EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27131/95

Judit Adelmanné Kertész

against

Hungary

REPORT OF THE COMMISSION

(adopted on 16 April 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-14) 2

III. OPINION OF THE COMMISSION

(paras. 15-25)              4

A. Complaint declared admissible

(para. 15) 4

B. Point at issue

(para. 16) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 17-24)              4

CONCLUSION

(para. 25) 5

APPENDIX: DECISION OF THE COMMISSION AS TO

         THE ADMISSIBILITY OF THE APPLICATION 6

I. INTRODUCTION

1. The present Report concerns Application No. 27131/95 introduced on 20 April 1994 against Hungary and registered on 26 April 1995.

The applicant is a Hungarian national born in 1945 and resident in Budapest.

The applicant is represented before the Commission by Mr E. Petruska , a lawyer practising in Budapest.

The respondent Government are represented by their Agent, Dr F. Kondorosi , Deputy Secretary of State, Ministry of Justice.

2. The application was communicated to the Government on 4 September 1996.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 2 July 1997.  The decision on admissibility is appended to this Report. The parties have submitted observations on the merits of the case, the Government on 29 September and 4 December and the applicant on 29 October 1997.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 16 April 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Hungary.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In her application, in which she relies on Article 6 para. 1 of the Convention, the applicant complains of the length of the proceedings before the Buda Central District Court ( Budai Központi Kerületi Bíróság ) concerning a trespass action.

7. In June 1984 the applicant brought a trespass action before the District Court 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, granted a prohibitory injunction concerning the emission of smells. In October 1987 the Budapest Regional Court ( Fővárosi Bíróság ) dismissed the defendants' appeal.

8. 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 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 she requested from the President of the District Court that her action be given priority.

9. In October 1992 and January 1993 the applicant repeatedly complained to the Minister of Justice about the length of the proceedings. In February 1993 she unsuccessfully complained about the same to the President of the Supreme Court ( Legfelsőbb Bíróság Elnöke ).

10. As from 1 May 1993 the lease of the restaurant in question was governed by a new contract. On 4 May 1993 the applicant, in response to the new contract, brought some new claims for various injunctions and, simultaneously, 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.

11. 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 and, on 30 March 1994, 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, partly quashed and partly upheld the first instance decision. On 14 November 1995 the Supreme Court ( Legfelsőbb Bíróság ) rejected the applicant's petition for review, as it had been lodged out of time.

12. 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.

13. Meanwhile, on 19 July 1995, the District Court, in the proceedings regarding the remainder of the applicant's action, namely, 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. On 3 June 1996 the applicant, with a view to a further modification of her claims, requested the District Court to suspend the proceedings pending the above constitutional complaint proceedings. On 5 July 1996 the District Court suspended the proceedings.

14. On 16 May 1997 the applicant requested the continuation of the proceedings. On 11 November 1997 and 13 January 1998 the District Court held hearings and, on 21 January 1998, rendered its decision, subject to appeal, awarding the applicant compensation in the amount of 270,500 Hungarian forints and accrued interests. It is not known whether an appeal was lodged by any of the parties.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

15. The Commission has declared admissible the applicant's complaint that her case has not been heard within a reasonable time.

B. Point at issue

16. The only point at issue is whether the length of the proceedings complained of has exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

17. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

18. The proceedings in question concerned a trespass action, various claims for prohibitory injunctions and a claim for compensation. The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.

19. These proceedings, which began in June 1984 and which the Commission takes to have ended on 21 January 1998, lasted a total of about thirteen and a half years at least. However, 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). Accordingly, the period to be considered is somewhat more than five years and two months, but in assessing the reasonableness of the time that elapsed after 5 November 1992, account must be taken also of the then state of proceedings.

20. The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

21. According to the Government, the length of the period in question was largely due to the complexity of the case and the applicant's conduct.

22. The Commission notes that the case was not particularly complex. Moreover, the Commission considers that neither is the applicant's conduct in itself sufficient to explain the length of the proceedings. The Commission notes the existence of periods of inactivity imputable to the State between 5 November 1992 and 14 January 1994 on which date the first hearing subsequent to the Hungarian ratification of the Convention was held; moreover, between 30 March 1994 and 15 June 1995, on which date the Regional Court rendered its judgment concerning the second partial judgment; and finally, between 16 May and 11 November 1997, on which date the first hearing subsequent to the suspension of the case was held concerning the applicant's outstanding compensation claims. It considers that no convincing explanation for these delays has been advanced by the respondent Government.

23. The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

24. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

25. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

  M.F. BUQUICCHIO      M.P. PELLONPÄÄ

     Secretary          President

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