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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: 19 EHRR 542, 1994] ECHR 18390/91, (1995) 19 EHRR 542, [1994] ECHR 47

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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).