Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27131/95

by Judit ADELMANNÉ KERTÉSZ

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 20 April 1994 by

Judit ADELMANNÉ KERTÉSZ against Hungary and registered on 26 April 1995

under file No. 27131/95;

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

4 November 1996 and the observations in reply submitted by the

applicant on 17 January 1997;

- the supplementary observations submitted by the respondent

Government on 25 February 1997 and the observations in reply

submitted by the applicant on 25 April 1997 and on 15 May 1997

respectively;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1945, is a Hungarian national and resident

in Budapest. She edits bibliographies as a profession. Before the

Commission, she is represented by Mr. E. Petruska, a lawyer practising

in Budapest.

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 June 1984 the applicant brought a trespass action before the

Buda Central District Court (Budai Központi Kerületi Bíróság) 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,

applied a prohibitory injunction concerning the emission of smells. In

October 1987 the Budapest Regional Court (Fovárosi Bíróság) dismissed

the defendants' appeal.

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 proceedings involved

an inspection of the premises and the obtaining of an expert opinion.

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 the applicant requested from the President of the

District Court that her action be given priority. In October 1992 she

complained to the Minister of Justice about the length of the

proceedings. The Head of Collegium of the Budapest Regional Court

(Fovárosi Bíróság Kollégiumvezetoje) informed her in response that he

would not take any action in the case.

On 20 January 1993 the applicant repeatedly complained to the

Minister of Justice about the length of the proceedings. On

22 February 1993 she complained about the same to the President of the

Supreme Court (Legfelsobb Bíróság Elnöke). On 22 March 1993 the Supreme

Court informed the applicant in response that it had no competence to

give her case priority.

As from 1 May 1993 the lease of the restaurant in question was

regulated in a new contract. On 4 May 1993 the applicant, reacting to

the contract of 1 May 1993, modified her action, apparently bringing

some new claims for various injunctions. On the same date she 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.

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.

On 30 March 1994 the District Court 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, quashed the

first instance decision of 30 March 1994 in so far as it concerned some

trespass issues.

On 14 November 1995 the Supreme Court (Legfelsobb Bíróság)

rejected the applicant's petition for review, as it had been lodged out

of time.

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. Her further

complaint to the Ombudsman's Office (Állampolgári Jogok Országgyulési

Biztosa Általános Helyettese) was to no avail.

Meanwhile, on 19 July 1995, the District Court, in the

proceedings regarding the remainder of the applicant's action, namely,

inter alia, 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. Subsequently the applicant, with a view to a further

modification of her claims, requested the District Court to suspend the

proceedings pending the constitutional complaint proceedings.

On 5 July 1996 the District Court suspended the proceedings.

Notwithstanding the Constitutional Court's decision of

12 February 1997, the proceedings have not yet been resumed.

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.

According to S. 146 of the Code of Civil Procedure, 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. Until

the same date the action may be extended to further defendants.

According to S. 213 of the Code of Civil Procedure, a partial

decision may be taken upon such claims as are separate or can be

adjudged separately, if no further hearing is necessary in respect of

these claims and the adjudication of the remainder of the claims has

to be postponed.

COMPLAINT

The applicant complains 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 20 April 1994 and registered

on 26 April 1995.

On 4 September 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

4 November 1996.

On 17 January 1997 the applicant submitted observations in reply

to the respondent Government's observations.

On 25 February 1997 the Government submitted supplementary

observations.

On 25 April and 15 May 1997 the applicant submitted supplementary

observations.

THE LAW

The applicant complains, under Article 6 para. 1 (Art. 6-1) of

the Convention, of the length of the proceedings concerning her

trespass action.

a. The Government note that the proceedings are still pending and

argue that the application, thus being premature, must be rejected for

non-compliance with Article 26 (Art. 26) of the Convention. In this

respect they recall that it is in fact usual practice in international

and national courts that objections to admissibility should as a

general rule be raised in limine litis (Eur. Court HR, De Wilde, Ooms

and Versyp v. Belgium judgment of 28 May 1970, Series A no. 12, p. 30,

para. 54).

The applicant recalls that, inter alia, in the Zanghì v. Italy

case (Eur. Court HR, Series A no. 194-C) and in the Pierazzini v. Italy

case (Eur. Court HR, Series A no. 231-C) the proceedings complained of

were still pending when the Court passed its judgment. She argues that

to request prior termination of the proceedings, the length of which

is complained of, as a condition of admissibility would be unreasonable

and contrary to the very nature of the safeguards enshrined under

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

The Commission recalls its constant case-law according to which

complaints concerning length of procedure can be brought before it,

before the final termination of the proceedings in question, if at

least the applicant has made use of those remedies which concerned the

length of procedure (eg. No. 9816/82, Dec. 9.3.84, D.R. 36, p. 170).

The Commission notes that in July 1992 and on 4 May 1993 the

applicant repeatedly requested from the President of the District Court

that her action be given priority. Moreover, she unsuccessfully

complained about the length of the proceedings to the Minister of

Justice in October 1992 and on 20 January 1993 and to the President of

the Supreme Court on 22 February 1993.

The Commission observes that the Government have not pointed to

any other remedy regarding the complaint about the length of the

proceedings.

In these circumstances, the Commission considers that the

application cannot be rejected for the non-exhaustion of domestic

remedies.

b. The Commission notes that the proceedings commenced in 1984 and

are still pending. Accordingly, they have so far lasted a total of some

thirteen years.

The applicant considers that the length of the proceedings

exceeds the reasonable time set out in Article 6 para. 1 (Art. 6-1) of

the Convention. The Government contest this.

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 four 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, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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ADELMANNÉ KERTÉSZ v. HUNGARY

ADELMANNÉ KERTÉSZ v. HUNGARY