SECOND SECTION

DECISION

Application no . 53815/11 Ferenc RÓZSA and Istvá n RÓ ZSA against Hungary

The European Court of Human Rights ( Second Section ), sitting on 7 April 2015 as a Chamber composed of:

Işıl Karakaş, President , András Sajó, Nebojša Vučinić, Paul Lemmens, Egidijus Kūris, Robert Spano, Jon Fridrik Kjølbro, judges , and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 22 August 2011 ,

Having deliberated, decides as follows:

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. The applicants, Mr Ferenc Rózsa and Mr István Rózsa , are Hungarian nationals, who were born in 1951 and 1949 respectively and live in Budapest .

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

In its judgment of 28 April 2009 in the case of Ferenc Rózsa and István Rózsa v. Hungary (no. 30789/05), the Court found that the respondent Government had breached the applicants ’ right of access to a court, as guaranteed by Article 6 § 1 of the Convention, since the authorities had excluded their ability to bring an action in damages against the domestic courts which had ordered the allegedly unlawful liquidation of their company. Their locus standi had been denied in the domestic proceedings on the ground that their company was in liquidation and only the liquidator had the capacity to conduct legal proceedings in its name.

3. The Court noted in the judgment that the purpose of the restriction on the shareholders ’ capacity to take legal proceedings was intended to protect the rights and interests of the company ’ s creditors. However, it found that no fair balance had been struck between the general interest of securing the payment of creditors and the applicants ’ personal interest in having access to a court.

4. The Court noted in paragraph 29 of the judgment, concerning the application of Article 41 of the Convention, that “where an individual, as in the instant case, has been denied access to a court in a manner irreconcilable with the Convention requirement of fairness, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation.”

5. Following the Court ’ s judgment, on 29 August 2009 the applicants requested the domestic courts to reopen their case.

The Pest County Regional Court considered that the applicants ’ request was time-barred and dismissed their motion without an examination on the merits. It observed that the applicants had not requested the reopening of their case within the objective, statutory time-limit prescribed by section 261(3) of the Code of Civil Procedure, that is, within five years counted from the date when the final domestic decision given in the principal case had become binding. The court reasoned that the five-year time-limit had started to run on the day of service of the final domestic decision, that is, on 13 April 2004, whereas the motion for reopening had been introduced only on 29 August 2009, thus outside the prescribed period.

6 . In reply to the applicants ’ argument that the proper execution of the Court ’ s judgment of 28 April 2009 necessitated the reopening of their case at any rate, the court observed that there was nothing in the operative part of the judgment indicating an obligation in that sense, since it only referred to Article 41 of the Convention concerning just satisfaction.

7. On 19 January 2011 the Budapest Court of Appeal dismissed the applicants ’ appeal, endorsing in essence the first-instance court ’ s reasoning. It noted that although, under Article 46 of the Convention, Hungary had undertaken to abide by the final judgments of the Court, the judgment in question merely entailed the obligation to pay just satisfaction to the applicants, and paragraph 29 of the judgment contained no more than guidance as to the means by which the domestic authorities could give effect to the Court ’ s ruling. Furthermore, it held that the domestic courts remained bound by the domestic procedural rules applicable to the reopening of civil cases. The court observed that should the applicants consider the provisions of the Code of Civil Procedure to be contrary to the Convention, and thus unconstitutional as well, they were entitled to request the ex post constitutional review of those provisions before the Constitutional Court.

II. RELEVANT DOMESTIC LAW

8 . Relevant extracts from Act no. III of 1952 on the Code of Civil Procedure read as follows:

Section 260

“(1) Reopening of a final judgment may take place if:

a) a party refers to a fact, a piece of evidence or a final court or administrative decision which was not adjudicated in the proceedings, provided that - in the case of adjudication - it could have resulted in a decision more favourable to him;

b) a party has lost a case in breach of the law because of a criminal offence committed by the sitting judge, the opposing party or another person;

c) the claim had already been adjudicated by a final judgment;

d) the application or any other document was served on either of the parties via public notification but in breach of the rules of public notification.

(2) Any party may request the reopening of the case under subsection (1) point a) if, in the course of the previous proceedings, he could not assert the fact, piece of evidence or decision through no fault of his own...”

Section 261

“ (1) The request for the reopening of a case shall be lodged within six months from the date of the impugned judgment becoming binding ; if a party becomes aware at a later stage of circumstances that it considers relevant for a reopening, within six months after taking cognisance...

..

(3) A case must not be reopened after five years from the date of t he judgment becoming binding ; the non-observance of this time-limit cannot be excused.”

Section 263

“ (1) A request for reopening shall be filed in writing with the court of first instance ...”

Section 264

“ If a request for reopening is filed outside the five-year time-limit [mentioned above] , the court shall reject it without a hearing.”

Section 266

“ (2) If the court finds that the reopening of a case is admissible , it shall schedule a hearing ... , otherwise it shall dismiss the request as unsuitable for consideration .”

Section 268

“ Depending of the outcome of the reopened proceedings, the court may uphold the impugned judgment, or reverse it ....”

COMPLAINT

9. Without relying on any particular provision of the Convention, the applicants complained that , by refusing to reopen their case, the domestic courts had effectively failed to give effect to the final judgment of the Court of 28 April 2009 or remedy the violation of their right of access to a court.

THE LAW

10. The applicants argued that, given the violation of Article 6 found in the original case, the refusal of the domestic courts to reopen the proceedings amounted to the Government ’ s failure to abide fully by the Court ’ s judgment. In their view, a new breach of the Convention was committed because of the domestic courts ’ inflexible application of the domestic procedural rules on reopening.

11. The Court notes that the present application is a follow-up to a previous application lodged by the same applicants. In its judgment of 28 April 2009 the Court found that the domestic proceedings had been conducted in breach of Article 6 § 1 of the Convention because of non ‑ respect of the applicants ’ right of access to a court in those proceedings.

12 . In the present application, the applicants ’ submissions consist of, in essence, complaining about the refusal to execute fully the judgment of 28 April 2009. It is appropriate to examine this complaint both as one concerning the alleged non-execution of the Court ’ s judgment and as one criticising the domestic courts ’ procedure and decision in the reopening procedure.

13. As to the first aspect, the circumstances of the case require the Court to have regard to Article 46 of the Convention concerning the distribution of powers between the Committee of Ministers and the Court as regards of the execution of the Court ’ s judgments.

Article 46 reads as follows:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

14. Under Article 46 § 2, the Committee of Ministers is vested with the powers to supervise the execution of the Court ’ s judgments and evaluate the measures taken by respondent States. Thus, the question of compliance by the High Contracting Parties with the Court ’ s judgments falls outside its jurisdiction if it is not raised in the context of the “infringement proceedings” provided for in Article 46 §§ 4 and 5 of the Convention. The general principles articulated in the Court ’ s case-law in this sphere are summarised in the case of Egmez v. Cyprus ((dec.), no. 1221/07, §§ 48-56, 18 September 2012).

15. In the present case, while it has not been disputed by the applicants that the Government have paid the sums awarded to them under Article 41, they argued that the shortcomings in the original domestic proceedings had not been remedied in that the domestic courts failed to reopen their case. However, complaints of a failure either to execute the Court ’ s judgment or to redress a violation already found by the Court fall outside the Court ’ s competence ratione materiae (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 35 , 5 February 2015 ) .

16. Accordingly, the applicants ’ complaints, in so far as they concern the alleged failure to remedy the original violation of Article 6 § 1 of the Convention as found in the judgment of 28 April 2009, must be declared incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

17. Furthermore, to the extent that the applicants ’ arguments may be understood to concern a further breach of the Convention, namely, that the domestic proceedings leading to the rejection of their request for reopening were unfair, this being the second aspect of the application, the Court reiterates that the Committee of Ministers ’ role in the sphere of execution of the Court ’ s judgments does not prevent it from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information in relation to issues undecided by the initial judgment (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § § 61-63, ECHR 2009 ) . In this context, reference should also be made to the criteria established in the case-law concerning Article 35 § 2 (b) of the Convention, by which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information (see Verein , cited above, § 63 ).

18. In Bochan (no. 2) (cited above), the Grand Chamber considered the decision of the Ukrainian Supreme Court to dismiss the applicant ’ s extraordinary appeal following the Court ’ s finding of a breach of Article 10 to constitute relevant new information capable of giving rise to a fresh violation of Article 6. In coming to that conclusion, the Court reasoned that t he case raised a new grievance concerning the manner in which the Supreme Court ’ s decision had been reached in the proceedings concerning the applicant ’ s exceptional appeal (rather than the outcome of those proceedings as such or the effectiveness of the national courts ’ implementation of the Court ’ s judgment). It thus concerned a situation distinct from that examined in the Court ’ s previous judgment and contained relevant new information relating to issues undecided by that judgment.

19. The Court will therefore ascertain whether the present application contains relevant new information possibly entailing a fresh violation of Article 6, for the examination of which the Court is competent ratione materiae.

20. The Court notes that in the present case the domestic courts ’ dismissed the applicants ’ request for reopening the civil proceedings essentially on the ground that they had failed to comply with the time-limit laid down in section 261 of the Civil Procedure Code. The applicants did not complain about any particular procedural unfairness in the reopening proceedings themselves.

21. Thus the applicants ’ complaints do not concern the fairness of the reopening proceedings as such. Their only grievance is the outcome of those proceedings. Therefore, the issue in question is entirely rooted in the unfairness of the original civil proceedings (see Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08 , 11 May 2010).

22. In these circumstances, the Court considers that the present case must be distinguished from Bochan (no. 2) (cited above), in that the Hungarian courts ’ decision not to reopen the civil proceedings was not based on relevant new grounds capable of giving rise to a fresh violation of Article 6 § 1.

23. Concerning the applicants ’ reliance on paragraph 29 of its previous judgment (quoted in paragraph 4 above), the Court would observe that the above-mentioned considerations are not intended to detract from the importance of ensuring that domestic procedures are in place, which allow a case to be re-visited in the light of a finding that Article 6 of the Convention has been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments and their availability demonstrates a Contracting State ’ s commitment to the Convention and to the Court ’ s case-law (see, mutatis mutandis , Barberà , Messegué and Jabardo v. Spain (Article 50), 13 June 1994, § 15 , Series A no. 285 ‑ C ).

24. However, in the absence of any allegations of a new violation committed by the authorities afresh, that is, independently from the original procedure, the Court finds that this complaint is likewise incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 30 April 2015 .

Abel Campos Işıl Karakaş Deputy Registrar President