FOURTH SECTION

DECISION

Application no . 53996/12 POLITIKATÖRTÉNETI INTÉZET KFT and MAGYAR SZAKSZERVEZETEK ORSZ Á GOS SZ Ö VETS É GE against Hungary

The European Court of Human Rights (Fourth Section), sitting on 23 May 2017 as a Committee composed of:

Faris Vehabović , President, Carlo Ranzoni , Péter Paczolay , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 14 August 2012,

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, Politikatörténeti Intézet Közhasznú Nonprofit Kft and Magyar Szakszervezetek Országos Szövetsége , are both Hungarian legal entities seated in Budapest. They were represented before the Court by Mr E. Kiss, a lawyer practising in Budapest.

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

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

4. The first applicant is a non-profit limited liability company of public utility called Institute of Political History. The second applicant, MSZOSZ, is a trade union alliance.

5. During the State-Party regime in Hungary, the State on the one hand and the Party and its social, youth and advocacy organisations, on the other hand, were inseparably intertwined, their operation being under direct State Party control. In particular, the National Council of Trade Unions (“SZOT”, the legal predecessor of the second applicant) participated in the promulgation of laws, issued regulations and performed other public functions.

6. The State Party (“MSZMP”) and its organisations as well as SZOT generated public records. However, the documents produced by these organisations before 1989 were not placed in public archives. Prior to 1989, MSZMP and SZOT/MSZOSZ both had their own archives, whose records are currently kept in the Archives of Political History and Trade Unions (“PSZL”) operated by the first applicant.

7. The protection of archived materials and archives used to be regulated by Law-Decree no. 27 of 1969, which was applicable to archived materials “generated in relation to the functioning of State authorities, offices, institutions, institutes, enterprises and other economic organisations (hereinafter: State bodies), cooperatives, social organisations and other legal entities”. Certain privileged organisations were entitled to set up their own archives.

8. After the restoration of multi-party democracy in 1989/90, it was declared, in Act no. LXXXIII of 1991, that, similarly to other archived materials, the documents kept in the archives of those privileged organisations were also owned by the State. Under its section 2, a large part of MSZMP ’ s documents was placed in the competent public archives. However, not all documents generated by the State party and State bodies were transferred to public archives; and PSZL continued to keep a significant amount of post-1948 documents.

9. The Archives Act (Act no. LXVI of 1995 on Public Records, Public Archives and the Protection of Private Archives), in force as of 1 January 1996, laid down as a general rule that documents generated in connection with the exercise of public power were to constitute public records, regardless of the time of their creation and place of their custody. Such materials were to be kept in public archives and not to be alienated.

10. A subsequent amendment to the Archives Act, contained in section 2 of Act no. CCXXI of 2012, stipulated that the location to keep such documents was the National Archives of Hungary. The regulation on the legal status of public records created during Communism was eventually elevated to constitutional level without a change of its content by the Fourth Amendment to the Fundamental Law.

11. The PSZL, operated by the first applicant, is a private archive registered in accordance with section 17 (2) (c) of the Archives Act. Under section 31 of the Archives Act, an open private archive is entitled to keep public records with the authorisation of the minister responsible for culture, and such documents constitute State property regardless of the place of custody. The Government submitted that presently PSZL did not have such authorisation.

12. The first applicant brought an action of adverse possession before the Pest Central District Court against the Hungarian State on 5 June 2012. It claimed that in 2008, by virtue of adverse possession, it had acquired title to the documents in its custody and owned by the State. It requested the court to extend the proceedings to include MSZOSZ (the second applicant) and other entities.

13. At a hearing held on 31 January 2013 MSZOSZ submitted a claim for intervention while the first applicant ’ s representative stated that the claim did not involve MSZOSZ ’ s documents and added that “if the Hungarian State establishes about itself that it is the owner then this does not mean acquisition of title as of the entry into force of the legal provision but that the asset has been owned by the State as from the moment of its creation”.

14 . On 20 February 2013 the court dismissed MSZOSZ ’ s claim for intervention.

15. At the hearing on 21 March 2013 the first applicant ’ s representative submitted that if the documents in question were “public records” then from the moment of their creation they must have been considered State property. He nevertheless disputed the public nature of such documents and their non-marketability. The first applicant argued that “the Fundamental Law makes it unambiguous that the documents have been the property of the State ab ovo ”.

