Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23317/94

by Lajos and Lajosné BERECZKI

against Hungary

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 October 1993

by Lajos and Lajosné BERECZKI against Hungary and registered on

25 January 1994 under file No. 23317/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 9 June 1994 and the observations in reply submitted by

the applicants on 9 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as they have been submitted by the parties, may be

summarised as follows.

The applicants, a married couple, are Hungarian citizens born in

1925.A. Particular circumstances of the case

The applicants were members of the Chamber of Békés County

Lawyers (Békés Megyei Ügyvédi Kamara) from 1956 until 1987 and from

1970 until 1985, i.e. for 31 and 15 years respectively. During this

period both of them practised in Mezoberény as members of the

Mezoberény Law Office (Mezoberényi Ügyvédi Munkaközösség). They

contributed and contributed 31,139% and 14,931%, respectively, to the

costs of a building built as a law office and owned by the Chamber of

Békés County Lawyers. The applicants used the building until they

retired as lawyers in 1985 and 1987 respectively, and ceased to be

members both of the Chamber and the law office.

According to Law No. XXIII of 1991 (1991. évi XXIII. törvény),

the assets of the chambers of lawyers should be divided among the law

offices which could divide them among the lawyers who are members of

the law office. The National Chamber of Lawyers subsequently issued

a circular (No. 21/1991) suggesting that all law offices should provide

former members of the law offices with an appropriate sum.

In April 1991 the Chamber of Békés County Lawyers decided that

all the property used by the Mezoberény Law Office should be

transferred to it. The Law Office was also given 197,500 Hungarian

Forint (about 12,000 FF) from members' former contributions. It was up

to the three lawyers working at the Law Office at that time to decide

upon the division of these assets.

On 3 September 1991 the three members of the Law Office concerned

decided unanimously to divide the 197,500 Hungarian Forints among

themselves. As regards the building, they decided unanimously to take

60% of its real value on the ground that it was used by them, and to

give 31,139% and 14,931% of this value to the applicants, respectively.

They also decided to dissolve the Law Office.

On 6 September 1991 they informed the applicants about these

decisions, who lodged an appeal with the Chamber of Békés County

Lawyers alleging that the division of assets was wrong and unfair.

On 30 September 1991 the Chamber of Békés County Lawyers

dismissed the appeal. It also stated that there was no further appeal.

The applicants then instituted civil proceedings against the

three members of the Law Office concerned.

On 24 March 1992 the Gyula Municipal Court (Városi Bíróság)

rejected the action without summoning the applicants (keresetlevél

idézés kibocsátása nélküli elutasítása) and without a hearing. The

Court, referring to S. 130 para. 1 (b) of the Code of Civil Procedure

(1952. évi III.) found that it had no competence to decide on a

decision of a Chamber of Lawyers and that the applicants in fact were

complaining about the refusal of their appeal by a Chamber of Lawyers.

The Court therefore considered that the applicants had no locus standi.

The Court also observed that the applicants could challenge the

decision of the Chamber of Lawyers before the National Chamber of

Lawyers.

On 23 June 1992 the Békés Regional Court (Megyei Bíróság),

sitting in private, rejected the applicants' appeal.

On 9 November 1992 the President of the Hungarian Supreme Court

(Magyar Köstársaság Legfelsobb Bírósága) refused the applicants'

petition for a review on legal grounds (törvényességi óvás) .

On 3 May 1993 the Constitutional Court (Alkotmánibíróság), in

proceedings brought by retired lawyers in a similar position as the

applicants, rejected motions to declare Law XXIII of 1991, to the

extent that the provisions on the distribution of the assets of the

Chambers of Lawyers were concerned, unconstitutional. The

Constitutional Court observed that the relevant rules formed part of

the reorganisation of the profession of lawyers, which had been

exercising their profession only as members of a collective of lawyers.

They aimed at creating in particular the financial conditions for a

free exercise of this profession. The assets of a Chamber of Lawyers

were therefore to be distributed to the active members, not to retired

lawyers.

On 24 May 1993 the National Chamber of Lawyers dismissed the

applicants' complaint about the decision of the Chamber of Békés County

Lawyers, and the allegedly incorrect distribution of the assets of the

Mezoberény Law Office. The National Chamber did not find the solution

chosen by the Mezoberény Law Office equitable but saw no point in

intervening.

B. Relevant domestic law

Law No. XXIII of 1991 (1991. évi XXIII. törvény) relates to the

reorganisation of the profession of lawyers. It provides in particular

for the distribution of the assets and offices of the Chambers of

Lawyers.

S. 25 para. 1 of Law No. XXIII of 1991 provides that anybody who

is affected by a decision of the general assembly of a law office may

file, within fifteen days from the communication of the decision, an

appeal against that decision with the Presidency of the Chamber of

Lawyers. The appeal has suspensive effect.

