceedings. The Public Prosecutor's Office and the State Attorney have intervened. Judge María Luisa Balaguer Callejón has been the speaker. Referring to Article 24 of the Spanish Constitution, Regulation (EC) No. 805/2004 and Article 47 of the Charter, the appellant alleged a violation of the rights to judicial protection without defencelessness and to a process with all guarantees, as well as the inadequate application of European Union regulations.
As a central judicial issue, the Constitutional Court has sought to assess when the absence of personal notification replaced by an edictal notification can be qualified as detrimental to the right to effective judicial protection without defencelessness (Article 24.1 Spanish Constitution). The Court raised the question of whether or not edictal service without knowledge of the debtor's domicile ( avoiding the
ascertainment of domicile and personal notification of the debtor) met the requirements of Article 47 of the Charter and Article 24 of the Spanish Constitution on effective judicial protection without defenselessness and a process with all the guarantees.
(…) In carrying out this examination of reasonableness and absence of error, the Constitutional Court cannot forget that the trial court, in addition to complying with the dictates of Article 24.1 of the Spanish Constitution, must have taken into account that, insofar as it applies a rule of European Union law, such as Regulation (EC) No. 805/2004, it is bound by Article 47 of the Charter of Fundamental Rights of the European Union (CFREU). As regards notification without proof of receipt (Article 14 of the Regulation), for which the Regulation describes several admissible methods, it will only be valid if the debtor's address is known with certainty. With these provisions, the Regulation establishes a minimum parameter of guarantee of the right of defence (Art. 47 CFREU) which ensures that the debtor's absence was conscious and voluntary, from which it is possible to deduc
of a writ carried out in total ignorance of the debtor's domicile, which may eventually prove valid in our system from the perspective of Art. 24.1 of the Spanish Constitution as set out in legal ground 4 of this same ruling, is also valid from the perspective of Art. 47 CFREU for the purposes of issuing a European Enforcement Order certificate. The national judicial body, in the case submitted to the present amparo proceeding, should have taken into account the doctrine set forth when verifying compliance with the requirements for certification of the European Enforcement Order, acting as a judge of guarantees of the Charter in addition to acting as a body to guarantee the fundamental rights contained in the Constitution. Thus, it should have verified the extent to which the debtors' right to a hearing and defense was respected, not only in relation to Article 24(1) EC of the Spanish Constitutionbut also in relation to Article 47 CFREU, and, if it had done so, it should have applied the interpretation formulated by the Court of Justice of the European Union in the case G v. Cornelius de Visser. The specific question that should have been raised by Commercial Court No. 1 of Burgos, beyond the considerations of whether or not the order dispatching the execution was an enforceable deed within the meaning of the Regulation, concerned whether or not the edictual notification without knowledge of the debtor's address, which was the only one attempted with respect to the now appellant in amparo, met the requirements of Article 47 CDFUE. It should not have been limited to assessing whether or not the service of process was adequate in terms of compliance with the provisions of Article 24.1of the Spanish Constitution , but should have assessed whether the service effected was sufficient to certify the order dispatching the execution as a European enforcement order, in relation to the preservation of the right to defense according to the scope that the case law of the Court of Justice of the European Union gives to this right. As we have seen, the judicial body responds positively to the first question in an erroneous manner. And also to the second. Because, regardless of whether or not the notification of an edict was adequate in terms of respect for the right to effective constitutional protection, it was certainly not adequate in terms of the right to defense and the right to a hearing as set forth in Article 47 of the Federal Constitution. And in making this erroneous judgment, the judicial body has incurred a violation of Article 24(1) of the Spanish Constitution in the sense denounced by the appellant. The point is that, in this case, the double affiliation of the rights of hearing and defense would have required a complex examination by the judicial body, which in this case acts not only as guarantor of Article 24(1)of the Spanish Constitution , but also of Article 47 CFREU, so that it was not sufficient to verify that the requirements of the former were met, but it should also have verified that the decision whose certification was sought respected the content and limits of Article 47 of the Charter, in the sense that the Court of Justice of the European Union had attributed to them.
