FOURTH SECTION

DECISION

Application no. 30856/15 Endre Zolt á n SZIGETI and Piroska Mária SZIGETINÉ VASANITS against Hungary

The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:

Branko Lubarda , President, Carlo Ranzoni , Péter Paczolay , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 16 June 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Endre Zoltán Szigeti and Mrs Piroska Mária Szigetiné Vasanits , are Hungarian nationals, who were born in 1960 and live in Budapest. They were represented before the Court by Mr A. Cech , a lawyer practising in Budapest.

2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi , Ministry of Justice.

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

4. The application concerns litigation about a land registry dispute establishing a right for the applicants. In 2008, in a final and binding court judgment, it was held that, because the envisaged transaction had not materialised, the land registry entry could be removed on condition that the applicants ’ deposit was paid back.

5. The deposit was not paid back.

6. In a new procedure, the Kúria ultimately held, on 5 November 2014, that the disputed entry could be removed although the original condition (the reimbursement of the de posit) was not met (service: 16 December 2014).

7 . The Fundamental Law of Hungary provides as follows:

Article XXIV

“(1) Everyone shall have the right to have his or her affairs handled impartially, fairly and within a reasonable time by the authorities. This right includes the obligation of such authorities to give reasons for their decisions.

(2) Everyone shall have the right to demand compensation, as specified in an act of Parliament, for damages unlawfully caused by the authorities in discharging their duties.

Article XXVIII

(1) In the determination of his or her civil rights and obligations or of any criminal charge against him or her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

(7) Everyone shall have the right to seek remedy against judicial, administrative or other official decisions, which infringe upon his or her rights or legitimate interests.”

COMPLAINT

8. The applicants complained, relying on Articles 6 § 1 and 17 of the Convention, that the Kúria ’ s decision had rendered nugatory a final and binding court judgment in their favour and allowed that judgment to remain inoperative to their detriment.

THE LAW

9. The applicants complained that the procedure culminating in the Kúria ’ s decision was unfair in that it had made a final court judgment hollow. They relied on Articles 6 § 1 and 17 of the Convention. The Court, who is master of the characterisation to be given in law to the facts of the case ( Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that this complaint may raise an issue under Article 6 § 1 of the Convention alone.

10. Article 6 § 1 provides as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

11. The Government submitted that the applicants should have brought a constitutional complaint. The applicants disagreed, arguing that the constitutional complaint was not an effective remedy.

12. The Court has already held that a constitutional complaint under section 26(1) and/or section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted for the purposes of Article 35 § 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary (see Szalontay v. Hungary ( dec. ), no. 71327/13, §§ 29-41, 12 March 2019).

13. The present case pertains to the applicants ’ grievances concerning fair trial – a right enshrined in Article 6 of the Convention as well as in Articles XXIV and XXVIII of the Fundamental Law (see paragraph 7 above).

14. It follows that the constitutional complaint was an effective remedy to exhaust in the circumstances.

15. Since the applicants did not avail themselves of this legal avenue, the application must be rejected for non ‑ exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 October 2019 .

Andrea Tamietti Branko Lubarda Deputy Registrar President