E/C.12/55/D/2/2014
relevant if it can be shown that such evaluation or application was clearly arbitrary o r
amounted to a denial of justice that entailed the violation of a right recognized in the
Covenant.
13.2 According to the documentation from the procedure, on 21 June 2012 the Court
admitted the application for a procedure to enforce the mortgage on the a uthor’s
residence. However, the author only took cognizance of this procedure on 4 April
2013, when she received notification of the order to auction her home, having been
unable to defend herself during the enforcement procedure. In September and October
2012 four attempts were made to serve the Court’s decision to admit the application,
but to no avail as the author was not at her home — the address of which had been
given by her for the purpose of notification. The notifying agent confirmed that the
building had a letter box bearing her name; and on at least two occasions the caretaker
was in the building. These facts were noted in the records of the Madrid Courts
Central Notification and Enforcement Service (see note 3 above) and therefore were or
should have been known to the Court. On 30 October 2012, to complete the process of
notification of the decision to admit the application, the Court decided to publicly post
the notification on the Court notice board, but this did not come to the author ’s
attention in time.
13.3 In the present case, the Committee acknowledges the repeated efforts of the
Court to personally notify the author of the decision to admit the procedure to enforce
the mortgage on her home. However, the Committee considers that the State party has
not shown that the Court exhausted all available means to serve notice in person — it
does not, for example, explain why the Court did not notify the author by means of a
note or advice left in her letter box or any of the other means of notification provided
for in the Civil Procedure Act, such as leaving the notice with the caretaker or the
nearest neighbour ��� merely stating that after its attempts had failed it ordered
notification by public posting of notice in accordance with the law. Nor ha s the State
adduced any solid support for its assertion that on one occasion the author hid so as to
avoid receiving the notification. Thus the Committee considers that, even if it were to
find that the notification by public posting of notice had been car ried out in
accordance with the Civil Procedure Act, the fact remains that such notice in respect
of a foreclosure application needs to be adequate, in accordance with the standards of
the Covenant applicable to the right to housing, as established in para graphs 11.1 to
12.4 above, and that those standards were not met in the present case, which means the
notice was inadequate.
13.4 Such an irregularity in the notice procedure might not imply a violation of the
right to housing if it had no significant impact on the author’s right to defend her full
enjoyment of her home, for example because she had some other appropriate
procedural mechanism by which to defend her rights and interests. And that indeed
seems to be the State party’s position when it suggests — albeit with no real backing
— that the author’s loss of any chance to take part in the enforcement procedure has
no serious consequences, because in any case the debtor ’s rights of defence in
foreclosure are legally very limited and they actually have ac cess to an ordinary
procedure whereby they can mount unlimited challenges to recovery of the mortgage
loan. It also argues that, as the author submitted an application under article 695,
paragraph 3, of the Civil Procedure Act challenging the validity of c ertain clauses of
the mortgage contract and even managed to get the enforcement process and auction
suspended, as a result of a recent judgement of the Court of Justice of the European
Union, then those regular remedies even make it possible to have the en forcement
process and the auction of the mortgaged property suspended.
13.5 Given the specificity of the problem of inadequate notice posed by the author,
the Committee is not required, in the context of this communication, to consider
14/16
GE.15-17368