CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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. 30021/96                       by Jánosné KARDOS                       against Hungary          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 9 October 1995 by Jánosné KARDOS against Hungary and registered on 31 January 1996 under file No. 30021/96;        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 2 January 1997 and the observations in reply submitted by the applicant on 10 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1922, is a Hungarian national and resident in Dunakeszi. She is a pensioner.        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 October 1991 the applicant brought an action against her former daughter-in-law and her son before the Dunakeszi Branch of the Vác District Court (Váci Városi Bíróság Dunakeszi Kirendeltsége). She claimed that possession of her flat, inhabited by the defendants, be restored to her. In the proceedings the applicant was represented by counsel.        On 19 November 1992 the District Court held a hearing, where the applicant extended her action. She claimed that her expenses, incurred in the context of the maintenance and refurbishment of the flat, be reimbursed. In this respect she requested the District Court that it contact the National Savings Bank in order to specify the expenses in question. The District Court, while admitting this request, ordered the applicant to present her extended claims in a concise form.        On 1 March 1993 the National Savings Bank submitted its report to the District Court. On 22 March 1993 the District Court again called upon the applicant to present her claims in a concise form. In the applicant's default to comply with this order, on 1 December 1993 the Dunakeszi District Court (Dunakeszi Városi Bíróság) fixed a hearing for 6 January 1994 and warned the applicant that it would impose a fine unless she presented her action in a concise form.        On 16 December 1993 and, thereupon, at the hearing of 6 January 1994, the applicant repeatedly stated that she would prefer a severance of her reimbursement claims from the actual proceedings. However, the defendants announced that they would rather bring counter- claims in the context of the reimbursement dispute, something which they, in the absence of any precise claims on the part of the applicant, had not been able to do during the preceding fourteen months. The District Court gave leave for the defendants to bring their counter-claims and adjourned the case.        On 24 January 1994 the applicant's daughter-in-law submitted her counter-claims and the District Court called upon the applicant to comment on these claims within a period of one month. On 22 February 1994 the applicant requested the extension of the time- limit. On 10 March 1994 she eventually requested the District Court to dismiss the counter-claims as a whole.        On 12 July 1994 the Ministry of Justice (Igazságügyi Minisztérium), apparently in response to the applicant's complaint about the length of the proceedings, informed her that the matter was within the competence of the President of the District Court (Városi Bíróság Elnöke).        On 30 August 1994 the District Court held a hearing, where the parties specified their claims and positions.        On 13 October 1994 the applicant revoked the authority of her counsel. At the hearing of 15 November 1994 she appeared before the District Court without a representative and requested the adjournment of the case. The District Court ordered that, before 9 December 1994, the applicant should appoint her new counsel, who then should submit his legal position. However, the applicant's counsel submitted this memorandum only on 23 February 1995. Nevertheless, on 10 January 1995 the District Court held a hearing and took note of the amount of the defendants' counter-claims, which had in the meantime been increased. Simultaneously, the applicant rejected the defendants' proposal for an agreement out-of-court.        On 16 May 1995 the District Court held a hearing, in which the applicant requested the Court to hear further witnesses. The District Court fixed a further hearing for 19 September 1995, which was, upon the parties' joint request, re-scheduled for 10 January 1996.        On 10 January 1996 the District Court held a hearing and heard evidence from a witness.        On 27 March 1996 the District Court held a further hearing involving witnesses and appointed a technical expert.        On 3 December 1996 the District Court held a hearing, in which the parties commented upon the technical expert's opinion and summarised their position.        On 10 December 1996 the District Court delivered its decision. The District Court admitted the applicant's claim as to the possession of the flat and awarded her some reimbursement of expenses. The District Court dismissed the counter-action brought by the applicant's daughter-in-law.        It appears that the case is currently pending before the appeal court.   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 terminated within a reasonable time.        According to S. 5 (3), the court shall impose a fine upon a party who submits a statement belatedly or fails to submit such a statement despite a warning and thereby impedes the termination of the proceedings.        According to S. 146 (1), a plaintiff is entitled to modify his action until the first instance decision is given in the case, provided that his claim, as modified, arises from, or relates to, the legal relation underlying his original action.        According to S. 147 (1), a defendant is entitled to bring a counter-claim until the termination of the hearing which precedes the delivery of the first instance decision. The court may reject de plano such a counter-claim, if it is manifest that the party has brought it belatedly in order to protract the proceedings.        Section 151 (1) provides that the court shall, upon the joint request of the parties submitted at least eight days in advance, postpone a scheduled hearing.   COMPLAINT        The applicant complains that the above civil court proceedings have been unreasonably long. She does not invoke any particular provision of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 9 October 1995 and registered on 31 January 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 2 January 1997.        On 10 February 1997 the applicant submitted observations in reply to the respondent Government's 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".        The Government submit that the application is manifestly ill- founded. They argue at the outset that the applicant has not substantiated in any manner her allegation that the proceedings have lasted unreasonably long.        