ITEMID: 001-121577
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: SVOBODEN ZHELEZNICHARSKI SINDIKAT 'PROMYANA' v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Svoboden Zheleznicharski Sindikat “Promyana”, is a trade union having its head office in Plovdiv, Bulgaria. It was represented before the Court by Mr V. Kaludin, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms S. Atanasova, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant trade union is open to employees of the Stateowned National Company “Railway Infrastructure” EAD. At the material time it was one of the seven trade unions operating in that company.
5. At a meeting held on 26 September 2002 between the company’s director general and representatives of the seven unions it was agreed that only one collective agreement would be negotiated and entered into. Four of the unions had already prepared a draft proposal. The director general invited all trade unions to declare in writing before 4 October 2002 whether they wished to come forward with only one draft collective agreement, with a view to deciding whether or not to call a general meeting of staff to approve a joint draft collective agreement (see paragraph 17 below).
6. On 13 November 2002 the company convened a general meeting of staff. The meeting took place on 20 November 2002, apparently without the participation of members of the applicant trade union, and resolved to approve the draft collective agreement put forward by the four unions.
7. On 4 December 2002 the chairman of the applicant trade union wrote to the company’s director general, saying that the union agreed with the draft put forward by the other four unions and insisting, by reference to Articles 51a and 52 § 1 (1) of the Labour Code 1986 (see paragraphs 17 and 18 below), that the union was to be invited to join the negotiations between the other unions and the company.
8. On 9 April 2003 the chairman of the applicant trade union sent the company’s director general a letter in identical terms.
9. It is unclear whether the company’s director general replied to those letters, but it appears that the applicant trade union did not take part in the negotiations concerning the collective agreement.
10. On 28 May 2003 the company entered into a collective agreement with the four unions which had initially put forward a draft. The agreement provided that employees who were not members of those four unions could join it by making a request in writing and agreeing to pay a monthly fee of 0.7% of their salary. The proceeds were to be collected by the company and used for social payments to employees in need.
11. In the meantime, on 6 December 2002 the applicant trade union brought a civil claim against the company, seeking a judicial declaration that the resolution of the general meeting of staff approving the draft collective agreement was unlawful. On 12 December 2002 the Sofia District Court discontinued the proceedings. On an appeal by the applicant trade union, on 17 April 2003 the Sofia City Court upheld that decision. The union appealed further. In a final decision of 7 August 2003 (опр. № 360 от 7 август 2003 г. по гр. д. № 401/2003 г., ВКС, ІІІ г. о.), the Supreme Court of Cassation also upheld the discontinuance. It found that a trade union which had not taken part in a staff meeting for the adoption of a collective agreement could not seek the annulment of the resolution approving that agreement. Under Article 60 of the Labour Code 1986 (see paragraph 20 below) only the parties to a collective agreement were entitled to seek its annulment.
12. Article 6 § 2 of the 1991 Constitution proscribes restrictions of rights or privileges on grounds of race, nationality, ethnic identity, sex, origin, religion, education, opinions, political affiliation, or personal, social or property status.
13. Article 49 § 1 of the Constitution provides that workers are free to form trade unions for the protection of their interests in relation to employment and social security.
14. Article 8 § 3 of the Labour Code 1986, as worded between 31 March 2001 and 31 July 2004, provided that in the exercise of their employment rights those concerned could not be subjected to direct or indirect discrimination, be granted privileges or be subjected to restrictions based on their nationality, sex, race, skin colour, age, political or religious convictions, membership in trade unions or other associations or movements, family, social or material status, or invalidity. An amendment which came into force on 1 August 2004 slightly modified the wording of the provision and expanded the list of grounds of discrimination by adding to it origin, sexual orientation, psychological handicaps, and differences in the term of the employment contract or in the working time.
15. Article 4 § 2 of the Labour Code 1986, as amended with effect from 1 January 1993, provides that trade unions represent workers before the authorities and employers and protect their rights in relation to employment, social security and the standard of living through, inter alia, collective bargaining, strike action or other lawful actions.
16. Collective bargaining and collective agreements are governed by Articles 50 to 60 of the Code, as amended with effect from 1 January 1993 and then with effect from 31 March 2001.
17. Collective agreements can be concluded at the level of the individual enterprise or at the level of the whole industry or sector (Articles 51a and 51b). At the enterprise level, the collective agreement is concluded between the employer and the trade union(s) in the enterprise (Article 51a § 1). Only one collective agreement may exist in a given enterprise (Article 51 § 2). Its maximum duration is two years (Article 54 § 2), and negotiations for the conclusion of a fresh collective agreement have to start not later than three months before the expiry of the previous collective agreement (Article 54 § 3). The proposal for the agreement must emanate from the trade union(s) in the enterprise. Unlike the position in relation to industrylevel or sectorlevel collective agreements (Article 51b § 1), for enterpriselevel agreements there is no requirement that the trade union(s) which enter into them be “representative”. If in a given enterprise there exist several unions, they must come forward with a common draft proposal (Article 51a § 2). If they are unable to agree on one, the employer enters into an agreement with the union whose draft proposal has been approved by a majority of the general meeting of staff (Article 51a § 3).
18. By Article 52 § 1 (1), employers are under a duty to negotiate with the representatives of staff with a view to entering into a collective agreement. Their failure to do so gives rise to liability in damages (Article 52 § 2). The Supreme Court of Cassation has held that the claim for damages may be brought by a trade union with which the employer has refused to negotiate (see реш. № 383 от 23 октомври 2003 г. по гр. д. № 3252/2001 г., ВКС, III г. о.). In the same judgment the court went on to say that, in the case of delayed negotiations, the compensation due under Article 52 § 2 should make good any damage resulting from the delay and should be assessed by reference to the terms of the collective agreement.
19. A collective agreement is binding only on the workers who are members of a trade union which is party to the agreement (Article 57 § 1). Workers who are not members of such a union (because they are members of another union or because they are not affiliated with any union) may join the agreement by making a request in writing, under conditions laid down by the parties to the agreement; those conditions cannot contravene the law or good morals (Article 57 § 2).
20. The parties to the collective agreement or any worker to whom it applies may bring proceedings to seek its performance (Article 59) or annulment (Article 60). The Supreme Court of Cassation has consistently held that claims for annulment under Article 60 may be brought only by the parties to the agreement – the employer and the trade union(s) – or by workers to whom it applies either because they are members of the trade unions which are party to the agreement or because they have subsequently joined it (see опр. № 429 от 17 юни 2005 г. по гр. д. № 396/2005 г., ВКС, IV г. о.; опр. № 420 от 12 декември 2008 г. по гр. д. № 2125/2008 г., ВКС, IV г. о.; опр. № 430 от 3 август 2009 г. по гр.д. № 282/2009 г. на ВКС, ІІІ г. о.; опр. № 388 от 25 юли 2011 г. по гр. д. № 69/2011 г., ВКС, ІІІ г. о.; and опр. № 813 от 6 юли 2012 г. по гр. д. № 1751/2011 г., ВКС, ІV г. о.)
21. The Protection Against Discrimination Act 2003 came into force on 1 January 2004 (paragraph 8 of the Act’s transitional and concluding provisions). The Supreme Court of Cassation has ruled that it does not apply retrospectively (see реш. № 948 от 18 декември 2009 г. по гр. д. № 3097/2008 г., ВКС, I г. о.). So has the Supreme Administrative Court (see реш. № 11981 от 29 ноември 2007 г. по адм. д. № 7976/2007 г., ВАС, V о.). However, the Supreme Court of Cassation has also ruled that the prohibition of discrimination set out in the Act is merely a reflection of the similar prohibitions set out earlier in Article 6 § 2 of the 1991 Constitution (see paragraph 12 above) and Article 14 of the Convention, which is part of domestic law (see реш. № 1301 от 22 януари 2009 г. по гр. д. № 5117/2007 г., ВКС, I г. о.).
22. Section 4(1) of the Act prohibits any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other ground established by law or by an international treaty to which Bulgaria is party.
23. Section 3(1) provides that the Act applies to all individuals on the territory of Bulgaria. Section 3(2) provides that associations of individuals and legal persons enjoy protection under the Act if they have suffered discrimination by reason of their members or employees having one of the characteristics under section 4(1).
24. Under section 13(1), employers are bound to provide equal employment conditions without regard to the characteristics set out in section 4(1) (see paragraph 22 above).
25. The authority responsible for ensuring compliance with the Act and with other statutes laying down equaltreatment provisions is the Commission for Protection Against Discrimination (section 40). Section 47 empowers the Commission to, inter alia, find a breach of the Act (point 1), order that the breach be discontinued and that the status quo ante be restored (point 2), impose sanctions or order coercive measures (point 3), or give mandatory instructions (point 4). The Commission’s decisions are subject to judicial review, until 24 May 2011 by the Supreme Administrative Court (section 68(1), as worded before that date), and after that by the Sofia City Administrative Court (section 68(1), as worded after that date).
26. Under section 74(1), a person who has obtained a favourable decision by the Commission and seeks compensation for damage suffered as a result of the breach of its right to equal treatment stemming from the Act or from other statutes can bring a claim for damages against the persons or authorities which have caused the damage. If the damage stems from unlawful decisions, actions or omissions of State authorities or officials, the claim must be brought under the State and Municipalities Liability for Damage Act 1988 (section 74(2)).
