SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36186/97 by György TÍMÁR against Hungary

The European Court of Human Rights, sitting on 3 May 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mrs V. Stráznická ,

Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 30 March 1997 and registered on 22 May 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant, György Tímár , is a Hungarian national, born in 1937 and living in Budapest. He is a lawyer by profession and a Member of Parliament.

The respondent Government are represented by Mr L. Höltzl , Deputy State-Secretary, of the Ministry of Justice.

The applicant’s previous applications (nos. 23209/94 and 27313/95) to the European Commission of Human Rights (“the Commission”) were joined and declared inadmissible by the Commission sitting in Plenary on 13 January 1997.

The facts of the case, as established by the Commission in its decision as to the admissibility of the applicant’s previous applications and completed by the parties for the purposes of the present application, may be summarised as follows.

A. Summary of the Commission’s decision

1. The facts

(a) Background

On 18 November 1965 the Budapest Regional Court, in the context of criminal proceedings with some political connotations, convicted the applicant of espionage and sentenced him to six and a half years’ imprisonment. The Court also ordered the confiscation of his property. On 23 February 1966 the Supreme Court, upon the applicant’s appeal, amended the first-instance verdict in that the criminal offence was qualified as attempted sedition and the prison term was reduced to five years. The remainder of the appeal was dismissed. Subsequently the applicant served his sentence; his property, namely his villa and garden as well as his car and his money in a bank were confiscated.

On 25 October 1989 the Attorney General lodged an appeal on legal grounds with the Supreme Court against the judgments of 1965 and 1966, and proposed that the applicant’s conviction be quashed and the applicant be acquitted. On 12 December 1989 the Supreme Court declared that the applicant’s conviction was unlawful and acquitted him.

(b) Proceedings for restitution of property and compensation under the Code of Criminal Procedure

( i ) Institution of the proceedings

On 6 February 1990 the applicant instituted proceedings before the Budapest Regional Court claiming restitution of his property pursuant to Section 386 of the Code of Criminal Procedure. He further claimed compensation as a former victim of a miscarriage of justice, pursuant to Sections 383 to 385 of the Code of Criminal Procedure, i.e. the loss of income during his detention as well as for the period after his release until he could find employment as a lawyer in 1990, and, globally, compensation for all consequences of the criminal proceedings against him.

(ii) Further course of the restitution proceedings

Between September 1990 and February 1992 the Regional Court held several hearings. Moreover, taking into account the fact that both the confiscated car and the real estate had been sold in the past and that, therefore, restitution thereof was excluded and only compensation was possible, the Court took expert evidence as to the value of the car and the real estate. The Technical Institute of Judicial Experts prepared an opinion on that question.

On 24 February 1992 the Regional Court, following a further hearing, gave its decision in the case. The applicant was awarded an amount of 50,000 Hungarian forints (HUF), i.e. the price at which his confiscated car had been sold, and a further amount of HUF 6,200,000 as compensation for all his losses. The remainder of his claims was dismissed. The applicant lodged an appeal with the Supreme Court, claiming a considerable increase in the award of compensation.

On 10 December 1992 the Supreme Court, without holding a hearing and sitting in private, dismissed the appeal.

By letter of 12 February 1993 the Attorney General, upon his request to institute proceedings for review of the Supreme Court’s decision, informed the applicant that restitution proceedings were governed by the Code of Criminal Procedure as amended in 1992, which excluded proceedings for review in his case. The Attorney General also observed that a request for review in civil proceedings could only be submitted in respect of civil court decisions. On 19 February 1993 the applicant, referring to Act nos. 68 and 69 of 1992, lodged a petition for review with the Supreme Court, complaining of the Budapest Regional Court’s decision, as well as of the second-instance decision taken by the Supreme Court.

On 22 June 1993 the Supreme Court, sitting in private, rejected his petition for review. The Supreme Court, referring to Sections 284 (1) and 284/A (2) of the Code of Criminal Procedure, found that no review existed regarding decisions of the present kind.

On 5 April 1995 the Constitutional Court, upon inter alia the applicant’s complaint, held that the procedural rules assigning restitution cases to the criminal courts and excluding a review by the Supreme Court amounted to arbitrary discrimination. The Constitutional Court amended the said rules to the effect that the files should be forwarded to the civil courts with a view to conducting the proceedings. It also decided that the applicant should be entitled to institute civil review proceedings with the Supreme Court in his case.

The applicant’s renewed petition for review dated 8 April 1995 was received at the Supreme Court on 10 April 1995. He filed further submissions on 10 and 13 May 1995.

On 19 October 1995 the Supreme Court rejected the renewed petition. The Supreme Court noted the background of the applicant’s case, i.e. his conviction in 1965/66 and his acquittal in 1989, as well as the course of the restitution proceedings, inter alia the fact, that it had rejected the applicant’s previous petition for review regarding the matter in June 1993. The Supreme Court observed that, according to Section 284/A (5) of the Code of Criminal Procedure, any person is entitled to lodge a petition for review once only. Thus, pursuant to Section 287/B of the Code of Criminal Procedure, it had to reject any further petition for review brought by the same person.

