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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> RUIZ TORIJA v. SPAIN - 18390/91 [1994] ECHR 47 (9 December 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/47.html
Cite as: (1995) 19 EHRR 542, [1994] ECHR 47, 19 EHRR 542, 1994] ECHR 18390/91
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In the case of Ruiz Torija v. Spain*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A**, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Gölcüklü,
Mr R. Macdonald,
Mr C. Russo,
Mr S.K. Martens,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr M.A. Lopes Rocha,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 24 June and on
23 November 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 39/1993/434/513. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 9 September 1993, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 18390/91) against the Kingdom of Spain lodged with the
Commission under Article 25 (art. 25) by a Spanish national,
Mr Eusebio Ruiz Torija, on 15 March 1991.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Spain recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30). The President of the Court gave the
lawyer leave to use the Spanish language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 September 1993, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr F. Gölcüklü, Mr R. Macdonald,
Mr C. Russo, Mr S.K. Martens, Mr F. Bigi and Mr M.A. Lopes Rocha
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. On 13 January 1994 the President of the Court decided that in
the interests of the proper administration of justice this case and
that of Hiro Balani v. Spain (no. 46/1993/441/520) should be heard by
the same Chamber (Rule 21 para. 6).
5. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Spanish
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 21 January 1994 and
the applicant's memorial and his claims under Article 50 (art. 50) of
the Convention on 2 and 7 February respectively. In a letter which
reached the registry on 12 May, the Secretary to the Commission
informed the Registrar that the Delegate would submit his observations
at the hearing.
On 27 April 1994 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the decision of the President, who had also
given the Agent of the Government leave to use the Spanish language
(Rule 27 para. 2), the hearing took place in public in the Human Rights
Building, Strasbourg, on 25 May 1994. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Borrego Borrego, Head of the Legal Department
for Human Rights, Ministry of Justice, Agent;
(b) for the Commission
Mr F. Martínez, Delegate;
(c) for the applicant
Ms R.M. Remesal Barcena, abogada, Counsel.
The Court heard addresses by the above-mentioned
representatives.
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Eusebio Ruiz Torija is a Spanish national and lives in
Madrid.
8. He had been the lessee of a bar in Madrid since 1960, when in
1988 the lessor instituted proceedings in Madrid no. 15 First-Instance
Court for the termination of the lease and his eviction (desahucio).
According to the lessor, the installation on the premises of gaming
machines belonging to a third party, without the landlord's consent,
amounted to an unauthorised partial assignment or subletting and
constituted one of the statutory grounds for terminating a lease
(see paragraph 13 below).
9. In his statement of defence the applicant's main contentions
were that the installation of the machines had been lawful and that the
plaintiff had acted in bad faith. At the end of his legal arguments,
he added:
"Finally, [I invoke] the fifteen-year limitation period for
actions in personam, which is provided for in Article 1964 of
the Civil Code [see paragraph 15 below]. Under Article 1969
time begins to run for this purpose on the day on which the
action could have been brought. In the period of over
twenty-eight years since the signing of the lease, [I] was
able, at any time and hitherto without any objection on the
part of the lessor, to provide this type of service, common in
this kind of establishment, in the form of the amusement
machines of all sorts which appeared successively on the
market, such as juke-boxes, bar-football, billiards,
children's games, etc."
10. On 13 February 1989 the first-instance court dismissed the
lessor's action on the ground that the installation of gaming machines
could not be regarded as an assignment or a subletting and did not
therefore amount to a breach by Mr Ruiz Torija of his contractual
obligations. The court did not examine the objection that the action
was time-barred.
11. On appeal by the lessor, opposed by the applicant as a
respondent (see paragraph 16 below), the Madrid Audiencia Provincial
gave judgment on 30 January 1990 quashing the impugned decision and
allowing the action for the applicant's eviction (see paragraph 17
below), without ruling on the question whether the action was
time-barred. It found that the owner of the machines was a third
party, who was responsible for the maintenance of the machines and who
passed on half the proceeds therefrom to the applicant. This was a
situation which fell within the legal definition of an unauthorised
assignment or subletting and amounted to the breach of contract relied
on by the lessor.
12. As it was not open to him in this case to appeal on points of
law to the Supreme Court, Mr Ruiz Torija filed an amparo appeal in the
Constitutional Court (Tribunal Constitucional) under Article 24
para. 1 of the Constitution (see paragraph 18 below).
