AS TO THE ADMISSIBILITY OF
Application No. 30021/96
by Jánosné KARDOS
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 9 October 1995 by
Jánosné KARDOS against Hungary and registered on 31 January 1996 under
file No. 30021/96;
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
2 January 1997 and the observations in reply submitted by the applicant
on 10 February 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1922, is a Hungarian national and resident
in Dunakeszi. She is a pensioner.
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 October 1991 the applicant brought an action against her
former daughter-in-law and her son before the Dunakeszi Branch of the
Vác District Court (Váci Városi Bíróság Dunakeszi Kirendeltsége). She
claimed that possession of her flat, inhabited by the defendants, be
restored to her. In the proceedings the applicant was represented by
counsel.
On 19 November 1992 the District Court held a hearing, where the
applicant extended her action. She claimed that her expenses, incurred
in the context of the maintenance and refurbishment of the flat, be
reimbursed. In this respect she requested the District Court that it
contact the National Savings Bank in order to specify the expenses in
question. The District Court, while admitting this request, ordered the
applicant to present her extended claims in a concise form.
On 1 March 1993 the National Savings Bank submitted its report
to the District Court. On 22 March 1993 the District Court again called
upon the applicant to present her claims in a concise form. In the
applicant's default to comply with this order, on 1 December 1993 the
Dunakeszi District Court (Dunakeszi Városi Bíróság) fixed a hearing for
6 January 1994 and warned the applicant that it would impose a fine
unless she presented her action in a concise form.
On 16 December 1993 and, thereupon, at the hearing of
6 January 1994, the applicant repeatedly stated that she would prefer
a severance of her reimbursement claims from the actual proceedings.
However, the defendants announced that they would rather bring counter-
claims in the context of the reimbursement dispute, something which
they, in the absence of any precise claims on the part of the
applicant, had not been able to do during the preceding fourteen
months. The District Court gave leave for the defendants to bring their
counter-claims and adjourned the case.
On 24 January 1994 the applicant's daughter-in-law submitted her
counter-claims and the District Court called upon the applicant to
comment on these claims within a period of one month. On
22 February 1994 the applicant requested the extension of the time-
limit. On 10 March 1994 she eventually requested the District Court to
dismiss the counter-claims as a whole.
On 12 July 1994 the Ministry of Justice (Igazságügyi
Minisztérium), apparently in response to the applicant's complaint
about the length of the proceedings, informed her that the matter was
within the competence of the President of the District Court (Városi
Bíróság Elnöke).
On 30 August 1994 the District Court held a hearing, where the
parties specified their claims and positions.
On 13 October 1994 the applicant revoked the authority of her
counsel. At the hearing of 15 November 1994 she appeared before the
District Court without a representative and requested the adjournment
of the case. The District Court ordered that, before 9 December 1994,
the applicant should appoint her new counsel, who then should submit
his legal position. However, the applicant's counsel submitted this
memorandum only on 23 February 1995. Nevertheless, on 10 January 1995
the District Court held a hearing and took note of the amount of the
defendants' counter-claims, which had in the meantime been increased.
Simultaneously, the applicant rejected the defendants' proposal for an
agreement out-of-court.
On 16 May 1995 the District Court held a hearing, in which the
applicant requested the Court to hear further witnesses. The District
Court fixed a further hearing for 19 September 1995, which was, upon
the parties' joint request, re-scheduled for 10 January 1996.
On 10 January 1996 the District Court held a hearing and heard
evidence from a witness.
On 27 March 1996 the District Court held a further hearing
involving witnesses and appointed a technical expert.
On 3 December 1996 the District Court held a hearing, in which
the parties commented upon the technical expert's opinion and
summarised their position.
On 10 December 1996 the District Court delivered its decision.
The District Court admitted the applicant's claim as to the possession
of the flat and awarded her some reimbursement of expenses. The
District Court dismissed the counter-action brought by the applicant's
daughter-in-law.
It appears that the case is currently pending before the appeal
court.
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 terminated within a reasonable time.
According to S. 5 (3), the court shall impose a fine upon a party
who submits a statement belatedly or fails to submit such a statement
despite a warning and thereby impedes the termination of the
proceedings.
According to S. 146 (1), 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.
According to S. 147 (1), a defendant is entitled to bring a
counter-claim until the termination of the hearing which precedes the
delivery of the first instance decision. The court may reject de plano
such a counter-claim, if it is manifest that the party has brought it
belatedly in order to protract the proceedings.
Section 151 (1) provides that the court shall, upon the joint
request of the parties submitted at least eight days in advance,
postpone a scheduled hearing.
COMPLAINT
The applicant complains that the above civil court proceedings
have been unreasonably long. She does not invoke any particular
provision of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 October 1995 and registered
on 31 January 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
2 January 1997.
On 10 February 1997 the applicant submitted observations in reply
to the respondent Government's 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".
The Government submit that the application is manifestly ill-
founded. They argue at the outset that the applicant has not
substantiated in any manner her allegation that the proceedings have
lasted unreasonably long.
The Government maintain that the subject matter of the case was
rather complicated, both as to the facts and to the law. In particular,
the District Court had to evaluate the parties' contradictory
statements concerning the reimbursement of expenses and, in the absence
of a written contract to that effect, to establish the legal nature of
the defendants' use of the flat in question. Moreover, the Government
note that, subsequent to the Hungarian ratification of the Convention
on 5 November 1992, the District Court held altogether nine hearings
at regular intervals. However, the applicant advanced her claims for
reimbursement only at the first hearing and not in her original action.
Subsequently, on 1 December 1993, the District Court had to warn the
applicant that it would impose a fine upon her unless she presented her
action in a concise form; she did not comply with this order before the
hearing of 6 January 1994, thus causing a delay of some fifteen months
altogether. Furthermore, the counter-claim, brought by one of
defendants, also influenced the duration of the proceedings; the
applicant submitted her comments upon these claims only after an
extension by one month of the time-limit set by the District Court.
Thereupon, as a consequence of the applicant's revocation of the
authority of her counsel and of the new counsel's failure to present
his legal position in due time, a further delay of some three months
arose between 15 November 1994 and 23 February 1995. In fact, the
District Court, of its own motion, meanwhile scheduled a further
hearing for 10 January 1995. Furthermore, on 16 May 1995 the applicant
proposed the hearing of further witnesses - a circumstance warranting
the adjournment of the case until 19 September 1995; this hearing was
re-scheduled upon the parties' joint request for 10 January 1996.
Therefore another delay of some eight months arose. In sum, the
Government submit that a delay totalling some twenty-seven months has
been due to the applicant's conduct in the case.
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 10 December 1996, 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 decided in her favour.
The applicant contests the Government's views.
The Commission finds at the outset that the domestic court
decision did not extend to the question of the duration of the
protracted proceedings. Therefore, any prejudice which the applicant
suffered on account of the length of the proceedings cannot be regarded
as redressed by the District Court's decision (cf. Preikhzas v.
Germany, Comm. Report 13.12.78, para. 86, D.R. 16, p. 17).
Furthermore, the Commission observes that the applicant's
complaint relates to proceedings, which started in October 1991, i.e.
prior to 5 November 1992, which is the date of the entry into force of
the Convention with respect to Hungary. However, the Commission recalls
that the Convention only governs, for each Contracting Party, facts
subsequent to its entry into force with respect to that Party
(cf. No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The proceedings in
question had lasted about one year prior to the Hungarian ratification
of the Convention. This period would, if considered alone, fall outside
the scope of the Commission's considerations ratione temporis. However,
in assessing the reasonableness of the time that elapsed after this
date, account must be taken of the then state of proceedings (cf., Eur.
Court HR, Foti and others v. Italy judgment of 10 December 1982,
Series A no. 56, p. 18, para. 53).
The Commission notes that the Regional Court delivered its
judgment on 10 December 1996. It appears that the case is now pending
before the appeal court. Consequently, the proceedings in question have
lasted so far about four years and nine months subsequent to the
ratification.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case, namely, its complexity, the conduct of the
parties and the conduct of the judicial authorities. In this instance
the circumstances call for an overall assessment (cf. Eur Court HR,
Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9,
para. 17).
The Commission notes that the case related to a dispute over the
use of a flat and to related matters of reimbursement of expenses and
thus involved no issues of particular complexity.
As to the conduct of the parties, the Commission notes that the
applicant caused considerable delays in the case. In particular, she
extended her action on 19 November 1992 and failed to present her
extended action in a concise form, as required, before 6 January 1994.
On 22 February 1994 she requested the extension of the time-limit set
for commenting upon the counter-claims brought by her daughter-in-law.
On 13 October 1994 she revoked the authority of her counsel; at the
hearing of 15 November 1994 she appeared before the District Court
without a representative and requested the adjournment of the case. Her
new counsel submitted his legal position only on 23 February 1995.
Moreover, on 16 May 1995 the District Court held a hearing, where the
applicant requested the Court to hear further witnesses. The District
Court fixed a further hearing for 19 September 1995, which was, upon
the parties' joint request, re-scheduled for 10 January 1996.
As to the conduct of the judicial authorities, the Commission
notes that, between 5 November 1992 and 10 December 1996 the District
Court held nine hearings. Occasionally, it did not tolerate the
parties' inactivity: on 1 December 1993 it warned the applicant that
it would impose a fine upon her, unless she presented her action in a
concise form; moreover, it scheduled a hearing for 10 January 1995,
notwithstanding that the applicant's new counsel had not yet submitted
his memorandum. There is no appearance of any period of particular
inactivity on the part of the District Court. Nevertheless, the overall
length of the proceedings raises the question whether the District
Court took in fact all possible measures to expedite the proceedings.
However, the Commission considers that the substantial delays
which occurred subsequent to the ratification - in particular, those
between 19 November 1992 and 6 January 1994, between 15 November 1994
and 23 February 1995 and between 16 May 1995 and 10 January 1996 - are
imputable to the applicant.
In these circumstances, the Commission, even assuming that the
District Court may have contributed to some delay in the proceedings,
finds that the total length of the proceedings has not exceeded an
acceptable limit in the present case (cf., mutatis mutandis, Eur. Court
HR, Cesarini v. Italy judgment of 12 October 1992, Series A no. 245,
p. 26, para. 20). The applicant's complaint about the length of
proceedings does not, therefore, disclose any appearance of a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy