Facts
Parties involved: Spouses A. and B., as well as C. and D. (hereinafter the appellants), are co-owners with special rights over an apartment of 4 ½ and 3 ½ rooms. They are members of the co-ownership E. (hereinafter the defendant).
Lower court: The district court of Dielsdorf.
Higher court: The higher court of the canton of Zurich.
Date of the decision: March 23, 2011.
Main issue: The appellants contested a decision of the district court regarding the communication of responses to their appeal and observations of the enforcement office, alleging a violation of their right to be heard and their right of reply.
Considerations
The right to be heard, guaranteed by Art. 29 para. 2 of the Constitution and Art. 6 para. 1 of the ECHR, includes the right of reply, which requires that the acts filed by other participants in the proceedings be communicated. The district court did not communicate the responses to the defense and the observations of the enforcement office to the appellants, although these documents were in the judicial file.
The higher court ruled that the violation of the right to be heard was not particularly serious and could be cured by the possibility for the appellants to consult the file. However, the Federal Court held that the mere possibility of consulting the file is not sufficient to cure the violation of the right to be heard, as the appellants did not have the opportunity to specifically respond to the observations and responses filed.
The…