By a decision of 29 October 1990 the Constitutional Court
declared the appeal inadmissible. It found that it could reasonably
be inferred from the judgment appealed against that the examination of
the merits of the action for termination of the lease entailed the
implied dismissal of the submission that the action was time-barred.
II. Relevant domestic law
A. The merits
1. The termination of the lease
13. Under the Act of 22 December 1955 on non-agricultural leases
(Ley de Arrendamientos Urbanos), a landlord may terminate a lease in
the event of a partial assignment or subletting of the premises to a
third party without his authorisation (Article 114 para. 2). The Act
also makes provision for a special eviction procedure (juicio de
desahucio), with shorter time-limits and more limited possibilities of
adducing evidence.
2. Gaming
14. Gaming machines could not be installed legally in Spain in
premises open to the public until 1977 (Royal Legislative Decree of
25 February 1977 on criminal, administrative and fiscal aspects of
gambling, supplemented by Royal Decree no. 444 of 11 March 1977 on the
powers of the public authorities in this field and by the Regulation
of 24 July 1981 concerning recreational machines and machines offering
"games of chance").
3. Limitation
15. On account of the personal nature of the rights deriving from
a lease, the actions relating thereto are barred after fifteen years
(Article 1964 of the Civil Code).
The objection that an action is time-barred is not one of the
pleas designated as "dilatorias", which must be determined before the
examination of the merits (Article 533 of the Code of Civil Procedure).
It is a plea described as "perentoria", which, in accordance with
Article 544, is to be determined at the same time and under the same
procedure as the main issue in the dispute.
B. The appeal proceedings
16. Plaintiffs who have been unsuccessful on at least one head of
claim adduced at first instance may appeal to the Audiencia Provincial.
The defendant, for his part, may
(a) either confine himself to appearing as respondent in order to
oppose the appeal and seek to have the impugned judgment upheld (right
deriving from Article 888 of the Code of Civil Procedure and the
articles relating thereto); or
(b) himself file a separate appeal against the first-instance
decision (Article 702 in fine of the Code of Civil Procedure) where
that decision has not allowed his claims in full; or
(c) join the appeal already lodged (adhesión a la apelación -
Articles 705 and 892 of the Code of Civil Procedure), in respect of the
points of the judgment that he considers unfavourable to him. This
procedure is a form of appeal that enables the party concerned to
prevent non-contested points of the operative provisions from acquiring
final effect and to have examined those which are unfavourable to him.
Consequently, if a judgment allows the claims of a party in
their entirety, that party can oppose an appeal filed by his opponent
only as the respondent to that appeal. He cannot file an appeal
himself or even "join" the appeal lodged by the other party.
17. When the appeal concerns all the operative provisions of the
judgment and is successful, the appeal court gives a new decision on
the merits of the case, examining all the submissions adduced at first
instance.
C. The obligation to give reasoned judgments
18. Under Article 120 para. 3 of the Constitution, "judgments shall
always contain a statement of the grounds on which they are based and
be delivered in public". As an aspect of the effective protection of
individuals by the judiciary and the courts, recognised as a
fundamental right by Article 24 para. 1 of the Constitution, the
obligation to state the reasons for judicial decisions may be the
subject of an individual appeal to the Constitutional Court (recurso
de amparo).
19. According to Article 359 of the Code of Civil Procedure:
"Judgments must be clear and precise and must address
specifically the applications and other claims made in the
course of the proceedings; they must find for or against the
defendant and rule on all the disputed points which have been
the subject of argument.
Such points must be dealt with separately in the judgment."
When a court gives a decision on the merits it must therefore
rule on all the submissions adduced by the parties, otherwise the
judgment will be flawed for failure to give an adequate statement of
the grounds (incongruencia omisiva). However, according to the
case-law, the court is not under a duty to deal expressly in its
judgment with each of the submissions made by the parties where its
decision to allow one of the claims entails by implication the
rejection of the submission in question.
PROCEEDINGS BEFORE THE COMMISSION
20. Mr Ruiz Torija applied to the Commission on 15 March 1991.
Relying on Article 6 para. 1 (art. 6-1) of the Convention, he
complained that he had not been given a fair hearing in so far as the
Madrid Audiencia Provincial had failed to deal in its judgment with one
of his submissions.