(…) Al realizar este examen de razonabilidad y ausencia de error el Tribunal Constitucional no puede olvidar que el órgano judicial de instancia, además de atender a los dictados del art. 24.1 CE, debe haber tenido en cuenta que, en la medida en que aplica una norma de derecho de la Unión Europea, como es el Reglamento (CE) núm. 805/2004, viene vinculado por el art. 47 de la Carta de derechos fundamentales de la Unión Europea (CDFUE). En lo que se refiere a la notificación sin acuse de recibo (art. 14 del Reglamento), respecto de la que el Reglamento describe varias modalidades admisibles, solo será válida si se conoce con certeza el domicilio del deudor. Con estas previsiones, el Reglamento establece un parámetro mínimo de garantía del derecho de defensa (art. 47 CDFUE) que asegure que la ausencia del deudor fue consciente y voluntaria, de lo que se puede deducir la ausencia de ánimo de impugnar el crédito. Llegados a este punto, cumple valorar si una notificación por edictos efectuada desconociendo totalmente el domicilio del deudor, que puede resultar eventualmente válida en nuestro sistema desde la óptica del art. 24.1 CE tal y como se expone en el fundamento jurídico 4, es también válida desde la perspectiva del art. 47 CDFUE para librar una certificación de título ejecutivo europeo.
El órgano judicial nacional, en el supuesto sometido al presente juicio de amparo, debió tener en cuenta la doctrina expuesta a la hora de verificar el cumplimiento de los requisitos para certificar el título ejecutivo europeo, actuando como juez de garantías de la Carta además de hacerlo como órgano de garantía de los derechos fundamentales contenidos en la Constitución. Así, debió verificar en qué medida se respetó el derecho de audiencia y de defensa de los deudores, no solo en relación con el art. 24.1 CE, sino también en relación con el art. 47 CDFUE, y, de haberlo hecho así, tendría que haber aplicado la interpretación formulada por el Tribunal de Justicia de la Unión Europea en el asunto G contra Cornelius de Visser. La cuestión concreta que debió haberse planteado el Juzgado de lo Mercantil núm. 1 de Burgos, más allá de las consideraciones sobre si el auto despachando la ejecución era o no un título ejecutivo en el sentido del Reglamento, se refería a si la notificación edictal sin conocer el domicilio del deudor, que fue la única que intentó respecto del ahora recurrente en amparo, cumplía o no las exigencias derivadas del art. 47 CDFUE. No debió limitarse a valorar si la notificación edictal era adecuada o no lo era en términos de ajuste a las previsiones del art. 24.1 CE, sino que hubiera debido valorar si la notificación efectuada era suficiente para poder certificar el auto despachando la ejecución como título ejecutivo europeo, en relación con la preservación del derecho de defensa según el alcance que la jurisprudencia del Tribunal de Justicia de la Unión Europea da a este derecho. A la primera cuestión, como se ha visto, el órgano judicial responde positivamente de forma errónea. A la segunda, también. Porque más allá de que la notificación edictal fuera o no adecuada en términos de respeto al derecho a la tutela judicial efectiva constitucionalmente reconocido, es indudable que no lo era en términos del derecho de defensa y de audiencia contemplados en el art. 47 CDFUE. Y al realizar este juicio erróneo, el órgano judicial ha incurrido en vulneración del art. 24.1 CE en el sentido denunciado por el recurrente. La cuestión es que, en este caso, la doble filiación de los derechos de audiencia y de defensa, hubiera exigido un examen complejo por parte del órgano judicial, que en este caso no solo actúa como garante del art. 24.1 CE, sino también del art. 47 CDFUE, de modo que no bastaba con constatar que se cumplían los requisitos del primero, sino que también debía haber verificado que la resolución cuya certificación se solicitaba, respetaba el contenido y límites del art. 47 de la Carta, en el sentido que les había atribuido el Tribunal de Justicia de la Unión Europea.