27. Alternatively, instead of bringing proceedings before the Commission, a person who considers that the right to equal treatment stemming from the Act or from other statutes has been breached can bring a civil claim, seeking declaratory or injunctive relief or an award of damages (section 71(1)). Trade unions can bring such claims on behalf of others (section 71(2)).
28. Since 2005 trade unions have on a number of occasions brought proceedings before the Commission for Protection Against Discrimination in relation to collective bargaining and collective agreements.
29. In a decision of 27 February 2006 the Commission found that a clause in a collective agreement according to which workers who were not members of the trade union which had concluded the agreement could join it only after paying a fee was not discriminatory. On 18 January 2007 its decision was upheld by a threemember panel of the Supreme Administrative Court (see реш. № 609 от 18 януари 2007 г. по адм. д. № 3135/2006 г., ВАС, V о.).
30. In a decision of 13 March 2006 the Commission made the same finding, but went on to order the employer to provide to its workers information about the way in which the proceeds from the fees were being spent. On 8 May and 23 October 2007 that decision was upheld by, respectively, a threemember panel and a fivemember panel of the Supreme Administrative Court (see реш. № 4544 от 8 май 2007 г. по адм. д. № 3708/2006 г., ВАС, V о., and реш. № 10043 от 23 октомври 2007 г. по адм. д. № 6302/2007 г., ВАС, петчл. св).
31. In a decision of 13 October 2006 the Commission found that in engaging in collective bargaining only with one trade union and ignoring the invitation of another union to negotiate with it as well, an employer had acted in a discriminatory way. However, on 14 June 2007 a threemember panel of the Supreme Administrative Court quashed that decision, holding, inter alia, that the employer had not been under a duty to negotiate in the absence of a draft collective agreement put forward by the trade union in question (see реш. № 6113 от 14 юни 2007 г. по адм. д. № 11302/2006 г., ВАС, V о.).
32. In a decision of 14 April 2007 the Commission likewise found that in engaging in collective bargaining only with one trade union and ignoring the invitation of another union to negotiate with it as well, an employer had acted in a discriminatory way. However, on 25 February 2008 a threemember panel of the Supreme Administrative Court quashed that decision, holding, inter alia, that the trade union in question had not been duly formed, which meant that the employer had not been under a duty to negotiate with it (see реш. № 2133 от 25 февруари 2008 г. по адм. д. № 7973/2007 г., ВАС, V о.). On 11 August 2008 that judgment was upheld by a fivemember panel of the court (see реш. № 9163 от 11 август 2008 г. по адм. д. № 5806/2008 г., ВАС, петчл. св).
33. In a decision of 5 August 2008 the Commission found that an employer had not acted in a discriminatory way visàvis a trade union during collective bargaining because that union had not come forward with a draft collective agreement of its own and because the employer had not been under a duty to resolve disputes between the various trade unions in the enterprise. On 29 January 2009 and 10 June 2009 that decision was upheld by, respectively, a threemember panel and a fivemember panel of the Supreme Administrative Court (see реш. № 1290 от 29 януари 2009 г. по адм. д. № 11841/2008 г., ВАС, VІІ о., and реш. № 7676 от 10 юни 2009 г. по адм. д. № 4471/2009 г., ВАС, петчл. св).
34. In a decision of 15 December 2008 the Commission found that in engaging in collective bargaining with only two trade unions and ignoring the invitation of another union to negotiate with it as well, an employer had acted in a discriminatory way. However, on 23 July 2009 a threemember panel of the Supreme Administrative Court quashed that decision, holding, inter alia, that the union’s allegations had not been made out on the facts (see реш. № 10014 от 23 юли 2009 г. по адм. д. № 4472/2009 г., ВАС, VІІ о.). On 17 December 2009 that judgment was upheld by a fivemember panel of the court (see реш. № 15642 от 17 декември 2009 г. по адм. д. № 12315/2009 г., ВАС, петчл. св).
35. In a decision of 6 February 2009 the Commission found, inter alia, that a clause in a collective agreement according to which workers who were not members of the trade unions which had concluded the agreement could join it only after paying a fee was discriminatory. On 11 June 2009 a threemember panel of the Supreme Administrative Court upheld that decision on the basis that the trade union of which those workers were members was affiliated with one of the trade unions that were party to the agreement, which meant that its members could not be required separately to join the agreement and pay a fee to be able to do so (see реш. № 7706 от 11 юни 2009 г. по адм. д. № 4036/2009 г., ВАС, VІІ о.). On 2 February 2010 that judgment was upheld by a fivemember panel of the court (see реш. № 1300 от 2 февруари 2010 г. по адм. д. № 12941/ 2009 г., ВАС, петчл. св).
36. In a decision of 1 July 2010 the Commission found that in engaging in collective bargaining with only four trade unions and effectively excluding two other unions from the collective bargaining process, a company affiliated with National Company “Railway Infrastructure” EAD had acted in a discriminatory way. The Commission went on to find that a clause in the resulting collective agreement according to which workers who were not members of the trade unions which had concluded the agreement could join it only after paying a fee was discriminatory. In a judgment of 10 August 2011 a threemember panel of the Supreme Administrative Court quashed the first part of the decision, holding that, on the facts, it could not be maintained that the company had effectively excluded the trade unions in question from the collective bargaining process. The panel upheld the second part of the decision, holding that the requirement for workers to pay a fee to join the collective agreement was discriminatory and in breach of the law, and therefore contravening Articles 8 § 3 and 57 § 2 of the Labour Code 1986 (see paragraphs 14 and 19 in fine above) (see реш. № 11096 от 10 август 2011 г. по адм. д. № 10532/2010 г., ВАС, VІІ о.). On 5 March 2012 that judgment was upheld by a fivemember panel of the court (see реш. № 3168 от 5 март 2012 г. по адм. д. № 15265/2011 г., ВАС, петчл. св).
37. In a decision of 17 January 2012 the Commission found that a clause in a collective agreement according to which workers who were not members of the trade unions which had concluded the agreement could join it only after paying a fee was discriminatory. However, on 4 July 2012 the Sofia City Administrative Court quashed that decision, holding, inter alia, that the requirement to pay a fee was justified because it in effect amounted to a contribution by workers who were not members of the trade unions in question towards the efforts of those unions to secure a beneficial collective agreement (see реш. № 3768 от 4 юли 2012 г. по адм. д. № 1514/2012 г., АССГ, ІІ о., 39 св). On 6 March 2013 a threemember panel of the Supreme Administrative Court upheld that judgment, fully agreeing with its reasoning (see реш. № 3165 от 6 март 2013 г. по адм. д. № 13998/2012 г., ВАС, VІІ о.).
38. Bulgaria ratified the 1949 Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (International Labour Organisation Convention No. 98) on 21 February 1959. The ratification was registered with the Director General of the International Labour Organisation on 8 June 1959, and the Convention came into force in respect of Bulgaria twelve months after that, on 8 June 1960 (Article 8 § 3). It was published in the State Gazette on 2 May 1997, which means that, by virtue of Article 5 § 4 of the 1991 Constitution, from that date on it has been part of domestic law (see also реш. № 7 от 2 юли 1992 г. по конст. д. № 6/1992 г., КС, обн., ДВ, бр. 56 от 10 юли 1992 г.).
39. Article 4 of that Convention provides as follows:
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”
40. Bulgaria ratified the Revised European Social Charter of 1996 (CETS No. 163) on 29 March 2000. The instrument of ratification was deposited with the Secretary General of the Council of Europe on 7 June 2000, and the Charter came into force in respect of Bulgaria on 1 August 2000, the first day of the month following the expiration of a period of one month after the date of the deposit (Article K § 3). It was published in the State Gazette on 4 May 2001, which means that, by virtue of Article 5 § 4 of the 1991 Constitution, from that date on it has been part of domestic law.
41. Article 6 of the Charter, headed “The right to bargain collectively”, provides as follows:
“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:
1. to promote joint consultation between workers and employers;
2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise:
4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”


ITEMID: 001-105478
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FYODOROV AND FYODOROVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 8;Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants, husband and wife, were born in 1948 and 1960 respectively and live in Takhtaulove.
6. In June 2000 the first applicant had a fight with the Ls, his neighbours. As a result, Mrs L. sustained bodily injuries, for which the first applicant was eventually convicted on 20 January 2005 and sentenced to suspended restriction of liberty. The applicants were also involved with the Ls in several civil proceedings concerning land use and other issues.
7. On 10 June 2001 Mrs L. addressed a letter to V. T., the Chief Psychiatrist of the Poltava District Clinical Hospital (“the Poltava Hospital”), alleging that the first applicant suffered from a serious mental condition and needed psychiatric treatment. She noted that he had been harassing her family for some nine years. In particular, he had been calling them names, cursing, eavesdropping, photographing their activities, recording their conversations with him, threatening to throw them out of their house and put Mr L. in prison. In June 2000 the first applicant had also hit Mrs L. in the course of an argument, inflicting serious injuries on her, which were the subject of pending criminal proceedings. She further noted that he had been in conflict with a number of other villagers. In particular, he was suspicious of everybody’s conduct; he photographed various allegedly “unlawful” acts; he threatened, cursed and argued with the villagers; he wrote various complaints to the authorities; he punctured the tyres of the village mayor’s car, stole crops and hay and engaged in fights. Finally, she alleged that he was prone to sudden fits of anger, beat his wife and had killed a dog. Lastly, he owned two rifles and was generally dangerous.
