CASE OF DURALIYSKI v. BULGARIA

FOURTH SECTION

CASE OF DURALIYSKI v. BULGARIA

(Application no. 45519/06)

JUDGMENT

This version was rectified on 1 April 2014

under Rule 81 of the Rules of Court.

STRASBOURG

4 March 2014

FINAL

04/06/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Duraliyski v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 11 February 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 45519/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Mr Atanas Nenov Duraliyski and Mr Nikolay Nenov Duraliyski (“the applicants”), on 6 October 2006.

2. The applicants were represented by Mr N.K. Kitanov, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

3. The applicants alleged, in particular, that they had not had a fair trial in civil proceedings in which they had sought payment on the basis of an insurance policy after their father’s death.

4. On 1 December 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants, who are brothers, were born in 1973 and 1983 respectively and live in Plovdiv.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

7. In September 2003 the applicants’ father made them beneficiaries under his life insurance and accident insurance policies. The total amount payable in case of death as a result of accident under the accident insurance policy was 10,000 Bulgarian levs (BGN), or BGN 5,000 in respect of each brother. The applicants’ father died on 29 June 2004 as a result of an allergic reaction to a wasp sting.

8. In September 2004 the applicants were informed by the insurance company that a “wasp sting” was not a risk covered by the accident insurance policy, and the company accordingly refused to pay out on the claim.

9. In 2005 the applicants, represented by counsel, brought a claim under the Commerce Act for the payment of compensation under the accident insurance policy. During a hearing on 12 April 2005, the applicants informed the court that, after their father’s death, they had handed the original insurance policy documents to the insurance company upon its request. Although the applicants had sought to recover those documents from the company, the latter had only returned to them the “additional conditions”. During the same hearing, upon a request by the applicants, the court ordered the insurance company to produce the complete insurance policy file, referring to Article 152 of the Code of Civil Procedure 1952, in force at the time. The company produced the file during a hearing on 10 May 2005 and the court accepted it as evidence in the case.

10. By a judgment of 26 July 2005 the Sofia District Court allowed the applicants’ claim. The court noted that, in so far as allergic reactions were not included in the disclaimer to the accident insurance policy signed on 15 September 2003, the applicants were entitled to benefit from the compensation payable in the event of their father’s death as a result of an accident.

11. The insurance company appealed against the judgment. In its appeal it acknowledged, inter alia, that the existence of a valid contract was not disputed. However, it claimed that the allergic reaction did not fall under the “accident” category as defined in the insurance policy.

12. On 16 May 2006 the Sofia City Court allowed the appeal and dismissed the applicants’ claim in a final judgment. The court stated that no copy of the insurance policy had been produced by the parties. It further stated that in the absence of a copy of the policy it was unable to correctly establish the circumstances of the case. Finally, it found that, while the fact of the contracting of the policy was not a subject of dispute between the parties, that did not in itself prove its existence.

II. RELEVANT DOMESTIC LAW

1. Evidence in civil proceedings

13. According to Article 98 (2) of the Code of Civil Procedure 1952 (“CCP 1952”), as in force at the time, the claimant had to enclose the written evidence, on which his or her claim was based, together with the claim submitted to the court.

14. According to Article 111, CCP 1952, the court issued a ruling on the admissibility of evidence and the means for collecting evidence. The time‑limit for producing evidence started running from the day of the hearing [during which the said time-limit was set] and applied also in respect of an absent party.

15. Article 127 (1) CCP 1952 stipulated that each party bore the onus of establishing the facts upon which its demands or objections were based.

16. Article 152 of CCP 1952 provided that either party could request from the other party a document which the latter was in possession of, after explaining the relevance of that document to the dispute in the case.

2. Cassation appeals

17. According to Article 218 (a) of the Code of Civil Procedure as in force at the time, civil claims up to the amount of BGN 5,000 were not subject to cassation appeal.

3. Reopening of proceedings following a judgment of the European Court of Human Rights

18. Pursuant to Article 303 § 1 (7) of the Code of Civil Procedure of 2007 (“the CCP”), in force as of 1 March 2008, civil proceedings may be reopened when a judgment of the European Court of Human Rights establishes that the Convention has been violated and when a fresh examination of the case is necessary in order to eliminate the consequences of the violation. The interested party may make the request no later than six months after the judgment has become final (Article 305 § 2 of the CCP). The request is examined by the Supreme Court of Cassation (Article 307 of the CCP).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

19. The applicants complained that they had not had a fair trial. They alleged in particular that:

(i) they had been unable to make submissions in respect of the question whether the insurance policy had been presented in court, as that argument had only been introduced by the court in the final judgment; and,

(ii) the court had not been impartial and had not reasoned its conclusion in its final judgment of 16 May 2006.

