SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44608/98 by J. T. 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 Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 23 June 1998 and registered on 19 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr J.T. , is a Hungarian national, who was born in 1950 and lives in Gyömrő , Hungary.

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

A. Particular circumstances of the case

In 1986 the applicant had a work-related accident. Between August 1988 and July 1990 he was apparently unfit for work and received an ‘accident allowance’ on account of a partial disability due to repeated operations on his left knee. In the light of subsequent medical reports showing an improved working capacity, the allowance was stopped as from August 1990. On 15 January 1991 the Pest County Labour Court dismissed the applicant’s challenge to this decision, confirmed by the Pest County Regional Court on 6 May 1991.

On 19 October 1992 the applicant requested the social security authorities to resume payment of his ‘accident allowance’. The Cegléd Branch of the Social Security Board of Budapest and Pest County dismissed his claim. The applicant’s administrative appeal was to no avail.

On 10 March 1993 the applicant lodged further claims with the social security authorities. On 21 June 1993 the second instance authority granted him a limited entitlement to a disability pension and dismissed the remainder of his claims.

Meanwhile, on 16 April 1993 the applicant brought a court action to challenge the social security authorities’ decisions.

On 30 April 1993 the Buda Surroundings District Court held a hearing. On 14 May 1993 it appointed a medical expert. Further hearings were held on 7 June and 3 September 1993. On 18 October 1993 a medical expert examined the applicant. On 21 December 1993 the District Court joined the applicant’s various claims against the social security authorities. A hearing was subsequently held on 12 January 1994. On 12 March 1994 the expert submitted his opinion. Further hearings took place on 1 February, 22 May and 6 December 1995, and on 21 February and 1 March 1996. A hearing scheduled for 22 May 1996 was adjourned on account of the judge’s illness.

At the hearing on 24 June 1997, the District Court ordered a supplement to the medical opinion and, in addition, appointed a traumatology expert to provide further information about the nature of the applicant’s disability.

Furthermore, the District Court separated certain additional claims made by the applicant in respect of the local administrative authority’s rejection of his request for a ‘transport allowance’. In the context of the latter proceedings, the District Court dismissed the applicant’s action on 5 November 1998, holding that the competent authority had properly applied the relevant laws. On 22 March 1999 the Pest County Regional Court dismissed his appeal about that.

As to the social security proceedings, the applicant underwent further medical examinations on 15 September and 9 October 1997. On 17 November 1997 the medical expert submitted his further opinion. The District Court ordered another supplement by 19 January 1998. The completed opinion was submitted on 10 February 1998. At the next hearing held on 12 February 1998, the District Court ordered the Forensic Committee of the Health Science Council (“the Forensic Committee”) to reconcile the various medical opinions submitted in the case. Following an examination on 2 July 1998, the Forensic Committee submitted its opinion to the District Court on 2 September 1998.

On 12 November 1998 the District Court dismissed the applicant’s action. Relying essentially on the Forensic Committee’s opinion, the District Court held that the applicant’s disability was mainly due to natural diseases rather than his accident. The District Court found that, against this background, the authorities’ decisions had complied with the relevant rules on entitlement to social security allowances.

On 17 December 1998 the applicant appealed to the Pest County Regional Court. On 11 and 25 January 1999 the Regional Court held hearings. On 8 March 1999 it dismissed the applicant’s appeal.

On 9 July 1999 the applicant brought a petition for review by the Supreme Court. He also asked for legal aid. On 17 January 2000 he submitted his declaration of means. On 30 March 2000 the Supreme Court appointed a legal-aid lawyer who submitted his pleadings on 18 May 2000. With the parties’ consent, on 1 June 2000 the Supreme Court decided not to hold an oral hearing in the case.

On 12 December 2000 the Supreme Court dismissed the applicant’s petition for review. On 13 March 2001 this decision was forwarded to the first instance court with a view to its service on the parties.

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 applicant’s first complaint relates to the length of the proceedings, which, he maintains, resulted 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 fair... hearing within a reasonable time by [a] ... tribunal...”

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 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.

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 applicant 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 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 on 16 April 1993 and ended around 13 March 2001. They therefore lasted some seven years and eleven months before three levels of jurisdiction.

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, pointing out that the applicant was granted a disability allowance as early as 1993, and that what was at stake for him in the impugned proceedings was simply an alteration in his entitlement, with a possible moderate increase in the allowance, if successful.

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.

3. The applicant further complains that the domestic courts reached erroneous conclusions in his case.

The Court reiterates that, in so far as the applicant’s complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, according to Article 19 of the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the present case – in so far as the proceedings fall within the Court’s competence ratione temporis and the applicant can be considered to have exhausted domestic remedies in respect of his complaints under this head – the Court considers that his submissions do not disclose any appearance that the domestic courts lacked impartiality or that the proceedings were otherwise unfair.

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

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 April 1993 before the Buda Surroundings District Court;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President