Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29752/96

by Jánosné SKOBRÁK and

Ferencné PATAKI

against Hungary

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

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 23 October 1995

by Jánosné SKOBRÁK and Ferencné PATAKI against Hungary and registered

on 8 January 1996 under file No. 29752/96;

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

13 December 1996 and the observations in reply submitted by the

applicants on 6 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, born in 1954 and 1964, respectively, are

Hungarian nationals. They reside in Bokod, Hungary, and are

businesswomen. Before the Commission they are represented by

Mr. T. Neiger M., a lawyer practising in Tatabánya, 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 1991, in the context of a trespass dispute, the Bokod Communal

Clerk (Bokod Község Jegyzoje) admitted the applicants' motion to

prevent Mr. M. from interfering with the electricity supply of the

business premises, including a bar, rented by them. It appears,

however, that subsequently Mr. M. failed to arrange for the restoration

of the electricity supply and, in December 1991, he challenged the

Communal Clerk's decision before the Tatabánya District Court

(Tatabányai Városi Bíróság).

In January 1992 the District Court requested the Communal Clerk

to submit the relevant documents.

On 24 May 1993 the District Court called upon Mr. M. to submit

information, which he did on 3 September 1993.

Due to the fact that considerable delays had occurred in numerous

actions assigned to the judge in charge of the applicants' case, in

early 1994 the President of the District Court carried out an

examination as to the professional competence of this judge. As a

consequence of this examination, subsequently the President of the

Komárom-Esztergom County Regional Court (Komárom-Esztergom Megyei

Bíróság Elnöke) requested this judge to resign.

On 31 March 1994 the applicants' lease of the business premises

at issue expired.

On 8 September 1994 the applicants' representative complained to

the Ministry of Justice (Igazságügyi Minisztérium) about the length of

the proceedings. He also brought compensation claims in this respect

and proposed that an out-of-court agreement be made between the

applicants and the Ministry of Justice acting on behalf of the

competent Regional Court.

On 28 September 1994 the Ministry of Justice informed the

applicants' representative that it was within the competence of the

President of the Regional Court to take action in respect of any delays

in the proceedings before the District Court and to consider any

compensation claims.

Meanwhile, the judge in charge complied with the request of the

President of the Regional Court and resigned. On 7 October 1994 the

applicants' case was assigned to another judge and was given priority

treatment by the President of the District Court.

On 12 October 1994 the applicants' representative complained to

the President of the Regional Court about the length of the

proceedings, maintaining his compensation claims and his proposal that

an out-of-court agreement be reached.

On 11 November 1994 the President of the Regional Court informed

the applicants' representative that he had examined his complaint and

that he could not consider the compensation claims, unless the

applicants' representative submitted a power of attorney, which he did

on 16 November 1994.

On 28 November 1994 the District Court held a hearing, which was

adjourned with a view to obtaining witness evidence and information

from the Electricity Company.

On 19 December 1994 the President of the Regional Court confirmed

that he had taken administrative measures upon the applicants'

complaint. Moreover, he pointed out that the compensation claims were

premature and could be considered on the merits only subsequent to the

final decision in the principal case.

On 25 May 1995 the case was assigned to yet another judge.

On 3 November 1995 the District Court held a hearing, to which

the applicants' representative was not summoned. The District Court

nevertheless heard the witnesses present and fixed a hearing for

24 January 1996, which eventually had to be adjourned, as the

applicants' representative again had not been duly summoned.

On 28 February 1996 the District Court held a hearing and

dismissed the plaintiff's action.

On 18 April 1996 the plaintiff lodged an appeal against the first

instance decision.

On 15 October 1996 the Regional Court upheld the first instance

decision.

On 19 November 1996 the Regional Court corrected its judgment as

to the settlement of procedural expenses.

On the same day the President of the Regional Court refused to

accept an out-of-court agreement settling the applicants' claims for

compensation for the length of the proceedings and pointed out that the

applicants could bring an action to this end.

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 be terminated within a reasonable time.

Section 5 (1) provides that the parties shall exercise their procedural

rights in bona fide.

Section 3 (2), which entered into force on 1 January 1993, can

be referred to, if a person, 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).

Section 97 of the Code of Civil Procedure provides that, if a

party has appointed a representative to proceed in his case, the court

documents shall be served upon the representative. According to S. 128,

an action has legal effect (perindítás hatályai) only once it is

notified to the defendant. Section 135 (1) requires the court to

adjourn a hearing, if a party is not present and has not been duly

summoned.

Section 339 (1) of the Civil Code provides that anybody who

unlawfully causes damage to another person shall compensate for it.

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 fit to prevent damages. Unless otherwise

regulated, this applies accordingly to the liability for damages caused

by the courts or the prosecution authorities.

According to S. 26 (2) of Law-Decree No. 11 of 1960, the Communal

Clerk's decision as to the question of possession shall be executed

within a delay of three days, even if the party concerned has brought

a court action.

COMPLAINT

The applicants complain under Article 6 para. 1 of the Convention

that the above civil court proceedings lasted unreasonably long.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 October 1995 and registered

on 8 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

13 December 1996.

On 6 February 1997 the applicants' representative submitted

observations in reply to the respondent Government's observations.

THE LAW

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 an

effective remedy. The Government emphasize that the statement of the

President of the Regional Court, dated 19 November 1996, did not

prevent the applicants from bringing an official liability action.

