SECOND SECTION

CASE OF BARTHA v. HUNGARY

( Application no. 33486/07 )

JUDGMENT

STRASBOURG

25 March 2014

FINAL

25/06/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bartha v. Hungary ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Guido Raimondi , President, Peer Lorenzen , András Sajó , Nebojša Vučinić , Paul Lemmens , Egidijus Kūris , Robert Spano , judges, and Stanley Naismith , Section Registrar ,

Having deliberated in private on 18 February 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 33486/07 ) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Györgyi Bartha (“the applicant”), on 30 July 2007 .

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

3 . On 5 May 2010 the application was communicated to the Government .

4 . The Government object ed to the examination of the case by a Committee (Article 28 § 1 (b)), arguing that it included issues not subject of well-established case-law of the Court. The Court accepted that objection.

THE FACTS

A. The circumstances of the case

5 . The applicant was born in 1954 and lives in Budapest .

6 . The case concerned a warranty dispute initiated by the applicant on 5 April 1993. The case was first heard by the Buda II/III District Court. After a remittal, on 23 May 2002 the District Court gave judgment. During these proceedings, apparently site inspections were carried out in the applicant ’ s flat.

It appears that the applicant failed to attend several hearings and did not co-operate with the experts working on the case.

7 . On appeal, on 17 January 2007 the Budapest Regional Court decided on the case. This judgment was served on the applicant on 31 January 2007.

B. Relevant domestic law

8 . Act n o. III of 1952 on the Code of Civil Procedure , as amended by Act no. XIX of 2006, provides as follows:

Complaint about the protraction of the proceedings

Section114/A

“(1) The party, the intervener or the public prosecutor participating in the proceedings are entitled to file a written complaint with the court hearing the case complaining a bout an omission specified in subsection (2) allegedly committed by that court, requesting the court having competence for the adjudication of the complaint to establish the omission and, by setting an appropriate time-limit, to instruct – in the cases specified under points a) and c) of subsection (2) – the omitting court to perform the omitted procedural act or to pass the omitted decision, and to take – in the case specified under point b) of subsection (2) – the most effective action in the given case.

(2) Such a complaint may be filed where:

a) the law prescribes a time-limit for the court within which to complete the proceedings, to perform a procedural act or to pass a decision and the time - limit has elapsed without any result,

b) a court has set a time-limit for the public prosecutor, the person participating in the proceedings, the authority or person requested to perform a procedural act but the time-limit has elapsed without any result and the court has failed to impose on the omitter the measures allowed by the law,

c) the court has failed to comply with its obligation to complete the proceedings within a reasonable time on account of the lapse of such time since the court ’ s last measure on the merits which was sufficient for the court to perform or order to perform a procedural act but the court failed to do so.

(3) No complaint shall be filed against orders related to evidentiary acts or decisions subject to a separate legal remedy.

(4) The complaint may be withdrawn by the complainant at any time until a decision on the merits is taken by the court. Complaints withdrawn shall not be re-submitted.”

Section 114/B

“(1) The court hearing the case shall examine the complaint within eight days from its receipt, and if it finds the complaint well-founded, it shall, within thirty days, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of how the complaint has been settled.

(2) If the court hearing the case finds the complaint ill-founded, it shall transmit the complaint to the adverse party who may file observations on it within eight days from its receipt. After the expiry of the time-limit the court shall, within eight days, forward the file – together with the observations – to the court having competence for adjudicating the complaint. In its communication, the court hearing the case shall set forth its reasons for not performing the omitted procedural act or not passing the omitted decision.

(3) A complaint challenging an omission of the district court shall be adjudicated by the regional court sitting in a committee of three professional judges; a complaint challenging an omission of the regional court shall be adjudicated by the court of appeal sitting in a committee of three professional judges; a complaint challenging an omission of the court of appeal shall be adjudicated by the Kúria sitting in a committee of three professional judges; a complaint challenging an omission of the Kúria shall be adjudicated in camera by another committee of the Kúria , within fifteen days from the receipt of the case-file.

(4) Where the court adjudicating the complaint grants the complaint, it shall, by setting a time-limit, invite the omitting court to take – in the cases specified in section 114/A subsection (2) points a) and c) – the action required for the proper progress of the case and – in the cases specified in section 114/A subsection (2) point b) – to take the most effective action. Except for the cases specified in section 114/ A subsection (2) point a), the court adjudicating the complaint shall not instruct the court hearing the case to perform a particular procedural act. If the court finds the complaint ill-founded, it shall dismiss it in a reasoned decision. Against this decision no appeal may be filed.

(5) If the submitter of the complaint repeatedly submits an ill-founded complaint in the same case the court adjudicating the complaint may impose a fine on him.

(6) The provisions governing the submission and adjudication of appeals against orders shall be applicable to [such] complaints.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

9 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement of Article 6 § 1 of the Convention, which provides as relevant:

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

10 . The Government contested that argument.

11 . The period to be taken into consideration began on 5 April 1993 and ended on 31 January 2007 . It thus lasted thirteen years and nine months for two level s of jurisdiction .

12 . In view of such lengthy proceedings, this complaint must be declared admissible.

13 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see , among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII) .

14 . Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances . Having regard to its case -law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

15 . The applicant further complained of the fact that there was no remedy available to her with which to accelerate the proceedings. She relied on Article 13 of th e Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

16 . The Government submitted that this complaint had been lodged outside the six-month time-limit of Article 35 § 1 , since as of 1 April 2006 a remedy, namely an objection under section 114/A of the Code of Civil procedure, had been enacted; however, the application had been introduced only on 30 July 2007, that is, more than six months later. The applicant contested this view.

17 . The Court considers that the Government ’ s objection is so closely linked to the question as to whether there was an effective remedy available to the applicant that it is appropriate to join this question to the merits of this complaint. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) or inadmissible on any other grounds. It must therefore be declared admissible.

18 . T he Court has already held that the effectiveness of a remedy to accelerate proceedings may depend on whether it has a significant effect on the length of the proceedings as a whole (see Holzinger v. Austria (no. 1) , no. 23459/94, § 22 , ECHR 2001 ‑ I ; Holzinger v. Austria (no. 2) , no. 28898/95, § 20 ).

19 . In the particular case, the Court considers that the provisions of sections 114/A and 114/B of the Code of Civil Procedure (see paragraph 8 above) , while offering some possibilities for the complainant to seek the timely accomplishment of certain procedural omissions, do not guarantee in any manner that the length of the proceedings as a whole remains reasonable. Moreover, the Government have not adduced any elements of domestic case-law to demonstrate that the remedy suggested is capable of substantially accelerating the proceedings. Nor did they submit any other element to demonstrate the availability of an effective remedy.

20 . T he mere enactment of th e legal avenue suggested by the Government cannot be regarded as the starting point of the six-month time-limit in regard to the applicant ’ s complaint unde r Article 13 of the Convention. The complaint thus cannot be rejected for non-compliance with the six-mo nth rule; and the Government ’ s rela ted objection must be dismissed, since the remedy relied on by them cannot be considered effective for the purposes of Article 35 § 1 of the Convention.

21 . T he Court cannot but conclude that there has been a violation of Article 13 of the Convention, for the absence of an effective domestic remedy in respect of the applicant ’ s complaint about the protraction of the case.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

22 . T he applicant also complained under Article 6 § 1 about the outcome of the case.

In so far as this complaint may be understood to concern the 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 (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, the Court is satisfied that the applicant ’ s submissions do not disclose any appearance that the courts lacked impartiality, or that the proceedings were otherwise unfair or arbitrary.

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.

23 . Lastly, the applicant complained about the site inspections ordered by the first-instance court. She relied on Article 8 of the Convention .

The Court considers that these events occurred prior to 23 May 2002 (see paragraph 6 above), whereas the application was introduced only on 30 July 2007, that is, more than six months later.

This complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

24 . Relying on Article 41 of the Convention , the applicant claimed 24,000 euros (EUR) in r espect of non-pecuniary damage.

The Government co ntested the claim .

25 . The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity , it awards her EUR 10,000 under that head, having regard to the fact that the applicant also contributed to the protraction of the proceedings.

26 . The applicant made no costs claim.

27 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Joins the Government ’ s objection based on the six-month rule regarding the complaint under Article 13 to the merits of this complaint and dismisses it;

2 . Declares the complaint concerning the excessive length of the proceedings and the absence of an effective remedy admissible and the remainder of the application inadmissible;

3 . Holds that there has been a violation of Article 6 § 1 of the Convention;

4 . Holds that there has been a violation of Article 13 of the Convention;

5 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 ( ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into the currency of the respondent State at the rate applicable at the date of settlement ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage poin ts;

6 . Dismisse s the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 25 March 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi Registrar President