SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52727/99 by Judit THEISZLER against Hungary

The European Court of Human Rights (Second Section), sitting on 17 December 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze , judges , Mr C. Bîrsan , Mrs A. Mularoni , substitute judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 24 September 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

A. Particular circumstances of the case

The applicant, Ms Judit Theiszler , is a Hungarian national who was born in 1958 and lives in Dunabogdány , Hungary. She is represented before the Court by Mr G. Papp , a lawyer practising in Budapest.

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

On 16 May 1991 the applicant brought an action against her former husband before the Szentendre District Court for separation of marital property.

The first hearing was held on 4 November 1991 at which the applicant was represented by counsel.

On 8 January 1992 the parties were heard by the District Court and the applicant was ordered to submit her motions for the hearing of evidence within 30 days. She only complied with this order on 24 February 1991, following the court’s warning of 21 February.

Further hearings took place on 6 April and 13 August 1992 at which witnesses were heard and the parties announced that they hoped to reach an agreement. The parties requested that the hearing scheduled for 14 October be postponed as it seemed that they would settle the case. At the hearing on 16 November 1992 the parties informed the court that the settlement was unsuccessful. The defendant submitted motions for evidence to be heard.

At the hearing on 24 May 1993 the applicant failed to appear. The District Court heard two witnesses. It also ordered the applicant to deposit an advance to cover the costs of an expert who might be appointed at a later stage of the proceedings to submit an opinion on the value of the disputed property. The Government allege that the applicant complied with this order only after she had been urged by the court on 24 November 1994 either to comply with the order or inform the court of any settlement reached by the parties. On 8 December 1993 the applicant’s representative informed the court that the parties could not settle the case and that the applicant did not find it necessary to appoint an expert. The two latter events have not been substantiated by the Government.

Further hearings were held on 17 January, 9 February and 16 February 1994. At the hearing on 30 March 1994 the District Court found it necessary to appoint an expert and ordered the parties to deposit the anticipated costs or submit a request for exemption. The applicant submitted a request for exemption; the defendant, despite a warning, failed to comply with the order.

The hearing scheduled for 15 February 1995 was postponed due to the illness of the judge. Further hearings were held on 22 March and 24 April. On the latter date the defendant was ordered to submit further evidence. The court warned him that he would be fined if he did not comply with the order. Further witnesses were heard at the hearing on 2 October 1995.

The District Court held hearings on 2 September and 18 December 1996. When the defendant failed to appear at the former hearing, the applicant complained about the length of the proceedings. The applicant’s representative failed to appear at the latter hearing, and she asked for an extension of 15 days to submit further motions for evidence. On 30 October 1997 another hearing was held at which the applicant was granted 15 days to submit her claims concerning a car.

On 27 November 1997 the court appointed an expert.

Further hearings were held on 5 February, 23 June, 28 September and 23 November 1998 at which witnesses were heard and the expert’s opinion discussed. On the latter date, the applicant was granted 15 days to submit a precise calculation of her claims. She failed to comply with the deadline. The applicant failed to appear at the hearings on 18 and 25 January 1999. It could not be established whether the applicant received the summons for the latter hearing.

Finally, on 17 February 1999 the Szentendre District Court delivered judgment . As no appeal was filed against it, this judgment became final on 13 May 1999.

B. Relevant domestic law

Article 339 (1) of the Civil Code reads as follows:

“Any person who unlawfully causes damage to another shall be liable to pay compensation.”

According to Article 349 of the Civil Code:

“(1) [l] iability for damages caused in the sphere of State administration shall be stated only if damages could not be prevented by ordinary legal remedies or the damaged person has resorted to ordinary legal remedies appropriate for preventing the damages.

(3) These rules shall also apply to liability for damage caused in the judicial and prosecutorial spheres, unless otherwise provided by statute.”

THE LAW

1. The applicant complains about the length of the proceedings under Article 6 § 1 of the Convention which provides, in its relevant part, as follows:

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

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 Article 349 of the Civil Code in order to claim compensation for the allegedly protracted proceedings. The Government rely on the Court’s Cardot v. France judgment of 19 March 1991 (Series A no. 200) in support of their submission.

The applicant contests this argument claiming that Article 349 is not an effective remedy for a length complaint.

The Court recalls that in a recent decision it found that the Government had failed to establish the effectiveness of the remedy under Article 349 of the Hungarian Civil Code ( Kósa v. Hungary (dec.) no. 43352/98, 12 March 2002, unpublished). It sees no reason to hold otherwise in the instant case, given that the Government have not adduced any new evidence in support of the effectiveness of the remedy which they rely on.

It further notes that the Government have not referred to the availability of any other domestic procedure which would have allowed the applicant to obtain other forms of redress such as an acceleration of the proceedings when they were still pending (cf. Holzinger v. Austria (No. 1) (preliminary objections), no. 23459/94, §§ 22 to 25, 30 January 2001).

In these circumstances, the Court concludes that the applicant’s complaint cannot be rejected for non-exhaustion of domestic remedies.

2. The Court notes that it has not been disputed that the proceedings began in May 1991 and ended in May 1999 when the District Court’s judgment became final. They therefore lasted 8 years before one level of jurisdiction.

The Court observes that, when examining the length of the proceedings, the period to be considered only began on 5 November 1992, the date of the Convention’s entry into force in respect of Hungary. However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (see the Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53).

According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint relating to the excessive length of the proceedings instituted on 16 May 1991 before the Szentendre District Court.

T.L. Early J.- P. Costa              Deputy Registrar President