Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 36524/97

by Józsefné DARNAY

against Hungary

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, 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. 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 16 May 1997 by

Józsefné DARNAY against Hungary and registered on 17 June 1997 under

file No. 36524/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Hungarian citizen born in 1929 and living in

Budapest. She is a pensioner. In the proceedings before the Commission,

she is represented by Mr. J. Somogyi, a lawyer practising in Budapest.

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

summarised as follows.

In 1995 the applicant, in the context of an inheritance dispute,

brought an action against the Budapest Israelite Community before the

Pest Central District Court (Pesti Központi Kerületi Bíróság).

On 5 June 1996 the District Court gave its judgment partly

dismissing the applicant's claims. The judgment was pronounced in the

presence of the applicant and her then representative.

In early July 1996 the postman unsuccessfully attempted, on two

occasions, to deliver the letter containing the judgment to the

applicant, then on holidays. Thereupon the postman returned the letter

to the post-office, leaving behind a notification for the applicant.

In mid-July 1996 the applicant returned from her holidays and

found the notification. On 26 August 1996 the applicant, allegedly

following some unsuccessful attempts to get access to the case-file,

obtained the judgment directly from the District Court's office.

On 2 September 1996 the applicant's lawyer lodged an appeal

against the first instance judgment.

On 5 September 1996 the District Court rejected the appeal,

holding that, according to S.99 (2) of the Code of Civil Procedure (a

polgári perrendtartásról szóló 1952. évi III. törvény), the judgment

was to be considered as having been delivered on 11 July 1996, i.e. on

the fifth weekday from the date of the second unsuccessful attempt to

deliver it (4 July 1996). Accordingly, the statutory 15-day deadline

for lodging an appeal had expired on 26 July and, on 27 July 1996, the

first instance judgment became final. Since the applicant's lawyer

lodged the appeal only on 2 September 1996 and filed no application for

the reinstatement of the proceedings (igazolási kérelem), the appeal

had to be rejected as having been lodged out of time.

Section 99 (2) of the Code of Civil Procedure provides that, in

case the service of a court document has been unsuccessful on account

of the addressee's failure or refusal to receive it, the document shall

be regarded as served on the fifth weekday from the date of the second

unsuccessful attempt to deliver it.

The applicant's lawyer brought an appeal against the decision of

5 September and, simultaneously, applied for the reinstatement of the

proceedings. He argued that the service of the first instance judgment

had not been in compliance with the law. Consequently, the first

instance judgment had unlawfully been declared final in that the mere

failure of the postal service should not have prevented the applicant

from lodging an appeal. He submitted that in summertime it was not

unusual for citizens to be absent from their permanent address for

longer periods and that the applicant had filed her appeal without any

delay, once she had, after some unsuccessful attempts, managed to

obtain the judgment from the District Court's office. On 6 March 1997

the Budapest Regional Court (Fovárosi Bíróság), sitting in camera,

upheld the decision of 5 September 1996, holding that the delivery

procedure had been in compliance with the relevant Section 99 (2) of

the Code of Civil Procedure.

The Regional Court also rejected the application for the

reinstatement of the proceedings, observing that, according to the

relevant Section 107 (2) of the Code of Civil Procedure, in her

application the applicant should have made statements as to the reasons

for her omission and as to the circumstances warranting that the

omission in question had not been her fault. In the present case,

however, the applicant failed to advance any specific reasons for not

having received the first instance judgment. The statement that in

summertime it was not unusual for citizens to be absent from their

permanent address for longer periods was of a general character and was

insufficient to exculpate the applicant.

The Regional Court also recalled that the applicant, accompanied

by her then representative, had been present when the first instance

judgment had been pronounced. She could have, therefore, taken steps

to ensure the ensuing receipt of the judgment by appointing a

representative to this end or by leaving behind her temporary address.

COMPLAINTS

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

that the proceedings before the Budapest Regional Court concerning her

application for the reinstatement of the proceedings were unfair and

were not public. She also submits under Article 13 of the Convention

that, as a result of the rejection of her appeal, the first instance

court judgment was declared final and her case thus cannot be reviewed

by the Supreme Court.

