Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31004/96

by J. N.

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 3 October 1995 by

J. N. against Hungary and registered on 12 April 1996 under file

No. 31004/96;

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

6 January 1997 and the observations in reply submitted by the

applicant on 4 February 1997;

- the supplementary observations submitted by the respondent

Government on 28 February 1997 and the observations in reply

submitted by the applicant on 16 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1942, is a Hungarian national and resident

in Tata. She is unemployed. Before the Commission, she is represented

by Mr. T. Kis, a lawyer practising in Komárom, 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 May 1990 Mr. S. S. brought an action before the Tatabánya

District Court (Tatabányai Városi Bíróság) against the applicant to

challenge a last will made in her favour by her common-law husband and

the brother of the plaintiff, the late Mr. M. S.

It appears that on 15 and 29 June, 25 July and 1 October 1990 the

District Court held hearings in the case. On the latter occasion six

further plaintiffs, Czechoslovakian citizens, joined the proceedings.

On 19 February 1991 the District Court held a hearing and

appointed a forensic medical expert in the case, who submitted his

opinion on 6 March 1992.

Meanwhile, on 13 December 1990 the applicant requested the

District Court that the action be decided upon without delay. On

14 February 1992 she inquired about the state of the proceedings at the

District Court.

On 20 July 1993 the applicant requested the District Court to fix

a hearing in the case. On 10 November 1993 she complained to the

President of the District Court (Városi Bíróság Elnöke) about the

inactivity of the Court. On 9 December 1993 the President of the

District Court called upon the judge in charge of the action to explain

the delay complained of. Thereupon, apparently in early 1994, an

examination was carried out as to the professional competence of this

judge.

On 6 January 1994 the President of the District Court informed

the applicant that a hearing would be held on 20 May 1994.

On 8 July 1994 the applicant complained to the President of the

District Court that she had not been summoned to the hearing scheduled

for 20 May 1990 and, in fact, no hearing had meanwhile taken place.

In response to her further complaint of 27 March 1995 about the

lack of a hearing, the Vice-President of the District Court informed

the applicant that the hearing scheduled for 20 May 1994 had been

cancelled since the judge in charge had meanwhile been requested to

resign as a result of the examination of her professional competence

and that a further hearing would take place on 29 June 1995.

On 29 June 1995 the District Court held a hearing and dismissed

the plaintiffs' claims. The District Court found that no doubt arose

in the case, either as to the authenticity of the signature on the last

will in question, or as to the mental capacity of the late Mr. M. S.

On 15 September 1995 the District Court notified the applicant

that the decision of 29 June 1995 had become final on 6 September 1995,

since no appeal had been lodged against it.

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 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 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.

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 3 October 1995 and registered

on 12 April 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

6 January 1997.

On 4 February 1997 the applicant submitted observations in reply

to the respondent Government's observations.

On 28 February 1997 the Government submitted supplementary

observations.

On 16 April 1997 the applicant submitted supplementary

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".

a. The Government argue that the applicant has not exhausted the

domestic remedies available to her under Hungarian law in that she 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 applicant argues that, given the lack of an established

domestic jurisprudence to that effect, an official liability action

cannot be regarded as an effective remedy.

The Commission recalls that, subsequent to protracted civil court

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

redress; in the present case, an official liability action cannot be

regarded as an effective remedy, which the applicant is 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 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 29 June 1995, 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 adjudged in her favour. The

applicant disagrees with these views.

Moreover, the Government admit that the subject matter of the

case was not complicated and that the applicant's conduct did not

contribute to the delays. Furthermore, the Government recall that a

temporary backlog of court business does not involve liability on the

part of the Contracting States provided that they take, with the

requisite promptness, remedial action to deal with an exceptional

situation of this kind (cf. Eur. Court HR, Zimmermann and Steiner v.

Switzerland judgment of 13 July 1983, Series A no. 66, pp. 12-13,

paras. 29-30; Guincho v. Portugal judgment of 10 July 1984, Series A

no. 81, pp. 13-17, paras. 29-32 and 37-41). In this respect the

Government acknowledge that, subsequent to the ratification of the

Convention by Hungary on 5 November 1992, no action was taken in the

case until 9 December 1993, when the judge in charge of the applicant's

case was called upon to explain the delays that had occurred. This

judge was eventually requested to resign and the applicant's action was

re-assigned to another judge. The further delays were due to the

excessive yearly workload of the Tatabánya District Court's eight civil

judges (in 1994, four to five hundred cases per judge), which was

aggravated by the distribution among these judges of some three hundred

cases which had previously been assigned to the resigned judge.

The applicant asserts that the delays in her case are imputable

to the District Court's conduct.

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 two years and ten

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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J.N. v. HUNGARY

J.N. v. HUNGARY

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