AS TO THE ADMISSIBILITY OF
Application No. 27131/95
by Judit ADELMANNÉ KERTÉSZ
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 April 1994 by
Judit ADELMANNÉ KERTÉSZ against Hungary and registered on 26 April 1995
under file No. 27131/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
4 November 1996 and the observations in reply submitted by the
applicant on 17 January 1997;
- the supplementary observations submitted by the respondent
Government on 25 February 1997 and the observations in reply
submitted by the applicant on 25 April 1997 and on 15 May 1997
respectively;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1945, is a Hungarian national and resident
in Budapest. She edits bibliographies as a profession. Before the
Commission, she is represented by Mr. E. Petruska, a lawyer practising
in Budapest.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
A. Particular circumstances of the case
In June 1984 the applicant brought a trespass action before the
Buda Central District Court (Budai Központi Kerületi Bíróság) against
the tenant and the owner of a neighbouring restaurant. She claimed a
prohibitory injunction against them to restrain the restaurant from
continuing to emit strong smells and noise. In December 1985 she
extended her claims to further issues of trespass.
In January 1986 the District Court, in a partial decision,
applied a prohibitory injunction concerning the emission of smells. In
October 1987 the Budapest Regional Court (Fovárosi Bíróság) dismissed
the defendants' appeal.
Between January 1988 and September 1991 the District Court held
twelve hearings concerning the remainder of the applicant's action,
which was modified or extended several times. The proceedings involved
an inspection of the premises and the obtaining of an expert opinion.
The applicant meanwhile joined a further defendant to the proceedings
and brought various administrative proceedings in the context of her
principal trespass action.
Between September 1991 and May 1992 the proceedings were
suspended, as requested by the parties, pending negotiations with a
view to a settlement out of court. On 11 May 1992 the applicant
requested the continuation of the proceedings and, subsequently, joined
a further defendant to the proceedings.
In July 1992 the applicant requested from the President of the
District Court that her action be given priority. In October 1992 she
complained to the Minister of Justice about the length of the
proceedings. The Head of Collegium of the Budapest Regional Court
(Fovárosi Bíróság Kollégiumvezetoje) informed her in response that he
would not take any action in the case.
On 20 January 1993 the applicant repeatedly complained to the
Minister of Justice about the length of the proceedings. On
22 February 1993 she complained about the same to the President of the
Supreme Court (Legfelsobb Bíróság Elnöke). On 22 March 1993 the Supreme
Court informed the applicant in response that it had no competence to
give her case priority.
As from 1 May 1993 the lease of the restaurant in question was
regulated in a new contract. On 4 May 1993 the applicant, reacting to
the contract of 1 May 1993, modified her action, apparently bringing
some new claims for various injunctions. On the same date she again
requested from the President of the District Court that her case be
given priority. On 6 May 1993 the District Court gave priority to her
action.
On 14 January 1994 the District Court held a hearing and called
upon the applicant to specify her claims against each defendant. On
11 February 1994 the applicant complied with this order.
On 22 March 1994 the District Court held a further hearing.
On 30 March 1994 the District Court took a further partial
decision in the case, partly admitting and partly dismissing some of
the applicant's numerous claims relating to further issues of trespass,
noise and the emission of strong smells. This decision concerned
altogether seven defendants.
On 15 June 1995 the Regional Court, upon appeals, quashed the
first instance decision of 30 March 1994 in so far as it concerned some
trespass issues.
On 14 November 1995 the Supreme Court (Legfelsobb Bíróság)
rejected the applicant's petition for review, as it had been lodged out
of time.
On 12 March 1996 the applicant brought a complaint against the
decision of the Supreme Court before the Constitutional Court
(Alkotmánybíróság). On 12 February 1997 the Constitutional Court,
having regard to a recent change of the relevant legislation,
discontinued its proceedings.
On 17 March 1997 the Supreme Court rejected the applicant's
further complaint about the decision of 14 November 1995. Her further
complaint to the Ombudsman's Office (Állampolgári Jogok Országgyulési
Biztosa Általános Helyettese) was to no avail.
Meanwhile, on 19 July 1995, the District Court, in the
proceedings regarding the remainder of the applicant's action, namely,
inter alia, compensation matters, called upon the applicant to specify
her claims against each defendant within 45 days.
