FIRST SECTION
DECISION
Application no. 66107/16
László GEMELA
against Hungary
The European Court of Human Rights (First Section), sitting on 14 March 2023 as a Committee composed of:
Alena Poláčková, President,
Péter Paczolay,
Gilberto Felici, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 66107/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 November 2016 by a Hungarian national, Mr László Gemela, who was born in 1952 and lives in Budapest (“the applicant”), represented by Mr R. Bíró, a lawyer practising in Budapest;
the decision to give notice of the complaint under Article 6 of the Convention to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the rejection of the applicant’s rebuttals against the presumption of service of notices in civil proceedings which were brought against him for the repayment of a life annuity. It raises issues under Article 6 § 1 of the Convention.
2. It appears that in 2014 the plaintiff had indicated the applicant’s address on the claim erroneously which resulted in the unsuccessful service of the claim and subsequent court documents. The first instance court applied the principle of presumption of service and – without the applicant’s participation in the proceedings – rendered a judgment in favour of the plaintiff on 3 February 2015. On 27 February 2015 the court ruled that the presumption of service of the decision had taken effect on 25 February 2015.
3. On 8 July 2015 the decision was confirmed on appeal. On 31 July 2015 the court established the presumption of service of the appeal decision.
4. The applicant was informed of the civil proceedings and the judgments allegedly only on 27 January 2016 by another respondent in the case. Shortly afterwards, his lawyer submitted two rebuttals of the presumption of service, respectively to the first and the second instance courts. It appears that the rebuttals were dispatched on 3 February and received on 5 February 2016.
5. On 25 April 2016 the Debrecen High Court rejected one of the rebuttals, without an examination on the merits. It observed that the six‑month objective time-limit, counted from 25 February 2015, had expired on 25 August 2015. Therefore, the rebuttal was belated. On 30 June 2016 the Debrecen Court of Appeal rejected the applicant’s appeal, holding that the rebuttal had indeed been submitted outside the objective deadline represented by the six-month rule in section 99/A of the Code of Civil Procedure and was therefore unsuitable for examination. On 6 September 2016 the Kúria rejected the applicant’s petition for review, holding that it was incompatible ratione materiae with the rules on review.
6. Meanwhile, on 2 March 2016 the Court of Appeal rejected the other rebuttal, again as being at variance with the six-month rule. On 6 July 2016 the Kúria rejected the applicant’s petition for review as incompatible ratione materiae with the rules on review.
7. The applicant complained under Article 6 § 1 of the Convention that the domestic courts’ handling of the rebuttals was unfair.
RELEVANT LEGAL FRAMEWORK
8. Section 99/A of the Code of Civil Procedure provides that a rebuttal of the presumption of service can be lodged within 15 days counted from the day on which the party has taken cognisance of the taking effect of the presumption of service (subjective deadline). After six months counted from the taking effect of the presumption of service, a rebuttal is no longer allowed (objective deadline).
THE COURT’S ASSESSMENT
9. The Government argued that the application had been introduced outside the six-month time-limit under Article 35 § 1 of the Convention. The applicant disagreed, arguing that no proper service had ever taken place in the case.
10. The Court observes that the domestic law sets an objective deadline for a rebuttal of the presumption of service: after six months from the taking effect of the presumption of service, no rebuttal – indeed, no remedy whatsoever – is available to the litigants. In these circumstances, the first rebuttal, introduced by the applicant’s lawyer more than six months after the taking effect of the presumption of service on 25 February 2015, fell under the restriction in section 99/A in fine of the Code of Civil Procedure and was futile – which the lawyer must have known. Consequently, it was not an effective remedy and did not influence the running of the six-month time‑limit for the purposes of Article 35 § 1 of the Convention. The Court reiterates that where it is clear from the outset that the applicant has no effective remedy, as in the present case, the six-month period runs from the date on which the act complained of took place or the date on which the applicant was directly affected (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009) – in the present case, from 27 January 2016 at the latest.
11. Moreover, the second rebuttal was also rejected as belated. Consequently, it was likewise not an effective remedy for the purposes of Article 35 § 1 of the Convention and did not influence the running of the six‑month time-limit either.
12. It follows that the starting date of the six-month period was 27 January 2016. The application, introduced more than six months later, on 4 November 2016, must thus be rejected in application of Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 April 2023.
Liv Tigerstedt Alena Poláčková
Deputy Registrar President