SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36830/97 by Mihály KŐSZEGI against Hungary

The European Court of Human Rights ( Second Section) , sitting on 15 March 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , 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 28 February 1997 and registered on 9 July 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 is a Hungarian national, born in 1943 and living in Budapest. The respondent Government are represented by Mr L. Höltzl , Deputy State-Secretary, of the Ministry of Justice.

A. The circumstances of the case

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

In 1992 the Buda Central District Court issued on behalf of the applicant a pay order against a co-operative. The applicant claimed that the defendant co-operative be ordered to pay certain sums of outstanding fees to him in the context of a maintenance contract.

From 5 October 1992 the proceedings, upon the defendant co-operative’s objection, were continued as civil litigation.

On 28 January 1993 the applicant presented his detailed arguments challenging the defendant co-operative’s objection.

On 25 February and 13 April 1993 the District Court held hearings in the case. On 30 June 1993 it appointed a technical expert, who presented his opinion on 8 February 1994.

On 24 February 1994 the applicant extended his action, claiming some amounts of lost profit, accrued interest and social security contribution payable by the defendant co-operative.

In his submissions of 16 March 1994 the applicant commented on the expert’s opinion and challenged him for bias. He also requested the District Court to examine his claims as extended by his submissions of 24 February 1994.

On 18 March 1994 the District Court rejected the applicant’s motion for bias.

On 6 April 1994 the applicant again extended his action, claiming a further amount of lost income and non-pecuniary damage.

On 28 April 1994 the District Court held a hearing and took its decision in the case. It admitted the majority of the applicant’s claims for outstanding fees, awarding him some 71,000 Hungarian forints plus accrued interests, and dismissed the remainder of the action. The District Court relied on the relevant statutory fee standards and on figures elaborated by the technical expert, holding that his opinion was not doubtful in any manner.

On 16 June 1994 the applicant appealed. He claimed that the appeal court should examine his extended claims submitted on 24 February and 6 April 1994.

On 12 January 1995 the applicant again extended his action, this time claiming compensation for pecuniary damage.

On 20 January 1995 the Budapest Regional Court held a hearing. At the hearing the applicant’s lawyer requested the Regional Court to grant the applicant an award according to his extended claims.

In its decision dated 20 January 1995 the Regional Court upheld the first-instance judgment.

On 16 March 1995 the applicant filed with the District Court a petition for review by the Supreme Court, which was registered by the Supreme Court on 8 May 1995.

On 29 May 1995 the defendant co-operative brought a supplementary petition for review before the Supreme Court. On 1 June 1995 it requested the Supreme Court to hold an oral hearing.

On 17 April 1996 the applicant requested from the Supreme Court that his case be given priority.

On 5 June 1996 the Supreme Court fixed an oral hearing for 10 September 1996.

In his submissions of 5 July 1996 the applicant argued that the technical expert’s opinion in the case had been erroneous and pointed out that the Regional Court had ignored his submissions of 12 January 1995.

On 10 September 1996 the Supreme Court held a hearing. In its decision dated 10 September 1996, it dismissed the applicant’s petition for review and rejected the defendant co-operative’s supplementary petition.

Upon the applicant’s complaint, on 23 February 1998 the Vice-President of the Buda Central District Court confirmed that in the preceding proceedings the applicant’s additional claims, submitted on 24 February and 6 April 1994 and 12 January 1995, had not been examined. The Vice-President explained that these claims could only be adjudged in a new set of proceedings, given that the applicant’s original action had been finally terminated.

B. Relevant domestic law

1. Act no. 4 of 1959 on the Civil Code as amended

Article 349

(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate to prevent damage.

(3) These rules shall also apply to liability for damage caused by courts or the prosecution authorities, unless otherwise provided by law.

2. Act 3 of 1952 on the Code of Civil Procedure as amended

Article 2

(1) The court shall … enforce the parties’ rights to have their civil rights and obligations determined in fair proceedings and within a reasonable time.