The applicants argue that the Hungarian law does not provide any

effective and available remedy to redress the prejudice caused by

protracted civil proceedings. Given the lack of an established domestic

jurisprudence, the official liability action, as suggested by the

Government, cannot be regarded as an effective remedy. Moreover, in

such proceedings only partial satisfaction, in the form of compensation

for pecuniary loss, could be awarded, as opposed to full-scale just

satisfaction including the publication of a violation of the Convention

and compensation for moral damages. In any event, they brought their

compensation claims before the President of the Regional Court in

October 1994, who eventually refused those claims only on

19 November 1996.

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 that on 19 December 1994 the President of

the Regional Court pointed out that the applicants' compensation claims

were premature and could be considered on the merits only subsequent

to the final decision in the principal case.

The Commission finds that, subsequent to protracted civil court

proceedings, a further civil action does not provide direct and speedy

redress. Accordingly, in the present case an official liability action

cannot be regarded as an effective remedy, which the applicants are

required to exhaust (cf. No. 26209/95, T.K. and T.K. v. Hungary,

Dec. 21.5.97, unpublished). The complaint cannot, therefore, be

rejected for non-exhaustion of domestic remedies.

b. The Government admit that the subject matter of the case was not

complicated. As to the conduct of the parties, the Government recall

that the right of every person to have his case heard within a

reasonable time depends, particularly in civil cases, on the conduct

of the person concerned, who must act with the required diligence; the

exercise of this right implies not only that the person concerned

should refrain from lodging applications or appeals to delay the

proceedings, but that he should do everything possible to speed up the

proceedings (Guincho v. Portugal, Comm. Report 10.3.83, para. 72,

Eur. Court HR, Series B no. 66, pp. 26-27). In this respect the

Government note that, prior to 8 September 1994, the applicants did not

press ahead with the proceedings in any manner. Furthermore, the

Government admit that certain undue delays, in particular, prior to May

1993 and between September 1993 and November 1994, are imputable to the

District Court. As a background, the Government submit that, in the

relevant period, the District Court's workload was excessive and there

were some three hundred cases assigned to the judge in charge.

The applicants submit that, given the lack of electricity, they

could not use their business premises from 1991 until the expiry of

their lease. The District Court did not take any action as to the

merits of their case prior to 28 November 1994 and thereupon until

28 February 1996. The hearings scheduled for 3 November 1995 and

24 January 1996 were to be adjourned, since their representative was

not duly summoned (cf. Sections 97 and 135/1/ of the Code of Civil

Procedure). As to the Government's argument that, prior to September

1994, they failed to press ahead with the proceedings, the applicants

submit that the District Court notified them only in October 1994 about

the very existence of the action brought against them. The Code of

Civil Procedure does not provide any means to advance the proceedings,

in particular, prior to the notification of the action to the

defendants (cf. Section 128 of the Code of Civil Procedure).

The Commission observes that the applicant's complaint relates

to proceedings, which started in December 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 some eleven months 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 15 October 1996 and, on 19 November 1996, it corrected its

judgment as to the settlement of procedural expenses. Consequently, the

proceedings in question lasted about four years 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 the electricity

supply of the applicants' business premises in the context of a

trespass dispute and thus involved no issues of particular complexity.

As to the conduct of the parties, the Commission notes that none

of the parties appears to have caused any particular delay in the case.

As to the applicants' diligence in speeding up the proceedings, the

Commission notes that on 8 September 1994 they complained to the

Ministry of Justice about the length of the proceedings. On

12 October 1994 they complained to the President of the Regional Court

about the same. On 16 November 1994 they maintained their complaint.

As to the conduct of the judicial authorities, the Commission

notes that in 1994 the judge in charge was requested to resign as a

consequence of considerable delays having occurred in numerous actions

assigned to her. On 7 October 1994 the applicants' case was assigned

to another judge and was given priority treatment. On 28 November 1994

the District Court held a hearing. On 19 December 1994 the President

of the Regional Court confirmed that he had taken administrative

measures upon the applicants' complaint about the length of the

proceedings. On 25 May 1995 the case was assigned to yet another judge.

On 3 November 1995 the District Court held a hearing, to which the

applicants' representative was not summoned; the District Court

nevertheless heard the witnesses present. The hearing scheduled for

24 January 1996 had to be adjourned as the applicants' representative

again had not been duly summoned. On 28 February 1996 the District

Court held a hearing and dismissed the plaintiff's action. On

15 October 1996 the Regional Court upheld the first instance decision

and, on 19 November 1996, it corrected its judgment.

The Commission recalls that, when assessing the reasonableness

of the length of proceedings, the importance of what is at stake for

the applicant in the litigation has to be taken into account

(Eur. Court HR, Vallée v. France judgment of 26 April 1994, Series A

no. 289-A, p. 17, para. 34; Hokkanen v. Finland judgment of

23 September 1994, Series A no. 299-A, p. 25, para. 69). It is

essential that certain types of litigation, such as custody cases

(cf. Eur. Court HR, Hokkanen v. Finland judgment of 23 September 1994,

Series A no. 299-A, p. 26, para. 72) or employment disputes (cf. Eur.

Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A

no. 179, p. 23, para. 72), be dealt with speedily. However, the nature

and the circumstances of the present case did not warrant that the

action be dealt with particular speediness.

The Commission considers that, subsequent to the ratification,

some delays are imputable to the District Court, in particular, prior

to 28 November 1994 and thereupon until 3 November 1995.

However, the Commission, having regard to the fact that the

action at issue was dealt with by two court instances, finds that the

delays which occurred do not, as a whole, appear substantial enough for

the total length of the proceedings, i.e. about four years subsequent

to the ratification, to have exceeded an acceptable limit in the

circumstances of 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 applicants' 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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SKOBRÁK AND PATAKI v. HUNGARY

SKOBRÁK AND PATAKI v. HUNGARY

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