The Government maintain that the subject matter of the case was rather complicated, both as to the facts and to the law. In particular, the District Court had to evaluate the parties' contradictory statements concerning the reimbursement of expenses and, in the absence of a written contract to that effect, to establish the legal nature of the defendants' use of the flat in question. Moreover, the Government note that, subsequent to the Hungarian ratification of the Convention on 5 November 1992, the District Court held altogether nine hearings at regular intervals. However, the applicant advanced her claims for reimbursement only at the first hearing and not in her original action. Subsequently, on 1 December 1993, the District Court had to warn the applicant that it would impose a fine upon her unless she presented her action in a concise form; she did not comply with this order before the hearing of 6 January 1994, thus causing a delay of some fifteen months altogether. Furthermore, the counter-claim, brought by one of defendants, also influenced the duration of the proceedings; the applicant submitted her comments upon these claims only after an extension by one month of the time-limit set by the District Court. Thereupon, as a consequence of the applicant's revocation of the authority of her counsel and of the new counsel's failure to present his legal position in due time, a further delay of some three months arose between 15 November 1994 and 23 February 1995. In fact, the District Court, of its own motion, meanwhile scheduled a further hearing for 10 January 1995. Furthermore, on 16 May 1995 the applicant proposed the hearing of further witnesses - a circumstance warranting the adjournment of the case until 19 September 1995; this hearing was re-scheduled upon the parties' joint request for 10 January 1996. Therefore another delay of some eight months arose. In sum, the Government submit that a delay totalling some twenty-seven months has been due to the applicant's conduct in the case.        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 10 December 1996, 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 decided in her favour.          The applicant contests the Government's views.        The Commission finds at the outset that the domestic court decision did not extend to the question of the duration of the protracted proceedings. Therefore, any prejudice which the applicant suffered on account of the length of the proceedings cannot be regarded as redressed by the District Court's decision (cf. Preikhzas v. Germany, Comm. Report 13.12.78, para. 86, D.R. 16, p. 17).        Furthermore, the Commission observes that the applicant's complaint relates to proceedings, which started in October 1991, i.e. prior to 5 November 1992, which is the date of the entry into force of the Convention with respect to Hungary. However, the Commission recalls that the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party (cf. No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The proceedings in question had lasted about one year prior to the Hungarian ratification of the Convention. This period would, if considered alone, fall outside the scope of the Commission's considerations ratione temporis. However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (cf., Eur. Court HR, Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).        The Commission notes that the Regional Court delivered its judgment on 10 December 1996. It appears that the case is now pending before the appeal court. Consequently, the proceedings in question have lasted so far about four years and nine months subsequent to the ratification.        The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, namely, its complexity, the conduct of the parties and the conduct of the judicial authorities. In this instance the circumstances call for an overall assessment (cf. Eur Court HR, Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).        The Commission notes that the case related to a dispute over the use of a flat and to related matters of reimbursement of expenses and thus involved no issues of particular complexity.        As to the conduct of the parties, the Commission notes that the applicant caused considerable delays in the case. In particular, she extended her action on 19 November 1992 and failed to present her extended action in a concise form, as required, before 6 January 1994. On 22 February 1994 she requested the extension of the time-limit set for commenting upon the counter-claims brought by her daughter-in-law. On 13 October 1994 she revoked the authority of her counsel; at the hearing of 15 November 1994 she appeared before the District Court without a representative and requested the adjournment of the case. Her new counsel submitted his legal position only on 23 February 1995. Moreover, on 16 May 1995 the District Court held a hearing, where the applicant requested the Court to hear further witnesses. The District Court fixed a further hearing for 19 September 1995, which was, upon the parties' joint request, re-scheduled for 10 January 1996.        As to the conduct of the judicial authorities, the Commission notes that, between 5 November 1992 and 10 December 1996 the District Court held nine hearings. Occasionally, it did not tolerate the parties' inactivity: on 1 December 1993 it warned the applicant that it would impose a fine upon her, unless she presented her action in a concise form; moreover, it scheduled a hearing for 10 January 1995, notwithstanding that the applicant's new counsel had not yet submitted his memorandum. There is no appearance of any period of particular inactivity on the part of the District Court. Nevertheless, the overall length of the proceedings raises the question whether the District Court took in fact all possible measures to expedite the proceedings.        However, the Commission considers that the substantial delays which occurred subsequent to the ratification - in particular, those between 19 November 1992 and 6 January 1994, between 15 November 1994 and 23 February 1995 and between 16 May 1995 and 10 January 1996 - are imputable to the applicant.        In these circumstances, the Commission, even assuming that the District Court may have contributed to some delay in the proceedings, finds that the total length of the proceedings has not exceeded an acceptable limit in the present case (cf., mutatis mutandis, Eur. Court HR, Cesarini v. Italy judgment of 12 October 1992, Series A no. 245, p. 26, para. 20). The applicant's complaint about the length of proceedings does not, therefore, disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                               J. LIDDY         Secretary                                  President    to the First Chamber                       of the First Chamber