21. The Commission declared the application (no. 18390/91)
admissible on 13 January 1993. In its report of 8 July 1993
(Article 31) (art. 31), the Commission expressed the opinion, by
eighteen votes to three, that there had been a violation of Article 6
para. 1 (art. 6-1). The full text of the Commission's opinion and of
the dissenting opinion contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 303-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
22. At the hearing the Government requested the Court to hold "that
the Spanish courts, and hence the Kingdom of Spain, [had] not failed
to fulfil their obligations under the Convention in the present case".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
23. As they had done before the Commission, the Government
contended that the application was inadmissible on the ground of
failure to exhaust domestic remedies. Mr Ruiz Torija ought to have
filed an application to "join" the appeal (see paragraph 16 above) so
as to enable the Madrid Audiencia Provincial to examine the issue of
limitation; he should not merely have opposed the lessor's appeal as
respondent.
24. Like the Commission and the applicant, the Court finds that in
Spanish law, having suffered no prejudice, the party to whom the
operative part of the judgment is wholly favourable lacks standing to
appeal, whether by filing a separate appeal or by "joining" the
appellant's appeal.
In the present case Mr Ruiz Torija's pleadings in the
first-instance court were directed towards the dismissal of the action
for his eviction. As the first-instance court found in his favour, it
was not open to him to challenge the judgment. The objection must
accordingly be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
25. According to the applicant, the total failure by the Audiencia
Provincial to address in its judgment the submission alleging that
action was time-barred (see paragraph 10 above) breached
Article 6 para. 1 (art. 6-1) of the Convention, which provides as
follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
26. The Commission in substance accepted this view. It added that
the silence of the Audiencia Provincial in this matter could give rise
to doubts as to the scope of the examination conducted by the appellate
court.
27. According to the Government, the plea that the action was
time-barred was totally unfounded and was unrelated to the
subject-matter of the proceedings. The installation of machines
(juke-box, bar-football, billiards, children's games, etc. - see
paragraph 9 above) with entirely different functions and
characteristics was immaterial in calculating the period of time for
which the gaming machines had been in service. This was particularly
true in view of the fact that gaming machines had not been authorised
in Spain until 1977 (see paragraph 14 above). As under Article 359 of
the Code of Civil Procedure judges were required to rule only on
matters that had been "the subject of argument" (see paragraph 19
above), the Audiencia Provincial was not under a duty to reply to the
submission.
In addition, even supposing that the appellate court had been
bound to answer this submission, its failure to do so could be regarded
as an implied rejection. Indeed this was the view taken by the
Constitutional Court (see paragraph 12 above). Since limitation was
a preliminary issue, the fact that the Audiencia Provincial determined
the merits implied the dismissal of the objection.
28. The applicant contested these arguments. Although gaming
machines had not been authorised in Spain until 1977, they had been
tolerated well before that date. Moreover, since the lessor had
invoked the unauthorised installation of machines belonging to a third
party as a ground for termination, it had been only natural to draw the
court's attention to the fact that there had previously been other
machines, admittedly with different functions, but which had also
belonged to third parties. Finally, no rule compelled the courts to
regard the issue of limitation as a preliminary one.
29. The Court reiterates that Article 6 para. 1 (art. 6-1) obliges
the courts to give reasons for their judgments, but cannot be
understood as requiring a detailed answer to every argument (see the
Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A
no. 288, p. 20, para. 61). The extent to which this duty to give
reasons applies may vary according to the nature of the decision. It
is moreover necessary to take into account, inter alia, the diversity
of the submissions that a litigant may bring before the courts and the
differences existing in the Contracting States with regard to statutory
provisions, customary rules, legal opinion and the presentation and
drafting of judgments. That is why the question whether a court has
failed to fulfil the obligation to state reasons, deriving from
Article 6 (art. 6) of the Convention, can only be determined in the
light of the circumstances of the case.
30. In the present case Mr Ruiz Torija pleaded, inter alia, that
the action brought by the lessor for his eviction was time-barred.
This submission was made in writing before the first-instance court and
was formulated in a sufficiently clear and precise manner. Furthermore
evidence was adduced to support it. The Audiencia Provincial, which
quashed the first-instance decision and gave a fresh ruling on the
merits, was bound, under the applicable procedural law, to review all
the submissions made at first instance (see paragraph 17 above), at
least in so far as they had been "the subject of argument" and
regardless of whether they had been expressly repeated in the appeal.
