Dahman Bendhiman v. Spain (European Court of Human Rights)

Information Note on the Court’s case-law
November 2022

Dahman Bendhiman v. Spain – 48512/20

Judgment 15.11.2022 [Section III]

Article 6
Civil proceedings
Article 6-1
Access to court

Domestic law requirement for tenant to pay rent debt, as ordered in first-instance summary proceedings, prior to lodging an appeal, not impairing very essence of right of access to court: no violation

Facts – The applicant was granted a subsidised tenancy contract of a public housing. The public administration which owned the applicant´s dwelling sold it to a private company, who transferred it to a subsidiary, E.C, which subrogated in the tenancy contract. The applicant stopped paying the full rent specified in the contract, continuing to pay a reduced rent that had previously been granted by the public authority. E.C successfully brought civil proceedings claiming payment of the overdue rents as well as the eviction of the applicant and his family. The applicant was ordered to pay the overdue rents and to vacate the apartment. The eviction, however, was suspended sine die.

The applicant’s appeals were dismissed as under the relevant domestic law in summary civil proceedings (verbal proceedings) concerning the payment of rent, a tenant must first pay the sum awarded to the owner in order to lodge an appeal.

Law – Article 6 § 1:

(a) Whether there was a restriction on the applicant’s right of access to an appeal court – In accordance with the relevant domestic provisions, in order to lodge an appeal in civil proceedings where the landlord claimed payment of overdue rent and/or requested that the tenant be evicted, the appellant was required, in addition to the EUR 50 deposit required for the lodging of civil appeals, to pay or to secure the debt which he or she has been ordered to pay by a first-instance judgment. An appellant was therefore required to abide by the first-instance decision prior to appealing, otherwise the appeal would not have been accepted for examination. This requirement was clearly a restriction on the applicant’s right of access to a court.

(b) Whether the restriction pursued a legitimate aim

The Court had previously found that the aims pursued by the obligation imposed on an appellant to comply with a court’s decision prior to appealing might be considered legitimate, notably for the purposes of ensuring protection for creditors, avoiding dilatory appeals or reinforcing the authority of the lower courts. It also reiterated that the requirement to pay or secure overdue rent prior to appealing prevented the appeal court’s list of cases being overloaded, which was a legitimate aim. Additionally, the Court had found that the requirement to secure debts in order to appeal could be considered legitimate when its purpose was to protect the counterparty from being faced with an irrecoverable bill for legal costs.

Tenancy proceedings were summary proceedings which could be brought by the landlord when a tenant stopped paying rent. During those proceedings, the landlord was neither receiving the rent, nor was he or she able to make use of his or her property. Consequently, the longer the proceedings lasted, the greater the prejudice for the landlord. In this regard, even if the proceedings before the second-instance court had been conducted expeditiously, it would only be the landlord who suffered the consequences if the first-instance decision had been ultimately upheld. Accordingly, the requirement established by domestic law, which was limited to eviction proceedings where the only matter to be determined was whether the rent had been paid by the tenant or not, could be considered to pursue a legitimate aim.

(c) Whether the restriction was proportionate

Firstly, addressing the foreseeability of the appeal procedure, the Court noted the applicant’s appeal to the Audiencia Provincial had not been accepted for examination in accordance with section 449(1) of the Spanish Civil Procedure Act. Additionally, both the Constitutional Court and the Supreme Court had previously held that the requirement at issue, was aimed at avoiding dilatory appeals, had to be fulfilled irrespective of the appellant’s economic situation. Such amount was considered to correspond to the rent which the tenant had consented to pay when agreeing to the terms of the tenancy contract. That being so, the obligation for a tenant to satisfy his or her debt prior to bringing appeal proceedings against a first-instance judgment had been foreseeable.

Secondly, if the applicant had wanted to argue the amount of the rent due or the legitimate owner of the dwelling, and not merely the undisputed fact whether or not he had paid the rent, he could have lodged an ordinary civil claim. The applicant himself had recognised that the verbal proceedings of eviction had been, by their summary nature, inadequate to discuss the complex matters at hand. Those matters could have been addressed in the context of ordinary civil proceedings, which the applicant could have brought. There was no obligation for the plaintiff to make any deposit for the rent due in order to bring such proceedings, even if they concerned matters relating to a tenancy contract and, as he had been granted legal aid, he would have been exempted from the obligation to pay the judicial fees. Therefore, his right of access to court had not been entirely restricted to the verbal proceedings. The latter would have been suspended if ordinary civil proceedings had been lodged while these had been ongoing. Further, even if a judgment in the verbal proceedings had already been handed down, since those judgments did not have res judicata effect, if the applicant had afterwards and successfully instituted ordinary civil proceedings, he could have been exempted from paying the rents that he had been found liable to pay in the verbal proceedings.

Lastly, under section 441(5) of the Spanish Civil Procedure Act, domestic courts dealing with eviction claims were required to inform the social services so that the latter could assess whether the tenants were socially and/or economically vulnerable, in which case the eviction had to be provisionally suspended while the social services took the appropriate protective measures. In the case at hand, the social services had been contacted by the first-instance court and had issued at least three reports concerning the applicant and his family. Each time the eviction had been suspended to ensure that they did not end up homeless. The eviction had been adjourned by the first-instance civil court sine die over a year ago. Consequently, the relevant interests at stake in the present case had been fairly balanced in domestic law and practice.

In the light of the above, the Court found that the limitations applied had not reduced the applicant’s right of access to a court to such an extent that the very essence of the right was impaired and they therefore fell within the State’s margin of appreciation.

Conclusion: no violation of Article 6 § 1 (unanimously).

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