CASE OF DURALIYSKI v. BULGARIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicants, who are brothers, were born in 1973 and 1983 respectively and live in Plovdiv. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In September 2003 the applicants’ father made them beneficiaries under his life insurance and accident insurance policies. The total amount payable in case of death as a result of accident under the accident insurance policy was 10,000 Bulgarian levs (BGN), or BGN 5,000 in respect of each brother. The applicants’ father died on 29 June 2004 as a result of an allergic reaction to a wasp sting. 8. In September 2004 the applicants were informed by the insurance company that a “wasp sting” was not a risk covered by the accident insurance policy, and the company accordingly refused to pay out on the claim. 9. In 2005 the applicants, represented by counsel, brought a claim under the Commerce Act for the payment of compensation under the accident insurance policy. During a hearing on 12 April 2005, the applicants informed the court that, after their father’s death, they had handed the original insurance policy documents to the insurance company upon its request. Although the applicants had sought to recover those documents from the company, the latter had only returned to them the “additional conditions”. During the same hearing, upon a request by the applicants, the court ordered the insurance company to produce the complete insurance policy file, referring to Article 152 of the Code of Civil Procedure 1952, in force at the time. The company produced the file during a hearing on 10 May 2005 and the court accepted it as evidence in the case. 10. By a judgment of 26 July 2005 the Sofia District Court allowed the applicants’ claim. The court noted that, in so far as allergic reactions were not included in the disclaimer to the accident insurance policy signed on 15 September 2003, the applicants were entitled to benefit from the compensation payable in the event of their father’s death as a result of an accident. 11. The insurance company appealed against the judgment. In its appeal it acknowledged, inter alia, that the existence of a valid contract was not disputed. However, it claimed that the allergic reaction did not fall under the “accident” category as defined in the insurance policy. 12. On 16 May 2006 the Sofia City Court allowed the appeal and dismissed the applicants’parties, that did not in itself prove its existence.