8. On 15 June 2001 M. F., a hospital psychiatrist, arrived in the applicants’ yard in an ambulance car and started questioning the first applicant about his relations with the Ls, in particular about their complaints that he had taken photographs of them without their consent. According to the first applicant, this conversation lasted about five minutes, after which he attempted to photograph the psychiatrist, the driver, and the ambulance car. In response, M. F. ran from the yard, shouting “this is abnormal”.
9. On 18 June 2001 V. T. informed the Poltava District Court that the first applicant was suffering from chronic delusional disorder (хронічний маячний розлад) and needed to undergo a forensic expert assessment with a view to receiving in-patient treatment.
10. On 30 June 2001 V. V., the Chief of the Regional Health Department, dismissed a complaint lodged by the first applicant, in which he alleged that the examination had been unlawful and the diagnosis incorrect.
11. In August 2001 the first applicant instituted court proceedings against M. F., V. T and V. V., complaining that he had been subjected to an unlawful examination and diagnosis in violation of the applicable law and medical guidelines.
12. On 6 February 2002 the Oktyabrsky District Court of Poltava allowed the first applicant’s claim and ordered the medical authorities to remove the diagnosis from his record. It observed, in particular, that complaints by the Ls could not be deemed a sufficient basis for the examination of the first applicant without his consent. It also found that the examination had been carried out in violation of the applicable procedural standards. In particular, M. F. had not duly informed the applicant of the reason for his visit and made his conclusions after an extremely brief informal conversation.
13. M. F. appealed against this judgment.
14. At 10 a.m. on 30 April 2002 the Poltava Regional Court of Appeal opened the hearing on M. F.’s appeal. The court noted in the hearing minutes that the first applicant had requested that the case be heard in his absence and that there was no reason not to grant this request. It had then heard submissions from M. F., who had presented his version of events and noted, in particular, that his conversation with the first applicant had lasted at least twenty or twenty-five minutes. The court also allowed M. F.’s request to add an unspecified certificate to the case-file materials. The floor was then given to a representative of the Regional Health Department, who maintained that M. F. had acted in accordance with the provisions of section 11 of the Law “On Psychiatric Assistance”, which lays down the circumstances under which a patient may be psychiatrically examined without his or her consent. In particular, there had been a serious cause for concern about the first applicant’s state of health, as at the material time criminal proceedings were pending against him on charges of assault against Mrs L. The court then heard the manager of the local polyclinics, who alleged that it had not been possible at the material time to subject the first applicant to a more extensive in-patient assessment. The hearing ended at 11:30 a.m.
15. On the same day the Court quashed the judgment of 6 February 2002 and dismissed the first applicant’s claim. By way of reasoning, the court noted the following:
“The conclusion of the first-instance court that ... M. F. infringed the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance” in examining V. G. Fyodorov is not supported by the evidence contained in the case file.
The first-instance court did not give sufficient consideration to explanations by the witness Fyodorova T.S. – the plaintiff’s wife, who maintained at the court hearing that M. F., upon exiting the ambulance car, had introduced himself and begun asking questions. The witness also indicated that M. F. had visited them for more than ten minutes.
The court did not give sufficient weight to the testimonies by Fyodorov V. G. himself ... that M. F. had spoken to him concerning the photographing of the neighbour, Mrs L., and repeated the latter’s words concerning this matter.
Therefore, the conclusion of the court that M. F. had not introduced himself before the examination of Fyodorov V. G. and had not informed him of the grounds and purpose of his examination does not follow from the facts of the case.
The court erred in concluding that M. F. examined Fyodorov V. G. without his consent and any request by the latter for such an examination.
The Panel of Judges considers that the written application by Mrs L. gave sufficient grounds for a psychiatric doctor to conduct a psychiatric examination in accordance with the requirements of paragraph 3 of section 11 of the Law of Ukraine “On Psychiatric Assistance”.
Without substantiation, the first-instance court declared as wrongful the diagnosis ... concerning the state of Fyodorov’s V. G.’s health, since at the time of consideration of the case the case file contained no evidence disproving that diagnosis.
The Panel of Judges considers that the actions of psychiatric doctor M. F., Chief Psychiatrist ... V. T ... were compliant with the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance”.
The judgment of the first-instance court shall be quashed as the court’ ...”
16. The first applicant sought leave to appeal in cassation. He maintained, in particular, that the Court of Appeal had unlawfully held a hearing in his and his lawyer’s absence, having failed to notify either of them of the date of the hearing. He noted that the case file contained an unsigned request to hold a hearing in his absence. However, the first applicant contended that this unsigned application was forged and that even if it were not, no application to hear the case in the absence of his lawyer had been submitted. The first applicant further contended that the judgment lacked reasoning. He noted, in particular, that, according to the applicable law, an individual could be subjected to a psychiatric assessment either (a) upon his (or his representative’s) consent or (b) following a court decision or (c) in the event of urgent necessity. As the first applicant’s examination had not been based either on his consent or on a court decision, the court of appeal should have substantiated the finding that there had been an urgent need for it. Lastly, the first applicant complained that the court of appeal had not addressed his arguments concerning a violation of the applicable medical guidelines for diagnosing chronic delusional disorder, which presupposed extensive observation of a patient. In the first applicant’s opinion, having based the conclusion concerning the correctness of the diagnosis on the lack of any evidence to the contrary, the court of appeal had infringed the legal provisions concerning the presumption of mental health.
17. On 23 May 2003 the Supreme Court dismissed the first applicant’s request for leave to appeal in cassation, generally endorsing the findings of the court of appeal.
18. In May 2003 V. T. notified the first applicant’s lawyer that the first applicant’s name was not on the register of individuals suffering from mental disorders. On 9 September 2003 the Psychiatrists’ Association informed the first applicant that, having studied his medical documents, they found no basis to consider that he suffered from any disorders. On 2 February 2004 the applicant was also examined at the Kyiv Institute of Psychiatry and found not to be manifesting any signs of disorder and not to require treatment. Subsequently, referring to these documents, the first applicant unsuccessfully attempted to obtain an extraordinary review of the judgment of 30 April 2002.
19. In January 2003 the Poltava Hospital received several complaints from the applicants’ fellow villagers requesting that he be admitted to a psychiatric facility on account of various incidents of hostile behaviour towards them.
20. Referring to these complaints, V. T. requested the Poltava District Court to authorise the first applicant’s confinement to the psychiatric clinic for assessment and, if necessary, for treatment. On 20 February 2003 the court discontinued the proceedings, having advised V. T. that this matter was within the discretion of the supervising psychiatrist.
21. On 4 March 2003 V. T. addressed a letter to the district police requesting assistance in the first applicant’s hospitalisation in view of the danger he posed to others. In his letter he noted, in particular that “at the present moment Fyodorov V. G. is a danger to society. In connection with his mental disorders, during hospitalisation Fyodorov V. G. may use a hunting weapon in self-defence.”
22. According to the first applicant, on 5 March 2003 V. T. signed a certificate testifying his psychiatric fitness for the purposes of extending his hunting rifle permit.
23. On 6 March 2003 M. F. and two police officers arrived at the applicants’ home in the ambulance car and discussed the procedures concerning the extension of the permit. According to the first applicant, they invited him to follow them to the police station to complete the necessary formalities; however, he refused, assuring them that he would do so later.
24. At about 10:00 a.m. on 7 March 2003 the applicants went to the police station and requested instructions concerning the formalities to be completed for the rifle permit extension.
25. At about 12:00 p.m. M. F. arrived in the ambulance car and announced to the applicants that the first applicant was to be hospitalised. Notwithstanding the applicants’ protests, four police officers escorted the first applicant to the ambulance car and took him to the Poltava Regional Psychiatric Clinic, where he underwent two psychiatric assessments on the same day.
26. On 8 March 2003 the first applicant was released from the Regional Clinic as he was not considered to be in need of in-patient treatment. Subsequently (on 17 March 2003) the first applicant’s lawyer was informed by N. N., the Chief Psychiatrist of the Regional Clinic, that the first applicant’s diagnosis of chronic delusional disorder, which had served as the basis for his hospitalisation, had not been confirmed. However, he had been found to be suffering from a “pathological behavioural personality disorder of the unstable epileptic type, in the sub-compensation stage” (патохарактерологічний розлад особистості по епілептоїднонестійкому типу в стадії субкомпенсації). In September 2003 the first applicant was informed by the Psychiatrists’ Association that the stated diagnosis did not feature in the international classification table. On 11 October 2007 the first applicant underwent a psychiatric assessment in the Kyiv Centre for Forensic Assessment. The panel of experts concluded that neither on 15 June 2001, nor on 7 March 2003 or at the time of the assessment had the first applicant suffered from any psychiatric disorders.
27. On 11 March 2003 the applicants complained to the Poltava District Prosecutors’ Office that they had been ill-treated by M. F. and the police officers on 7 March 2003. They noted, in particular, that the decision to hospitalise the first applicant had been arbitrary and taken in excess of V. T.’s power. They further complained that the police had applied excessive force in enforcing this decision, which had caused their injuries. The use of force had been excessive because the first applicant’s protests were limited to a request to contact his lawyer and a demand to see the chief of the police department, which measures were legitimate in the context of the situation. In response he was restrained by four police officers, who also punched and kicked him, and dragged him down the stairs and into the ambulance car. The second applicant attempted to intervene, but in vain. According to her, the police officers punched her hands, pushed her in the chest and pressed her against the door, keeping her away from the first applicant.