Article 3

(1) The court shall decide a civil-law dispute solely upon request to this effect. Unless otherwise provided by law, requests shall be lodged only by a party interested in the dispute.

Article 146

(1) The plaintiff may, at any time before termination of the last hearing prior to the delivery of judgment, modify his action provided that the right pursued in the modified action is based on the same legal relation as the original action or is related thereto…

Article 213

(1) The decision contained in a judgment shall cover all the claims included … in the action.

Article 235

(1) In his appeal, the appellant shall denote the decision challenged and shall specify, to what extent and for what reason he wishes the decision to be amended. New facts or evidence shall not be admitted unless the appealing party has taken cognisance thereof after the first-instance decision was taken, provided that they would have resulted in a decision more favourable for the appealing party, had they been taken into account. New facts, evidence or motion to take evidence refused by the first-instance court shall also be admitted if they are aimed at demonstrating that the first-instance decision has been taken in breach of the law…

Article 253

(1) The appeal court shall decide on the merits of the case on the basis of the appeal hearing, unless it is to decide [according to other] provisions of this Act.

(2) If the first-instance court’s decision is correct as to the merits, the appeal court shall uphold it, otherwise the appeal court shall amend it wholly or partly, or pass an interim or a partial decision.

(3) The appeal court may amend the first-instance decision within the limits of the claims in the appeal … and the counter-appeal … However, within these limits, it may also decide on questions underlying the rights claimed and the defence which remained unexamined or undecided by the first-instance court…

Article 270

(1) Unless otherwise provided by law, a petition for a review of the final decision by the Supreme Court may be filed, alleging a breach of law, by any party…

Article 275/A

(1) If the decision under review is found to be in conformity with the law, or if the procedural irregularity which has occurred had no substantial impact on the determination of the merits of the case, the Supreme Court shall uphold it.

3. Act 66 of 1997 on Judicial Organisation and Administration

Section 63

(1) The president of the court shall: (a) within the limits of the budget, secure staff and facilities necessary for the operation of the court; (b) exercise employer’s rights assigned to him by the law; (c) manage the court’s financial and economic activity; (d) control that procedural deadlines be respected; (e) see to it that regulations and administrative rules be respected; (f) in compliance with the principles established by the National Council of Justice, work out the court’s organisational and operational regulations, elaborate the court’s working methods and schedule, and control the implementation thereof; (g) direct and control his subordinates’ administrative activity; (h) secure the conditions necessary for the judicial bodies’ operation, and convoke the plenary court’s meetings; ( i ) secure free exercise of staff committees’ rights; (j) organise and accomplish the educational and training tasks assigned to him; (k) yearly inform the plenary court and other staff about the working of the court; (l) be responsible for maintaining … registers and … supplying data; (m) carry out the tasks assigned to him by the law or resolutions of the National Council of Justice.

Section 65

The vice-president shall, with full authority, act for the president of the court in his absence, and shall carry out the administrative duties assigned to him by the organisational and operational regulations of the court.

COMPLAINTS

The applicant complains under Article 6 § 1 that the court proceedings lasted unreasonably long and were not fair. He submits in particular that the courts lacked impartiality and that their decisions were based on the technical expert’s allegedly erroneous opinion. Moreover, he complains that parts of his action as extended on 24 February and 6 April 1994 and 12 January 1995 were never examined.

THE LAW

1. The applicant complains about the length of the proceedings.

Article 6 § 1 of the Convention, in so far as relevant, provides:

“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 Court observes that, subsequent to the Hungarian ratification of the Convention on 5 November 1992, the proceedings lasted about three years and ten months, a period involving three court instances. The duration of the review proceedings before the Supreme Court was less than a year and a half. The Court considers that the overall length of the proceedings did not exceed “a reasonable time” within the meaning of Article 6 § 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.

2. The applicant complains under Article 6 § 1 that the proceedings were not fair on account of the courts’ lack of impartiality and of the fact that they relied on technical expert’s erroneous opinion.

