E/C.12/55/D/2/2014
the Constitutional Court and the Supreme Court, notification by public posting of
notice can be used only after exhausting all measures to serve notice in person and to
try to locate the defendant at other addresses.
2.8 On 23 April 2013 the Court dismissed the author ’s motion for reconsideration. In
its ruling, the Court stated that a court order for payment had to be served at the
address agreed by the parties, i.e., the first address given or one given later in
accordance with article 683 of the Civil Procedure Act. According to the Court,
amended article 686, paragraph 3, of the Act permits the Court to proceed directly
with posting of notice as a special step in the preliminaries to mortgage enforcement
proceedings, with no need to serve the order to pay again at the defendant’s workplace
or any other address. In the author ’s case the Court pointed out that the Madrid Courts
Central Notification and Enforcement Service had made three valid attempts to notify
her, including two attempts in the evenings, as suggested by the building caretaker. In
addition the Court stated that it had no jurisdiction to annul the auction order of 11
February 2013, under articles 5 and 562, paragraph 2, of the Civil Procedure Act and
article 455 of the Organic Act on the Judiciary.
2.9 On 23 May 2013, the author filed an appeal in amparo with the Constitutional
Court, claiming that the Court’s decision to dismiss her motion for reconsideration
violated her rights to a defence and to effective judicial protection und er articles 24
and 25 of the Constitution of the State party; and that it failed to apply the case law of
the Constitutional Court. The author maintained that the Court failed to notify her of
the mortgage enforcement proceedings or of the decision to admi t the proceedings,
and did not transmit any other communication before the auction order, and that it
failed to exhaust all available means of serving notice in person, in accordance with
articles 155, 156 and 683 of the Civil Procedure Act.
2.10 On 16 October 2013 the Constitutional Court dismissed the author ’s appeal on
grounds of “manifest absence of violation of any fundamental right covered by
amparo”, in accordance with articles 44, paragraph 1, and 50, paragraph 1 (a), of the
Organic Act on the Constitutional Court.
The complaint
3.1 The author claims that the State party violated her right to adequate housing
under article 11, paragraph 1, of the Covenant.
3.2 She points out that her case has arisen in a situation of serious social crisis in the
State party, with more than 400,000 evictions and foreclosures from 2007 up to the
time she submitted her communication to the Committee.
3.3 The author argues that the rights she enjoys under the Covenant mean that courts
must ensure that notice is effectively served. Yet in her case, after the failed attempts
to serve notice in person at her home, the Court proceeded directly to the posting of
notice without making use of other forms or methods of serving notice as established
in the Civil Procedure Act. As a result of the Court’s lack of diligence, she was not
notified of the mortgage enforcement proceedings brought by the lending institution or
of the decision to admit the proceedings, and received no other communication prior
to the auction order. The author argues that in practice the failure to notify her
prevented her from mounting a legal response to the suit and protecting her right to
housing in court, since she became aware of the existence of the proceedings only
when the Court ordered the auction of her home. As a result of the lack of effective
and timely judicial protection, the author claims that she is now in a position of
vulnerability, uncertainty and anxiety, a situation that has seriously affected her health.
3.4 According to the author, the lack of effective access to the courts of the State
party prevented her from challenging in court the unfair nature of the terms of the
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