CASE OF BRUALLA GÓMEZ DE LA TORRE v. SPAIN
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
C. Russo;Pieter Van Dijk;R. Pekkanen
6. Mrs Victoria Brualla Gómez de la Torre was born in 1962 and lives in Madrid. At the material time, she practised as a lawyer (procurador) in premises owned by an insurance company and to the tenancy of which she considered that she had succeeded on the death of her father. 7. At some point in 1990 the insurance company brought an action in the Madrid Court of First Instance for termination of the lease, arguing that the applicant could not succeed to her father’s rights under it. On 18 April 1991 the insurance company’s action was dismissed. It appealed. 8. On 7 February 1992 the Madrid Audiencia provincial reversed the impugned decision, holding that the applicant could not succeed to her father’s rights under the lease. 9. On 3 March 1992 the applicant gave notice to the Audiencia provincial of her intention to appeal to the Supreme Court. On 26 March 1992 the Audiencia provincial formally noted that notice of appeal had been given (“se tiene por preparado el recurso”) and on 7 April it summoned the parties to appear before the First Division of the Supreme Court to enter the appeal within the forty-day time-limit laid down by Article 1704 of the Code of Civil Procedure (see paragraph 18 below). 10. In the meantime Law no. 10/92 of 30 April 1992 (“Law no. 10/92”), which made urgent changes to various court procedures, had come into force on 6 May 1992 (the day after its publication in the Official Gazette). It amended certain provisions of the Code of Civil Procedure, in particular those governing the conditions of admissibility of appeals to the Supreme Court in proceedings concerning leases of urban property (see paragraph 20 below). 11. On 12 May 1992 the First Division of the Supreme Court delivered a decision in which it construed the transitional provisions of Law no. 10/92. With respect to appeals of which notice had been given to the courts below before the entry into force of that Law but which had not been entered with the Supreme Court, it held: “In view of the silence of the [transitional] provision [no. 2] or its failure to deal with the question, the new procedure shall apply in full in the case referred to above, and that makes it necessary to refer to Article 6 of the royal decree of 3 February 1881 promulgating the Code of Civil Procedure, a provision which is of general application.” 12. On 22 May 1992, within the forty-day period allowed by the Audiencia provincial (see paragraph 9 above), the applicant entered her appeal with the Supreme Court. 13. In its decision (auto) of 4 March 1993 the Supreme Court held at the outset that, pursuant to transitional provision no. 2 (see paragraph 17 below), Law no. 10/92 applied to cases such as the one before it in which an appeal had not been entered until after that Law had come into force, even if notice of intention to lodge the appeal had been given beforehand. It went on to find that the annual amount of rent payable under the lease in question was 839,256 pesetas, which was less than the minimum amount (one million pesetas) required under the new legislation for an appeal to lie to the Supreme Court. That being so, the applicant’s appeal had to be declared inadmissible in accordance with Article 1710 § 1 of the Code of Civil Procedure in conjunction with section 135 of the Leases of Urban Property Act, both as amended by Law no. 10/92 (see paragraphs 19 and 20 below). 14. On 1 April 1993 Mrs Brualla Gómez de la Torre lodged an amparo appeal with the Constitutional Court on the basis of Article 24 § 1 of the Constitution (see paragraph 16 below). On 19 July, at the request of the applicant, the Constitutional Court ordered a stay of execution of the Audiencia provincial’s judgment. 15. Referring in particular to its own case-law on the Supreme Court’s interpretation of transitional provision no. 2 of Law no. 10/92 (see paragraph 11 above), the Constitutional Court, declining to adopt the opinion of Crown Counsel’s Office, dismissed the applicant’s amparo appeal on 4 July 1994. It reiterated that the interpretation of transitional provisions was a matter for the ordinary courts and held that the criteria relied on by the Supreme Court in the impugned decision for declaring the appeal on points of law inadmissible were both reasoned and reasonable. That court’s construction of the provisions of the new legislation was neither arbitrary nor ill-founded. The fact that in its decision it had relied on a provision that had come into force after notice of appeal had been given but before the appeal had been entered with the Supreme Court was not decisive as no constitutional provision prohibited amending the appeals procedure so long as the right to a fair hearing was protected. 16. Article 24 § 1 of the Constitution provides: “Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights.” 17. Transitional provision no. 2 of Law no. 10/92 of 30 April 1992, which amended the Code of Civil Procedure, provides: “No ordinary appeal or appeal on points of law shall lie against a judicial decision in a civil matter delivered after this Law comes into force unless the decision satisfies the conditions laid down in this Law for that purpose. With regard to pending appeals on points of law whose admissibility has not yet been determined, the Civil Division of the Supreme Court ... may declare an appeal inadmissible for the reasons set out in Article 1710 of the Code of Civil Procedure, as amended by this Law. In that connection, both the grounds of appeal and the limits referred to in rule 4 of sub-paragraph 1 of that Article shall be governed by the legislation in force at the time of the entering (interposición) of the appeal ...” 