In so far as this 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 finds that the applicant’s submissions do not disclose any appearance that the courts lacked impartiality or that the proceedings were otherwise unfair.

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

3. Lastly, the applicant complains that the domestic courts’ failure to examine the entirety of his action as extended on 24 February and 6 April 1994 and 12 January 1995 amounted to a breach of his right to access to court, as guaranteed by Article 6 § 1 of the Convention.

Article 35 § 1, in so far as relevant, provides:

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 Government argue that the application should be declared inadmissible on account of the applicant’s failure to exhaust domestic remedies. They maintain that an action against the State for damages, brought under Article 349 of the Civil Code, could have provided the applicant with adequate redress. In such proceedings the domestic courts could have established that his rights under the Code of Civil Procedure – and those under the Convention, as incorporated in the domestic law – had been violated and, consequently, he could have been awarded pecuniary compensation essentially identical with that obtainable in the proceedings before the Court. According to information received from the National Council of Justice, among 95 actions brought against various courts under Article 349 since 1998 – in 60 of which compensation was sought for damage caused in civil proceedings – in 21 cases the plaintiffs eventually withdrew their actions, in 35 cases the actions were dismissed, in 31 cases the proceedings had various other outcomes including settlements in courts, and in 8 cases the actions were admitted and altogether some 10 million Hungarian forints paid as compensation.

As to the merits of the complaint, the Government submit that i n the first-instance decision, part of the applicant’s claims was admitted, whereas the remainder dismissed. The appeal court examined the applicant’s appeal, in which he again extended his claims, in its entirety and upheld the first-instance decision. In the review proceedings, the Supreme Court held that the lower courts having conducted the proceedings had not breached any procedural rules, their decisions had been well-founded and in conformity with the law and, therefore, it upheld their decisions. The domestic courts cannot, therefore, be held to have ignored any of the applicant’s claims.

The Government rely on the principle that it is in the first place for the national courts to interpret domestic law and that, in the absence of arbitrariness, the Court should not substitute its own interpretation for theirs, in particular in cases where the interpretation by domestic courts of rules of a procedural nature is concerned. In this context the Government, aware of the letter written by the Vice-President of the Buda Central District Court on 23 February 1998, emphasise that – according to Sections 63 § 1 and 65 of the Act on Judicial Organisation and Administration – the Vice-President’s authority is exclusively of an administrative nature and does in no way extend to giving legal opinions. His statement is, therefore, no legally binding judicial interpretation.

The applicant submits that, in the litigation complained of, he exhausted all domestic remedies. In his view, Article 35 § 1 of the Convention cannot be interpreted to require him to embark on another full set of civil-court proceedings. Furthermore, he maintains that the three court instances which were charged with his case limited their examinations to one of his claims only while ignoring the remainder of his action as extended lawfully under Articles 146 of the Code of Civil Procedure. This has clearly been shown by the Vice-President’s official statement in reply to his complaint.

The Court recapitulates its constant case-law according to which the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity –, that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law ( Selmouni v. France [GC], no. 25803/94, § 74, to be published in ECHR 1999-…).

However, the only remedies which Article 35 of the Convention requires to be exhausted are those that 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. In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal ( op. cit. , § 75).

Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ( op. cit. , § 76).

The Court would emphasise that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case ( op. cit. , § 77).

With regard to the present case, the Court reiterates that an action for damages may be deemed a sufficient remedy, in particular where compensation is the only means of redressing the wrong suffered ( Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999-II).

In the present case, the Court notes that the applicant could have sought, under Article 349 of the Hungarian Civil Code, compensation for any damage he might have suffered on account of the domestic courts’ having mishandled his claims.

In view of the undisputed information from the Government, such an action for damages against the State would have offered him reasonable prospects of success. The Court is therefore satisfied that this remedy available to the applicant was an ordinary remedy sufficient to afford him redress in respect of the violation he alleges.

It follows that the applicant has not, as required by Article 35 § 1 of the Convention, exhausted the domestic remedies in respect of this part of the application and that therefore this complaint must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President