The Court notes that it is not its task to examine whether the
limitation plea was well-founded; it falls to the national courts to
determine questions of that nature. It confines itself to observing
that it is not necessary to conduct such an examination in order to
conclude that the submission was in any event relevant. If the
Audiencia Provincial had held the submission to be well-founded, it
would of necessity have had to dismiss the plaintiff's action.
Moreover, the Court is not persuaded by the Government's
argument that the submission based on limitation was so clearly
unfounded that it was unnecessary for the appeal court to refer to it.
The fact that the first-instance court allowed evidence to be adduced
in support of this submission suggests the contrary. Accordingly,
since the issue of limitation would have been decisive in this
instance, the Audiencia Provincial should have addressed the submission
in its judgment.
It is therefore necessary to establish whether in the present
case the silence of the appeal court can reasonably be construed as an
implied rejection. The court was under no obligation to examine the
question of limitation before considering the arguments on the merits
(see paragraph 15 above). In addition, the question whether the action
was time-barred fell within a completely different legal category from
that of the grounds for termination of the lease; it therefore required
a specific and express reply. In the absence of such a reply, it is
impossible to ascertain whether the Audiencia Provincial simply
neglected to deal with the submission that the action was out of time
or whether it intended to dismiss it and, if that were its intention,
what its reasons were for so deciding. There has therefore been a
violation of Article 6 para. 1 (art. 6-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
31. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
32. Mr Ruiz Torija sought compensation for non-pecuniary damage,
for which he gave no figure, and for pecuniary damage in the amount of
29,871,978 pesetas.
The Government did not express a view on this question.
The Delegate of the Commission considered that it would perhaps
be possible to award compensation for a loss of opportunity, but not
on any other basis.
33. In the Court's opinion the applicant may have suffered
non-pecuniary damage, but the present judgment affords him sufficient
just satisfaction in this respect.
As regards pecuniary damage, the Court cannot speculate as to
what the outcome would have been if the Audiencia Provincial had
examined the limitation submission. It accordingly dismisses the
claim.
B. Costs and expenses
34. Mr Ruiz Torija also claimed the reimbursement of
2,500,000 pesetas in respect of the costs and expenses incurred in the
national courts and before the Convention institutions.
The Government regarded this claim as excessive.
200,000 pesetas would, however, be acceptable.
In the view of the Delegate of the Commission, only the costs
incurred in the Constitutional Court and in the European proceedings
could be taken into consideration.
35. Mr Ruiz Torija was granted 17,290.07 French francs in legal aid
in the Strasbourg proceedings. The Court notes that he incurred
additional costs for which, making an assessment on an equitable basis,
it awards him 1,000,000 pesetas.
FOR THESE REASONS, THE COURT
1. Dismisses unanimously the Government's preliminary objection;
2. Holds by eight votes to one that there has been a violation of
Article 6 para. 1 (art. 6-1) of the Convention;
3. Holds unanimously that the present judgment constitutes in
itself sufficient just satisfaction in respect of the alleged
non-pecuniary damage;
4. Holds unanimously that the respondent State is to pay the
applicant, within three months, 1,000,000 (one million)
pesetas for costs and expenses;
5. Dismisses unanimously the remainder of the applicant's claims.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 9 December 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the dissenting
opinion of Mr Bernhardt is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE BERNHARDT
I am unable to follow the majority in this case. What seems
to be a case of minor importance concerns in reality a fundamental
problem: the extent of the international control of decisions of
national courts.
On the one hand, every person has the fundamental right to have
fair court proceedings including the right to submit arguments and to
get an answer to his or her submissions. On the other hand, national
courts must enjoy considerable flexibility in selecting the arguments
and reasons essential for the decision of the cases before them. An
international court should criticise national courts only if it is more
or less obvious that the national court has not taken cognisance of
essential arguments. Were it otherwise, the international court would
have itself to conduct a detailed investigation of national law in
order to find out whether an argument put forward by a party had been
answered adequately or not.
It is true that the Court in the present judgment
(paragraph 30) tries to avoid such an investigation of national law,
while stressing that the decision of the appeal court does not even
mention the question of limitation. But this implies either that every
argument invoked by one party must be expressly answered in the
judgment of the national court or that this is at least necessary if
arguments are important - but who decides whether a defence submission
or an argument is important?
Here the Spanish Constitutional Court, which has a far greater
knowledge of Spanish law than most international institutions, has
given a plausible explanation for the fact that the Audiencia
Provincial did not expressly discuss the applicant's submission that
the action was time-barred (see paragraph 12 of the judgment).