BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND SECTION
CASE OF BÖRCSÖK BODOR v. HUNGARY
(Application no. 14962/03)
JUDGMENT
STRASBOURG
3 October 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Börcsök Bodor v. Hungary,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mrs A.
Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D.
Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having deliberated in private on 12 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 14962/03) 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 Sarolta
Börcsök Bodor (“the applicant”), on 7 March
2003.
- The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Justice and
Law Enforcement.
- On 15 September 2005
the Court decided to give notice of the application to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
- The applicant was born in 1941 and lives in Budapest.
- The applicant owns a flat in a two-flat house. In 1992
Mr F. and Ms K., a married couple, bought the other flat and
thus became co-owners of the house.
A. First proceedings
- On 24 February 1993 the Szeged District Land Registry
registered the couple’s ownership of the flat they had bought.
The applicant appealed, claiming to have a right of pre-emption. On 4
November 1993 the Csongrád County Land Registry dismissed her
administrative appeal. She sought judicial review.
- On 15 July 1994 the Szeged District Court dismissed the
applicant’s action. On 21 February 1995 the Csongrád
County Regional Court dismissed her appeal.
- On 11 March 1996 the Supreme Court reversed these
judgments, quashed the decision of 4 November 1993 and remitted the
case to the District Land Registry.
- In the resumed administrative proceedings, on 16
September 1996 the District Land Registry restored the original
situation (as it had been prior to 24 February 1993).
B. Second proceedings
- In 1995 civil proceedings were instituted against the
applicant by the couple. They sought the termination of the common
ownership of the house as well as damages. In her counterclaim, the
applicant requested the Szeged District Court to award her damages,
stating that the plaintiffs had broken into her flat and had carried
out works therein, causing major damage. She claimed that these
actions amounted to trespass.
- In a partial judgment of 20 March 1996, the District
Court ordered the plaintiffs to restore the applicant’s flat to
its original state and to pay damages. The court suspended the
examination of the issue of termination of common ownership pending
the registration of the plaintiffs’ ownership rights by the
Land Registry.
- On 10 December 1996 the Csongrád County
Regional Court quashed the first-instance judgment and remitted the
case to the District Court, ordering that an expert opinion be
obtained.
- In the resumed proceedings, on 3 December 1997 the
District Court found, relying on the opinion of an expert, that the
plaintiffs had been trespassing when they had made alterations in the
applicant’s flat and ordered them to restore it to its original
state and to pay damages. The issue of termination of common
ownership remained suspended.
- On 5 May 1998 the Regional Court partly amended the
first-instance judgment by annulling the plaintiffs’ obligation
to restore the flat and lowering the amount of damages to be paid to
the applicant.
- On 11 November 1998 the Supreme Court quashed the
first- and second-instance judgments and remitted the case to the
District Court.
- On 10 September 1999 the District Court dismissed the
plaintiffs’ action and ordered them to restore the flat to its
original state, and to pay the applicant damages, plus accrued
interest and unrealised rent.
- On 27 April 2000 the Regional Court partly amended the
first-instance decision by raising the amount of damages to be paid
to the applicant.
- On 5 June 2002 the Supreme Court dismissed the
parties’ petitions for review. This decision was served on the
applicant on 14 September 2002.
C. Third proceedings
- On 10 July 1997 the couple again requested the
registration of their ownership, claiming that more than a year had
passed since the final decision in the case under (A) above, during
which time the applicant had not exercised her right of pre-emption.
The couple’s request was dismissed by the first- and
second-instance Land Registries.
- On 8 December 1997 the applicant informed the Csongrád
County Land Registry of her intention to exercise her right of
pre-emption and buy the flat in issue.
- The applicant’s subsequent request to have her
ownership registered was dismissed by the County Land Registry in
1998. In 1999 she brought an action in the Csongrád County
Regional Court, challenging this decision.
- On 31 August 2000 the Regional Court dismissed the
applicant’s action, observing that, despite warning, she had
failed to submit any documents proving that her purchase of the flat
had been concluded.
