Communicated on 4 January 2018

FOURTH SECTION

Application no. 76618/16 Algirdas Å ULIJA against Lithuania lodged on 8 December 2016

STATEMENT OF FACTS

The applicant, Mr Algirdas Å ulija , is a Lithuanian national who was born in 1949 and lives in Vilnius.

A. The circumstances of the case

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

The applicant is a member of a garden community ( sod ų bendrija ).

On an unspecified date, the applicant lodged a complaint with the domestic court, asking to have annulled the decisions adopted in a meeti ng of the garden community on 8 May 2010. The applicant claimed that the meeting had been organised by an illegal composition of the board because S.S. had not been a board member but she had voted at the meeting. Moreover, it had been decided to pay 250 Lithuanian litai (LTL – approximately 72 euros (EUR)) every month for the fuel and telephone expenses of the president of the board of the garden community. The applicant thought that this amount was excessive because it amounted to almost half of the garden community ’ s budget.

On 11 May 2011 the Vilnius City District Court satisfied the applicant ’ s complaint, adopting its decision in absentia . The court held that the decision to pay EUR 72 every month for the fuel and telephone expenses of the president of the board had been unjustified because this amount was almost half of the garden community ’ s budget and it was contrary to the purposes of the organisation. The court noted that the respondent, namely the garden community, had not provided any objections, and decided that the decisions of the garden community of 8 May 2010 had to be declared null and void from the date of their issue, and prohibited the garden community from paying money for the fuel and telephone expenses of the president of the organisation from the date the court ’ s decision became final.

In 2014 the applicant lodged another complaint with the domestic court, asking, among other requirements, that the decision of the garden community o f 6 September 2012 to cover EUR 72 for the president of the board of the garden community for her fuel and telephone expenses and LTL 150 (approximately EUR 43) to the treasurer of the garden community for her fuel and telephone expenses be annulled. The applicant stated that the Vilnius City District Court had already adopted a decision which annulled the decision to cover the president ’ s fuel and telephone expenses. Nevertheless another similar decision had been adopted by the garden community.

On 19 March 2015 the Vilnius City District Court satisfied the applicant ’ s complaint in part. The court stated that the fact that the membership of the garden community was voluntary, did not mean that the members of the garden community could not decide to compensate some expenses of a board member of the community or any other member. The applicant alleged that the statutes of the garden community did not allow the use of the resources of the organisation to satisfy the needs of the president and the treasurer of the community, however, statutes provided that the community could hire persons to carry out certain activities provided in those statutes. Although the applicant alleged that no other garden community spent so much money to satisfy the needs of its board members, he had failed to provide relevant evidence. Moreover, the court that had adopted the decision on 11 May 2011 had based it solely on the arguments of the applicant. The court had not assessed the main principles of the functioning of the garden community, it had not analysed whether the decision to compensate the president of the board of the garden community for some expenses had been contrary to the statutes of the organisation or the Law on Garden Communities. The applicant had no right to require that the board members of the garden community carried out their activities without any remuneration. The court further stated that because there was an existing decision of the court to annul the decision to compensate the president of the board of the garden community for some expenses, the decision of the garden community of 6 September 2012 had also had to be annulled in this part. However, it was not prohibited to compensate the treasurer of the garden community for expenses incurred.

Both the applicant and the garden community appealed.

On 7 June 2016 the Vilnius Regional Court dismissed the applicant ’ s appeal and disagreed with the first-instance court which annulled the decision to pay EUR 72 for the fuel and telephone expenses of the president of the board of the garden community. The court held that the garden community was a public legal person with the purpose of implementing the general rights and obligations of gardeners related to the use, maintenance and management of its garden land and the objects situated on that land. The community implemented its rights through its board members because without them the activities of the garden community would be impossible. The first-instance court had already held that the applicant ’ s argument that the statutes of the garden community prohibited the use of the community ’ s funds to satisfy the needs of its president and treasurer had not been proven. The Vilnius Regional Court observed that the first-instance decision to annul the decision of th e garden community to cover EUR 72 of the president ’ s expenses contradicted the court ’ s findings. The court also held that the decision of the Vi lnius City District Court of 11 May 2011 could not be assessed as an absolute prohibition on the garden community reconsidering the issue of compensation. The court thus dismissed the applicant ’ s appeal.

The applicant submitted an ap peal on points of law but on 13 September 2016 the Supreme Court dismissed it as not raising important legal issues.

B. Relevant domestic law

Article 142 § 1 of the Code of Civil Procedure provides that, together with the claim, the court must send a notice to the defendant and third parties and ask them to submit their reply to the claim. The court sets the time-limit to submit the reply which cannot be shorter than fourteen days and can not exceed thirty days. Article 142 § 4 provides that if the defendant has not provided an answer to the claim without any justifiable reason within the established time-limit, a court has the right, upon the request of the claimant, to adopt a decision in absentia .

Article 285 § 1 of the Code of Civil Procedure provides that a decision in absentia can be adopted if one of the parties to the proceedings, which has been duly informed of the place and the time of the hearing, fails to appear at a preliminary hearing or a hearing, if there is no request to examine the case in its absence, and the other party asks that such a decision be adopted. A decision in absentia can also be adopted if a party to the proceedings fails to submit an answer to a claim or a preparatory document, and the other party asks that such a decision be adopted.

Article 287 § 1 of the Code of Civil Procedure provides that a decision in absentia may be reviewed upon the request of the party in whose connection it was adopted, within twenty days of the issue of the decision.

Article 3 § 1 of the Law on Garden Communities provides that a garden community is a part of a certain administrative unit of a community, created to develop amateur gardening and to foster nature and the landscape. A community is a non-profit public legal person with limited liability with the purpose of implementing general rights and obligations of gardeners related to the use, maintenance and management of amateur garden land and the objects situated on that land.

Article 20 § 2 (1) of the Law on Garden Communities provides that it is not permitted to allocate a community ’ s income to activities other than those established in the organisation ’ s statutes.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that his right to a fair hearing was violated in the second set of civil proceedings when the domestic courts examined the civil case differently by overruling the binding court decision and the facts established thereby.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of his rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the decisions of the domestic courts in the second set of civil proceedings in breach of the principle of legal certainty, considering that they overruled an allegedly binding court decision with the characteristics of res judicata (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII, Kehaya and Others v. Bulgaria , nos. 47797/99 and 68698/01, § 67, 12 January 2006; Esertas v. Lithuania , no. 50208/06, §§ 27-31, 31 May 2012)?