THE LAW

The applicant complains that the proceedings before the Budapest

Regional Court concerning her application for the reinstatement of the

proceedings were not fair and public. She also submits that, as a

result of the rejection of her appeal, the first instance court

judgment was declared final and her case thus cannot be reviewed by the

Supreme Court.

Expressed this way, the applicant's complaints essentially

concern an alleged violation of her right of access to a court. The

Commission will therefore examine these complaints under

Article 6 para. 1 (Art. 6-1) of the Convention, which provides, in so

far as relevant, as follows:

"In the determination of his civil rights and obligations ... ,

everyone is entitled to a fair and public hearing ... ."

The Commission observes at the outset that the Convention does

not guarantee the right to appeal (No. 10515/83, Dec. 2.10.84, D.R. 40,

p. 258). Article 6 para. 1 (Art. 6-1) of the Convention does not

require States to establish courts of appeal or cassation. If, however,

such courts are created, the requirements of Article 6 (Art. 6) must

be respected (No. 9177/80, Dec. 6.10.81, D.R. 26, p. 255). Moreover,

the Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention does not prevent Contracting States from regulating access

to appeal jurisdictions, in order to ensure the proper administration

of justice (No. 12275/86, Dec. 2.7.91, D.R. 70, p. 47), especially, as

far as time limits are concerned (No. 8407/78, Dec. 6.5.80, D.R. 20,

p. 179).

The Commission also recalls that the failure of service of a

court order may, under certain circumstances, give rise to an issue

under Article 6 para. 1 (Art. 6-1) of the Convention, in so far as the

right of access to a court is concerned (cf. Eur. Court HR, Hennings

v. Germany judgment of 16 December 1992, Series A no. 251-A).

In the present case, the Commission notes that on 5 June 1996 the

first instance judgment was pronounced in the applicant's presence. In

mid-July 1996 she found the postman's notification about the attempts

to serve this judgment. She obtained the judgment from the District

Court's office on 26 August and her lawyer lodged an appeal on

2 September 1996. On 5 September 1996 the District Court rejected the

appeal, holding that it had been lodged out of time, as the first

instance judgment had become final on 27 July 1996 and the applicant

had lodged no application for the reinstatement of the proceedings.

Subsequently the applicant's lawyer appealed and also filed an

application for the reinstatement of the proceedings. On 6 March 1997

the Regional Court dismissed both. The Regional Court considered that

the delivery procedure itself had been in compliance with the relevant

S. 99 (2) of the Code of Civil Procedure. Moreover, the Regional Court

found that the application for the reinstatement of the proceedings

failed to meet the requirements contained in the relevant S. 107 (2)

of the Code of Civil Procedure in that no specific reasons were

advanced to substantiate that the applicant had been prevented by any

fault save her own from filing an appeal in time.

The Commission notes that the applicant did not have access to

the appeal court in a civil law case due to her failure to lodge an

appeal in time. In this respect the Commission observes that the

Hungarian Code of Civil Procedure provides the possibility of seeking

reinstatement of the proceedings.

The Commission considers that the applicant, being aware that the

first instance judgment would be served upon her, could reasonably have

been expected to make arrangements during her holidays in order to have

ready access to any mail addressed to her. The authorities cannot be

held responsible for barring her access to a court because she failed

to take the necessary steps to ensure receipt of her mail and was

thereby unable to comply with the requisite time-limits laid down under

Hungarian law (cf. Eur. Court HR, Hennings judgment, op. cit., p. 11,

para. 26). Moreover, the applicant's appeal was rejected at first

instance given her failure to seek reinstatement of the proceedings.

Furthermore, the Regional Court dismissed the appeal against this

decision and also the lawyer's application for the reinstatement of the

proceedings on the ground that the request for reinstatement was not

properly substantiated and did not meet the statutory requirements.

In these circumstances the Commission finds that the applicant

was not denied her right of access to a court contrary to Article 6

(Art. 6) 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 M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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DARNAY v. HUNGARY

DARNAY v. HUNGARY

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