SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47355/99 by Miklós KERÉKGYÁRTÓ against Hungary

The European Court of Human Rights (Second Section), sitting on 13 May 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr M. Ugrekhelidze , Mrs A. Mularoni , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 2 December 1998 and registered on 12 April 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Miklós Kerékgyártó, is a Hungarian national, who was born in 1948 and lives in Budapest. The respondent Government were represented by Mr L. Höltzl, their Agent.

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

A. The first set of proceedings

(1) On 7 July 1993 Mr and Mrs N. brought an action against the applicant before the Pest Central District Court. In the context of a dispute concerning a loan contract executed between the parties, the plaintiffs were seeking annulment of the applicant’s acquisition of their flat – which had taken place as a security measure for their non-payment of the loan. On 15 July 1993 the applicant filed his counterclaims.

On 9 February, 21 March, 5 October 1994 and 8 March 1995 the District Court held hearings.

On 13 March 1995 the District Court passed a judgment in which it annulled the applicant’s acquisition of the flat and, concerning the loan contract, it reduced the amount of the plaintiffs’ debt towards the applicant.

On 22 March 1995 the plaintiffs appealed and, simultaneously, requested the completion of the judgment with regard to an annulment of the loan contract itself. On 27 March 1995 the applicant filed his appeal.

On 29 March 1995 the applicant filed a motion for bias which was dismissed on 26 May 1995.

Following two hearings at second instance on 29 June and 14 November 1995, on the latter date the Budapest Regional Court suspended the appeal proceedings pending the first-instance completion of the judgment of 13 March 1995.

The hearings scheduled by the District Court for 7 February and 12 April 1996 were adjourned on account of unsuccessful attempts to summon one of the defendants.

By a supplementary decision of 9 October 1996, the District Court admitted the plaintiffs’ claim for completion and determined a claim which had not been dealt with in its principal decision. On 4 December 1996 the applicant appealed.

Continuing its proceedings, on 8 July 1997 the Regional Court held a hearing, after having dismissed the applicant’s motion for bias on 17 February 1997.

On 4 September 1997 the judges withdrew from the case.

A further hearing scheduled for 22 January 1998 was cancelled on account of the illness of a judge on the newly appointed bench.

A further hearing took place on 2 June 1998.

On 9 June 1998 the Regional Court passed a second-instance judgment upholding in essence the first-instance decisions.

On 3 September 1998 the applicant submitted a petition for review.

On 23 February 1999 the Supreme Court ordered the completion of the petition and attempted to notify the plaintiffs thereof. Subsequently a guardian ad litem had to be appointed for the plaintiffs. The guardian submitted the plaintiffs’ claims in reply on 22 December 1999.

On 4 April 2000 the Supreme Court dismissed the applicant’s petition for review. This decision was served on him on 17 July 2000.

B. The second set of proceedings

On 11 October 1994 the applicant brought an action before the Pest Central District Court against Mr and Mrs S., guarantors of the above loan contract. On 26 October 1994 the court ordered him to complete his action. He did so on 5 December 1994.

On 18 July 1995 the District Court held a hearing, accepted the applicant’s claims and ordered the defendants to pay him 610,000 Hungarian forints .

On 21 August 1995 the defendants appealed. Subsequently they were ordered to complete their appeal. On their request, the Regional Court gave them until 20 November 1995 to do so.

On 20 May 1996 the Regional Court held a hearing and dismissed the defendants’ appeal.

On 16 December 1997 the Supreme Court, in review proceedings, quashed the second-instance decision holding that the validity of the above loan contract was a preliminary question.

In the resumed proceedings, on 20 May 1998 the Regional Court suspended the proceedings pending the outcome of the appeal concerning the aforementioned action brought by Mr and Mrs N. against the applicant.

Following the Supreme Court’s review decision of 4 April 2000 in the first proceedings, the Regional Court continued the second case and, on 31 January 2001, it dismissed the defendants’ appeal. No petition for review was filed against this decision.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings lasted an unreasonably long time and that the procedure followed by the domestic courts in the first case were unfair.

THE LAW

1. The applicant’s first complaint relates to the compatibility of the length of the proceedings with Article 6 § 1 of the Convention, which provides, in its relevant parts, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal (...)”

The Court notes at the outset that the proceedings began on 7 July 1993 and 11 October 1994, respectively. They ended on 17 July 2000, with the service of the Supreme Court’s decision, and on 31 January 2001, with the Regional Court’s decision, respectively.

The first proceedings therefore lasted some seven years for three court instances, and the second proceedings lasted somewhat less than six years and four months for two levels of jurisdiction.

The Government argue that the applicant has not exhausted the domestic remedies available to him under Hungarian law in that he did not bring an official liability action under section 349 of the Civil Code seeking compensation for the protracted proceedings.

The applicant contests this. He considers that such an action is not an effective remedy which he was required exhaust.

Article 35 § 1 of the Convention, in its relevant part, provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law (...).”

The Court recalls that an official liability action under section 349 of the Hungarian Civil Code cannot be considered, for want of relevant domestic case-law, an effective remedy in respect of the excessive length of either pending or terminated civil proceedings (see Nyírő and Takács v. Hungary (dec.), nos. 52724/99 and 52726/99 (joined), 17 September 2002, unreported; Erdős v. Hungary (dec.), no. 38937/97, 3 May 2001, unreported). The Court sees no reason to reach a different conclusion in the present case. The complaint cannot therefore be rejected for non-exhaustion of domestic remedies.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. In particular, he maintains that the first case did not progress between 5 October 1994 and 8 March 1995, between 13 March 1995 and 9 October 1996 and between 4 December 1996 and 4 September 1997. Moreover, the second proceedings were unnecessarily suspended for nearly two years.

The Government reject the allegation, arguing that no substantial delays were imputable to the authorities in either case. As to the first proceedings, they maintain that the parties did not display diligence in furthering their case and that the applicant repeatedly filed unfounded motions for bias. Concerning the second case, they assert that its length cannot be considered excessive, given what was at stake for the applicant and that a suspension was warranted pending the decision on a preliminary issue.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The applicant’s other complaint relates to the alleged unfairness of the first proceedings.

The Court notes that there is nothing in the case-file to suggest that the courts which heard the applicant’s claim lacked impartiality or that the proceedings in any way failed to respect the fairness requirements of Article 6 § 1.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of the two sets of proceedings ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President