AS TO THE ADMISSIBILITY OF
Application No. 31004/96
by J. N.
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 3 October 1995 by
J. N. against Hungary and registered on 12 April 1996 under file
No. 31004/96;
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
6 January 1997 and the observations in reply submitted by the
applicant on 4 February 1997;
- the supplementary observations submitted by the respondent
Government on 28 February 1997 and the observations in reply
submitted by the applicant on 16 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1942, is a Hungarian national and resident
in Tata. She is unemployed. Before the Commission, she is represented
by Mr. T. Kis, a lawyer practising in Komárom, Hungary.
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 May 1990 Mr. S. S. brought an action before the Tatabánya
District Court (Tatabányai Városi Bíróság) against the applicant to
challenge a last will made in her favour by her common-law husband and
the brother of the plaintiff, the late Mr. M. S.
It appears that on 15 and 29 June, 25 July and 1 October 1990 the
District Court held hearings in the case. On the latter occasion six
further plaintiffs, Czechoslovakian citizens, joined the proceedings.
On 19 February 1991 the District Court held a hearing and
appointed a forensic medical expert in the case, who submitted his
opinion on 6 March 1992.
Meanwhile, on 13 December 1990 the applicant requested the
District Court that the action be decided upon without delay. On
14 February 1992 she inquired about the state of the proceedings at the
District Court.
On 20 July 1993 the applicant requested the District Court to fix
a hearing in the case. On 10 November 1993 she complained to the
President of the District Court (Városi Bíróság Elnöke) about the
inactivity of the Court. On 9 December 1993 the President of the
District Court called upon the judge in charge of the action to explain
the delay complained of. Thereupon, apparently in early 1994, an
examination was carried out as to the professional competence of this
judge.
On 6 January 1994 the President of the District Court informed
the applicant that a hearing would be held on 20 May 1994.
On 8 July 1994 the applicant complained to the President of the
District Court that she had not been summoned to the hearing scheduled
for 20 May 1990 and, in fact, no hearing had meanwhile taken place.
In response to her further complaint of 27 March 1995 about the
lack of a hearing, the Vice-President of the District Court informed
the applicant that the hearing scheduled for 20 May 1994 had been
cancelled since the judge in charge had meanwhile been requested to
resign as a result of the examination of her professional competence
and that a further hearing would take place on 29 June 1995.
On 29 June 1995 the District Court held a hearing and dismissed
the plaintiffs' claims. The District Court found that no doubt arose
in the case, either as to the authenticity of the signature on the last
will in question, or as to the mental capacity of the late Mr. M. S.
On 15 September 1995 the District Court notified the applicant
that the decision of 29 June 1995 had become final on 6 September 1995,
since no appeal had been lodged against it.
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.
Section 5 (1) provides that parties shall exercise their procedural
rights in bona fide.
Section 3 (2), which entered into force on 1 January 1993, can
be referred to, if a person, claiming non-respect of these duties of
the court, brings an official liability action in pursuance of S. 349
of the Civil Code (a Polgári Törvénykönyvrol szóló 1959. évi IV.
törvény).
Section 339 (1) of the Civil Code provides that anybody who
unlawfully causes damage to another person shall compensate for it.
According to S. 349, official liability [of the state administration]
may be established only if the relevant ordinary remedies have been
exhausted or have not been fit to prevent damages. Unless otherwise
regulated, this applies accordingly to the liability for damages caused
by the courts or the prosecution authorities.
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 3 October 1995 and registered
on 12 April 1996.
On 16 October 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
6 January 1997.
On 4 February 1997 the applicant submitted observations in reply
to the respondent Government's observations.
On 28 February 1997 the Government submitted supplementary
observations.
On 16 April 1997 the applicant submitted supplementary
observations.
THE LAW
The applicant complains about the length of the proceedings.
Article 6 para. 1 (art. 6-1), so far as relevant, provides that
"in the determination of his civil rights and obligations..., everyone
is entitled to a ... hearing within a reasonable time".
a. The Government argue that the applicant has not exhausted the
domestic remedies available to her under Hungarian law in that she did
not bring an official liability action under S. 349 of the Civil Code,
referring to S. 3 (2) of the Code of Civil Procedure, claiming
compensation for the protracted proceedings. In the light of recent
domestic jurisprudence, the Government consider such an action an
effective remedy.
The applicant argues that, given the lack of an established
domestic jurisprudence to that effect, an official liability action
cannot be regarded as an effective remedy.
The Commission recalls that, subsequent to protracted civil court
proceedings, a further civil action does not provide direct and speedy
redress; in the present case, an official liability action cannot be
regarded as an effective remedy, which the applicant is required to
exhaust (cf. No. 26209/95, T.K. and T.K. v. Hungary, Dec. 21.5.97,
unpublished). The complaint cannot, therefore, be rejected for non-
exhaustion of domestic remedies.
b. The Government recall that damage caused by the length of civil
proceedings may be compensated for by a particularly favourable outcome
of these proceedings (Preikhzas v. Germany, Comm. Report 13.12.78,
paras. 85-87, D.R. 16, pp. 16-17). In their view, the applicant,
subsequent to the decision of 29 June 1995, can no longer claim to be
victim of a violation of her rights under Article 6 para. 1 (art. 6-1)
of the Convention, since the case was adjudged in her favour. The
applicant disagrees with these views.
Moreover, the Government admit that the subject matter of the
case was not complicated and that the applicant's conduct did not
contribute to the delays. Furthermore, the Government recall that a
temporary backlog of court business does not involve liability on the
part of the Contracting States provided that they take, with the
requisite promptness, remedial action to deal with an exceptional
situation of this kind (cf. Eur. Court HR, Zimmermann and Steiner v.
Switzerland judgment of 13 July 1983, Series A no. 66, pp. 12-13,
paras. 29-30; Guincho v. Portugal judgment of 10 July 1984, Series A
no. 81, pp. 13-17, paras. 29-32 and 37-41). In this respect the
Government acknowledge that, subsequent to the ratification of the
Convention by Hungary on 5 November 1992, no action was taken in the
case until 9 December 1993, when the judge in charge of the applicant's
case was called upon to explain the delays that had occurred. This
judge was eventually requested to resign and the applicant's action was
re-assigned to another judge. The further delays were due to the
excessive yearly workload of the Tatabánya District Court's eight civil
judges (in 1994, four to five hundred cases per judge), which was
aggravated by the distribution among these judges of some three hundred
cases which had previously been assigned to the resigned judge.
The applicant asserts that the delays in her case are imputable
to the District Court's conduct.
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 about two years and ten
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