28. On the same day the applicants were examined by medical experts, who found that the first applicant had contusions of the soft head tissue, face, left leg and neck, cumulatively qualified as “light bodily injuries”, which could have been sustained on the date and under the circumstances described by him. The second applicant had contusions of the right hand, left arm, left knee and right leg, caused by blunt objects, possibly on the date and under the circumstances described by her. The second applicant’s injuries were also cumulatively qualified as “light”.
29. On 16 April 2003 the Poltava District Prosecutor’s Office refused to institute criminal proceedings, having found that in restraining the first applicant, who had objected to the lawful actions of M. F. and the police officers’ order to get into the ambulance car, the police officers had not acted in excess of the authority conferred on them by applicable law.
30. On 27 June 2003 the first applicant was X-rayed and found to have a fractured jaw.
31. In July 2003 the first applicant underwent an additional assessment by medical experts, who found that the fractured jaw could have been sustained during his placement in the ambulance car in March 2003, as he had described, and re-qualified the injuries sustained during this period as of “medium severity”. Based on these findings, the applicants again requested the initiation of criminal proceedings against M. F. and the police officers.
32. On numerous occasions (14 August, 11 November and 24 December 2003, 25 May 2004 and 4 March 2005) the District Prosecutor’s Office refused to institute criminal proceedings for want of evidence of criminal conduct on the part of the officers and M. F. All those decisions were subsequently annulled either by the supervising prosecuting authorities or by the Oktyabrsky District Court with reference to the insufficiency of the investigations and various procedural omissions.
33. On 18 November 2003 the Deputy Poltava Regional Prosecutor wrote to the Poltava District Prosecutor, reprimanding him for having failed to organise a thorough examination of the applicants’ complaints. He noted, in particular, that the District Prosecutor had failed to study the case-file materials and provide written instructions as to the inquiry; that eyewitnesses of the incident had not been identified and questioned; and that the measures taken had been perfunctory. The Deputy Regional Prosecutor also gave various instructions as to the further investigation of the case.
34. On 28 July 2005 the Poltava Regional Prosecutors’ Office initiated criminal proceedings to investigate the circumstances in which the first applicant had sustained injuries.
35. On 18 October 2005 the Oktyabrsky District Court of Poltava also instituted criminal proceedings concerning the second applicant’s injuries.
36. On numerous occasions (in particular, 25 December 2005, 10 June 2006 and 29 December 2007) the above criminal proceedings were discontinued for want of evidence of criminal actions on behalf of M. F. and the police officers. Those decisions were set aside by the superior prosecutorial or judicial authorities with reference to the inadequacy of the measures taken to investigate the applicants’ complaints.
37. On 22 May 2009 the prosecutors’ office discontinued the criminal proceedings. It noted, in particular, that the Poltava District Hospital had received numerous complaints from the applicants’ neighbours concerning the first applicant’s aggressive behaviour. In particular, one such complaint, signed by five villagers, had been received in February 2003. Having obtained a ruling from the local court that the decision to hospitalise the first applicant could be taken by the supervising psychiatrist, V. T. had asked the police for assistance in ensuring the hospitalisation. Neither M. F. nor the policemen had exceeded the authority vested in them by applicable law in demanding the first applicant’s hospitalisation. The force applied to the applicants had been proportionate and had not exceeded that which was necessary in order to overcome their resistance. In particular, according to expert assessments and reconstructions of the crime scene, the first applicant had apparently fractured his jaw when he accidentally banged his head against the ambulance vehicle while resisting the efforts of the police officers to place him inside.
38. By a decision of 14 September 2009, upheld on appeal on 29 October 2009, the Oktyabrsky District Court quashed that decision. The courts noted, in particular, that while the prosecution had conducted a reconstruction of the crime scene based on the police officers’ version of the events, they had failed to verify the applicants’ version of events. Likewise the medical assessment had verified the police’s version of events only. The police had also failed to identify any eye-witnesses of the incident in order to question them about their impressions and had not fulfilled various instructions, given, in particular, by the court in reviewing previous decisions to discontinue the proceedings.
39. According to the case-file materials the investigation of the applicants’ complaints about ill-treatment is still pending.
40. The relevant provision of the Constitution reads as follows:
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody.
Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.
Everyone who has been detained has the right to challenge his or her detention in court at any time ...”
41. The relevant provisions of the Code can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 40-42, 6 December 2007).
42. The relevant provisions of the Code concerning notification arrangements are summarised in the judgment in the case of Strizhak v. Ukraine (no. 72269/01, §§ 30-31, 8 November 2005) and the admissibility decision in the case of Shytik v. Ukraine (no. 2911/03 of 30 September 2008).
43. The relevant provisions of the Law of Ukraine “On Psychiatric Assistance” read as follows:
“Each individual shall be considered as having no mental disorders unless the presence of such a disorder is established on the grounds of and according to the procedure established by this Law and other laws of Ukraine.”
“A psychiatric examination shall be carried out for the purposes of establishing whether or not an individual suffers from a mental disorder, whether she or he requires psychiatric assistance, and determining of the type of such assistance and the procedure for providing it.
A psychiatric examination shall be carried out by a psychiatric doctor at the request or with the conscious consent of the individual...
A psychiatric examination may be carried out without the individual’s conscious consent ... where the information available provides sufficient grounds for a reasonable assumption that the individual suffers from a severe mental disorder, as a result of which she or he:
- commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or
- is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life; or
- will cause significant harm to her or his own health ... in the event that psychiatric assistance is not provided.
The decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by a psychiatric doctor upon an application [by any person], which contains information giving sufficient grounds for such an examination. ...
In urgent situations ... the decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by the psychiatric doctor alone, and the psychiatric examination shall be carried out immediately.
In [other] cases, ... a psychiatric doctor shall submit an application to the court ... A forcible psychiatric assessment shall be carried out by the psychiatric doctor following a court order.
Data concerning the psychiatric examination and the conclusion concerning the individual’s state of mental health, and the reasons for the application to the psychiatric doctor, shall be recorded in medical documents.”
“An individual suffering from a mental disorder may be hospitalised without her or his conscious consent ..., if examination and treatment are possible only on an in-patient basis, and in the event of a finding that the individual is suffering from a severe mental disorder, as a result of which she or he:
- commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or
- is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life.”
VIOLATED_ARTICLES: 3
6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114269
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF GUTMAN v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1936 and lives in Budapest.
5. On 14 May 2001 the applicant submitted a request to the Ministry of Youth and Sport concerning Olympic annuity as being the coach of an Olympic medal winner. He was informed that according to the legal regulation in force, he could not request the annuity as it was the medal winner who should make a proposition for the beneficiary of such annuity. In the meanwhile the Ministry established the annuity for another coach.
6. On 16 August 2001 the Public Prosecutor’s Office submitted an objection to the Ministry’s decision on the applicant’s behalf, which was dismissed by the Minister on 6 October 2001.
7. The Prosecutor’s Office sought judicial review of the Minister’s decision before the Budapest Regional Court. The applicant intervened in the proceedings. The Regional Court dismissed the action on 8 January 2003. In the review proceedings the Supreme Court quashed the Minister’s decision and remitted the case to the administrative authority on 1 June 2004.
8. In the resumed proceedings the administrative authorities dismissed the applicant’s request on both levels. The applicant sought judicial review of the Ministry’s decision before the Budapest Regional Court. It dismissed his action on 14 May 2007.
9. The applicant lodged a petition for review with the Supreme Court. Finding that the applicant should have initiated the action against the Minister, it quashed the first-instance judgment and discontinued the proceedings on 25 June 2008.
10. The applicant therefore again initiated the judicial review of the administrative decisions mentioned in paragraph 8 above before the Budapest Regional Court, this time bringing the action against the Minister. His action was finally dismissed by the Supreme Court on 17 November 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78568
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LUPAS AND OTHERS (No. 1) v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Vladimiro Zagrebelsky
TEXT: 5. The nineteen applicants, whose names are listed in the appendix, are the descendants of some of the co-owners of a plot of land of approximately 50 hectares in Constanţa, on the Black Sea coast.
6. In a judgment of 16 April 1937 the Bucharest Court of Appeal, ruling on an application for partition of real estate consisting of approximately 50 hectares of land on the Black Sea coast and appurtenant buildings, formerly the property of the late Alexandru N. Steflea, noted that some of the heirs had sold their shares of the estate to Nicolae Lupaş, who therefore remained a co-owner of the property in common with twelve other heirs.
7. With a view to taking the property out of common ownership, the Court of Appeal divided it into 360 shares, of which 249.6 were allocated to Nicolae Lupaş, the twelve other heirs being assigned either 9/360, 8/360 or 14.4/360 of the property.
8. Following a further purchase of shares in the estate, Nicolae Lupaş became the owner of 264/360 of the property, which was now owned in common with eleven other heirs.
9. By Decree no. 102 of 20 April 1950 the National Assembly, on a proposal by the Council of Ministers, expropriated the land in question on public-interest grounds, together with an adjoining plot of land belonging to a third party, with a view to building a military base.
10. After 1950, once the plan to build a military base had been abandoned, the County Police Inspectorate took possession of a large portion of the land that had belonged to Nicolae Lupaş and the other co-owners, while other parts were transformed following consolidation works on the cliff or were allocated to private individuals to build housing.
11. Following proceedings for the recovery of possession of the plot adjoining the land that had belonged to Nicolae Lupaş and the other co-owners, the Constanţa Court of First Instance ruled in a final judgment of 5 December 1994 that Decree no. 102/1950 contravened the 1948 Constitution as in force on the date of the expropriation, and ordered the return of the land to the heir of its former owner. The court held, firstly, that the plan to build a military base had been abandoned shortly after the expropriation and, secondly, that the former owner had not received any compensation for the expropriation of his property.
12. In 1998 the applicants Adrian Lupaş, Nicolae Lupaş, Ovidiu Lupaş, Verginiu Lupaş and Ana Teodosiu, as the children and heirs of Nicolae Lupaş, who had died in 1959, brought an action against Mr and Mrs B., alleging that they had illegally taken possession of a plot of land measuring 638 sq. m at 30 Turda Street, on part of the land that had formerly belonged to Nicolae Lupaş. The applicants submitted that the plot in question was part of the land of which Nicolae Lupaş had been allocated a 249.6/360 share by the Bucharest Court of Appeal in 1937 and that the State had never had valid title to it.
13. Mr and Mrs B. applied for the case to be struck out on the ground that the applicants lacked the capacity to take proceedings, firstly because the land in question had been expropriated before Nicolae Lupaş's death, and secondly because they had not formally accepted their ascendant's estate. They submitted that the action was in any event inadmissible in that it had been brought solely by Nicolae Lupaş's heirs, without the consent of the heirs of the eleven other co-owners.
14. The fourteen other applicants, Nicolae Chirescu, Dan Mihai Banciu, Mihai Anton Ricci, Dumitru Mircea Gheorghiu, Teodor Grigoriu, Minerva Ionescu, Dorina Voinescu, Sorina Moarcas, Rodica Ionescu, Vanda Rosculet, Eugenia Steflea, Elisabeta Stoica, Diana Ruxandra Tomescu and Ioana Greceanu, the heirs of nine of the eleven co-owners in question, applied to join the action, asserting their rights over the plot of land forming the subject matter of the proceedings. They instructed Adrian Lupaş, the first applicant, to represent them.
15. According to the information provided by the applicants, the heir of one of the former co-owners refused to join their action, while the heirs of another former co-owner could not be traced.
16. In a judgment of 30 March 2000 the Galaţi County Court, finding that the first five applicants had proved that they were the heirs of Nicolae Lupaş and that the latter had owned a 264/360 share of the estate of Alexandru N. Steflea, dismissed Mr and Mrs B.'s first objection.
17. However, the court held that the land in issue had not belonged exclusively to Nicolae Lupaş, who had merely been one of the co-owners. Accordingly, observing that the consent of the heirs of two of the co-owners had not been obtained, the court declared the main action and the application to join the proceedings inadmissible on the ground that, since it entailed a legal transaction disposing of property, an action for recovery of possession of property held in undivided shares could be brought only with the consent of all the co-owners. However, the applicants' shares represented only 342/360 of the property in issue.
18. Arguing that it was not necessary to obtain the consent of all the co-owners since the action for recovery of possession was for the benefit of all of them, the applicants appealed against the judgment to the Galaţi Court of Appeal. A hearing was held on 5 September 2000, in the absence of the first applicant, and delivery of the judgment was adjourned until 8 September 2000, despite a request for additional time which the first applicant maintained he had made in order to be able to instruct a lawyer.
19. The Court of Appeal dismissed the appeal. In its judgment it noted, firstly, that in its 1937 judgment the Bucharest Court of Appeal had not formally divided the co-owned property into individual parts, with the result that it was still held in common despite the creation of shares. It further observed that it was common knowledge that an action for recovery of possession of property held in undivided shares could not be brought by one of the co-owners without the others' consent, since the aim of such an action was not only to protect the ownership of shares but also to secure recognition of title to the property as a whole and its return to the claimant.
20On that account, they informed the Supreme Court of Justice that the heir of one of the former co-owners had refused to take part in the proceedings although he had been notified of their existence, and that it had been impossible to obtain the other heirs' consent as they were scattered across various countries.
21. In a judgment of 24 April 2001 the Supreme Court of Justice dismissed the application, holding that the applicants could not seek recovery of a property held in undivided shares to the detriment and in breach of the rights of the heirs of the other co-owners.
22. In 1999 the applicants Adrian Lupaş, Nicolae Lupaş, Ovidiu Lupaş, Verginiu Lupaş and Ana Teodosiu brought an action against a commercial company, Histria Shipmanagement, for recovery of possession of a plot of land measuring 405 sq. m at 30 Turda Street, which occupied part of the land that had formed the subject of the Bucharest Court of Appeal's 1937 judgment. They also sought the annulment of the contract signed in 1999 by which the company had purchased the land from a third party, asserting that that party had never had valid title to the land in issue.
23. The commercial company objected that the action was inadmissible in that it had been brought solely by Nicolae Lupaş's heirs.
24. In a judgment of 28 February 2000 the Constanţa County Court allowed the company's objection and declared the action inadmissible.
25. The court observed that the judgment given by the Bucharest Court of Appeal in 1937 had merely allocated Nicolae Lupaş shares of the land that had belonged to Alexandru N. Steflea and that the land had not subsequently been divided into individual parts.
26. Observing that the aim of an action for recovery of possession of a property held in undivided shares was not only to protect the ownership of a share of the property but also to secure recognition of title to the property as a whole and its return to the claimant, the court concluded that since they had not obtained the consent of all the heirs of the former co-owners, the applicants were not entitled to seek recovery of the land in issue.
27. The applicants appealed to the Galaţi Court of Appeal, which found against them in a judgment of 30 January 2001, holding that it was common knowledge that an action for recovery of possession of property held in undivided shares could not be brought by one of the co-owners without the others' consent.
28. The applicants applied to the Supreme Court of Justice to have that judgment quashed. They submitted that since individual co-owners could sell their shares without the other co-owners' consent, there was no cause to prohibit a co-owner from seeking recovery of the entire property held in common in order to protect his ownership of his own shares. They argued that, since an action for recovery of possession that resulted in the return of the property to the co-owners benefited all of them, it was unnecessary to obtain the consent of all the co-owners.
29. Lastly, they submitted that regard should be had to the particular circumstances of their case, namely that the property had in their view passed illegally into State ownership and that it had been difficult, if not impossible, to identify all the heirs of the former co-owners on account of the social and historical circumstances of the period and the time that had since elapsed.
30. Observing that the proceedings for partition that had ended with the Bucharest Court of Appeal's judgment of 16 April 1937 had not resulted in the actual division of the property, the Supreme Court of Justice ruled that the applicants could not claim exclusive ownership of the land in issue.
31. Accordingly, pointing out that the unanimity rule precluded a co-owner from engaging in any transaction entailing the administration or disposal of property held in undivided shares without the other co-owners' consent, the Supreme Court dismissed the application in a judgment of 15 May 2002.
32. In 1999 the applicants Adrian Lupaş, Nicolae Lupaş, Ovidiu Lupaş, Verginiu Lupaş and Ana Teodosiu brought an action against two third parties for recovery of possession of two plots of land measuring 469.32 sq. m and 459 sq. m at 30-32 Patriei Street, which occupied part of the land that had formed the subject of the Bucharest Court of Appeal's judgment of 16 April 1937.
33. They submitted that in a 1996 decision of the Constanţa City Council one of the third parties had been wrongly granted title to the two plots of land, one of which had subsequently been sold to the other third party. At the applicants' request, the action was also directed against the City Council.
34. The City Council objected that the action was inadmissible in that it had been brought by the heirs of only some of the co-owners of the land.
35. The fourteen other applicants, Nicolae Chirescu, Dan Mihai Banciu, Mihai Anton Ricci, Dumitru Mircea Gheorghiu, Teodor Grigoriu, Minerva Ionescu, Dorina Voinescu, Sorina Moarcas, Rodica Ionescu, Vanda Rosculet, Eugenia Steflea, Elisabeta Stoica, Diana Ruxandra Tomescu and Ioana Greceanu, applied to join the action in order to assert their rights over the plots of land forming the subject matter of the proceedings.
36. In a judgment of 30 October 2000 the Constanţa County Court declared the action inadmissible on the ground that the aim of an action for recovery of possession of property held in undivided shares was to secure recognition of exclusive title to the entire property and its return to the claimant.
37. It held that, since they had failed to obtain the consent of all the heirs of the former co-owners, the applicants were not entitled to seek recovery of the plots of land in issue since they were able to claim ownership of only shares of the property.
38. The applicants appealed against that judgment to the Constanţa Court of Appeal, which found against them on 18 April 2001. As the County Court had done, it based its conclusion on the finding that it was impossible to seek recovery of possession of property held in undivided shares without the consent of all the co-owners.
39. The applicants applied to the Supreme Court of Justice to have that judgment quashed. They submitted that since individual co-owners could sell their shares without the other co-owners' consent, there was no cause to prohibit a co-owner from seeking recovery of the entire property held in common in order to protect his ownership of his own shares. They argued that, since an action for recovery of possession that resulted in the return of the property to the co-owners benefited all of them, it was unnecessary to obtain the consent of all the co-owners.
40. They further submitted that regard should be had to the particular circumstances of their case, namely that the property had in their view passed illegally into State ownership and that it had been difficult, if not impossible, to identify all the heirs of the former co-owners on account of the social and historical circumstances of the period and the time that had since elapsed.
41. Lastly, they argued that the requirement to obtain the consent of all the co-owners had ceased to apply following the entry into force of Law no. 10/2001 on the legal status of immovable property wrongfully seized by the State between 6 March 1945 and 22 December 1989, which provided for the possibility of restoring ownership of shares of a property held in common.
42. The Supreme Court of Justice observed at the outset that the proceedings for partition initiated by the Bucharest Court of Appeal's judgment of 16 April 1937 had not resulted in the division of the land. It held that in those circumstances, the applicants' action did not concern a particular property of which they claimed to be the exclusive owners, but shares that could not be separated from those belonging to the other co-owners.
43. It also dismissed the argument concerning Law no. 10/2001 on the ground that the law had not come into force until after the action had been brought in 1999. It pointed out that in any event, the new rule was applicable only in the context of the special procedure provided for in Law no. 10/2001, whereas the applicants' action for recovery of possession had been based on the provisions of the Civil Code.
44. Accordingly, applying the unanimity rule, the Supreme Court of Justice dismissed the application in a judgment of 18 September 2002.
45. Although there was no provision in statute law for the application of the rule that an action for recovery of possession of property held in undivided shares had to be brought by all the co-owners, the former Supreme Court held in a judgment of 24 November 1972 that a single co-owner could not initiate such an action, stating as follows:
“... as long as the property remains co-owned in undivided shares, the co-owners' rights over it are indeterminate and they cannot claim exclusive rights over their shares until after the property has been divided, when each co-owner has been granted exclusive ownership of part of it. It follows that one [individual] co-owner cannot seek recovery of a property held in undivided shares prior to its partition, since an action for recovery of possession implies the existence of an exclusive and determinate right, which a co-owner can acquire only as a result of the partition.”
46. The case-law developed by the former Supreme Court has been adhered to by the courts with very few exceptions, one being a judgment delivered by the Supreme Court of Justice on 29 September 2000. After recapitulating the unanimity rule, the court held:
“... in the instant case, and more generally in the case of actions for recovery of possession of property that was nationalised in the period from 6 March 1945 to 22 December 1989, the legal status of such property and of the persons claiming that it was wrongfully nationalised differs substantially from ordinary cases.
Former owners or their heirs are precluded from applying for partition of the property before seeking recovery of it by the fact that they do not have title to the property until it has been established that it was wrongfully nationalised and that the State does not have valid title to it.
In such sui generis cases, actions for recovery of possession are complex and go beyond the standard model; one or more co-owners, but not necessarily all of them, may bring a court action seeking a ruling ... that the State does not have valid title to the property ... and, consequently, that the wrongfully nationalised property belongs to the owner or his or her heirs. They may subsequently apply for partition of the property.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99087
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VASIL SASHOV PETROV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (six month period);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 13;No violation of Art. 14+2 (substantive aspect);No violation of Art. 14+2 (procedural aspect);Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1980 and lives in Velingrad. He describes himself as being of Roma/Gypsy ethnic origin.
6. According to his assertions, at about 2 a.m. on 14 January 1999, in foggy weather, the applicant went to a vacant yard in Velingrad to intoxicate himself by inhaling liquid bronze, as he did frequently at that time. When he left the yard some time later, two police officers saw him and yelled at him to stop. He did not and instead started running. Suddenly he saw a torch in front of him and veered to the left to evade capture. Then he heard shots but kept on running. After a few more steps, he felt a stinging pain in his stomach and fell to the ground. The officers approached and saw that he had a wound on his stomach. One of the officers recognised him.
7. During the ensuing investigation (see paragraphs 920 below), the two officers, sergeants I.S. and D.N., stated that they saw the applicant jump over a fence, enter the yard of a Mr A.V., and head towards A.V.'s henhouse. After waiting for a few minutes and making certain that the applicant was trying to steal hens, the officers, both of whom were armed with pistols loaded with live cartridges, intervened. They split up and approached the yard from different directions. When the applicant noticed them, he jumped the fence and started running through empty plots towards the nearby Roma neighbourhood. Despite several warnings, he did not stop. Then one of the officers drew his pistol and fired at him with the intention of stopping him. At that moment the applicant was at about four metres from the officer and turned sideways. After that he kept on running. The other officer continued the chase, fired twice in the air, and caught up with the applicant about sixty metres from the place where he had been shot. The officer recognised the applicant, noticed that he was intoxicated, and saw a small wound on his stomach, but allegedly did not realise that it had been caused by a bullet.
8. The officers immediately took the applicant to a hospital, where he was bandaged and sent home. They did not mention that they had used firearms against the applicant. The doctor who treated him did not realise that his wound had been caused by a firearm. Not long after that the applicant's condition worsened and several hours later he returned to the hospital, where he underwent a fivehour surgical operation. The doctors found that the applicant's kidney had been ruptured by a bullet which had broken up into three pieces, that his liver was damaged and he had been haemorrhaging into the abdominal cavity. The applicant's kidney and part of his liver had to be removed.
9. On 27 January 1999 Pazardzhik police informed the Plovdiv Regional Military Prosecutor's Office about the incident. On 22 February 1999 that office opened an investigation against the two officers.
10. On 12 March 1999 the investigator in charge of the case interviewed the officers, the applicant and his father. On 23 March 1999 he interviewed the doctor who had treated the applicant immediately after the incident and the person in charge of the hospital ward to which the applicant was later admitted. In their statements, the two officers predominantly referred to the applicant as a “person”. At one point sergeant I.S. said that when they approached the applicant after he had fallen to the ground he saw that he was “an eighteen or nineteen yearold Gypsy” and that he reckoned that “the Gypsy had pricked himself on something while running”.
11. The investigator also ordered a medical expert report on the nature and origin of the applicant's injury. The report concluded that the applicant had been shot from the front and that as a result of the shot he had lost one kidney, had suffered a temporarily lifethreatening condition and a wound penetrating the abdominal cavity.
12. On 16 June 1999 the investigator proposed to the prosecuting authorities that the investigation be discontinued, stating that it was impossible to find the bullet which had wounded the applicant, that both officers stated that they had fired into the air and denied the accusation, and that the applicant had been unable to give credible evidence owing to his state of intoxication at the time of the events. In the investigator's view, these factors made it impossible to ascertain which officer had shot the applicant and therefore to identify the perpetrator.
13. On 16 July 1999 the Plovdiv Regional Military Prosecutor's Office decided to discontinue the investigation, reasoning that “despite the thorough investigation” it was impossible to ascertain who had fired the shot which had wounded the applicant. The bullet had not been found and both officers had stated that they had fired in the air.
14. On an appeal by the applicant, on 27 August 1999 the Appellate Military Prosecutor's Office set the discontinuance aside. It observed that certain mandatory investigatory steps, such as ordering a ballistics expert report and inspecting the scene of the shooting, had not been taken. Nor had the investigator ordered an expert report on the applicant's ability to give evidence, in view of his state of intoxication at the time of the incident. The conclusion that it was impossible to ascertain who had fired the shot was illfounded. It was necessary to inspect the scene of the shooting and carry out a reconstruction of the events, and then order fresh medical and ballistic expert reports.
15. The case was then assigned to another investigator. In the morning of 6 October 1999 he carried out a reconstruction of the events in the presence of the applicant, the two officers, ballistics and medical experts and a photographer. In the afternoon he interviewed the two officers, the head of their department, the doctor who had examined the applicant immediately after the incident, the head of the surgical ward of the hospital where the applicant had been operated on, and Mr A.V., the owner of the yard adjacent to the place where the applicant was shot. A.V. stated that the next morning he had seen footprints inside his yard and a broken plank on the wall of his henhouse, and that without the intervention of the police the applicant would certainly have stolen some of his hens. He had stolen five hens only a month after recovering from his injuries. In their statements, both officers referred to the applicant as “the civilian person Petrov” or “Petrov”.
16. A ballistics report ordered by the investigator was ready the next day, 7 October 1999. It concluded that the pistols of both officers had been capable of producing the shot which had wounded the applicant. A medical expert report drawn up on 9 November 1999 concluded that the shot which had wounded the applicant had been fired by sergeant I.S., and that at the time of the shot the applicant had been standing sideways, with his right shoulder turned towards I.S., at a distance of about four metres. The bullet had travelled from front to back and from right to left. A psychiatric report ordered by the investigator concluded that the applicant had been intoxicated, but not heavily, and had been able to control his actions, and was fit to give evidence about the incident.
17. Having finished his work on the case, on 24 January 2000 the investigator proposed discontinuing the investigation. He found, on the basis of A.V.'s statement, that the applicant had tried to steal hens from A.V.'s henhouse. In his view, sergeant I.S. had acted in line with section 80(1)(4) of the 1997 Ministry of Internal Affairs Act (see paragraph 22 below) and was not criminally liable. The officer had made certain that the applicant was about to commit theft – a publicly prosecutable offence –, had warned him several times to stop, and, in view of the poor visibility and the proximity of the Roma neighbourhood, had reckoned that the applicant might flee.
18. On 29 February 2000 the Plovdiv Military Prosecutor's Office decided to discontinue the investigation, repeating the reasons given by the investigator almost verbatim.
19. On 23 March 2000 the Appellate Military Prosecutor's Office confirmed the discontinuance. It briefly reasoned that the officer had lawfully used his weapon, as a means of last resort. Before firing it, he had made certain, as required under section 80(1)(4) of the 1997 Act (see paragraph 22 above) that the applicant was attempting to commit theft. In view of that, of the fact that there was no other way to arrest the applicant, and that the necessary measures under Article 12a of the Criminal Code (see paragraph 24 below) had not been exceeded, the harm inflicted on the applicant was not unlawful.
20. In a final decision of 4 April 2000 the Military Court of Appeal also confirmed the discontinuance. It fully agreed with the prosecuting authorities' conclusion that the officers' actions had been in line with section 80(1)(4) of the 1997 Act (see paragraph 22 below). It did not mention Article 12a of the Criminal Code (see paragraph 24 below).
21. Later in 2000 the applicant brought a tort claim against sergeant I.S. and the Pazardzhik police department. On 14 June 2000 the Pazardzhik Regional Court dismissed the claim. On 25 March 2002 the Plovdiv Court of Appeal upheld its judgment. The applicant's ensuing appeal on points of law was rejected by the Supreme Court of Cassation on 15 October 2003 (реш. № 1752 от 15 октомври 2003 г. по гр. д. № 1527/2002 г., ВКС, ІV г. о.). The court held that the shooting had been a result of the applicant's own actions and his failure to comply with the lawful instructions and actions of the police to stop and arrest him. Sergeant I.S. had acted in line with section 80(1)(4) of the 1997 Ministry of Internal Affairs Act and the applicant was therefore not entitled to compensation for any resulting harm. The court did not mention Article 12a of the Criminal Code (see paragraph 24 below).
22. Section 80 of the 1997 Ministry of Internal Affairs Act, as in force at the material time, provided, in so far as relevant:
“(1) The police may use firearms as a means of last resort:
...
4. after giving a warning, to arrest a person who has committed or is committing a publicly prosecutable offence; ...
(2) When using firearms the police are under a duty to protect, as far as possible, the life of the person against whom they use force...”
23. In February 2003 section 80(1)(4) was amended to specify that the person against whom firearms could be used must also be resisting arrest or trying to escape. The wording of section 74(1)(3) of the 2006 Ministry of Internal Affairs Act, currently in force, repeats verbatim that of section 80(1)(4) of the 1997 Act, as amended in 2003.
24. Article 12a § 1 of the 1968 Criminal Code, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.
25. Under Article 237 of the 1974 Code of Criminal Procedure, as in force until 31 December 1999, the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor.
26. On 1 January 2000 that Article was amended to provide for a system of automatic control of the discontinuance: after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor's office, which could confirm, modify or quash it. If it confirmed the decision, it had to forward the file to the appropriate court, which had to review the matter in private. The court's decision was final. No provision was made for those concerned to be notified of the discontinuance.
27. Following a further amendment of that Article in May 2001, the discontinuance of preliminary investigations became subject to judicial review. The 2005 Code of Criminal Procedure maintained that position, in Article 243 §§ 37.
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 14
2


ITEMID: 001-83873
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SUSANNA ROS WESTLUND v. ICELAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant, Mrs Súsanna Rós Westlund, was born in 1964 and lives in Hafnarfjördur.
6. The present case has its background in a real estate sale by the applicant to Mr G. in 1999, relating to a property at Grenimelur 36 in Reykjavik. The relevant sales agreement of 27 August 1999 referred to a summary report describing the property, which included the following statement: “The house has recently been renovated on the outside, except for windows and glass. New roof tiles. Garage renovated windows partly. Wooden parquet flooring in need of repair. Great location in the west part of Reykjavik. Leakage in cellar has not been remedied. Seller will have that done.”
7. In March 2000 G. complained to the real estate agent that he had discovered a leak from the roof of the house and that the repair which had previously been done to the roof had covered only parts of it. Many new or newly discovered flaws on the property could be traced back to the leak in the roof. Moreover, G. claimed compensation from the applicant.
8. Following a report issued on 26 September 2001 by a court appointed expert, G. brought compensation proceedings before the Reykjavik District Court, claiming a discount on the purchase amount due to defects as well as compensation for the damage to the property.
9. After holding an oral hearing, at which the applicant was represented by a lawyer and both parties were heard and evidence was presented, including a report by a court appointed expert, the District Court, sitting with one professional judge and two expert judges, by a judgment of 16 April 2003, found in favour of G. and against the applicant. It ordered the applicant to pay G. 1,739,000 Icelandic krónur (ISK), plus default interest as from 26 September 2001, and ISK 600,000 for legal costs (value added tax included).
The District Court’s judgment included, inter alia, the following reasons:
“The plaintiff [G.] received the property in the summer of 1999. The plaintiff noticed a leak in the house in the beginning of the year 2000, after a winter with bad weather. The engineers report verified that there had been a leak on the roof. In accordance with the summary report for the sale of the house, where the property is described in writing, which also was available at the signing of the contract for sale, it is stated that there are new roof tiles on the roof. As has been verified throughout this process this was not the case. Furthermore it is not the understanding of the court that the plaintiff should have seen this fault during routine inspection of the house or should have seen whether the tiles were new. It has also been stated in the engineers report that the roof leaked and has caused damages to windows and window frames. It is therefore the understanding of the court that the defendant [Súsanna Rós Westlund] guaranteed that the roof tiles were new, and that the plaintiff should have been able to trust that the roof would not leak, even if the house is an old one.
By selling the property without the proper qualities, the defendant is liable to the plaintiff in accordance with the general rule of 2. paragraph, chapter 42 of the laws then valid nr. 39/1922 regarding liquid assets.”
10. On 2 June 2003 the applicant lodged an appeal with the Supreme Court against the District Court’s judgment, challenging the latter’s conclusions that she was liable to pay G. compensation or, in any event, claiming that the amount be reduced. G. was then given until 16 July 2003 to notify the Supreme Court of whether he intended to submit any pleadings in the case, failing which it would be presumed that he would request confirmation of the District Court’s judgment and that the case would be adjudicated in accordance with Article 158 (3) of the Code of Civil Procedure (CIP), No. 91/1991.
11. Concurrently with her appeal, the applicant asked that a new expert be appointed by the District Court in order to evaluate especially the supporting surface under each tile and to evaluate the necessity of changing the supporting surface (roof cardboard) if tiles were to be changed on the roof. The District Court granted the request and appointed expert B.
12. The applicant submitted to the Supreme Court a writ of appeal dated 14 July 2003, which was deposited on 16 July 2003 together with the case-documents pursuant to Article 156(1). The writ reiterated the applicant’s claims, enclosing copies of her request to the District Court to appoint an expert and to take a statement from G. for use at a hearing before the Supreme Court. It moreover outlined the facts of the case and stated the applicant’s grounds for appeal. It referred to her claims, arguments and evidence submitted in the District Court proceedings. The applicant protested against the assessment made by the expert before the District Court. She maintained that G. had examined the house, including the roof, in detail before signing the acquisition offer. The offer of purchase had been issued on 6 June 1999 and G. had taken possession of the property on 25 June 1999, whereas the sales agreement had been issued on 27 August 1999. Thus, the applicant argued, when the sales agreement had been issued, G. had been in possession of the property for two months without ever mentioning that there had been a discrepancy between the retail accounts of the house and the state of the house with regard to roof tiles. It was unthinkable that G. had not known that the tiles were old at the time of the sales offer and certainly upon signature of the sales agreement. It was improbable that G., who was an active person of keen interest, would not have taken a look at the roof. The slope of the roof had been quite steep and could be seen from the side-walk. It was preposterous to claim that the wording of the retail could be stretched to mean something other than what could be seen in plain sight. This was the essence of the case.
The applicant further maintained that not until 29 August 2000 had G. raised the matter in dispute and only then had he made an issue about the specific wording of the summary report describing the property with regard to new roof tiles. His indifference in this respect should lead to his forfeiting any right that he might have claimed. This indifference was further illustrated by the fact that he alleged to have discovered a leak shortly after taking possession of the property but had made no comments during the signing of the sales agreement or the deed. The applicant announced that she would make submissions about the confusing interpretation made by the District Court regarding the wording of the summary report describing the property and the alleged flaw on the roof. She would submit new documents to the Supreme Court when they were ready, notably a new assessment by a court appointed expert.
In addition, the applicant requested the Supreme Court to take witness evidence from persons who had provided repair and restoration services to G. in order to enlighten the Supreme Court on whether they had noticed that G. himself had inspected and examined the roof during the summer of 1999.
Finally the applicant stated that the case would be further presented and commented on in the course of an oral hearing.
13. As at 16 July 2003 G had not indicated that he would plead his case before the Supreme Court.
14. According to a letter of 3 September 2003 from the Supreme Court to the applicant’s lawyer, he was given until 24 September 2003 to complete her further collection of evidence under Article 158(3). The lawyer then requested an extension with reference to the need to await the completion of the assessment by the court-appointed expert, which the Supreme Court granted until 22 October 2003. On the same ground the Supreme Court granted a further extension until 5 November 2003.
