J.-P.C. S.D. CONCURRING OPINION OF JUDGE LOUCAIDES

I agree with the finding that there has been a violation of Article 6 in this case because of unexplained delays in the proceedings attributable to the judicial authorities of the respondent State. However, my approach differs from that of the majority in two respects:

a) On the basis of the material before the Court, I confine my finding only to the periods 28 April 1993 until 28 September 1994 and 20 November 1996 until 6 June 1997, amounting to some 23 months altogether, which, I believe, are excessive. I do not find any other unexplained delays in this case attributable to the State. The nature of the proceedings and, in particular, the conduct of the applicant were basically responsible for the duration of the proceedings.

b) The majority took into account expressly the “overall length” of the proceedings. In my opinion it is wrong to rely on the “overall length” of any proceedings as being by itself a ground or factor for finding a breach of the obligation under Article 6 of the Convention for a hearing “within a reasonable time”. Such a breach can only be established if there are unreasonable delays in the proceedings attributable to the State. Proceedings may be protracted by the conduct of the applicant or by the complexity and general nature of the case. In such cases, even if the “overall length” of the proceedings is excessive, no responsibility should be borne by any State organ so long as the latter did not contribute in any way to the prolongation of the duration of the proceedings.

I reiterate here what I have said in the case of Maczynski v. Poland (application no. 43779/98, judgment, 15 January 2002).

“It is true that according to the case-law of the Court, the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. But there is no absolute or objective limit to the length of time that can be taken. The question whether there has been a delay contrary to the requirements of Article 6 § 1 cannot be decided in abstracto with reference only to the total length of the proceedings. Whether there has been an unreasonable delay is a matter that must be assessed in the light of the particular facts of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30).”

A breach of Article 6 § 1 can only be found where it is established that there have been delays attributable to the State regardless of the total length of proceedings. Thus, in the case of Ciricosta and Viola v. Italy (judgment of 4 December 1995, Series A no. 337-A), in which the period in issue was more than 15 years for civil proceedings that were still pending at the time of the judgment, the Court held:

“even though a period of more than fifteen years for civil proceedings that are still pending may, on the face of it, seem unreasonable, the conduct of the applicants ... leads the Court to declare Mr Ciricosta’s and Mrs Viola’s complaint unfounded” (p. 11, § 32).

In the same case the Court stated the following:

“The Court reiterates in the first place that only delays attributable to the State may justify a finding of failure to comply with the ‘reasonable time’ requirement” (p. 10, § 28).

DISSENTING OPINION OF JUDGE MULARONI

I disagree with the majority that the length of the proceedings was unreasonable.

It is true that the proceedings lasted 15 years and 4 months, but apart from the fact that only about 7 years and 3 months are covered by the Convention (since Hungary ratified it on 5 November 1992), I emphasise that “only delays attributable to the State may justify a finding of a failure to comply with the ‘reasonable time’ requirement” (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55).

Even if, according to the Court case-law, “in assessing the reasonableness of the time elapsed after this date, account must be taken of the then state of the proceedings” (see, among other authorities, Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53), it seems to me that the delays were largely attributable to the plaintiff’s conduct.

We know from the facts that:

1) in October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. In September 1986 the Buda Central District Court informed him that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants (hence, as far as I understand, about two years were lost due to the plaintiff’s mistake);

2) on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. On 22 May 1991 the Budapest Regional Court, quashing the first-instance judgment, pointed out that “due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence” (hence, as far as I understand, more than two years were again lost due to the plaintiff’s fault);

3) on 7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims;

4) on 1 March 1995 the plaintiff again modified his claims;

5) on 16 June 1995 the plaintiff further extended his claims; we know from the Government’s observations that, at the hearing of 3 July 1996, the applicant again extended his claims; as a consequence the plaintiff was granted a term to elaborate further quantification of his claims; his memorandum was returned for supplementation on 1 August 1996 and the revised memorandum reached the Regional Court on 9 September 1996;

6) on 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. The proceedings were resumed as early as 12 December 1997 (as far as I understand, the plaintiff waited about 6 months before resuming the proceedings and the judicial authorities cannot be held responsible for this delay);

7) due to the plaintiff’s partial waiver, on 13 February 1998 the Regional Court discontinued the proceedings in respect of some of the defendants;

8) after the plaintiff’s death (27 December 1998), the applicant and his late father’s widow entered the proceedings as the plaintiff’s successors on 20 October 1999 (i.e., about 10 months later).

We also know from the Government’s observations that:

1) on 28 April 1993 the court granted the plaintiff a respite till 1 June to enable him to elaborate his legal opinion on the defendant’s submissions lodged in the meantime;

2) on 1 September 1993 the plaintiff requested the court for a respite as a new legal representative had entered the suit. Therefore the court adjourned the hearing till 10 December, pointing out the claims the plaintiff was expected to specify within 45 days. On 10 December 1993 some of the defendants requested the court to adjourn the hearing on account of the new claims raised;

3) the new hearing was held on 9 March 1994; the court had to adjourn it again due to new documents submitted at the hearing;

4) on 4 May 1994 the Budapest Regional Court appointed a technical expert from the Institute of Forensic Technical Expertise. On 28 September 1994 the court specified the questions to be answered by the expert and it fixed 60 days from the delivery of its decision for the presentation of the expert opinion. On 27 October 1994 the Institute indicated to the court that owing to lack of competence it was not able to present the expert opinion. Therefore, on 7 November, the Budapest Regional Court appointed another expert, who presented his opinion on 17 December 1994;

5) at the hearing of 26 January 1996 the plaintiff requested the court to transfer the case to the Prosecutor’s Office concerning his allegations of abuses by the defendants. The court adjourned the hearing, transferred the case-file to the Prosecutor’s Office (which found that the documents did not contain anything in particular which might call for the institution of criminal proceedings) and, after receiving the file back, fixed the date of the next hearing;

6) on 20 November 1997 the plaintiff again extended his claims.

In consideration of the above, I disagree that “at least two periods of unexplained delay are apparent in this case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 - periods amounting to some 28 months altogether - the Regional Court’s activity being mostly limited to obtaining expert opinions” (§ 37 of the judgment).

Even if the proceedings could have been dealt with faster at times, I believe that these delays did not exceed a reasonable time and that the length of the proceedings was mostly due to the plaintiff’s conduct.

For all these reasons, I conclude that the length of the proceedings did not exceed the “reasonable time” requirement and that the applicant’s rights under Article 6 § 1 of the Convention have not been violated.