CASE OF RUIZ TORIJA v. SPAIN
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo
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. 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. 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"). 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. 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. 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.