SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42961/98 by András SIMKÓ and Andrásné SIMKÓ against Hungary

The European Court of Human Rights, sitting on 12 March 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 , and Ms S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 5 June 1998 and registered on 26 August 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr and Mrs András Simkó , are Hungarian nationals, who were born in 1955 and 1953, respectively, and live in Sopron , Hungary. Their previous application (application no. 27587/95) was declared inadmissible by a Committee of the European Commission of Human Rights on 16 May 1996.

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

A. Particular circumstances of the case

Seeking judicial review, and compensation for damages on account of administrative decisions taken in a protracted dispute over their licence to sell folk-art items on public premises, the applicants brought an action on 9 October 1992 against the Sopron Mayor’s Office (“the 1992 action”). The action was first registered at the Sopron District Court, which on 4 November 1992 issued an order for the completion of the file. The applicants complied with this order on 12 November 1992.

On 1 March 1993 the District Court rejected the action, holding that it had no competence to hear the case. On 23 March 1993 the applicants appealed.

On 5 August 1993 the Győr-Moson-Sopron County Regional Court quashed the District Court’s decision. It transferred the case-file to its own competent bench.

In the proceedings before the Regional Court, on 16 September and 28 October 1993 orders were issued for the completion of the file. The applicants complied with these orders on 28 September and 5 November 1993, respectively. On 19 November 1993 the defendant authority was eventually notified of the action.

Meanwhile, on 1 March 1993, the applicants brought an official liability action in the context of the above-mentioned proceedings before the District Court (“the 1993 action”). The defendant authority was notified of this action on 22 October 1993. On 20 November 1993 the District Court held a hearing and, on 29 November 1993, it transferred the case-file to the Regional Court for reasons of competence.

Following a hearing held on 14 December 1993, the Regional Court on 9 February 1994 discontinued the proceedings concerning the applicants’ 1992 action. The Regional Court observed that the defendant authority had been notified earlier of the 1993 action and for that reason the applicants’ claims were to be pursued in the proceedings relating to the latter action. On 21 February 1994 the applicants appealed to the Supreme Court, which, on 13 October 1994, upheld the decision to discontinue the proceedings on the 1992 action.

Meanwhile, and following repeated exchanges of observations between the parties in the proceedings concerning the 1993 action, the Regional Court held hearings on 25 August and 18 October 1994. Another hearing was scheduled for 25 October 1994. In the context of procedural disputes concerning the applicants’ motion to hear certain witnesses, their obligation to pay stamp duties due, as well as questions of legal aid, the Supreme Court decided on 2 November 1995 on the applicants’ procedural appeals.

On 9 July 1996 the Regional Court awarded the applicants compensation in a total amount of 300,000 Hungarian forints plus accrued interest. The Regional Court dismissed the remainder of their claims. Having reviewed numerous related administrative files and decisions, the Regional Court ruled that the defendant authority’s conduct had hindered the applicants in the exercise of their rights derived from their licence to trade on public premises.

On 6 August 1996 the applicants appealed. On 2 September 1996 they supplemented their appeal.

On 5 February 1998 the Supreme Court, acting as a second instance jurisdiction, held a hearing. On 13 February 1998 the Supreme Court upheld the Regional Court’s decision. The decision was served on the applicants on 8 April 1998.

B. Relevant domestic law

Article 339 (1) of the Civil Code provides that any person who unlawfully causes damage to another shall be liable to pay compensation.

According to Article 349, the official liability of the State administration may be established only if the relevant ordinary remedies have been exhausted or have not been found adequate to redress the damage. Unless otherwise specified, this provision also covers the liability for damage caused by the courts or the prosecution authorities.

THE LAW

1. The applicants’ first complaint relates to the allegedly undue length of the proceedings, in a breach of Article 6 § 1 of the Convention, which provides as relevant:

“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 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 to the admissibility of the applicants’ complaint.

The applicants contest this argument.

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 ...”

In this connection, 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 , loc. cit. ; Kudła v. Poland [GC], no. 30210/96, § 159; Gonzalez Marin v. Spain (dec.), no. 39521/98, ECHR 1999-VII; Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX).

The Government rely on Article 349 of the Civil Code. However, the Court is not persuaded that this remedy would be 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 aforementioned Cardot v. France judgment , p. 18, § 34).

As to the Government’s reliance on the Cardot case, the Court would observe that Mr Cardot did have a remedy at his disposal whose effectiveness had been proven over the years, unlike the present state of domestic case-law in the instant case.

Quite apart from their failure to establish the effectiveness of the remedy provided for under Article 349, 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 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 applicants’ complaint cannot be rejected for non-exhaustion of domestic remedies.

2. The Court notes that it has not been disputed that the proceedings began on 9 October 1992 and ended on 8 April 1998 with the service of the Supreme Court’s decision. They therefore lasted five and a half years before two levels of jurisdiction.

The Court observes that, when examining the length of the proceedings, the period to be considered begins 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 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 applicants’ 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.

3. The applicants further complain about the outcome of the proceedings. The Court observes that it was open to the applicants to challenge the Supreme Court’s second instance decision by bringing a petition for review before the Supreme Court. They failed to do so and have therefore not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Hungarian law in respect of this complaint. It follows that this complaint must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint relating to the alleged unreasonable length of the proceedings instituted on 9 October 1992;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President