20. The applicants relied on Article 6 and Article 13 of the Convention. The Court is of the view that these complaints fall to be examined under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”.

A. Alleged lack of adversarial proceedings

1. Admissibility

21. The Government submitted that it could not be excluded that, if the applicants had brought a cassation claim, it would have been heard. Therefore, they asserted, the applicants’ complaint was inadmissible for failure to exhaust domestic remedies.

22. The applicants argued that a cassation appeal was doomed to be declared inadmissible. The reasons for that were that, on the one hand, the law limited cassation appeals to claims over BGN 5,000, while each applicant’s claim was for the exact amount of BGN 5,000, and on the other hand, the judgment of the Sofia City Court of 16 May 2006 stated that it was final.

23. The Court notes the wording of the relevant legal provision at the time, which provided that cassation appeals concerning, among other things, claims for up to BGN 5,000 were inadmissible. Furthermore, the judgment of 16 May 2006 of Sofia City Court stated that it was final.

24. The Court reiterates in this connection that where the Government claims non-exhaustion of domestic remedies, they bear the burden of proving that the applicant has not used a remedy that was both effective and available (see Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998‑I, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). The availability of any such remedy must be sufficiently certain in law and in practice (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198), and the Government’s arguments would clearly carry more weight if examples from national case‑law had been supplied (see Doran v. Ireland, no. 50389/99, § 68, ECHR 2003‑X (extracts)).

25. The Court notes that the Government did not present any examples of domestic case-law in support of their claim. Therefore, the applicants’ complaint under Article 6 § 1 cannot be dismissed for failure to exhaust domestic remedies.

26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

a. Parties submissions

(i) The Government

27. The Government considered, firstly, that the judgment of 16 May 2006 was wrong, given that its conclusion was contrary to the facts established in the case. In particular, they considered that the parties had produced evidence before the District Court of the existence of the insurance policy, and that the insurance company had contested neither that nor the death of the applicants’ father. The Government further observed that the Sofia City Court, acting on appeal, had not accepted that evidence as it found it unconvincing. Without elaborating further on the point, the Government found that the circumstances of the present case differed significantly from those in the case of Prikyan and Angelova v. Bulgaria, no. 44624/98, 16 February 2006.

(ii) The applicants

28. On the one hand, the applicants agreed with the Government that evidence of the existence of the insurance policy had been produced before the District Court, which had accepted it, and that the insurance company had not disputed the existence of a valid insurance contract or the fact of their father’s death.

29. On the other hand, the applicants pointed out that the Sofia City Court, acting on appeal, had noted for the first time in the final judgment of 16 May 2006 that a copy of the insurance policy had not been produced to the court. On that ground the court had declared the claim ill-founded as it concluded that the applicants had failed to establish the policy’s existence. The applicants were unable to contest the court’s finding to that effect by seeking to submit the insurance policy as further evidence. Therefore, the principle of adversarial proceedings had been breached in their case.

b. The Court’s assessment

30. The Court reiterates that the concept of a fair hearing implies the right to adversarial proceedings, in accordance with which the parties must have the opportunity not only to adduce evidence in support of their claims, but also to have knowledge of, and comment on, all evidence or observations filed, with a view to influencing the court’s decision (see Nideröst-Huber v. Switzerland, 18 February 1997, Reports 1997-I, p. 108, § 24, and K.S. v. Finland, no. 29346/95, § 21, 31 May 2001). This principle is valid in respect of submissions made by the parties just as much as it is in respect of submissions made by an independent member of the national legal service (Kress v. France [GC], no. 39594/98, § 65, ECHR 2001‑VI), by representatives of the national administration (Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 38-46, 3 March 2000), or by the court whose judgment is the subject of appeal (Nideröst-Huber v. Switzerland, cited above).

31. In addition, the Court has previously held that judges themselves must respect the principle of adversarial proceedings, in particular when they reject an appeal or decide on a claim on the basis of a matter raised by the court of its own motion (see Prikyan and Angelova, cited above, § 42; Skondrianos v. Greece, nos. 63000/00, 74291/01 and 74292/01, §§ 29-30, 18 December 2003; Clinique des Acacias and Others v. France, nos. 65399/01, 65406/01, 65405/01 et 65407/01, § 38, 13 October 2005).