16 . On 21 March 2013 the court dismissed the first applicant ’ s claim. It concluded that the legislative amendment adopted in 2012 was irrelevant for adjudicating the case as the claim was based on alleged adverse possession which concerned an earlier period between 1998 and 2008. It held that neither the State ’ s title nor the first applicant ’ s possession was disputed. Allowing the hypothesis of adverse possession, the court nevertheless held that a prerequisite thereof, that is, “possessing as one ’ s own” was lacking since an archive keeps documents as assets “entrusted to it” – two mutually exclusive concepts.

17 . On appeal, the Budapest Regional Court upheld the first instance judgment in essence on 1 October 2013.

18 . In review proceedings, the Kúria held a hearing on 11 June 2014. It did not reverse the lower courts ’ rulings about the non-fulfilment of the condition “possessing as one ’ s own” for the purposes of adverse possession. Analysing the relevant laws and the provisions of the Fundamental Law, the Kúria added that part of the disputed documents had become exclusive State property as of the 1991 law and the remainder had become exclusive State property as of the 2012 amendment. These assets could not therefore possibly be acquired by way of adverse possession.

19. The Hungarian State ’ s ensuing action claiming that the first applicant surrender the documents in question is still pending.

COMPLAINTS

20. The applicants complained that the 2012 legislation amounted to unjustified expropriation or nationalisation of the documents held by them, which measure was never compensated for. Only they were targeted by this amendment of the law which was thus allegedly discriminatory. They relied on Article 1 of Protocol No. 1 as well as Articles 14 and 17 of the Convention.

THE LAW

21. The applicants complained that the 2012 amendment entailed the unjustified and discriminatory expropriation of 23.8 million pages of historical documents. They relied on Article 1 of Protocol No. 1, read alone and in conjunction with Article 14 of the Convention, as well as on Article 17 of the Convention.

These provisions read as follows:

Article 1 of Protocol No. 1

“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14 of the Convention

“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.”

Article 17 of the Convention

“Nothing in [the] Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

22. The Government argued at the outset that the applicants abused the right of individual petition in that, misleading the Court, they claimed ownership of the documents – although in the domestic litigation they had acknowledged that those documents had been in State ownership ab ovo . At any rate, the documents had always been property of the State; therefore, any complaint about nationalisation was manifestly ill-founded. Furthermore, assets which were non-marketable, that is, could not be alienated, were incapable of attracting the application of Article 1 of Protocol No 1, for which reason the complaint was incompatible ratione materiae with the provisions of the Convention. Lastly, in so far as the documents could be said to have been “nationalised” at all, this had occurred as of 1 January 1996 at the latest, that is, more than six months before the introduction of the application.

23. The applicants disputed these arguments in general terms, insisting that they were victims of unjustified and uncompensated expropriation/nationalisation of their assets by virtue of the 2012 amendment and that the unfavourable decisions of the domestic courts reflected a misconception of the domestic law.

24. The Court notes at the outset that the second applicant, whose application to intervene was rejected by the District Court (see paragraph 14 above), was eventually not a party to the litigation complained of.

25. In any event, as regards the complaint under Article 1 of Protocol No. 1, the Court observes that the subject matter of the impugned litigation was the acquisition of ownership of the documents by way of adverse possession. The lower-level domestic courts dismissed the claim by holding that the first applicant had not possessed the assets as its own, which would have been a prerequisite of adverse possession (see paragraphs 16-17 above). This reasoning was completed by the Kúria saying that, at any rate, the documents in question constituted non-alienable State property (see paragraph 18 above).

26. In so far as the 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 (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I).

27. In the present case, the domestic courts explained in detail why, in application of the relevant law, they could not uphold the applicants ’ allegations, notably because the conditions of adverse possession had not been met and because the assets were subject to exclusive State ownership. For the Court, their rulings were devoid of any appearance of arbitrariness. The applicants ’ grievance flows from the mere fact that their attempt to claim ownership of the documents in question was unsuccessful. However, Article 1 of Protocol No. 1 applies only to a person ’ s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011). In these circumstances, the Court considers that it is unnecessary to address the other objections submitted by the Government, since this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

28. As regards the complaint under Article 1 of Protocol No. 1 read in conjunction with Article 14 of the Convention, the Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. Nevertheless, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 ‑ IV).

29. However, in the present case, the Court has found that the applicants ’ principal claim related to the unsuccessful ownership action. For want of an existing property, that complaint was incompatible ratione materiae with the provisions of the Convention. In these circumstances, it cannot be said that the facts of the case fall within the ambit of Article 1 of Protocol No. 1. Therefore, the complaint under Article 14 is likewise incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

30. Lastly, the Court is satisfied that there is no appearance of a violation of the applicants ’ rights under Article 17 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2017 .

Andrea Tamietti Faris Vehabović              Deputy Registrar President