- On 3 October 2002 the Supreme Court dismissed the
applicant’s petition for review, holding that the
second-instance decision had been delivered according to the law.
This decision was served on the applicant on 20 November 2002.
D. Fourth proceedings
- In a prosecution for the offences of causing criminal
damage and trespass, conducted against one of the plaintiffs in the
case under (B) above, the applicant, acting as a civil-law party
(magánfél), claimed damages from the defendant.
On 13 November 1997 the Szeged District Court found the latter guilty
as charged and ordered him to pay damages to the applicant.
- On appeal, on 27 October 1999 the Bács-Kiskun
County Regional Court acquitted the defendant and dismissed the
applicant’s claims, holding that they had already been
determined in the proceedings under (B) above. On 4 July 2000 the
Supreme Court quashed this judgment and remitted the case to the
second-instance court.
- In the resumed proceedings, on 26 October 2000 the
County Regional Court amended the District Court’s judgment of
13 November 1997. It convicted the defendant, but dismissed
the applicant’s claim for damages, confirming that this issue
had already been determined in the proceedings under (B) above.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE SECOND PROCEEDINGS
- The applicant complained that the length of the second
proceedings had been incompatible with the “reasonable time”
requirement of 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...”
- The Government contested that argument.
- The period to be taken into consideration began in
1995 and ended on 14 September 2002. It thus lasted some seven years
for three levels of jurisdiction, which each examined the matter two
or three times.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- 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).
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see Frydlender, cited above).
- 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 case. 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant also complained about the length of the
other proceedings and about the outcome of all the cases. She relied
on Articles 6, 10, 13 and 14 of the Convention and Article 1 of
Protocol No. 1 to the Convention.
- Concerning the first and the fourth proceedings, the
Court observes that they ended on 16 September 1996 and 26 October
2000, respectively. However, the application was only introduced on 7
March 2003, i.e. more than six months after these dates. It follows
that all complaints relating to these cases must be rejected,
pursuant to Article 35 §§ 1 and 4 of the Convention.
- As regards the outcome of the second and the third
proceedings, in so far as the applicant’s complaints 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 §
1 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 (García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
In the present cases, there is nothing in the case file indicating
that the courts lacked impartiality or that the proceedings were
otherwise unfair. Moreover, in the absence of any elements of
arbitrariness, the Court is satisfied that the applicant’s
rights under Article 1 of Protocol No. 1 or any other provision of
the Convention were not impaired. These complaints are therefore
manifestly ill-founded within the meaning of Article 35 § 3, and
must be rejected pursuant to Article 35 § 4 of the Convention.
- Lastly, as to the length of the third case, the Court
observes that it started with the applicant’s action in 1999,
challenging the Land Registry’s decision, and ended in November
2002. It therefore lasted some three years before two court
instances. For the Court, this period did not exceed “a
reasonable time” for the purposes of Article 6 § 1. This
complaint is therefore likewise manifestly ill-founded within the
meaning of Article 35 § 3, and must be rejected
pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The applicant claimed 47,148,500 Hungarian forints
(HUF)
in respect of pecuniary and non-pecuniary damage.
- The Government contested the claim.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. However, it considers that the applicant must
have sustained some non-pecuniary damage. Ruling on an equitable
basis, it awards her 2,500 euros (EUR) under this head.
B. Costs and expenses
- The applicant also claimed HUF 4,024,380
for the costs and expenses incurred before the domestic courts and
the Court.
- The Government contested the claim.
- According to the Court’s case-law, an applicant
is entitled to reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court rejects the claim for costs and expenses in the
domestic proceedings and considers it reasonable to award the
applicant, who was not represented by a lawyer, the sum of EUR 500
for the proceedings before the Court.
C. Default interest
- The Court considers it appropriate that the default
interest 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
- Declares the complaint concerning the excessive
length of the second proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 2,500 (two thousand five hundred euros) in respect of
non-pecuniary damage and EUR 500 (five hundred euros) in respect of
costs and expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