On 12 February 1996 the Constitutional Court dismissed the applicant’s further constitutional complaint. It considered that the applicant’s submissions did not raise any questions of constitutionality within the meaning of the relevant provisions of the Constitutional Court Act, but were limited to complaining that the Supreme Court had failed properly to implement the Constitutional Court’s earlier decision. To the extent that the applicant, in his submissions, pursued his petition for review, the Constitutional Court referred the case to the Budapest Regional Court, competent in accordance with the civil procedure, for further action.

On 7 March 1996 the Budapest Regional Court forwarded the files to the Supreme Court for a decision on the applicant’s petition for review. When the Commission examined the applications, a decision on these proceedings was not yet available.

(iii) Further course of the compensation proceedings

As regards the applicant’s compensation claims, the Budapest Regional Court rendered a decision on 19 February 1993. It awarded the applicant a sum of HUF 4,000,000 as compensation for damage suffered as a consequence of his imprisonment, which had lasted forty months. In this respect, the Court proceeded from the applicant’s claim of HUF 100,000 per month of imprisonment. In regard to his further claims, the Court instructed the applicant to have recourse to other legal remedies.

(c) Official liability proceedings

On 29 June 1993 the applicant instituted official liability proceedings before the Budapest Regional Court, against the Regional Court itself, the Ministry of Justice and the Supreme Court claiming payment of a sum of HUF 46 million as compensation for damage suffered as a consequence of his unlawful conviction in 1965/66.

On 22 October 1993 the President of the Budapest Regional Court, considering that the applicant’s action related to the conduct of this Court, requested the Supreme Court to assign the case to a court competent to deal with the matter. On 7 December 1993 the Supreme Court assigned the case to the Pest County Regional Court.

Following a hearing on 18 March 1994, the Regional Court, upon the applicant’s request, adjourned the proceedings with a view to obtaining supplementary submissions by the applicant on his claims. The applicant filed these submissions on 15 April 1994. The Court held further hearings on 25 March, 9 November and 9 December 1994 as well as on 25 January 1995.

In a judgment of 25 January 1995 the Pest Regional Court held that part of the applicant’s claims were well-founded on the merits, and dismissed the remainder of the action.

On 7 December 1995 the Supreme Court, sitting as a court of second instance, held a hearing on the appeals lodged by the parties.

On 14 December 1995 the Supreme Court quashed the Regional Court’s judgment, finding that the applicant’s claims had to be rejected as they were in substance claims under the compensation legislation which did not fall under the primary competence of the civil courts. The Supreme Court therefore discontinued the proceedings.

On 28 June 1996 the Supreme Court dismissed the applicant’s petition for review. (On 23 August 1996 the Regional Court received this decision with a view to its dispatch to the applicant.)

2. Complaints

The applicant complained about the confiscation of his property and the court decisions on his restitution and compensation claims. He invoked Article 1 of Protocol No. 1 and Article 3 of Protocol No. 7 in these respects. He further complained, under Article 6 § 1, that he had been denied a fair and public hearing in the restitution proceedings; that, as a consequence of the different rules governing petitions for review in criminal and in civil matters, he had had no effective remedy within the meaning of Article 13; and that this situation had amounted to discrimination against him contrary to Article 14 of the Convention. Moreover, he complained under Article 6 § 1 about the length of the various court proceedings instituted by him. Finally, he considered that the court decisions on his compensation claims were wrong and amounted to discrimination against him contrary to Article 14.

3. The law

The Commission found that the applicant’s complaint under Article 1 of Protocol No. 1 related to the confiscation of his property which had taken place prior to 5 November 1992, which is the date of the entry into force of the Convention and of Protocol No. 1 with respect to Hungary. Consequently, this complaint was outside the competence ratione temporis of the Commission and was, therefore, incompatible with the provisions of the Convention.

Moreover, as to the applicant’s complaint under Article 3 of Protocol No. 7 relating to the allegedly insufficient award of compensation, the Commission noted that the applicant, by virtue of the Budapest Regional Court’s decision of 19 February 1993, had been granted compensation in respect of damage suffered as a consequence of his forty-month imprisonment, while his further claims had not been decided upon and that he had not lodged an appeal against this decision. The Commission, therefore, rejected this complaint for non-exhaustion of domestic remedies.

As regards the applicant’s complaint about the fairness of the proceedings regarding his claims for restitution of property, the Commission observed that the first-instance proceedings ended on 24 February 1992, thus being outside its competence ratione temporis , and that these aspects of the applicant’s submissions were, therefore, incompatible with the provisions of the Convention.

As regards the applicant’s complaint about the appeal and the ensuing proceedings, the Commission, having regard to the pecuniary nature of the applicant’s restitution claims, found at the outset that they fell to be considered as disputes on “civil rights and obligations” within the meaning of Article 6 § 1. The Commission noted that, according to the Constitutional Court’s decision of 5 April 1995, the procedural rules assigning restitution cases to the criminal courts and excluding a review with the Supreme Court had been amended and the applicant had been entitled to institute civil review proceedings. While his renewed petition for review was rejected by the Supreme Court in a decision of 19 October 1995, the case was, following a second set of complaint proceedings before the Constitutional Court, referred to the Budapest Regional Court for further action and, subsequently forwarded to the Supreme Court for a decision on the applicant’s petition for review under the rules of civil procedure. Since these proceedings were pending, the Commission found that the applicant’s complaints under Article 6 § 1 about the alleged unfairness and absence of a public hearing in the proceedings before the Supreme Court were premature.