According to S. 39 of Law No. XXIII of 1991, the distribution,

among the law offices, of the assets of a Chamber of Lawyers, belongs

to the competence of the general assembly of the Chamber of Lawyers.

The decision passed by the general assembly of the Chamber of Lawyers

or the Presidency thereof may be set aside by the Presidency of the

National Chamber of Lawyers.

S. 130 para. 1 (b) of the Code of Civil Procedure (1952. évi

III.) provides that the court shall reject an action without issuing

a summons in particular if the enforcement of the plaintiff's claim

falls under the jurisdiction of another court or public authority.

The petition for a review on legal grounds (törvényességi óvás)

with the Attorney General (Legfobb Ugyész) or the President of the

Supreme Court (Magyar Köstársaság Legfelsobb Bírósága) was an

extraordinary remedy, available until 31 December 1992, and based on

a discretionary decision. On 1 January 1993 Law LXVIII of 1992 (1992.

évi LXVIII törvény) for civil proceedings, and Law LXIX of 1992 (1992.

évi LXIX törvény) for criminal proceedings, introduced the possibility

to request the Supreme Court to review a court decision.

COMPLAINTS

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

that they did not have a fair and public hearing.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 October 1993 and registered

on 25 January 1994.

On 6 April 1994 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

9 June 1994. The applicants replied on 9 August 1994.

THE LAW

The applicants complain that they did not have a fair and public

hearing before a tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

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 fair and public hearing ... by a ... tribunal

established by law."

The Government submit that the application is incompatible

ratione temporis. They consider that the facts complained of took

place prior to the entry into force of the Convention with respect of

Hungary, and that the decisions taken by the Supreme Court on

9 November 1992, the Constitutional Court on 3 May 1993 and the

National Chamber of Lawyers on 23 May 1993, respectively, cannot be

taken into account for these purposes. As regards the decision of the

National Chamber of Lawyers, the Government submit in particular that

the question before the Chamber was the allegedly incorrect

distribution of the assets of the Law Office and not the lack of access

to a court. Moreover, the procedure before the National Chamber of

Lawyers could not be regarded as a remedy for the purposes of

Article 26 (Art. 26) of the Convention.

The applicants dispute this view and argue that the National

Chamber of Lawyers intended to decide on the merits of their case.

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 Commission observes that the Chamber of Békés County Lawyers

decision on the transfer of assets to the Mezoberény Law Office dates

back to April 1991. The members of the Law Office concerned decided

on the distribution of assets on 3 September 1991. On 30 September

1991 the Chamber of Békés County Lawyers dismissed the applicants'

appeal. The applicants' civil action against the lawyers of the Law

Office concerned was rejected by the Gyula Municipal Court on

24 March 1992, as confirmed by the Békés Regional Court on

23 June 1992.

The Commission considers that this decision of the Békés Regional

Court of 23 June 1992 constitutes the final decision on the question

of the applicants' access to a court regarding the distribution of the

assets of the Mezoberény Law Office. The matter complained of

therefore dates back to a period prior to 5 November 1992, which is the

date of the entry into force of the Convention with respect to Hungary.

It is true that several decisions were taken after

5 November 1992.

However, the Commission finds that applicants' petition with the

President of the Supreme Court for a review on legal grounds, which was

refused on 9 November 1992, did not, given its extraordinary and

discretionary nature, constitute an effective remedy according to the

generally recognised rules of international law (cf., mutatis mutandis,

No. 8395/78, Dec. 16.12.89, D.R. 27 p. 50). These proceedings are,

therefore, irrelevant for defining the Commission's competence ratione

temporis.

The Commission further notes that the Constitutional Court's

decision of 3 May 1993 on a petition brought by retired lawyers in a

similar position as the applicants concerned the general question of

constitutionality of the law at issue. However, the specific matter

raised by the applicants in their application before the Commission is

the lack of a public hearing by a tribunal within the meaning of

Article 6 para. 1 (Art. 6-1). These proceedings cannot, therefore,

affect the Commission's finding as to the final decision in the present

case.

Finally, the Commission has noted the applicants' argument that

the decision of the National Chamber of Lawyers of 24 May 1993 should

be regarded as the final decision in their case. However, the National

Chamber of Lawyers, as a body within the organisational structure of

the lawyers profession, only dealt with the applicants' complaint about

the decision of the Chamber of Békés County Lawyers, and the allegedly

incorrect distribution of the assets of the Mezoberény Law Office. A

complaint with this body cannot be regarded as an effective remedy in

respect of the lack of a public hearing by a tribunal within the

meaning of Article 6 para. 1 (Art. 6-1). Consequently, these

proceedings cannot be considered for the purpose of establishing the

Commission's competence ratione temporis, either.

It follows that the application is outside the competence ratione

temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BERECZKI v. HUNGARY

BERECZKI v. HUNGARY

LEXI