On 22 November 1995 the District Court held a hearing which was
adjourned so as to allow the applicant to specify her outstanding
claims. Subsequently the applicant, with a view to a further
modification of her claims, requested the District Court to suspend the
proceedings pending the constitutional complaint proceedings.
On 5 July 1996 the District Court suspended the proceedings.
Notwithstanding the Constitutional Court's decision of
12 February 1997, the proceedings have not yet been resumed.
B. Relevant domestic law
Section 3 (2) of the Code of Civil Procedure (a polgári
perrendtartásról szóló 1952. évi III. törvény), as amended, provides
that the court is obliged, ex officio, to arrange for actions to be
dealt with thoroughly and be terminated within a reasonable time.
According to S. 146 of the Code of Civil Procedure, a plaintiff
is entitled to modify his action until the first instance decision is
given in the case, provided that his claim, as modified, arises from,
or relates to, the legal relation underlying his original action. Until
the same date the action may be extended to further defendants.
According to S. 213 of the Code of Civil Procedure, a partial
decision may be taken upon such claims as are separate or can be
adjudged separately, if no further hearing is necessary in respect of
these claims and the adjudication of the remainder of the claims has
to be postponed.
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that the above civil court proceedings lasted unreasonably long.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 April 1994 and registered
on 26 April 1995.
On 4 September 1996 the Commission decided to communicate the
application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
4 November 1996.
On 17 January 1997 the applicant submitted observations in reply
to the respondent Government's observations.
On 25 February 1997 the Government submitted supplementary
observations.
On 25 April and 15 May 1997 the applicant submitted supplementary
observations.
THE LAW
The applicant complains, under Article 6 para. 1 (Art. 6-1) of
the Convention, of the length of the proceedings concerning her
trespass action.
a. The Government note that the proceedings are still pending and
argue that the application, thus being premature, must be rejected for
non-compliance with Article 26 (Art. 26) of the Convention. In this
respect they recall that it is in fact usual practice in international
and national courts that objections to admissibility should as a
general rule be raised in limine litis (Eur. Court HR, De Wilde, Ooms
and Versyp v. Belgium judgment of 28 May 1970, Series A no. 12, p. 30,
para. 54).
The applicant recalls that, inter alia, in the Zanghì v. Italy
case (Eur. Court HR, Series A no. 194-C) and in the Pierazzini v. Italy
case (Eur. Court HR, Series A no. 231-C) the proceedings complained of
were still pending when the Court passed its judgment. She argues that
to request prior termination of the proceedings, the length of which
is complained of, as a condition of admissibility would be unreasonable
and contrary to the very nature of the safeguards enshrined under
Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission recalls its constant case-law according to which
complaints concerning length of procedure can be brought before it,
before the final termination of the proceedings in question, if at
least the applicant has made use of those remedies which concerned the
length of procedure (eg. No. 9816/82, Dec. 9.3.84, D.R. 36, p. 170).
The Commission notes that in July 1992 and on 4 May 1993 the
applicant repeatedly requested from the President of the District Court
that her action be given priority. Moreover, she unsuccessfully
complained about the length of the proceedings to the Minister of
Justice in October 1992 and on 20 January 1993 and to the President of
the Supreme Court on 22 February 1993.
The Commission observes that the Government have not pointed to
any other remedy regarding the complaint about the length of the
proceedings.
In these circumstances, the Commission considers that the
application cannot be rejected for the non-exhaustion of domestic
remedies.
b. The Commission notes that the proceedings commenced in 1984 and
are still pending. Accordingly, they have so far lasted a total of some
thirteen years.
The applicant considers that the length of the proceedings
exceeds the reasonable time set out in Article 6 para. 1 (Art. 6-1) of
the Convention. The Government contest this.
The Commission recalls that the period to be considered begins
only on 5 November 1992, when Hungary's recognition of the right of
individual petition took effect (cf. Eur. Court HR, Foti and others v.
Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).
In assessing the reasonableness of the time that elapsed after this
date, account must be taken of the then state of proceedings.
Accordingly, the period to be considered is four years and seven
months.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time", and having regard to all the information in its
possession, that an examination of the merits of the complaint is
required.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy