BARNA v. HUNGARY (No. 2) - 35364/09 - Chamber Judgment [2014] ECHR 313 (25 March 2014)

In the case of Barna v. Hungary (no. 2),

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

          Guido Raimondi, President,
          Işıl Karakaş,
          András Sajó,
          Nebojša Vučinić,
          Helen Keller,
          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. 35364/09) 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 Zsuzsanna Barna (“the applicant”), on 26 June 2009.

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

3. On 7 December 2011 the application was communicated to the Government.

THE FACTS

A. The circumstances of the case

4. The applicant was born in 1957 and lives in Budapest.

5. On 25 January 2006 the applicant brought an action in compensation in the context of water damage in her condominium.

6. After holding several hearings and obtaining expert evidence, on 18 March 2010 the Buda Central District Court found for the applicant.

7. On 6 October 2010 the Budapest Regional Court reversed this judgment.

8. On 2 June 2011 the Supreme Court rejected, without an examination on the merits, the applicant’s petition for review since it did not meet the statutory requirements.

B. Relevant domestic law

9. Act no. 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 about 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 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

10. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

11. The Government contested that argument.

12. The period to be taken into consideration began on 25 January 2006 and ended on 2 June 2011. However, the procedure before the Supreme Court was futile and cannot be imputed to the State. The remaining period is therefore over four years and eight months for two levels of jurisdiction.

A. Admissibility

13. The Government argued that the applicant had not exhausted domestic remedies, since she had not availed herself of the possibility to complain, under sections 114/A and 114/B of the Code of Civil Procedure, about the protraction of the case, thereby accelerating it.

The applicant contested the effectiveness of this remedy.

14. The 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).

15. In the particular case, the Court considers that the provisions of sections 114/A and 114/B of the Code of Civil Procedure, 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 (see also Finger v. Bulgaria, no. 37346/05, §§ 84 to 91, 10 May 2011; Vukelić v. Montenegro, no. 58258/09, §§ 84 to 88, 4 June 2013). It follows that the remedy relied on by the Government cannot be considered effective and to be exhausted in order to comply with Article 35 § 1 of the Convention. Consequently, the application cannot be rejected for non-exhaustion of domestic remedies.

16. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

17. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

18. 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 Frydlender, cited above).

19. 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 in the instant case 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

21. The applicant claimed altogether 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

22. The Government contested the claim.

23. The Court does not discern any causal link between the violation found and any pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards her EUR 3,200 under that head.

B. Costs and expenses

24. The applicant made no costs claim.

C. Default interest

25. 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. Declares the application admissible;

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

3. 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 3,200 (three thousand two hundred 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 points;

4. Dismisses 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

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