For the same reasons, the Commission considered that the applicant’s complaints under Articles 13 and 14 - in so far as the different rules governing petitions for review in criminal and in civil matters were concerned - were likewise premature.

Furthermore, the Commission found manifestly ill-founded the applicant’s complaints, under Article 6 § 1, about the length of the various sets of court proceedings – in particular, those about the length of the official liability action – and, under Article 14, about the Hungarian courts’ alleged discrimination against him in dealing with his compensation claims.

B. Events subsequent to 13 January 1997

With a view to service on the applicant, on 3 February 1997 the Budapest Regional Court received the Supreme Court’s decision on the applicant’s petition for review of the restitution proceedings.

In this decision, dated 12 November 1996, the Supreme Court, without holding a hearing, rejected the applicant’s petition for review. It explained that, according to the relevant provisions of the Code of Civil Procedure, no review could take place in proceedings of the present kind.

Subsequently the applicant brought a further complaint before the Constitutional Court with a view to the annulment of the decision of 12 November 1996.

On 9 June 1998 the Constitutional Court, in its decision no. 23/1998, found unconstitutional the procedural situation governing the examination of criminal restitution claims in civil review proceedings.

Following the resultant change in legislation, on 15 February 2000 the Supreme Court annulled its decision dated 12 November 1996 and ordered that a review of the merits of the applicant’s restitution claims be carried out. These proceedings are still pending before the Supreme Court’s review bench.

COMPLAINTS

The applicant complains that the merits of his extended restitution claims were never examined by the Supreme Court in review proceedings. He also complains that, both in the official liability and the restitution proceedings, the Hungarian courts proceeded in a discriminatory fashion, lacked impartiality and took erroneous decisions. Moreover, he submits that both sets of proceedings lasted unreasonably long. He invokes Article 6 § 1 and 14 of the Convention.

THE LAW

1. The applicant complains about the Supreme Court’s refusal to examine the merits of his restitution claims in review proceedings.

The Court considers that this complaint concerns the applicant’s right to access to court and falls to be examined under Article 6 § 1 of the Convention which, in its relevant parts, provides:

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

Article 34 of the Convention, in so far as relevant, provides:

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”

The Government submit that, following a change of legislation, the Supreme Court eventually decided to proceed to examine the merits of the applicant’s petition for review in which circumstances the applicant can no longer claim to be a victim in this respect. The applicant contests this.

The Court notes that on 15 February 2000 the Supreme Court annulled its decision dated 12 November 1996 and ordered that a review of the merits of the applicant’s restitution claims be carried out. These proceedings being pending at present, the Court considers that the applicant can no longer claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of his Convention rights in this respect.

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.

2. The applicant complains about the outcome of the restitution proceedings and that the Hungarian courts lacked impartiality in these proceedings, in breach of Article 6 § 1.

The Court finds that this complaint is premature as the proceedings are still pending before the Supreme Court. The domestic remedies have therefore not been exhausted as required by Article 35 § 1 of the Convention. It follows that this part of the application must be rejected, in accordance with Article 35 § 4.

3. The applicant also complains that the length of the restitution proceedings has exceeded “a reasonable time” within the meaning of Article 6 § 1.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of the above complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

4. Furthermore, the applicant complains about the outcome of the official liability action and that the Hungarian courts lacked impartiality in these proceedings, either, in breach of Article 6 § 1.

The Court observes that the Supreme Court’s final decision in these proceedings was received at the Regional Court on 23 August 1996 with a view to its dispatch to the applicant, whereas he introduced the application only on 30 March 1997.

However, even assuming that the applicant has complied with Article 35 § 1 in this respect – and in so far as his complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts – the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to 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 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, the Court considers that the applicant’s 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.

5. The applicant also complains that the length of the official liability proceedings exceeded “a reasonable time” within the meaning of Article 6 § 1.

Article 35 § 2 of the Convention, in so far as relevant, provides:

“The Court shall not deal with any application submitted under Article 34 that ...

(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”

The Court observes that on 13 January 1997 the European Commission of Human Rights declared inadmissible application nos. 23209/94 and 27313/95, and that its decision dealt with the question of the length of the official liability proceedings. The Court finds that the applicant’s present complaint is essentially the same as the previous one in this respect and that it contains no relevant new information. It follows that this part of the application must be rejected, in accordance with Article 35 § 4.

6. Lastly, the applicant complains under Article 14 read in conjunction with Article 6 of the Convention about discrimination in general by the Hungarian courts in the course of both sets of proceedings.

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that the applicant’s complaints in this respect have not been substantiated. It follows that this part of the application is likewise 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,

Decides to adjourn the examination of the applicant’s complaint about the length of the restitution proceedings; and

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President