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THIRD
SECTION
CASE OF SÚSANNA RÓS WESTLUND v. ICELAND
(Application
no. 42628/04)
JUDGMENT
STRASBOURG
6
December 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Súsanna Rós Westlund v. Iceland,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42628/04) against the Republic
of Iceland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Icelandic national, Mrs Súsanna Rós
Westlund (“the applicant”), on 19 November 2004.
- The
applicant was represented by Mr Valgeir Kristinsson, a lawyer
practising in Kópavogur. The Icelandic Government (“the
Government”) were represented by their Agent, Mr Thorsteinn
Geirsson, of the Ministry of Justice and Ecclesiastical Affairs.
- The
applicant complained that, in breach of Article 6 § 1 of the
Convention, the Supreme Court had denied her the possibility to plead
her appeal case in writing and orally at a public hearing.
- On
27 June 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mrs Súsanna Rós Westlund, was born in 1964
and lives in Hafnarfjördur.
- 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.”
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- As
at 16 July 2003 G had not indicated that he would plead his case
before the Supreme Court.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
II. RELEVANT DOMESTIC LAW
- 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complains that by having denied her, despite the great
interests at stake for her, the possibility to plead her case, in
writing or orally, the Supreme Court had violated Article 6 § 1
of the Convention. In so far as relevant this provision reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Court finds that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
considers that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions of the parties
(i) The applicant
- In
so far as the written proceedings were concerned the applicant
submitted that the Supreme Court had not granted her any extension
beyond 5 November 2003, despite the fact that the new appraisal
made at her request by the court-appointed expert G. had only become
available on 26 November 2003. While it appeared that the
Supreme Court, nonetheless, had admitted for filing her observations
of 30 November 2000 joining the new expert report, and commenting on
it, together with other documents, it was unclear to what extent the
Supreme Court had examined the documents submitted on that date.
Moreover, as was clearly stated in her observations of 30 November
2003, these were by no means her final observations but only an
outline of the principal facts of the case and disputing the previous
appraisal on which the District Court had based its decision. She had
further invited the members of the Supreme Court to do an on site
visit to see that it was clearly visible from the side walk if the
tiles were old or new.
- In
so far as the absence of an oral hearing was concerned, the applicant
maintained that her intention, which ought to have been clear to the
Supreme Court from her lawyer's observations of 30 November 2003, had
been to obtain witness statements from persons who had worked on
repairs and improvements on the house in the summer of 1999. The
purpose would have been to enlighten the Supreme Court about the fact
that the purchaser had indeed known about the condition of the house
upon purchasing it as he had inspected the roof himself. Besides,
merely by looking at the roof from the sidewalk anyone could have
seen that it was the original roof of the house, built 55 years ago,
not a new roof. Such matters had been of great legal importance due
to the 12 months time-limit for reclamation under the relevant
national law. However, before the District Court the plaintiff had
denied the applicant the possibility to summon the persons who had
worked on the house as witnesses by refusing to disclose their names.
In the applicant's view, his behaviour revealed an attempt to conceal
information about the fact that he as the purchaser had thoroughly
checked and been aware of the conditions of the roof in the summer of
1999. This point would have been one of the main items for her oral
pleadings before the Supreme Court had the latter granted her request
to hold an oral hearing. However, the argument had not been made out
in the appeal, due to constraints imposed by the Supreme Court, by
virtue of its restrictive practice with regard to written appeal
submissions generally, and its conduct of the proceedings in this
case. Her written observations had simply consisted of outlines of
the main facts of the case. Thus she had not adduced references to
national case-law, other expert opinions in the relevant field,
further evidence, arguments or exhibits of relevant facts. Nor had
she submitted any claims that the buyer had seen and approved of the
house in its state at the material time or that he had thereby
forfeited his rights.
(ii) The Government
- The
Government disputed the applicant's allegations, arguing that all
elements of a fair trial by an independent and impartial tribunal as
required by Article 6 § 1 of the Convention had been preserved
in the relevant proceedings before the Icelandic courts. The
Government stressed that applicant's case had been argued orally at a
public hearing in the District Court where the parties had enjoyed
equal status in every respect and unlimited and equal access to the
evidence adduced and the same possibilities to call witnesses. In the
proceedings before the Supreme Court the defendant had waived his
right to respond to the applicant's appeal with written pleadings and
additional evidence. As a consequence, under the relevant statutory
rules on civil procedure, he was then assumed to adhere to the
requests he had made to the District Court. This had not, however,
entailed any restriction on the applicant's right to submit her
requests and new evidence to the Supreme Court. The statutory
arrangement that her case would not be orally argued before the
Supreme Court under these circumstances had been based on reasonable
and justifiable grounds relating to the changed nature of the
proceedings when the adversary party opted not to respond appellant's
submissions.
