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 SZÉCHENYI v. HUNGARY
(Application
no. 1233/06)
JUDGMENT
STRASBOURG
20
December 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Széchenyi v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Dragoljub Popović,
President,
András Sajó,
Paulo Pinto
de Albuquerque, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 1233/06) 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, Mr István Tibor Széchenyi (“the
applicant”), on 23 December 2005.
- The
applicant was represented by Mr I. Barbalics, a lawyer practising in
Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Public Administration and Justice.
- On
13 September 2010 the
President of the Second Section decided to give notice of the
application to the Government. In accordance with Protocol No. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in
Szentendre.
A. Divorce proceedings and division of matrimonial
property
- On
29 August 1996 A.P. filed an action for divorce and child custody
against the applicant before the Pest Central District Court. She
further indicated in the motion that she wished to settle the
division of matrimonial property in separate legal proceedings.
- On
6 July 1999 the plaintiff requested the District Court to establish
her ownership of a common real estate and to divide the matrimonial
property.
- After
having held several hearings, the District Court delivered a partial
judgment on 14 April 2000, dissolving the parties’ marriage,
deciding about the child’s placement and regulating the
applicant’s access rights. On appeal the Budapest Regional
Court upheld the first instance judgment on 6 February 2001.
- As
regards the division of matrimonial property, the District Court
delivered its judgment on 24 November 2004, which was partly modified
on appeal by the Budapest Regional Court on 24 May 2005.
B. Proceedings for change of child custody
- Despite
the final judgment regulating the applicant’s access rights
(see paragraph 7 above), the mother failed to comply with the
arrangements, therefore preventing the applicant from seeing his son.
- On
16 April 2002 the applicant brought an action before the Budapest
II/III District Court, requesting the modification of his child’s
placement. Moreover, he requested joint exercise of his parental
rights related to the management of his child’s property. He
claimed that the mother had not acted in the child’s best
interest when concluding an exchange agreement concerning a real
estate in the child’s property, which had been approved by the
competent guardianship authority on 9 July 2001.
- On
28 May 2003 the District Court dismissed the applicant’s
action. On appeal, the Budapest Regional Court upheld the
first-instance judgment on 29 January 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
divorce proceedings had been incompatible with the “reasonable
time” requirement of Article 6 § 1 of the
Convention.
- The
Government contested that argument, stressing that the period to be
taken into consideration only started on 6 July 1999, when the
plaintiff submitted her request for the division of the matrimonial
property.
- The
Court observes that the divorce proceedings proper ended on
6 February 2001. However, the application was introduced only on
23 December 2005, i.e. more than six months later.
This part of the complaint therefore failed to
comply with the six-month rule prescribed by Article 35 § 1, and
must be rejected pursuant to Article 35 § 4 of the Convention.
15. As
regards the part of the proceedings related to the division of
matrimonial property, the Court observes that the District
Court could not start to deal with this question until the
plaintiff’s request to that effect on 6 July 1999. The
period which preceded this date cannot therefore be imputed to the
Government. As a consequence, the period to be taken into
consideration began only on 6 July 1999 and ended on 24 May 2005. It
thus lasted five years and ten months for two levels of jurisdiction.
In view of such lengthy proceedings, this part of the complaint must
be declared admissible.
- 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, among many other authorities,
Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
- 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 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
18. The
applicant also complained, relying on Article 5 of Protocol No. 7
to the Convention, that the mother of his child had failed to comply
with the final court judgment regulating his access rights. He was
therefore unable to see his son regularly until the beginning of
2005. He further complained that his request to exercise jointly his
parental right concerning the management of the child’s
property had been dismissed. Lastly, the applicant complained under
Article 1 of Protocol No. 1 to the Convention read in conjunction
with Article 13 of the Convention that the domestic authorities had
failed to ensure the protection of his son’s property, when
they had approved the exchange agreement concluded by the mother.
19. The
Court observes that, even assuming the domestic authorities’
responsibility for not ensuring the applicant’s visiting
rights, the situation settled in the beginning of 2005. Moreover, the
Budapest Regional Court’s judgment dismissing the joint
exercise of parental rights was delivered on 29 January 2004.
However, the application was only lodged on 23 December 2005,
i.e. more than six months later than either of these dates.
20. It
follows that this part of the application failed to comply with the
six-month rule prescribed by Article 35 § 1, 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 85,000 euros (EUR) 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 due to the unreasonable
length of the proceedings. Ruling on an equitable basis, it awards
him EUR 4,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 2,500 for the costs
and expenses incurred before the Court. This amount should correspond
to the legal fees billable by his lawyer, namely 20 hours of legal
work charged at an hourly rate of EUR 125.
- The
Government did not express an opinion on the matter.
- According
to the Court’s case-law, an applicant is entitled to the
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. The Court considers it reasonable to
award the applicant, who was
represented by a lawyer, the sum of EUR 1,000 under this head.
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 proceedings concerning the division of matrimonial
property 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, the following amounts, to be converted into
Hungarian forints at the rate applicable at the date of settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub
Popović
Deputy Registrar President
