SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43649/98 by Sándor HEGEDŰS and Sándorné HEGEDŰS 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 30 July 1998 and registered on 29 September 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr and Mrs Sándor Hegedűs , are Hungarian nationals, who were born in 1936 and 1937, respectively, and live in Tata , Hungary.

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

A. Particular circumstances of the case

In 1986 Mrs. O., the applicants’ neighbour, brought an action against them. She requested that the applicants be ordered to accept that a sewer, emanating from her property, cross part of their garden. In May 1987 the Tatabánya District Court granted the request. This decision was confirmed by the Komárom County Regional Court in October 1987.

In turn, in 1988 the applicants brought an action in trespass against Mrs. O., claiming that, when installing the sewer, she had exceeded the scope of the rights granted to her in 1987.

In November 1989 the Tatabánya District Court dismissed the applicants’ action. In July 1990 the Komárom-Esztergom County Regional Court quashed the District Court’s judgment and remitted the case to it.

In the resumed proceedings, in February 1991 the District Court again dismissed the applicants’ action. In October 1991 the Regional Court quashed the District Court’s decision and remitted the case for a second time.

In the resumed proceedings, on 2 February 1993 the District Court held a hearing and appointed a technical expert.

On 9 May 1995 an inspection of the premises was carried out. On 9 November 1995 a further technical expert was appointed. Upon the applicants’ complaint, on 22 January 1996 this expert was replaced. Upon their repeated complaint, on 20 February 1996 the District Court verified that the newly appointed expert was eligible. In April 1996 the expert sent the documentation back to the District Court indicating that the applicants had prevented him from carrying out an inspection of the premises.

Upon the applicants’ motion for bias, the case was assigned to another judge on 29 August 1996.

On 14 November 1996 the District Court appointed the Forensic Technical Expert Institute to give an opinion in the case. The Institute inspected the premises on 18 March and submitted its opinion on 26 March 1997. On 28 May 1997 the defendant requested that a further opinion be prepared.

Following a dispute between the parties as to the necessity of a second opinion, on 21 August 1997 the District Court requested the Institute to complete its report, which was submitted on 23 September 1997.

On 13 November 1997 the District Court accepted the applicants’ claims, finding that the defendant’s installation of the sewer had constituted a trespass and ordered her to remove it. At the same time, the District Court dismissed the defendant’s counter-action brought with a view to establishing rights of servitude. The District Court essentially relied on the expert opinions.

On 15 May 1998 the Regional Court dismissed the defendant’s appeal. On 17 June 1998 the defendant brought a petition for review before the Supreme Court. On 28 September 1998 the applicants submitted their counter-arguments.

On 19 November 1998 the Tata District Court ordered the competent agent to proceed with the enforcement of its decision. This took place on 4 December 1998.

On 10 March 1999 the Supreme Court upheld the dismissal of the defendant’s counter-action concerning servitude. At the same time, it quashed the remainder of the first and second instance judgments and dismissed the applicants’ action. The Supreme Court held that the extent to which the defendant had exceeded the rights granted to her in 1987 was insignificant and did not warrant the removal of the sewer. Insofar as the applicants had disputed the defendant’s very right to install the sewer across their land, the Supreme Court qualified their claims as res judicata . The judgment was served on the applicants on 4 June 1999.

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 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 fair ... hearing within a reasonable time ... by an ... impartial 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.

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 in 1988 and ended on 4 June 1999 with the service of the Supreme Court’s decision. They therefore lasted some ten and a half years before three levels of jurisdiction.

The Court observes that, when examining the length of the proceedings, the period to be considered only 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 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 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 that the proceedings were not fair and that the Supreme Court’s decision was erroneous. They invoke Article 6 § 1 of the Convention (cited above) and Article 1 of Protocol No. 1.

Article 1 of Protocol No. 1, in its relevant parts, provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The Court considers that the case-file does not disclose any evidence of partiality or unfairness by the domestic courts. Moreover, the Supreme Court’s decision merely constituted a decision in a civil law dispute between two private parties and thus did not imply a deprivation of property. The Court therefore finds no appearance of a violation of this aspect of Article 6 § 1 of the Convention or of Article 1 of Protocol No. 1.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint relating to the excessive length of the proceedings instituted in 1988 before the Tatabánya District Court;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President