18. Before Law no. 10/92 came into force, the relevant provisions governing notice of appeal to the Supreme Court (preparación del recurso) read as follows: “Notice of appeal shall be given in writing to the judicial authority which delivered the impugned decision within ten days from the day after the decision was served. The notice of appeal shall contain a statement [by the appellant] of his intention to appeal to the Supreme Court, a brief summary of the conditions that have to be satisfied and a request that the appeal be acknowledged as having been made in time and in the prescribed form, that the original case file, with the appeal file where appropriate, be sent to the First Division of the Supreme Court and that the parties be summoned to appear. If no notice of intention to appeal has been given within the ten-day period, the judgment or decision shall become final.” “Notice of intention to appeal shall be given by the lawyers (procurador and abogado) representing the appellant ...” “If notice of intention to appeal has been given in accordance with the preceding two provisions and concerns a decision against which an appeal lies, the Division of the Audiencia shall acknowledge that notice of intention to appeal has been given (tendrá por preparado [el recurso]) and within five days shall send the original case file and the appeal file to the First Division of the Supreme Court. At the same time the parties shall be summoned to appear before the First Division of the Supreme Court within not more than forty days. However, only the appellant shall be required to appear in order to enter the appeal on points of law. ...” “A party which has given notice of intention to appeal shall enter the appeal with the First Division of the Supreme Court within forty days from the date on which [the parties] were summoned [to appear]. If the appeal is not entered within that time, the judgment or decision shall become final.” 19. Article 1710 § 1 governs the entering of appeals on points of law. As amended by Law no. 10/92, it is worded as follows: “1. After the case file has been forwarded by Crown Counsel’s Office, it shall be sent to the reporting judge, who shall consider it and submit it to the Division for it to decide on how to deal with it in accordance with the following rules: ... (2) The Division shall ... declare an appeal inadmissible where, notwithstanding that notice of appeal has been given, the Division finds that Articles 1697 and 1707 have not been complied with, or where the provisions relied on have no relevance to the matters at issue in the appeal, or where rectification of a defect has been ordered but the case file shows that it has not been carried out. ... (4) An appeal shall be declared inadmissible ... where the amount in issue has not been calculated in accordance with the applicable rules or where the Division holds that the amount is less than the amounts mentioned in Article 1687 § 1.” 20. As amended by Law no. 10/92, section 135 of the Leases of Urban Property Act provides: “No appeal shall lie against judgments delivered by the Audiencia provincial sitting as an appellate court except where they concern disputes over leases of commercial property for which the agreed rent exceeds one million pesetas, in which case an appeal on points of law may be made on the grounds and in accordance with the procedures laid down in the Code of Civil Procedure.” Before Law no. 10/92 was enacted the relevant minimum sum was five hundred thousand pesetas. 21. Article 6 of the royal decree of 3 February 1881 promulgating the Code of Civil Procedure provides: “For appeals on points of law entered (interpuestos) before 1 April next, the procedure laid down by the legislation currently in force shall apply; for [appeals entered] after that date the procedure laid down by the new legislation shall apply, even if notice of appeal was given before that date.” 22. In a judgment (no. 374/1993) of 13 December 1993, which concerned a case similar to the instant one, the Constitutional Court laid down the principles governing the application ratione temporis of Law no. 10/92 of 30 April 1992. It stated, in particular, that the Supreme Court’s interpretation of transitional provision no. 2, though justified on the facts, should not be considered the only construction possible. It also explained that the term “interposición” used in transitional provision no. 2 referred to the entering of an appeal on points of law with the Supreme Court and not the giving of notice of appeal to the Audiencia provincial. Consequently, the system prior to the amendment introduced by Law no. 10/92 applied to giving notice of appeal and the new system to entering an appeal. The Constitutional Court also referred to its settled case-law to the effect that the Constitution did not afford parties to proceedings any guarantee that the appeals system established by law would not be modified, so long as the parties’ right to a “fair hearing” was not infringed and decisions declaring appeals inadmissible were not unjustified or ill-founded. Lastly, it pointed out with regard to transitional provisions that, in accordance with Article 117.3 of the Constitution, it was for the ordinary courts alone to determine the applicable rule. In conclusion, the Constitutional Court dismissed the amparo appeal. 23. Earlier, in a decision of 20 June 1986 concerning amparo appeal no. 121/1985, the Constitutional Court had considered the issue of the applicability ratione temporis of the second transitional provision of Law no. 34/1984 of 6 August 1984. That provision also amended the Code of Civil Procedure but, unlike Law no. 10/92, provided: “After the proceedings to which they refer have ended, appeals to the Supreme Court which have been entered (interpuestos) shall be conducted in accordance with the amendments made by this Law.” In that case the appellants had given notice of appeal in accordance with the provisions of legislation previously in force and had then entered the appeal in accordance with the provisions of the new legislation, the substantive requirements of which were, however, no different from those of the earlier legislation. The Constitutional Court held that while the word “interponer” appeared to refer to the formal entering of the appeal, the reference to the ending of the proceedings suggested, however, that the legislature’s intention had not been to alter the rules applicable to appeals of which notice had been given but which had yet to be entered. The Constitutional Court held that the Supreme Court’s interpretation of that transitional provision could not be regarded as unfounded, still less as unreasonable, and that the decision as to which legislation governed the entering of the appeal – in that case the legislation previously in force – had not been deficient constitutionally. The Constitutional Court accordingly allowed the amparo appeal, holding that the appellants had been the victims of excessive formalism.