32. The Court observes in this connection that it is important for those who bring their claims to court to rely on the proper functioning of the justice system: that reliance is based, among other things, on the certainty that a party to a dispute will be heard in respect of all items in the case. In other words, it is legitimate for the parties to a dispute to expect to be consulted as to whether a specific document, or argument as may be the case, calls for their comments (see, mutatis mutandis, Krčmář and Others v. the Czech Republic, no. 35376/97, § 43, 3 March 2000).

33. Turning to the circumstances of the present case, the Court notes that it is not disputed by the parties that the insurance policy existed and that the insurance company, and not the applicants, had been in possession of the policy during the court proceedings. Neither is it disputed that the policy was produced before the District Court (see paragraph 9 above). However, despite the fact that this document had been admitted to the court file at first instance, the Sofia City Court held in its final judgment delivered on appeal that a copy of the policy itself had not been produced, thus completely disregarding an important piece of available evidence. On that basis the court rejected the applicants’ claim that, following their father’s death, the insurance company owed them a compensation payment in accordance with the insurance policy. The Court observes that it has not been argued or demonstrated in any way that, before reaching that conclusion, the Sofia City Court had raised with the applicants the question whether the insurance policy had been produced so as to give them an opportunity to comment. Therefore, the decision to reject their claim was based on a matter in respect of which they had been unable to comment.

34. The Court further considers that allowing the applicants the possibility to discuss before the court all pieces of evidence, or the absence of such as established by the Sofia City Court in this case, was all the more necessary in the circumstances of the present case, given that the point on which the Sofia City Court based its findings turned out to be decisive for the outcome of the proceedings.

35. The Court finds therefore that, in the present case, the failure of the Sofia City Court, sitting at last instance, to submit to adversarial proceedings a decisive question for the outcome of the case and to consider a crucial piece of evidence in their final decision, breached the applicants’ right to a fair hearing. There has, therefore, been a violation of Article 6 § 1 of the Convention.

B. Alleged lack of impartiality of the court and lack of reasons given by it

36. The applicants also claimed that the appeal court had not been impartial and had not given reasons for its conclusion that the insurance policy had not been submitted.

37. The Court has examined these complaints as submitted by the applicants. However, in the light of all the material in its possession, and in so far as the matters complained of are not absorbed by the examination of the previous complaint, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

38. It follows that this part of the application must be rejected as being manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

40. The applicants claimed 5,000 euros (EUR) each in respect of pecuniary damage, stating that that was what they would have been paid by the insurance company had a breach of the Convention not occurred. They also claimed EUR 20,000 each in respect of non-pecuniary damage sustained as a result of suffering related to the loss of their father.

41. The Government submitted that it was not possible to speculate about the outcome of the court proceedings. They further pointed out that it was evident that the authorities were not in any way responsible for the death of the applicants’ father. Therefore, no damage was due in respect of either of the above claims.

42. Noting that the Sofia City Court held that, in the absence of the policy, it could not correctly establish the facts of the case, the Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicants. It further notes that under domestic law it is open to the applicants to request reopening of the case; it therefore rejects their claim in respect of pecuniary damage. On the other hand, it considers that the applicants must have sustained non‑pecuniary damage as a result of the breach of their rights. Ruling in equity, the Court awards the applicants jointly EUR 2,300 in respect of non-pecuniary damage. To this amount is to be added any tax that may be chargeable.

B. Costs and expenses

43. The applicants also claimed approximately EUR 460 for costs and expenses incurred in the domestic proceedings, as well as approximately EUR 3,090, related to their application before the Court, which included legal costs already paid to their lawyer, translation and postal expenses.

44. The Government found this claim excessive and unsubstantiated, in particular as no report had been presented for the provided legal services and the time spent.

45. As regards the domestic costs and expenses, the Court recalls that it will uphold such claims only in so far as they relate to the violations it has found. There is no evidence that the applicants incurred any costs and expenses before the domestic authorities in seeking redress in connection with the violation of the Convention found in the present case. Accordingly, the Court rejects this claim.

46. As regards the claim for costs and expenses incurred before this Court, according to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 800 for costs and expenses.

C. Default interest

47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the lack of adversarial proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention[1], the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 4 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosIneta Ziemele
  Section RegistrarPresident

[1]. Rectified on 1 April 2014: “from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention” was added.

Full & Egal Universal Law Academy