AS TO THE ADMISSIBILITY OF
Application No. 26209/95
by Mr. T. K. and Mrs. T. K.
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. 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
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 24 March 1994 by
Mr. T. K. and Mrs. T. K. against Hungary and registered on
13 January 1995 under file No. 26209/95;
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
8 February 1996 and the observations in reply submitted by the
applicants on 5 March 1996;
- the supplementary observations submitted by the respondent
Government on 28 May 1996 and the observations in reply submitted
by the applicants on 26 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, husband and wife, both pensioners, are Hungarian
citizens born in 1933 and 1928, respectively, and reside in Budakeszi,
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 1961 the applicants purchased a real estate. Alleging that the
borders of their lot were allegedly registered by the competent Land
Authority (Budai Járási és Városi Földhivatal) erroneously, they
subsequently instituted administrative proceedings with a view to
having the impugned entry corrected in the land registry. These
proceedings remained unsuccessful, the last decision having been taken
by the Pest County Land Authority (Pest megyei Földhivatal) in July
1983.
In March 1984 the applicants brought an action in the Buda
Surroundings District Court (Budakörnyéki Bíróság) against the Land
Authority and the three co-owners of the real estate, claiming
possession of part of the disputed real estate and requesting the
correction of the impugned land registry entry. Further to unsuccessful
negotiations among the co-owners about the actual use of the real
estate, in January 1985 the District Court involved an expert in the
case and, as the applicants had meanwhile withdrawn their action in so
far as the Land Authority had been concerned, discontinued the
proceedings against the Land Authority. From December 1985 the
proceedings were interrupted, pending the succession of a deceased
defendant, until 21 May 1987, when the applicants' representative,
having had the successors of the deceased defendant joined and the Land
Authority re-joined as defendants, requested the continuation of the
proceedings.
In October and December 1987 and in October 1988 the District
Court held hearings. On the latter occasion the District Court ordered
the applicants to join all the co-owners as defendants. In January 1989
the District Court held a further hearing.
On 20 March 1989 the District Court held a hearing and ordered
the applicants to join the successors of certain defendants, who had
in the meantime died. In February 1990 the District Court held a
further hearing, inviting some of the defendants to lodge their
counter-action. In July 1990 the District Court appointed a second
expert in the case, who eventually presented his opinion in September
1992. The expert stated that his delay had been due to the extreme
complexity of the case and that he had had to consult land registry
documents dating back to 1900-1945.
In August 1992 the applicants complained about the length of the
proceedings to the President of the Pest County Regional Court (Pest
megyei Bíróság Elnöke) who in October 1992 informed them that he had
arranged for the District Court to hold a hearing on 27 November 1992.
On 16 October 1992 the District Court established the second
expert's fee. The applicants' appeal concerning the expert's fee was
eventually dismissed in February 1994.
On 29 October and 5 November 1992 the District Court, while
postponing the hearing scheduled for 27 November 1992, ordered the
applicants to submit the addresses of some defendants. On
19 November 1992 the applicants complied with this order and, at the
same time, lodged a request for exemption from the procedural costs.
Due to formal shortcomings, the request was subsequently returned to
the applicants, who re-introduced it on 27 January 1993. On
1 September 1993 the District Court granted the applicants exemption
from advancing the necessary stamp duties.
On 16 September 1993 the applicants again complained to Pest
County Regional Court (Pest Megyei Bíróság) about the length of the
proceedings. On 15 November 1993 they were informed in reply that the
hearing scheduled for 27 November 1992 had been postponed for
administrative reasons. On 14 December 1993 the applicants, upon their
further complaint dated 8 December 1993, were informed that their case
had meanwhile been assigned to another judge.
On 22 December 1993 the applicants complained to the President
of the Regional Court about a further, allegedly erroneous, entry in
the land registry and, in particular, the involvement and the conduct
of the defendant Pest County Land Authority in these registry
proceedings. On 5 January 1994 the President of the Court informed the
applicants that the impugned entry should be remedied in administrative
proceedings, in which proceedings they could challenge the Pest County
Land Authority for bias, with a view to the appointment of another Land
Authority.
On 12 January 1995 the District Court requested the competent
Land Authority to transmit certain files and fixed a hearing for
1 March 1995.
At the hearing of 1 March 1995 two defendants introduced counter-
actions. The District Court called upon the applicants to file recent
abstracts from the land registry and warned them that it would
discontinue the proceedings, unless they joined all the co-owners as
defendants. In the latter respect the District Court recalled the legal
succession of certain co-owners on account of, inter alia, alienation
and inheritance. At the hearing the applicants and their representative
disagreed as to the exact nature of their claims. Subsequently the
District Court's attempt to serve the hearing minutes upon two absent
defendants remained unsuccessful, since the defendants had moved to
unknown addresses.
In their submissions of 25 March 1995 the applicants extended
their action and proposed that further defendants be joined to the
proceedings.
In its decision of 2 February 1996 the District Court
acknowledged that the proceedings then involved altogether seventeen
defendants, ordered the applicants to introduce their concise action
before 25 February 1996 and fixed a hearing for 26 March 1996. In its
order of 12 February 1996, the District Court reminded the applicants'
representative that discharging any defendants from the proceedings
would require a formal waiver to that effect and that the joinder of
any further defendants would require an express statement to that
effect.
On 21 February 1996 the applicants filed their action in a
concise form, stating that their action concerned altogether twenty-one
defendants.
In its order of 6 March 1996 the District Court established that
the applicants had ignored its previous order and the relevant
procedural rules in that they had failed to specify the addresses of
the co-owners newly to be joined as defendants.
On 11 March 1996 the applicants requested that the Land Authority
be joined, following their similar request dated 21 May 1987, as a
defendant in the case.
On 26 March 1996 the District Court held a hearing and ordered
the severance from the proceedings at issue of a counter-action brought
by one of the defendants. The Court dismissed some of the defendants
from the proceedings and fixed a hearing for 3 June 1996.
On 16 May 1996 the District Court postponed the hearing scheduled
for 3 June until 1 July 1996 and summoned the co-owners having been
newly joined as defendants to the hearing.
On 1 July, 4 and 11 September and 11 November 1996 the District
Court held hearings.
On 20 November 1996 the District Court took a partial decision
in the case as to the borders of the applicants' lot. This decision
concerned altogether twenty-two defendants. To the extent that the
action had concerned the impugned decision of the Land Authority, the
District Court ordered that this question be separated and dealt with
by the Administrative Chamber of the District Court.
On 3 February 1997 the applicants appealed against the partial
decision. The appeal proceedings are still pending before the Pest
County Regional 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 it is the court's ex officio duty to arrange for actions to be
dealt with thoroughly and terminated within a reasonable time. This
provision, which entered into force on 1 January 1993, can be invoked,
if one, 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). 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 capable of preventing damage. Unless otherwise
regulated, this applies accordingly to the liability for damages caused
by the courts or the prosecution authorities.
According to S. 114 of the Code of Civil Procedure, a party may
complain of the irregularity of proceedings at any time during the
proceedings. Minutes shall be taken of any oral complaint to that
effect. If the court fails to take such a complaint into account, the
grounds for such failure shall be given immediately or, at the latest,
in the final decision.
S. 111 (1) of the Code of Civil Procedure provides that, if any
of the parties dies, the proceedings shall be interrupted until the
legal successor joins or is made to join the litigation. According to
S. 62 (1), the joinder of a legal successor shall be announced in
writing or orally at the hearing; the parties and the joined legal
successor shall also be informed thereof.
According to S. 101 of the Code of Civil Procedure, if the
residence of a party is unknown or is in a country not rendering legal
assistance in this respect, or if the service [of decisions] is
insurmountably impeded or appears likely to be unsuccessful, service
shall be effected by publication. Service on unknown inheritors shall
also be effected by publication. Service by publication may be ordered
by the court only at the request of a party on condition that the
underlying grounds have been shown to be satisfied on the balance of
probabilities.
The competence of the land authorities is regulated by Order
No. 1/1990. (VI.26.) of the Minister of Agriculture (1/1990.
/VI.26./ FM rendelet), according to which the geographical competence
of the district land authorities, operated within the area of the
respective county land authorities, encompasses such locations as are
within the districts circumscribed in the Annex to Order No. 1/1990.
Within its area of geographical competence, the county or district land
authority carries out the functions of the land administration.
COMPLAINTS
1. The applicants complain under Article 6 para. 1 of the Convention
about the length of the proceedings.
2. The applicants also complain under Article 1 of Protocol No. 1
that, in the absence of a final court decision, they are unable to
exercise their ownership rights over the disputed real estate.
3. The applicants further complain under Article 6 para. 1 of the
Convention that the District Court lacked impartiality in that it
ordered the Pest County Land Authority, itself a defendant, to make
land registry entries in respect of the disputed real estate.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 March 1994 and registered
on 13 January 1995.
On 29 November 1995 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
8 February 1996.
On 5 March 1996 the applicants submitted observations in reply
to the respondent Government's observations.
On 28 May 1996 and on 24 January 1997 the Government submitted
supplementary observations.
On 26 June 1996 the applicants submitted supplementary
observations in reply.
On 2 July 1996 the Commission decided not to grant legal aid.
THE LAW
1. The applicants complain 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 applicants have not exhausted the
domestic remedies available to them under Hungarian law in that they
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 to be
an effective remedy.
The Commission recalls that in respect of the length of civil
proceedings still pending, a remedy can only be considered effective
if it can be brought rapidly, while these proceedings are pending
(No. 8990/80, Dec. 6.7.82, D.R. 29, p. 129; No. 9816/82, Dec. 9.3.84,
D.R. 36, p. 170; No. 10103/82, Dec. 6.7.84, D.R. 39, p. 186) and if it
provides direct and speedy protection of the rights guaranteed by
Article 6 para. 1 (Art. 6-1) (No. 10092/82, Dec. 5.10.84, D.R. 40,
p. 118; No. 10673/83, Dec. 7.5.85, D.R. 42, p. 237).
The Commission notes at the outset that the proceedings
complained of started in 1984 and recalls that S. 3 (2) of the Code of
Civil Procedure entered into force on 1 January 1993. The Commission
further considers that, when proceedings have already lasted for over
a decade, a further civil action does not provide direct and speedy
redress. Consequently, in the present case the official liability
action, as suggested by the Government, cannot be regarded as an
effective remedy, which the applicants are required to exhaust. The
complaint cannot, therefore, be rejected for the non-exhaustion of
domestic remedies.
b. Moreover, the Government submit that the proceedings, in so far
as they took place prior to 5 November 1992, fall outside the
Commission's competence ratione temporis. To the extent that the period
subsequent to 5 November 1992 is concerned, the Government maintain
that the protraction of the proceedings has largely been due to the
applicants' non-compliance with the procedural rules, inter alia, on
joinder of parties and on release from the proceedings. In particular,
the applicants, represented by counsel, repeatedly failed to have all
the co-owners joined as defendants and to submit the exact address of
some defendants. In the course of the proceedings, the applicants and
their lawyer displayed disagreement as to the exact nature of their
claims. Moreover, the proceedings relate to rather complicated
ownership matters, aspects of which dated back to before World War II,
and eventually - partly due to the joining of successors in title of
certain defendants - involve twenty-two defendants.
The applicants submit that between February 1990 and March 1995
no hearing was held in their case. The review of the impugned decision
of the Pest County Land Authority has not yet taken place.
The Commission recalls that, when examining the length of the
proceedings, the period to be considered begins only on
5 November 1992, when Hungary ratified the Convention. 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 finds that the applicants' complaint about the
length of the proceedings raises questions of fact and law which
require an examination of the merits. The present complaint is
therefore not manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for
declaring it inadmissible has been established.
2. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
that, in the absence of a final court decision, they are unable to
exercise their ownership rights over the disputed estate lot.
Article 1 of Protocol No. 1 (P1-1) safeguards that every person
is entitled to the peaceful enjoyment of his possessions.
The Government submit that the applicants have not been deprived
of their property, neither have they been limited in their possession
or use thereof.
The applicants submit that they are limited in the peaceful
possession of their property in that - given the unsettled situation
in the land registry - they cannot sell their property or part of it.
Furthermore, a co-owner, benefitting from the erroneous land registry
entry, sold a part of the disputed estate, allegedly belonging to the
applicants.
The Commission finds that this aspect of the application is so
closely related to the length of the proceedings that it cannot be
separated and must likewise be examined on the merits. This part of the
application cannot, therefore, be declared manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,
no other ground for declaring it inadmissible having been established.
3. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that the District Court lacked impartiality in that it
ordered the Pest County Land Authority, itself a defendant, to make
land registry entries in respect of the disputed real estate.
Article 6 (Art. 6) of the Convention, in so far as relevant,
provides that, in the determination of his civil rights and
obligations, everyone is entitled to a fair hearing by an impartial
tribunal.
The Government submit that the competence of the land authorities
is regulated by Order No. 1/1990 and the courts cannot take ad hoc
decisions in this respect.
The applicants submit that they unsuccessfully complained to the
courts about the defendant Land Authority being involved in the further
impugned land registry proceedings.
The Commission notes that the applicants' appeal against the
decision of the District Court is pending before the Regional Court and
recalls that, in principle, it can only assess the fairness of
proceedings when it is able to consider them in their entirety (cf.,
mutatis mutandis, No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127). In the
present case, the Commission considers that, until the relevant
proceedings have finished, the applicants' complaint as to the fairness
of proceedings is premature.
It follows that this part of the application is manifestly ill-
founded and must be rejected under Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicants' complaints relating to the length of the
proceedings,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy