Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26209/95

by Mr. T. K. and Mrs. T. K.

against Hungary

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. 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

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 24 March 1994 by

Mr. T. K. and Mrs. T. K. against Hungary and registered on

13 January 1995 under file No. 26209/95;

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

8 February 1996 and the observations in reply submitted by the

applicants on 5 March 1996;

- the supplementary observations submitted by the respondent

Government on 28 May 1996 and the observations in reply submitted

by the applicants on 26 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, husband and wife, both pensioners, are Hungarian

citizens born in 1933 and 1928, respectively, and reside in Budakeszi,

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 1961 the applicants purchased a real estate. Alleging that the

borders of their lot were allegedly registered by the competent Land

Authority (Budai Járási és Városi Földhivatal) erroneously, they

subsequently instituted administrative proceedings with a view to

having the impugned entry corrected in the land registry. These

proceedings remained unsuccessful, the last decision having been taken

by the Pest County Land Authority (Pest megyei Földhivatal) in July

1983. In March 1984 the applicants brought an action in the Buda

Surroundings District Court (Budakörnyéki Bíróság) against the Land

Authority and the three co-owners of the real estate, claiming

possession of part of the disputed real estate and requesting the

correction of the impugned land registry entry. Further to unsuccessful

negotiations among the co-owners about the actual use of the real

estate, in January 1985 the District Court involved an expert in the

case and, as the applicants had meanwhile withdrawn their action in so

far as the Land Authority had been concerned, discontinued the

proceedings against the Land Authority. From December 1985 the

proceedings were interrupted, pending the succession of a deceased

defendant, until 21 May 1987, when the applicants' representative,

having had the successors of the deceased defendant joined and the Land

Authority re-joined as defendants, requested the continuation of the

proceedings.

In October and December 1987 and in October 1988 the District

Court held hearings. On the latter occasion the District Court ordered

the applicants to join all the co-owners as defendants. In January 1989

the District Court held a further hearing.

On 20 March 1989 the District Court held a hearing and ordered

the applicants to join the successors of certain defendants, who had

in the meantime died. In February 1990 the District Court held a

further hearing, inviting some of the defendants to lodge their

counter-action. In July 1990 the District Court appointed a second

expert in the case, who eventually presented his opinion in September

1992. The expert stated that his delay had been due to the extreme

complexity of the case and that he had had to consult land registry

documents dating back to 1900-1945.

In August 1992 the applicants complained about the length of the

proceedings to the President of the Pest County Regional Court (Pest

megyei Bíróság Elnöke) who in October 1992 informed them that he had

arranged for the District Court to hold a hearing on 27 November 1992.

On 16 October 1992 the District Court established the second

expert's fee. The applicants' appeal concerning the expert's fee was

eventually dismissed in February 1994.

On 29 October and 5 November 1992 the District Court, while

postponing the hearing scheduled for 27 November 1992, ordered the

applicants to submit the addresses of some defendants. On

19 November 1992 the applicants complied with this order and, at the

same time, lodged a request for exemption from the procedural costs.

Due to formal shortcomings, the request was subsequently returned to

the applicants, who re-introduced it on 27 January 1993. On

1 September 1993 the District Court granted the applicants exemption

from advancing the necessary stamp duties.

On 16 September 1993 the applicants again complained to Pest

County Regional Court (Pest Megyei Bíróság) about the length of the

proceedings. On 15 November 1993 they were informed in reply that the

hearing scheduled for 27 November 1992 had been postponed for

administrative reasons. On 14 December 1993 the applicants, upon their

further complaint dated 8 December 1993, were informed that their case

had meanwhile been assigned to another judge.

On 22 December 1993 the applicants complained to the President

of the Regional Court about a further, allegedly erroneous, entry in

the land registry and, in particular, the involvement and the conduct

of the defendant Pest County Land Authority in these registry

proceedings. On 5 January 1994 the President of the Court informed the

applicants that the impugned entry should be remedied in administrative

proceedings, in which proceedings they could challenge the Pest County

Land Authority for bias, with a view to the appointment of another Land

Authority.

On 12 January 1995 the District Court requested the competent

Land Authority to transmit certain files and fixed a hearing for

1 March 1995.

At the hearing of 1 March 1995 two defendants introduced counter-

actions. The District Court called upon the applicants to file recent

abstracts from the land registry and warned them that it would

discontinue the proceedings, unless they joined all the co-owners as

defendants. In the latter respect the District Court recalled the legal

succession of certain co-owners on account of, inter alia, alienation

and inheritance. At the hearing the applicants and their representative

disagreed as to the exact nature of their claims. Subsequently the

District Court's attempt to serve the hearing minutes upon two absent

defendants remained unsuccessful, since the defendants had moved to

unknown addresses.

In their submissions of 25 March 1995 the applicants extended

their action and proposed that further defendants be joined to the

proceedings.

In its decision of 2 February 1996 the District Court

acknowledged that the proceedings then involved altogether seventeen

defendants, ordered the applicants to introduce their concise action

before 25 February 1996 and fixed a hearing for 26 March 1996. In its

order of 12 February 1996, the District Court reminded the applicants'

representative that discharging any defendants from the proceedings

would require a formal waiver to that effect and that the joinder of

any further defendants would require an express statement to that

effect.

On 21 February 1996 the applicants filed their action in a

concise form, stating that their action concerned altogether twenty-one

defendants.

In its order of 6 March 1996 the District Court established that

the applicants had ignored its previous order and the relevant

procedural rules in that they had failed to specify the addresses of

the co-owners newly to be joined as defendants.

On 11 March 1996 the applicants requested that the Land Authority

be joined, following their similar request dated 21 May 1987, as a

defendant in the case.

On 26 March 1996 the District Court held a hearing and ordered

the severance from the proceedings at issue of a counter-action brought

by one of the defendants. The Court dismissed some of the defendants

from the proceedings and fixed a hearing for 3 June 1996.

On 16 May 1996 the District Court postponed the hearing scheduled

for 3 June until 1 July 1996 and summoned the co-owners having been

newly joined as defendants to the hearing.

On 1 July, 4 and 11 September and 11 November 1996 the District

Court held hearings.

On 20 November 1996 the District Court took a partial decision

in the case as to the borders of the applicants' lot. This decision

concerned altogether twenty-two defendants. To the extent that the

action had concerned the impugned decision of the Land Authority, the

District Court ordered that this question be separated and dealt with

by the Administrative Chamber of the District Court.

On 3 February 1997 the applicants appealed against the partial

decision. The appeal proceedings are still pending before the Pest

County Regional 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 it is the court's ex officio duty to arrange for actions to be

dealt with thoroughly and terminated within a reasonable time. This

provision, which entered into force on 1 January 1993, can be invoked,

if one, 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). 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 capable of preventing damage. Unless otherwise

regulated, this applies accordingly to the liability for damages caused

by the courts or the prosecution authorities.

According to S. 114 of the Code of Civil Procedure, a party may

complain of the irregularity of proceedings at any time during the

proceedings. Minutes shall be taken of any oral complaint to that

effect. If the court fails to take such a complaint into account, the

grounds for such failure shall be given immediately or, at the latest,

in the final decision.

S. 111 (1) of the Code of Civil Procedure provides that, if any

of the parties dies, the proceedings shall be interrupted until the

legal successor joins or is made to join the litigation. According to

S. 62 (1), the joinder of a legal successor shall be announced in

writing or orally at the hearing; the parties and the joined legal

successor shall also be informed thereof.

According to S. 101 of the Code of Civil Procedure, if the

residence of a party is unknown or is in a country not rendering legal

assistance in this respect, or if the service [of decisions] is

insurmountably impeded or appears likely to be unsuccessful, service

shall be effected by publication. Service on unknown inheritors shall

also be effected by publication. Service by publication may be ordered

by the court only at the request of a party on condition that the

underlying grounds have been shown to be satisfied on the balance of

probabilities.

The competence of the land authorities is regulated by Order

No. 1/1990. (VI.26.) of the Minister of Agriculture (1/1990.

/VI.26./ FM rendelet), according to which the geographical competence

of the district land authorities, operated within the area of the

respective county land authorities, encompasses such locations as are

within the districts circumscribed in the Annex to Order No. 1/1990.

Within its area of geographical competence, the county or district land

authority carries out the functions of the land administration.

COMPLAINTS

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

about the length of the proceedings.

2. The applicants also complain under Article 1 of Protocol No. 1

that, in the absence of a final court decision, they are unable to

exercise their ownership rights over the disputed real estate.

3. The applicants further complain under Article 6 para. 1 of the

Convention that the District Court lacked impartiality in that it

ordered the Pest County Land Authority, itself a defendant, to make

land registry entries in respect of the disputed real estate.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 March 1994 and registered

on 13 January 1995.

On 29 November 1995 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

8 February 1996.

On 5 March 1996 the applicants submitted observations in reply

to the respondent Government's observations.

On 28 May 1996 and on 24 January 1997 the Government submitted

supplementary observations.

On 26 June 1996 the applicants submitted supplementary

observations in reply.

On 2 July 1996 the Commission decided not to grant legal aid.

THE LAW

1. 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 to be

an effective remedy.

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 at the outset that the proceedings

complained of started in 1984 and recalls that S. 3 (2) of the Code of

Civil Procedure entered into force on 1 January 1993. The Commission

further considers that, when proceedings have already lasted for over

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

redress. Consequently, in the present case the official liability

action, as suggested by the Government, cannot be regarded as an

effective remedy, which the applicants are required to exhaust. The

complaint cannot, therefore, be rejected for the non-exhaustion of

domestic remedies.

b. Moreover, the Government submit that the proceedings, in so far

as they took place prior to 5 November 1992, fall outside the

Commission's competence ratione temporis. To the extent that the period

subsequent to 5 November 1992 is concerned, the Government maintain

that the protraction of the proceedings has largely been due to the

applicants' non-compliance with the procedural rules, inter alia, on

joinder of parties and on release from the proceedings. In particular,

the applicants, represented by counsel, repeatedly failed to have all

the co-owners joined as defendants and to submit the exact address of

some defendants. In the course of the proceedings, the applicants and

their lawyer displayed disagreement as to the exact nature of their

claims. Moreover, the proceedings relate to rather complicated

ownership matters, aspects of which dated back to before World War II,

and eventually - partly due to the joining of successors in title of

certain defendants - involve twenty-two defendants.

The applicants submit that between February 1990 and March 1995

no hearing was held in their case. The review of the impugned decision

of the Pest County Land Authority has not yet taken place.

The Commission recalls that, when examining the length of the

proceedings, the period to be considered begins only on

5 November 1992, when Hungary ratified the Convention. 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 finds that the applicants' complaint about the

length of the proceedings raises questions of fact and law which

require an examination of the merits. The present complaint is

therefore not manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for

declaring it inadmissible has been established.

2. The applicants complain under Article 1 of Protocol No. 1 (P1-1)

that, in the absence of a final court decision, they are unable to

exercise their ownership rights over the disputed estate lot.

Article 1 of Protocol No. 1 (P1-1) safeguards that every person

is entitled to the peaceful enjoyment of his possessions.

The Government submit that the applicants have not been deprived

of their property, neither have they been limited in their possession

or use thereof.

The applicants submit that they are limited in the peaceful

possession of their property in that - given the unsettled situation

in the land registry - they cannot sell their property or part of it.

Furthermore, a co-owner, benefitting from the erroneous land registry

entry, sold a part of the disputed estate, allegedly belonging to the

applicants.

The Commission finds that this aspect of the application is so

closely related to the length of the proceedings that it cannot be

separated and must likewise be examined on the merits. This part of the

application cannot, therefore, be declared manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,

no other ground for declaring it inadmissible having been established.

3. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that the District Court lacked impartiality in that it

ordered the Pest County Land Authority, itself a defendant, to make

land registry entries in respect of the disputed real estate.

Article 6 (Art. 6) of the Convention, in so far as relevant,

provides that, in the determination of his civil rights and

obligations, everyone is entitled to a fair hearing by an impartial

tribunal.

The Government submit that the competence of the land authorities

is regulated by Order No. 1/1990 and the courts cannot take ad hoc

decisions in this respect.

The applicants submit that they unsuccessfully complained to the

courts about the defendant Land Authority being involved in the further

impugned land registry proceedings.

The Commission notes that the applicants' appeal against the

decision of the District Court is pending before the Regional Court and

recalls that, in principle, it can only assess the fairness of

proceedings when it is able to consider them in their entirety (cf.,

mutatis mutandis, No. 9000/80, Dec. 11.3.82, D.R. 28, p. 127). In the

present case, the Commission considers that, until the relevant

proceedings have finished, the applicants' complaint as to the fairness

of proceedings is premature.

It follows that this part of the application is manifestly ill-

founded and must be rejected under Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicants' complaints relating to the length of the

proceedings,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MR. T.K. AND MRS. T.K. v. HUNGARY

MR. T.K. AND MRS. T.K. v. HUNGARY

LEXI