Lexploria

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

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KARDOS v. HUNGARY

KARDOS v. HUNGARY

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