- The
Government further stressed that written proceedings before the
Supreme Court had been intended to allow the parties to plead their
case but not submit new claims, legal arguments or evidence that had
not been previously submitted to the District Court.
- The
rules governing the procedure in cases where the respondent to the
appeal did not take part in the appeal proceedings had by no means
hindered the applicant in submitting new written evidence to the
Supreme Court and she had indeed availed herself of this right. The
Supreme Court had granted her no less than three extensions of the
time-limit for obtaining a new appraisal, totalling more than two
months in excess of the original period granted. With a letter dated
30 November 2003, the applicant's lawyer had submitted a new
appraisal and other evidence to the Supreme Court, accompanied by
particular observations containing his arguments and stating
inferences that could be drawn from the new submissions. It was clear
that both the new evidence and her arguments were carefully evaluated
by the Supreme Court in its judgment of 3 June 2004.
- The
Government further emphasised in this context that no questions of
fact or of law had been raised that could not be adequately resolved
on the basis of the case file, which comprised the case-file of the
District Court and the applicant's additional written observations
and evidence submitted to the Supreme Court.
- When
considering the applicant's complaint that her case had not been
afforded an oral hearing and the consequences thereof, the Government
stressed that the purpose of oral argument before the Supreme Court
would have been to serve the interests of adversarial proceedings, to
enable an appellant to bring forth oral replies and arguments to the
respondent's written observations and additional evidence. Since the
respondent had elected not to defend his case on appeal, the premises
for hearing oral argument from the applicant and her lawyer were
lacking.
2. The Court's assessment
- The
Court reiterates that the admissibility of evidence is governed
primarily by the rules of domestic law, and that it is normally for
the national courts to assess the evidence before them. The task of
the European Court under the Convention is to ascertain whether the
proceedings in issue, considered as a whole, including the way in
which the evidence was submitted, were fair as required by Article 6
§ 1 (see Schuler-Zgraggen v. Switzerland, judgment
of 24 June 1993, Series A no. 263, p. 21, § 66).
It points out that one of the requirements of a “fair hearing”
is “equality of arms”, which implies that each party must
be afforded a reasonable opportunity to present his or her case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (Hentrich v. France,
judgment of 22 September 1994, Series A no. 296 A,
p. 22, § 56; Dombo Beheer B.V. v. the
Netherlands, judgment of 27 October 1993, Series A
no. 274, p. 19, § 38). A further element of a
fair hearing within the meaning of Article 6 § 1 is the right to
adversarial proceedings; each party must in principle have the
opportunity not only to make known any evidence needed for his claims
to succeed, but also to have knowledge of and comment on all evidence
adduced or observations filed with a view to influencing the court's
decision (see, Mantovanelli v. France, judgment of 18 March
1997, Reports of Judgments and Decisions 1997 II, p. 436,
§ 33). Moreover, the procedure must be such as to allow the
proper participation of the parties to the proceedings (Kerojärvi v.
Finland, judgment of 19 July 1995, Series A no. 322,
p. 16, § 42).
- Moreover,
the Court reiterates that, where, as in this case, a public hearing
has been held at first instance, the absence of such a hearing at the
appellate level may be justified by the special features of the
proceedings at issue. Thus, leave-to-appeal proceedings and
proceedings involving only questions of law, as opposed to questions
of fact, may comply with the requirements of Article 6, although the
appellant was not given an opportunity of being heard in person by
the appeal or cassation court. Regard must be had to the nature of
the national appeal system, to the scope of the appellate court's
powers and to the manner in which the applicant's interests are
actually presented and protected in the appeal, particularly in the
light of the nature of the issues to be decided by it, and whether
these raise any questions of fact or questions of law which cannot be
adequately resolved on the basis of the case-file (see for instance
Helmers v. Sweden, judgment of 29 October 1991, Series A no.
212-A, p. 16, § 36; Miller v. Sweden,
no. 55853/00, § 30, 8 February 2005).
- In
the present case the District Court, sitting with one professional
judge and two expert judges, had held an adversarial hearing at which
the applicant had been represented by a lawyer and at which both
parties had been heard and evidence had been presented, including an
assessment prepared by a court-appointed expert. Save for one
exception, the applicant did not dispute the fairness of the
proceedings before the District Court.
- The
exception relates to the applicant's alleged inability to question as
witnesses before the District Court persons who had worked for G.
during the summer of 1999 and who the applicant considered could have
enlightened the District Court about the extent to which G. ought to
have been aware of the state of the roof at the time of the sale of
the house. In her appeal submissions to the Supreme Court of 14 July
2003 the applicant, without making a specific complaint about the
District Court procedure in this respect, asked the Supreme Court to
hear such witnesses. Not until her observations of 30 November 2003,
after the expiry on 16 July 2003 of the time-limit for specifying the
grounds of appeal, did she point out that the lack of opportunity to
have such witnesses heard at the District Court constituted a defect
in the hearing of the case at first instance. The Court will not
examine this as a separate matter under Article 6 of the Convention
but will take it into account as a factor in its overall assessment
of the fairness of the proceedings seen as a whole.
- As
regards the disputed limitations on the applicant's possibilities to
plead her case in writing before the Supreme Court, the Court notes
that, pursuant to Article 156 (1) and 155(1)(e) of the CIP, she had
full opportunity to do so until the expiry of the time-limit fixed
for G.'s notification of his intention to plead his case before the
Supreme Court, namely on 16 July 2003. Thereafter, in the absence of
any notification pursuant to Article 158(3), the Supreme Court was to
presume that G. would request it to confirm the District Court's
judgment and the applicant was then to be granted a brief period
within which to complete the collection of evidence that she had
announced in her written observations. The applicant was granted
leave to submit the new assessment to be provided by the
court-appointed expert and the time-limit fixed by the Supreme Court
for this purpose was extended several times in order to allow the
completion of the expert report and the District Court's confirmation
of the report. However, it does not appear from the relevant
statutory rules or from the Supreme Court's procedural decisions that
the applicant was entitled or granted leave to submit additional
observations on the case in light of this new evidence. Nor had she,
despite repeated requests by her lawyer, been formally granted an
extension for filing the report beyond 5 November 2003, whereas the
report only became available for filing on 26 November 2003. In the
Court's view, these factors may be taken to indicate that the
applicant was not in position to plead her case properly before the
Supreme Court.
- Nevertheless,
the Court cannot but note that the applicant's lawyer did submit the
report with her supplementary observations of 30 November 2003
commenting on the report and on other matters. This material the
Supreme Court accepted to join to the case-file and took into account
in its decision.
- Against
this background, the Court is not convinced that G.'s
non-participation in the proceedings before the Supreme Court had the
effect of preventing her from submitting her written pleadings or
placed her in a less favourable position than the adversary party at
the written stage of the proceedings.
- On
the other hand, more problematic is that, in accordance with the
relevant provisions in Article 158 § 3 of the CIP, a direct and
automatic consequence of the adversary party's opting not to take
part in the proceedings was the impugned bar on the applicant's
possibilities to plead her case orally at a public hearing before the
Supreme Court. In other words, the rules in question in effect
conferred upon one of the parties, the respondent in the appeal, a de
facto possibility to decide unilaterally that the Supreme Court
should not hear oral argument at all, thereby obliging the latter to
determine the case on the basis of the case file without it being
able to exercise a discretion as to the need to hold an oral hearing
in the interest of the fairness of the proceedings. Thus,
there is an apparent discrepancy between the national standards
applied and the Convention case-law (summarised in paragraphs 33 and
34 above), notably the requirement that regard must be had
particularly to the nature of the issues to be decided by the
appellate court, and whether these raise any questions of fact or
questions of law which cannot be adequately resolved on the basis of
the case-file. The Court considers that the respondent State should
take appropriate measures to ensure that it is the Convention
standard that applies.
- The
Court further observes that, in finding the applicant liable to pay
compensation to G., the District Court took into consideration what
G. knew or ought to have known about the state of the roof at the
time of the transaction. The Supreme Court had full jurisdiction to
entertain questions of fact and of law, albeit in the absence of G.'s
participation it was to rely on the case-file from the District Court
and the applicant's appeal submissions. Moreover, in her appeal to
the Supreme Court, the applicant disputed the District Court's
interpretation of the description of the property and presented a
number of arguments challenging its findings to the effect that G.
had been ignorant about the actual state of the roof at the time in
point. With regard to this matter,
which appears to have been an important issue
of fact raised in the applicant's appeal, it
should also be noted that the applicant, as she had done
unsuccessfully before the District Court, asked the Supreme Court to
hear witnesses who had carried out work on the house for G. during
the summer of 1999. In the light of this and bearing in mind what was
at stake for the applicant, the Court finds that the question of her
liability to pay compensation to G. could not, as a matter of fair
trial, have been properly determined by the Supreme Court without a
direct assessment of the evidence given by the parties in person
(see, Ekbatani v. Sweden, judgment of 26 May 1988,
Series A no. 134, p. 14, § 32; Sigurþór
Arnarsson v. Iceland, no. 44671/98, § 36, 15 July
2003). However, for the reasons highlighted in paragraph 40 above,
the absence of an oral hearing was a direct consequence of the
application of Article 158 § 3 of the CIP, which barred the
Supreme Court from exercising any discretion as to the need to hold
an oral hearing in the interest of the fairness of the proceedings.
42. Having
regard to the proceedings as a whole, the role of the Supreme Court
and the nature of the issues to be determined by it, the Court finds
that there were no special features to justify the absence
before the Supreme
Court of a public hearing. There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed compensation of the pecuniary damage incurred as a
result of the domestic proceedings, namely the ISK 3,607,067
(corresponding approximately to EUR 41,000 on the date of payment, 25
June 2004) she had been ordered to pay G., plus interest to be
calculated from 25 June 2004 (as at December 2006 ISK 2,115,225)
until the date of the European Court's judgment. The applicant
stressed that a minor pecuniary award or the mere finding of a
violation could not constitute adequate just satisfaction in her
case. She further claimed ISK 1,500,000 (approximately EUR
17,000) on account of anxiety and distress caused by the procedure
and the outcome of the national proceedings.
- The
Government invited the Court to reject the applicant's claim for
pecuniary damage, arguing that there was no causal connection between
this and the alleged violation of Article of the Convention. As
regards the applicant's claim for non-pecuniary damage, the
Government invited the Court to hold that the finding of a violation
constituted adequate just satisfaction. In any event, the amount
claimed was excessive and any award made under this heading should be
substantially reduced.
- The
Court rejects the claim for pecuniary damage as it cannot speculate
on the outcome had an oral hearing been held before to the Supreme
Court. On the other hand, it accepts that some anxiety and distress
must have been occasioned by the matter found to constitute a
violation of the Convention. Deciding on an equitable basis, the
Court awards the applicant EUR 2,500 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed altogether ISK 3,175,817 (approximately EUR
35,000), plus certain interests, for the costs and expenses incurred,
in respect of the following items:
(a) ISK
860,250 plus interest (ISK 569,169 as at December 2006) for her
lawyer's legal fees before the District Court and the Supreme Court;
(b) ISK
389,692 plus interest (ISK 197,285 as at December 2006) for certain
appraisals;
(c) ISK
21,300 for miscellaneous expenses (transcripts from the District
Court and “secretarial fees for the secretary of the Supreme
Court”;
(d) ISK
1,363,275 (approximately 15,000 euros) for legal fees for her
lawyer's work (75 hours at ISK 15,000 per hour, value added tax
included) before the European Court;
(e) ISK
532,300 (approximately 5,900 euros) for translation costs
- The
Government maintained that the fees claimed by the applicant's lawyer
were unreasonably high.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred in order to prevent or
obtain redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers that only a minor part of the fees
incurred before the Supreme Court, referred to under item (a), should
be taken into account and item (a) should be rejected for the
remainder, as should items (b) and (c). As regards item (d), the
Court considers the number of hours spent somewhat excessive. Item
(e) should be awarded in its entirety. Against this background the
Court considers it reasonable to award EUR 18,000 under this heading.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declared the application admissible;
- Held that there has been a violation of Article
6 § 1 of the Convention;
- Held
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
2,500 (two thousand five hundred euros) in respect of non-pecuniary
damages;
(ii) EUR
18,000 (eighteen thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
these sums are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismissed the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
