Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29096/95

by Sándorné NÉMETH

against Hungary

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

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 18 February 1992

by Sándorné NÉMETH against Hungary and registered on 7 November 1995

under file No. 29096/95;

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

24 October 1996 and the observations in reply submitted by the

applicant on 20 December 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1931, is a Hungarian national and resident

in Bokod, Hungary. She is a pensioner.

The facts of the case, as submitted by the parties, may be

summarised as follows.

In March 1982 the applicant, managing director of a local savings

bank (Bokodi Takarékszövetkezet), was dismissed. Moreover, criminal

proceedings on charges of misappropriation were initiated against her.

In November 1982 the Tatabánya District Court (Tatabányai Városi

Bíróság) discontinued the criminal proceedings and issued a reprimand

against the applicant. In April 1983 the Esztergom Regional Court

(Esztergomi Megyei Bíróság), upon appeal by the Tatabánya Public

Prosecutor's Office (Tatabányai Városi Ügyészség), convicted her of

misappropriation and sentenced her to eight months' imprisonment on

probation.

Following her dismissal, on 1 July 1982 the applicant brought an

action before the Esztergom Labour Court (Esztergomi Munkaügyi Bíróság)

against her former employer who had ordered her to reimburse some bonus

payments and to pay compensation. On 19 November 1985, following appeal

proceedings, the Labour Court dismissed the applicant's action.

In December 1987 the applicant brought a further action before

the Tatabánya Labour Court (Tatabányai Munkaügyi Bíróság) against her

former employer claiming some outstanding fees and wages as well as

compensation for non-pecuniary damages. On 24 January 1990 the Supreme

Court (Legfelsobb Bíróság), finding that there was bias on the part of

the Tatabánya Labour Court, appointed the Gyor Labour Court (Gyori

Munkaügyi Bíróság) to proceed with the case.

On 6 March 1990 the Gyor Labour Court dismissed the applicant's

action as a whole. On 30 May and 9 October 1990, respectively, the

Gyor-Sopron County Regional Court (Gyor-Sopron Megyei Bíróság)

dismissed her appeals concerning the outstanding fees and wages.

Moreover, on 28 November 1990 the Regional Court ordered, for reasons

of competence, the remainder of the applicant's claims to be

transferred to the Tatabánya District Court (Tatabányai Városi

Bíróság). Parts of these claims were subsequently referred back to the

Tatabánya Labour Court and were dismissed on 3 July 1992, as confirmed

by the Komárom-Esztergom County Regional Court (Komárom-Esztergom

Megyei Bíróság) on 28 October 1992. Her petition for review by the

Supreme Court, brought in this respect, was to no avail.

Meanwhile, on 23 September 1991 the Tatabánya District Court

ordered the applicant to specify and substantiate the remainder of her

claims concerning non-pecuniary damages. Subsequently, on

10 November 1993 the District Court transferred these claims to the

Tatabánya Labour Court, as confirmed by the Komárom-Esztergom County

Regional Court on 22 February 1994.

On 16 September 1994 the Labour Court discontinued the

proceedings on the ground that the claims constituted res iudicata. On

16 November 1994 the Regional Court quashed this decision, finding that

the applicant's claims as to the non-pecuniary damages had in fact

never been adjudicated on the merits. On 20 January 1995 the Supreme

Court appointed the Gyor Labour Court to conclude the proceedings.

On 7 September 1995 the Gyor Labour Court held a hearing in the

case, which was adjourned to 17 October 1995.

On 28 November 1995 the Labour Court held a further hearing in

the case and, on the same date, dismissed the applicant's action. The

Labour Court found no causal link between any non-pecuniary damage

which the applicant might have suffered and the conduct of her former

employer.

On 29 December 1995 the applicant appealed against this decision.

On 4 June 1996 the Gyor-Moson-Sopron County Regional Court

dismissed the applicant's appeal.

On 6 July 1996 the applicant brought a petition for review before

the Supreme Court. On 17 July 1996 the Supreme Court returned the

applicant's petition for supplementation, requiring her to provide for

legal representation. On 18 September 1996 the Supreme Court again

returned her petition on account of the absence of a legal

representative and on 7 October 1996 it granted her legal aid.

On 19 November 1996 the applicant's legal aid lawyer notified the

Supreme Court that he saw no prospect of success in pursuing the

applicant's petition for review and would not, therefore, lodge a

formal petition with the Supreme Court. He also informed the applicant

thereof. On 27 November 1996 the applicant's petition for review was

eventually withdrawn.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that

the above court proceedings were unfair and that the courts were not

impartial.

2. She further complains that the civil court proceedings lasted

unreasonably long.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 February 1992 and registered

on 7 November 1995.

On 4 September 1996 the Commission decided to communicate the

applicant's complaint about the length of the proceedings to the

respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of

Procedure.

The Government's written observations were submitted on

24 October 1996.

On 20 December 1996 the applicant submitted observations in reply

to the respondent Government's observations.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention that the above civil court proceedings were unfair and that

the courts were not impartial.

Article 6 (Art. 6) of the Convention, in so far as relevant,

provides as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law. ..."

The Commission observes at the outset that the applicant's

complaints about the alleged unfairness of the court proceedings prior

to 5 November 1992, the date of the Convention's entry into force in

respect of Hungary, fall outside the competence ratione temporis of the

Commission.

As regards the alleged unfairness of ensuing court proceedings,

the Commission observes that, in conformity with Article 26 (Art. 26)

of the Convention, it may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law. In this respect the Commission notes that

on 19 November 1996 the applicant's legal aid lawyer notified the

Supreme Court that he saw no prospect of success in pursuing the

applicant's petition for review and would not, therefore, lodge a

formal petition with the Supreme Court. On 27 November 1996 the

applicant's petition for review was withdrawn.

However, even assuming that, in these circumstances, the failure

to pursue a petition for review by the Supreme Court cannot be held

against the applicant and thus domestic remedies can be taken to have

been exhausted, the Commission finds that the applicant's complaint is

unsubstantiated. There is no indication that the courts lacked

impartiality or that the proceedings were otherwise unfair.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant complains that the above civil court proceedings

lasted unreasonably long.

The Government admit that, subsequent to 5 November 1992, the

Tatabánya District Court did not take action in the case until

10 November 1993. Although this may be explained to some extent by

certain administrative lapses, the Government maintain that it was

essentially the applicant who failed, in this period of the

proceedings, to specify her claims in such a way as to enable the

District Court to establish or relinquish its jurisdiction in the case.

Moreover, as regards the ensuing proceedings, the Government is of the

opinion that no undue delay had occurred until 4 June 1996, when the

applicant's appeal was finally dismissed. The applicant contests these

views.

The Commission notes that the proceedings commenced in 1987 and

considers that they ended on 4 June 1996, when the Regional Court

finally dismissed the applicant's appeal. In this respect the

Commission observes that the applicant's petition for review by the

Supreme Court was eventually withdrawn on 27 November 1996.

Accordingly, the proceedings lasted a total of some nine years.

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 three years and seven

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,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint about the length of the proceedings.

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

Menu

NEMETH v. HUNGARY

NEMETH v. HUNGARY

LEXI