SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 52724/99 and 52726/99 by Lászlóné NYÍRŐ and Lajosné TAKÁCS against Hungary

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

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

Having regard to the above applications lodged on 2 August and 16 July 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicants are Hungarian nationals, born in 1947 and 1944 and living in Budapest and Budaörs , respectively.

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

A. Particular circumstances of the case

In the late 1980s the applicants, employed by a State-owned Hungarian company, were working in Tengiz , at a mineral oil and gas mining construction site in Kazakhstan (former USSR).

On account of their various illnesses of an obscure nature, the applicants were forced to retire prematurely. The applicants pointed out in their observations that they became disability pensioners after their return to Hungary.

Proceedings instituted by the first applicant

On 16 December 1991 the first applicant, Lászlóné Nyírő , brought an action before the Budapest Labour Court. She claimed that her diseases had been caused by the hazardous working environment in Tengiz and that their former employer should be ordered to pay compensation.

The first hearing in the case took place on 11 March 1993 when two witnesses were heard and a medical expert was appointed.

On 17 June 1993 another hearing was held and a chemistry institute appointed to provide an expert opinion.

Following the applicant’s complaint to the Ministry of Justice about the slowness of the procedure, on 15 May 1995 another bench was assigned to deal with the case.

Another hearing took place on 30 August 1995, at which an expert witness failed to appear. According to the Government’s observations, the defendant was ordered to file with the court the expert opinions which had been previously made in connection with the construction work in Tengiz . The court decided that further experts should be appointed, if necessary, in the light of the documents to be submitted by the defendant company.

On 26 March 1996 the judge in charge specified the questions to be put to the chemistry institute.

On 2 October 1996 the institute refused to give an answer to the questions posed by the court as no experts were available for the examination of such a complex issue.

On 21 January 1997 the Budapest Technical University, which was then appointed as the expert institution, also refused to carry out the examination, as they did not have the competence to deal with air pollution matters.

Upon the first applicant’s request, her proceedings were joined to those of the second applicant.

Proceedings instituted by the second applicant

On 22 July 1991 the second applicant, Lajosné Takács , brought an action before the Budapest Labour Court against her former employer for damage caused by work-related illnesses. The first hearing was held on 19 March 1992 when the applicant failed to appear.

The next hearing was held on 9 July 1993, which the applicant did not attend, and the court ordered the defendant company to submit various expert opinions and the results of medical examinations of other persons employed at Tengiz .

At a hearing on 17 January 1995 the applicant was heard and the applicant’s physician was invited to submit her medical files.

On 26 April 1996 the court appointed a medical expert.

On 26 September 1996 the medical expert submitted his opinion, relying on the previously submitted medical files, as the applicant refused to undergo further examinations.

At a hearing on 26 November 1996, the court appointed a legal aid lawyer upon the applicant’s request and the medical expert’s opinion was discussed.

Further hearings were held on 28 January, 11 March and 15 April 1997. On these occasions, several witnesses failed to appear but four witnesses, including chemistry and labour protection experts, were heard. Numerous related documents were examined and further clarifications were sought from an ophthalmologist.

The court ordered that the proceedings of the applicants, as well as those of a third plaintiff, be joined.

The joined proceedings

On 10 June 1997 the Budapest Labour Court heard the third plaintiff in the case, and a report from 1991 on an on-site inspection at Tengiz presented by the National Labour Institute was discussed by the parties. The court ordered that the search for a geological and oil expert continue.

At a hearing on 9 September 1997, five witnesses, including four experts, were heard.

In 1998 yet another judge was assigned to deal with the case, who held a hearing on 30 September 1998. On this occasion, a toxicology expert was heard.

The first applicant extended her action against the Hungarian State. Thereafter, on 16 November 1998, the State was ordered by the court to join the proceedings as the second defendant.

At a hearing on 18 January 1999, at which five witnesses did not appear, the Labour Court appointed several institutions and a forensic medical expert to examine the first applicant.

On 28 January 1999 the second applicant also extended her action against the Hungarian State. On 2 February 1999 she modified her claims.

At a hearing on 3 March 1999, the judge in charge issued an order urging the appointed expert institutions to submit their opinions, repeatedly ordered that the first applicant be examined by a forensic medical expert and that writs be served on the witnesses.

At a hearing on 28 April 1999 two witnesses were not present and three others were heard. On 14 December 1999 a medical expert opinion concerning the first applicant was presented.

On 18 and 21 January 2000 the applicants made their final submissions to the Labour Court.

On 21 February 2000 the Labour Court delivered its judgment , establishing the Hungarian State’s liability in the case. In so far as the applicants’ claims had been directed against their former employer, the Labour Court discontinued the proceedings.

The Labour Court awarded the first applicant 1,905,000 Hungarian forints (HUF), plus accrued interest for pecuniary damage, HUF 1 million for non-pecuniary damage and HUF 154,250 for legal costs. It granted the second applicant HUF 1,710,000, plus accrued interest for pecuniary damages, HUF 1 million for non-pecuniary damage and HUF 144,500 for legal costs. Both applicants were awarded pro futuro a monthly allowance of HUF 15,000. The remainder of their actions was dismissed.

The judgment was corrected and supplemented on 6 May 2000. In June 2000 the applicants and the Hungarian State appealed.

On 22 September 2000 the Budapest Regional Court held a hearing and appointed the Forensic Committee of the Scientific Health Council to review the previous medical opinions.

A hearing scheduled for 17 January 2001 was postponed twice.

The applicants were examined by the Scientific Health Council on 13 December 2000 and its review of the various opinions was submitted on 19 March 2001.

In a judgment delivered on 11 May 2001, the Regional Court, as regards the Hungarian State, quashed the first instance decision and discontinued the proceedings. The court also annulled parts of the first-instance judgment concerning the first defendant and, in this respect, dismissed the applicants’ action.

On 28 February 2002, upon the parties’ petition for review, the Supreme Court quashed the first and second instance decisions concerning the applicants and remitted them to the first instance court.

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 damage could not be prevented by ordinary legal remedies or the injured person has resorted to ordinary legal remedies appropriate for preventing the damage.

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

COMPLAINT

The applicants complain under Article 6 § 1 of the Convention that the civil proceedings have been unreasonably long.

THE LAW

1. The applicants’ complaint relates to the length of the proceedings and 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 ... hearing within a reasonable time by [a] ... tribunal...”

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 Article 349 of the Hungarian Civil Code, seeking compensation for the protracted proceedings.

The applicants contest this, arguing that the said remedy is not effective within the meaning of Article 13 of the Convention.

The Court recalls that Article 35 § 1 of the Convention provides inter alia :

“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 observes, that the only remedies to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27).

As regards a complaint that domestic court proceedings have lasted an unreasonably long time, the Court has accepted that the availability of an action in damages may be relevant for the purposes of Article 35 § 1 of the Convention (see, among other authorities, the aforementioned Vernillo judgment ; Kudła v. Poland [GC], no. 30210/96, ECHR § 159; Gonzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII; Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX). Furthermore, the Court has found that an action for damages can be an “effective” remedy for a length of proceedings complaint “regardless of the stage reached in the proceedings at the domestic level” ( Mifsud v. France [GC] , no. 57220/00, 11 September 2002) .

Against this background the Court notes that the Government invoke Article 349 of the Civil Code. However, it is not persuaded that this remedy can be considered effective for a complaint about a delay in the administration of justice. The Government have not submitted any precedents illustrating the interpretation of Article 349 by the domestic courts and its practical application to length complaints (cf. Giummarra and others v. France (dec.), no. 61166/00, 12 June 2001). It is true that an applicant is not exonerated from the requirement to exhaust a particular domestic remedy merely because he has doubts as to its outcome. However, in the Court’s opinion and in the circumstances of the instant case, to oblige the applicants to test the scope of Article 349 in the absence of any precedent would result in an excessively rigid and formalistic approach to the exhaustion requirement (see, mutatis mutandis , the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34).

In comparison with the abovementioned Mifsud and Cardot cases, the Court would observe that the applicants in those cases did have a remedy at their disposal whose effectiveness had been proven by several court decisions, unlike the present state of domestic case-law in the instant case.

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

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

2. The Court notes that it has not been disputed that the proceedings began on 16 December 1991 and 22 July 1991, respectively, and are still pending. They have, therefore, already lasted 11 years, of which 10 years fall within the Court’s jurisdiction ratione temporis , before three court instances when remitted to the first instance court.

According to the applicants, the length of the proceedings is 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 the application admissible, without prejudicing the merits of the case.

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