EGMR: Appeal lodged out of time prevented domestic courts from ruling on the merits of the case

In its decision in the case of Barik Edidi v. Spain (application no. 21780/13), the European Court of Human Rights has, by a majority, declared the application inadmissible. The decision is final. The case concerned a lawyer (the applicant) who was asked by the president of a court to return to the area reserved for members of the public, on the ground that barristers appearing before the court could cover their heads only with the official cap (biretta). The Court held, in particular, that having lodged her alzada appeal before the Audiencia Nacional out of time, Ms Barik Edidi had herself, from the outset of the proceedings, created the situation of which she complained. Her conduct had thus prevented the domestic courts from ruling on the merits of the case.

Principal facts

The applicant, Zoubida Barik Edidi, is a Spanish national who was born in 1970 and lives in Getafe.

In October 2009 Ms Barik Edidi, a lawyer, attended hearings held before the Audiencia Nacional as part of a trial concerning offences related to Islamic terrorism. During the first hearings, Ms Barik Edidi, who was sitting in the area reserved for members of the public, wore a hijab (Islamic headscarf) without any comments being made by the court. At the hearing of 20 October 2009, she sat in the part of the courtroom reserved for the parties, wearing a lawyer’s gown and with her head covered by the hijab, again without any comments being made. At the hearing of 22 October, the president of the court asked her to return to the part of the courtroom reserved for members of the public, on the ground that lawyers appearing before the court ought not to have their heads covered. On the following day Ms Barik Edidi informed the Observatory of Justice of the Madrid Bar about the incident.

On 11 November 2009 Ms Barik Edidi lodged an alzada appeal (hierarchical appeal challenging an administrative decision) with the division of the Audiencia Nacional which had jurisdiction for matters concerning the internal functioning of the courts. The Audiencia replied that it did not have jurisdiction, since the applicant was complaining about an act that was purely organisational in nature, rather than judicial, and referred the case to the General Council of the Judiciary (CGPJ). Having received no response from the latter body, Ms Barik Edidi applied to the Supreme Court for special judicial review, seeking protection of her fundamental rights; the Supreme Court dismissed her appeal. Holding that the referral of the case to the CGPJ was not justified, the Supreme Court dismissed the appeal without going into the merits of the case, considering that a body that did not have jurisdiction could not be criticised for remaining silent, and noting that the applicant had not objected to the case being referred. Ms Barik Edidi applied to have the Supreme Court’s decision declared invalid, but her request was dismissed.

Ms Barik Edidi lodged an amparo appeal with the Constitutional Court against the dismissal of her application to have the Supreme Court’s decision declared invalid, then lodged a further appeal with the Audiencia Nacional. That court declared her appeal inadmissible as being out of time, noting that the applicant had lodged her first alzada appeal on 11 November 2009, that is, beyond the 5-day period laid down by law. For its part, the Constitutional Court declared the amparo appeal inadmissible on the ground that there had been no violation of a fundamental right.

At the same time Ms Barik Edidi requested that disciplinary sanctions be imposed on the president of the court who had asked her to return to the area of the courtroom for members of the public. The disciplinary committee decided that no further action should be taken on the complaint.

Complaints, procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 12 March 2013.

Relying on particular on Article 6 § 1 (right to a fair hearing), Ms Barik Edidi alleged that her complaints had not been examined on their merits. She further relied on Articles 8 (right to respect for private and family life) and 9 (right to freedom of thought, conscience and religion) and Article 1 of Protocol No. 12 (general prohibition of discrimination).

The decision was given by a Chamber of seven, composed as follows:

Helena Jäderblom (Sweden), President,

Luis López Guerra (Spain),
Helen Keller (Switzerland),
Johannes Silvis (the Netherlands),
Dmitry Dedov (Russia),
Pere Pastor Vilanova (Andorra),
Alena Poláčková (Slovakia), Judges,

and also Stephen Phillips, Section Registrar.

Decision of the Court

Article 6 § 1

The Court noted that the Spanish courts, and especially the Supreme Court, had held that the appropriate channel for Ms Barik Edidi’s complaints was that laid down in sections 556 et seq. of the Judicature Act (Law no. 6/1985) and that, having regard to those provisions, Ms Barik Edidi had submitted her request after the deadline, with the consequence that the Audiencia Nacional had declared it inadmissible as out of time.

The Court noted that Ms Barik Edidi had herself lodged her azalda appeal with the division of the Audiencia Nacional which had jurisdiction for matters concerning the internal functioning of the courts. Yet the corresponding procedure was clearly governed by sections 556 et seq. of the Judicature Act (Law no. 6/1985). The Supreme Court’s judgment was unequivocal on this point. As a result, Ms Barik Edidi could not rely on Article 59 of the Rules governing the Administrative Bodies of Courts, a provision that concerned only appeals lodged brought before the General Council of the Judiciary (CGPJ).

The Court noted that Ms Barik Edidi had taken two parallel approaches in dealing with the dismissal of her application to have the Supreme Court’s decision declared invalid. She lodged an amparo appeal with the Constitutional Court, but this was declared inadmissible on the ground that there had been no violation of a fundamental right. Secondly, she again applied to the Audiencia Nacional, which – having regard to the judgment delivered in the meantime by the Supreme Court – declared that on this occasion it did have jurisdiction to examine the case (which it had initially remitted to the CGPJ), but, referring to sections 556 et seq. of the Judicature Act (Law no. 6/1985), declared the appeal inadmissible as out of time, since it had been submitted well after the five-day deadline stipulated by law. The Court noted that the domestic courts had already found that those provisions were applicable to the present case and that, at last instance, the Constitutional Court had held that Ms Barik Edidi’s amparo appeal was inadmissible, on the ground that there had been no violation of a fundamental right.

The Court considered that, having lodged her alzada appeal out of time, Ms Barik Edidi had herself, from the outset of the proceedings, created the situation of which she complained. Her conduct had prevented the domestic courts from ruling on the merits of the case. Given that the application of sections 556 et seq. of the Judicature Act (Law no. 6/1985) could not be viewed as unreasonable or arbitrary, the Court dismissed the applicant’s complaint as ill-founded.

Articles 8 and 9 and Article 1 of Protocol No. 12

The Court noted that the late submission by Ms Barik Edidi of her alzada appeal had deprived the national courts of an opportunity to rule on the merits of her complaints. It followed that the complaint submitted by Ms Barik Edidi under Articles 8 and 9 of the Convention and Article 1 of Protocol No. 12 to the Convention had to be rejected for failure to exhaust domestic remedies, on account of the applicant’s failure to comply with the formalities laid down in national law for lodging appeals.

Press release ECHR 164 (2016) 19/05/2016

Veröffentlicht in Aktuell, EGMR, Rechtsprechung. Schlagwörter: , . Leave a Comment »

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