15. On the latter date the applicant’s lawyer asked, by way of e-mail, for a further extension of two weeks. On the same date the Supreme Court’s registrar conveyed the following message to the lawyer by e-mail:
“The possibility is still open that the respondent [G] will be allowed to present defences in the Supreme Court, although he did not make a notification to that effect. An essential requirement is a letter from the respondent to the Court, asking to be allowed to present his defences and explaining the reasons why no notification of defences was made. The letter must be accompanied by the appellant’s [the applicant’s] approval of this being allowed. This is assuming that judgment has not already been rendered on the basis of Article 158 (3) of Act No. 91/1991.”
By return e-mail in the same day, the applicant’s lawyer declared that he would forward this information to the other side. He also asked whether an extension of two weeks would be granted. There is no record of any formal reply to this request.
16. In a letter of 12 November 2003 the applicant’s lawyer reiterated his request to be granted respite, until 26 November 2007, in order to present the awaited new expert appraisal. He also informed that G. had omitted to show up at a hearing and affirmed that it was now clear that G. would not make submissions. He further objected that the Supreme Court’s interpretation of Articles 158 and 161 of the CCP meant that the applicant was prevented from defending her case and stressed that a short summary of facts could not replace an oral hearing.
17. On 13 November 2003 G’s lawyer sent the office of the Supreme Court the following e-mail message:
“Further to our conversation yesterday, I can confirm that my client’s [G’s] desire is not to take any action on account of [the applicant’s lawyer’s] request for a reopening of the case and to have the case adjudicated in the present form, without further collection of evidence or presentation in court. His requests were, or were to be, only an affirmation of the judgment appealed from.”
18. By a letter to the Supreme Court of 14 November 2003, the applicant’s lawyer protested against its interpretation of Article 158(3). It unduly restricted her possibilities of pleading her case in writing and orally. It meant that the case file from the District Court and her appeal to the Supreme Court would constitute the only basis for the Supreme Court’s adjudication. Therefore, she asked the Supreme Court to grant her leave to at least plead her case in writing, her observations submitted so far having only been a “skeleton” version of the submissions she had intended to make to the Supreme Court. So far she had had no opportunity to elaborate on her appeal with references to case-law, scientific research or writings, explanation of the factual aspects of this case or the documentary evidence. The lawyer stressed that in so far as he was concerned the case was not ready for examination. In the circumstances it was the adversary party who had been allowed to decide the fate of the case while the applicant had practically lost standing in the case.
19. At an oral hearing held by the District Court on 26 November 2003 expert B presented his report and answered questions from the applicant’s lawyer.
20. With a letter of 30 November 2003 the applicant’s lawyer transmitted to the Supreme Court the expert B.’s appraisal, the District Court’s decision of 26 November 2003 confirming the appraisal, two photographs of the house and some other documents. According to the applicant, the new appraisal showed that the District Court had overestimated the costs of repair, should the Supreme Court find that the applicant had promised that the roof had been completely renovated with new tiles at the time of sale. The applicant further commented on the photographs of the roof from 1993 and on the front page of expert B.’s report. She invited the members of the Supreme Court to carry out an on site visit to see that the state of the roof could be seen from the side walk. She also pointed out that her request to the District Court to hear persons who had worked on the house for G during the summer of 1999 had been denied by him, which the applicant had interpreted as an attempt to conceal information about the fact that G had thoroughly checked the roof and been aware of its state during the summer of 1999.
21. On 3 June 2004 the Supreme Court, adjudicating the case on the basis of the written case-file, rejected the applicant’s appeal and upheld the District Court’s judgment. The Supreme Court held inter alia:
“The plaintiff appeared before the District Court and claimed that she knew there had been repairs on the roof in the year 1992 or so. She also claims that the repairs were only that some of the oldest tiles or cracked tiles were exchanged for others and only in certain areas of the roof. When asked, the plaintiff did not remember if this had been especially discussed in detail with the defendant, when he examined the house the first time. She did however tell the defendant that the roof had been repaired and that it no longer leaked. It is the court’s ruling that the plaintiff should have known that this description in the summary report for the sale of the house and the description of the current status of the roof, would give the defendant the wrong impression of the actual condition of the roof. The defendant should have reason to trust the description of the house in the summary report for the sale of the house and therefore have reason to believe the house had been renovated. Since the roof had not been fully renovated, the defendant has a right to compensation. In accordance with this and in other respects the Supreme Court of Iceland refers to the District Court ruling and proceedings and verifies the District Court ruling hereby.”
In accordance with the above, the applicant paid ISK 3,607,067 (approximately 38,000 euros (EUR) to G.
22. The Icelandic Government drew particular attention to the following provisions of the Code of Civil Procedure (CIP), No. 91/1991:
Article 155
“1. A party desiring to appeal against a judgment shall submit an appeal summons to the office of the Supreme Court, with a transcript of the judgment. The following shall be stated in the appeal summons:
a. The district court’s designation and number of the case, the name of the district court that resolved the case, and the date of adjudication;
b. the names of the parties, their National Registry numbers, their places of residence or stay, and, if applicable, the names of their representatives, their positions and their places of residence or stay;
c. the person or persons representing the appellant in court;
d. the purpose of appeal and the requests made by the appellant;
e. the date when the respondent must, at the latest, notify the Supreme Court that he intends to bring forth defences in the case, which date the office of the Supreme Court shall determine when the summons is issued, and
f. the consequences of failing to provide the notification provided for in subparagraph (e).
...”
Article 156
“1. Following the service of an appeal summons, but before the respondent’s period provided for in Article 155, the first paragraph, subparagraph (e), is over, the appellant shall deliver the summons to the Supreme Court with proof of its service, and written observations on his behalf. He shall also deliver the case file in the number of copies which the Supreme Court may decide, consisting of the already available case documents and any transcripts on which the appellant plans to base his case before the Supreme Court. This marks the filing of the case by the Supreme Court.
2. In the appellant’s written observations the following shall be stated:
a. The purpose of appeal and the appellant’s exact requests to the Supreme Court, and whether appeal is also lodged in order to obtain a reversal of any particular order or decision of the district court.
b. The facts invoked by the appellant before the Supreme Court. Their description shall be concise and so clear as to preclude any doubt as to on what basis appeal is lodged; the appellant may however, as applicable, refer to particular case documents in this regard. If the appellant can not agree with the district court’s description of other relevant facts, he shall likewise state in which manner he considers them correctly described.
c. References to the principal rules of law on which the appellant bases his case before the Supreme Court.
d. The documents submitted to the Supreme Court at that time, and the documents he deems necessary to obtain.
...”
Article 158
“1. If the respondent desires to submit written observations, he shall notify the Supreme Court to that effect within the period granted him for this purpose in the appeal summons. When the case is filed the office of the Supreme Court shall grant the respondent a period of four to six weeks to submit his written observations, at the same time sending him a copy of the case file submitted by the appellant. The appellant shall be notified of the period granted the respondent.
2. Cross-appeal shall not make the respondent entitled to any additional period.
3. If the Supreme Court does not receive any notification in accordance with the first paragraph, or if the respondent does not submit his written observations within the period granted him, he shall be assumed to request affirmation of the district court’s judgment. The case shall then be received for adjudication; the appellant may however be granted a brief period to complete the collection of evidence he may have announced in his written observations. The Supreme Court shall render a judgment in the case on the basis of the submissions made, without an oral hearing.
4. If the respondent delivered written observations, but appearance was not made on his behalf at a later stage, the appellant may be granted an opportunity to reply to his defences in a written brief, and to complete his collection of evidence. The case shall then be received for adjudication and a judgment rendered on the basis of the requests and submissions made and the appellant’s brief, taking the respondent’s submissions into account.
5. If the respondent has not delivered written observations, the Supreme Court may nevertheless permit him to present his defences in the case, with or without the appellant’s approval, provided important interests are at stake for him and his negligence is deemed excusable. This may also be done if the respondent fails to make an appearance at a later stage of the procedure.
...”
Article 161
“1. When collection of evidence has been completed in a case where the respondent has delivered written observations, the Supreme Court shall decide the time of an oral hearing and make this known to the parties at a suitable notice.
...
3. A case in which the respondent has submitted written observations shall be heard orally. The Supreme Court may nevertheless decide that a case shall be presented in writing if particular reasons recommend this. The Court may also grant the parties’ unanimous request for adjudication without particular case presentation.
...”
Article 162
“1. Before an oral hearing takes place during a court session, the conclusion of the district court shall be stated and the appeal summons described to the extent the President of the Court deems necessary for explanation of the case presentation. The parties shall subsequently deliver their speeches.
2. The appellant shall speak first and the respondent subsequently, if the President has not decided on a different order and notified this to the parties when called to appear for oral presentation. Following the original speeches, the parties shall be granted an opportunity to present brief replies in the same order. The President of the Court may permit a party represented by a representative in litigation to present his brief observations following the representative’s replies.
3. In their speeches, the parties shall explain their requests, the matters in dispute, the facts invoked, and any other arguments in support of the requests made. Wordiness shall be avoided and the argumentation shall be directed to the points in dispute or to matters that must be considered in order to clarify the issues.
4. The President of the Court shall chair the proceedings. The President may demand that a speaker does not stray from the substance of the litigation and that consideration is not given matters that are not in dispute or that otherwise do not merit further explanation. The President may halt the case presentation if a speech is of excessively long duration, or specify a time limit, and halt the case presentation when that limit is reached.
5. Following the case presentation the Supreme Court shall receive the case for adjudication.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1