CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 31004/96                       by J. N.                       against Hungary          The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI                Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 3 October 1995 by J. N. against Hungary and registered on 12 April 1996 under file No. 31004/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      6 January 1997 and the observations in reply submitted by the      applicant on 4 February 1997;     -     the supplementary observations submitted by the respondent      Government on 28 February 1997 and the observations in reply      submitted by the applicant on 16 April 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1942, is a Hungarian national and resident in Tata. She is unemployed. Before the Commission, she is represented by Mr. T. Kis, a lawyer practising in Komárom, Hungary.        The facts of the case, as they have been submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In May 1990 Mr. S. S. brought an action before the Tatabánya District Court (Tatabányai Városi Bíróság) against the applicant to challenge a last will made in her favour by her common-law husband and the brother of the plaintiff, the late Mr. M. S.        It appears that on 15 and 29 June, 25 July and 1 October 1990 the District Court held hearings in the case. On the latter occasion six further plaintiffs, Czechoslovakian citizens, joined the proceedings.        On 19 February 1991 the District Court held a hearing and appointed a forensic medical expert in the case, who submitted his opinion on 6 March 1992.        Meanwhile, on 13 December 1990 the applicant requested the District Court that the action be decided upon without delay. On 14 February 1992 she inquired about the state of the proceedings at the District Court.        On 20 July 1993 the applicant requested the District Court to fix a hearing in the case. On 10 November 1993 she complained to the President of the District Court (Városi Bíróság Elnöke) about the inactivity of the Court. On 9 December 1993 the President of the District Court called upon the judge in charge of the action to explain the delay complained of. Thereupon, apparently in early 1994, an examination was carried out as to the professional competence of this judge.        On 6 January 1994 the President of the District Court informed the applicant that a hearing would be held on 20 May 1994.        On 8 July 1994 the applicant complained to the President of the District Court that she had not been summoned to the hearing scheduled for 20 May 1990 and, in fact, no hearing had meanwhile taken place.        In response to her further complaint of 27 March 1995 about the lack of a hearing, the Vice-President of the District Court informed the applicant that the hearing scheduled for 20 May 1994 had been cancelled since the judge in charge had meanwhile been requested to resign as a result of the examination of her professional competence and that a further hearing would take place on 29 June 1995.        On 29 June 1995 the District Court held a hearing and dismissed the plaintiffs' claims. The District Court found that no doubt arose in the case, either as to the authenticity of the signature on the last will in question, or as to the mental capacity of the late Mr. M. S.        On 15 September 1995 the District Court notified the applicant that the decision of 29 June 1995 had become final on 6 September 1995, since no appeal had been lodged against it.     B.    Relevant domestic law        Section 3 (2) of the Code of Civil Procedure (a polgári perrendtartásról szóló 1952. évi III. törvény), as amended, provides that the court is obliged, ex officio, to arrange for actions to be dealt with thoroughly and be terminated within a reasonable time. Section 5 (1) provides that parties shall exercise their procedural rights in bona fide.        Section 3 (2), which entered into force on 1 January 1993, can be referred to, if a person, claiming non-respect of these duties of the court, brings an official liability action in pursuance of S. 349 of the Civil Code (a Polgári Törvénykönyvrol szóló 1959. évi IV. törvény).        Section 339 (1) of the Civil Code provides that anybody who unlawfully causes damage to another person shall compensate for it. According to S. 349, official liability [of the state administration] may be established only if the relevant ordinary remedies have been exhausted or have not been fit to prevent damages. Unless otherwise regulated, this applies accordingly to the liability for damages caused by the courts or the prosecution authorities.     COMPLAINT        The applicant complains under Article 6 para. 1 of the Convention that the above civil court proceedings lasted unreasonably long.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 3 October 1995 and registered on 12 April 1996.        On 16 October 1996 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 6 January 1997.        On 4 February 1997 the applicant submitted observations in reply to the respondent Government's observations.        On 28 February 1997 the Government submitted supplementary observations.        On 16 April 1997 the applicant submitted supplementary observations.     THE LAW        The applicant complains about the length of the proceedings.        Article 6 para. 1 (art. 6-1), so far as relevant, provides that "in the determination of his civil rights and obligations..., everyone is entitled to a ... hearing within a reasonable time". a.    The Government argue that the applicant has not exhausted the domestic remedies available to her under Hungarian law in that she did not bring an official liability action under S. 349 of the Civil Code, referring to S. 3 (2) of the Code of Civil Procedure, claiming compensation for the protracted proceedings. In the light of recent domestic jurisprudence, the Government consider such an action an effective remedy.        The applicant argues that, given the lack of an established domestic jurisprudence to that effect, an official liability action cannot be regarded as an effective remedy.        The Commission recalls that, subsequent to protracted civil court proceedings, a further civil action does not provide direct and speedy redress; in the present case, an official liability action cannot be regarded as an effective remedy, which the applicant is required to exhaust (cf. No. 26209/95, T.K. and T.K. v. Hungary, Dec. 21.5.97, unpublished). The complaint cannot, therefore, be rejected for non- exhaustion of domestic remedies.   b.    The Government recall that damage caused by the length of civil proceedings may be compensated for by a particularly favourable outcome of these proceedings (Preikhzas v. Germany, Comm. Report 13.12.78, paras. 85-87, D.R. 16, pp. 16-17). In their view, the applicant, subsequent to the decision of 29 June 1995, can no longer claim to be victim of a violation of her rights under Article 6 para. 1 (art. 6-1) of the Convention, since the case was adjudged in her favour. The applicant disagrees with these views.        Moreover, the Government admit that the subject matter of the case was not complicated and that the applicant's conduct did not contribute to the delays. Furthermore, the Government recall that a temporary backlog of court business does not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind (cf. Eur. Court HR, Zimmermann and Steiner v. Switzerland judgment of 13 July 1983, Series A no. 66, pp. 12-13, paras. 29-30; Guincho v. Portugal judgment of 10 July 1984, Series A no. 81, pp. 13-17, paras. 29-32 and 37-41). In this respect the Government acknowledge that, subsequent to the ratification of the Convention by Hungary on 5 November 1992, no action was taken in the case until 9 December 1993, when the judge in charge of the applicant's case was called upon to explain the delays that had occurred. This judge was eventually requested to resign and the applicant's action was re-assigned to another judge. The further delays were due to the excessive yearly workload of the Tatabánya District Court's eight civil judges (in 1994, four to five hundred cases per judge), which was aggravated by the distribution among these judges of some three hundred cases which had previously been assigned to the resigned judge.        The applicant asserts that the delays in her case are imputable to the District Court's conduct.        The Commission recalls that the period to be considered begins only on 5 November 1992, when Hungary's recognition of the right of individual petition took effect (cf., Eur. Court HR, Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53). In assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings. Accordingly, the period to be considered is about two years and ten months.          The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber