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SECOND
SECTION
CASE OF GÁVRIS v. HUNGARY
(Application
no. 33723/06)
JUDGMENT
STRASBOURG
15
March 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Gávris v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
Ireneu Cabral Barreto,
President,
Dragoljub Popović,
András
Sajó, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33723/06) 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 two Hungarian
nationals, Mr and Mrs János Gávris (“the
applicants”), on 11 May 2006.
- The
applicants were represented by Mrs Gy. Scheszták, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Public Administration and Justice.
- On
11 March 2008 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
applicants were born in 1935 and 1939 respectively and live in
Szolnok.
- In
1993 administrative proceedings started concerning the grant of a
building permit to the applicants' neighbours. In pursuit of the
applicants' administrative appeals and their ensuing request for
judicial review dated 14 October 1993, on 14 November 1994 the
Kaposvár District Court quashed the existing decisions and
remitted the case to the second-instance administrative authority. It
held that the building permit issued had approved some irregular
plans. On 13 July 1995 the Somogy County Regional Court upheld this
judgment.
- In
the resumed administrative proceedings, on 10 October 1995 the Somogy
County Administrative Office remitted the case to the Balatonszárszó
Notary. It appears that, by this time, the neighbours had already
constructed the building in question. In March 1996 the Notary
approved the continued existence of the building. On 13 June 1996 the
County Administrative Office dismissed the applicants' appeal in
which they had requested the removal of part of the building,
constructed irregularly in their view.
- On
2 April 1997 the Kaposvár District Court quashed these
decisions and again remitted the case to the administrative
instances. It held that the permit allowing the continued existence
of the building had been adopted in defiance of the relevant
administrative law because the interests of the other neighbours
(including the applicants) had not been taken into account. On 28
August 1997 the Regional Court upheld the judgment. However, this
decision was quashed in review proceedings by the Supreme Court on
20 March 2000. The Supreme Court remitted the case to the
first-instance court.
- Due
to a change in the law, in the resumed judicial review proceedings
the Regional Court heard the case as a first-instance court. On 27
February 2001 it ordered the administrative instances to resume the
proceedings, because their previous decisions had approved some
irregular plans. On 9 December 2002 the Supreme Court, sitting
as a second-instance court, upheld this decision.
- In
the resumed administrative proceedings, on 17 December 2003 the
Balatonföldvár Notary granted the neighbours a permit for
the continued existence of the building in question. On 24 May 2004
the Fejér County Administrative Office dismissed the
applicants' appeal in which they had alleged that the building had
been constructed in defiance of the regulations and that its
continued existence infringed their rights as neighbours.
- In
judicial review proceedings, on 30 November 2004 the Regional Court
dismissed the applicants' action. The court pointed out that, under
section 48 of Act no. 78 of 1997 on Construction, the authority in
charge of construction may take measures in respect of an irregularly
constructed building within one year from its taking cognisance of
the irregularity but in any event not later than ten years from the
certification of the building for use. In the court's view, the
one-year time-limit had been triggered by the Regional Court's
decision of 28 August 1997; therefore – the one-year
time-limit having been elapsed – the neighbours could no longer
be denied a permit for the continued existence of the building in
question.
- This
decision was upheld by the Supreme Court's appeal bench on
23 November 2005. It stressed that – contrary to what was
apparently argued by the applicants – the running of the
one-year time-limit had not been interrupted by the review
proceedings in which the decision of 28 August 1997 had been
quashed, because its execution had not been suspended.
THE LAW
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention. The Government contested that
argument.
- The
period to be taken into consideration began on 14 October 1993
and ended on 23 November 2005. It thus lasted over twelve years
and one month for three levels of jurisdiction. In view of such
lengthy proceedings, this 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.
- The
applicants also complained under Article 1 of
Protocol No. 1 in conjunction with Article 13 of the Convention that
the nuisance caused by the neighbours' irregular construction had
been perpetuated, because the authorities in charge had missed,
without any particular reason, the one-year time-limit in which they
could have ordered the demolition of the building.
- The
Government submitted that the applicants should have availed
themselves of an official liability action in damages under section
349 of the Civil Code ; section 349 (1) providing that liability for
damage caused by the State administration shall be established if
damage could not be prevented by means of ordinary legal remedies or
if the person concerned has resorted to ordinary legal remedies
appropriate for preventing damage. The applicants contested this
view.
- The
Court considers that, by not bringing an action in compensation
against the administrative authorities for the damages which they had
allegedly sustained on account of those authorities' inaction, the
applicants did not provide the Hungarian courts with the opportunity
which is in principle intended to be afforded to Contracting States
by Article 35 of the Convention, namely the opportunity of preventing
or, in the instant case, putting right the violations alleged against
them (see Cardot v. France, 19 March 1991, § 36,
Series A no. 200). This part of the application must therefore be
rejected for non-exhaustion of domestic remedies, pursuant to Article
35 §§ 1 and 4 of the Convention.
- Relying
on Article 41, each of the applicants claimed 10,000 euros (EUR) in
respect of pecuniary damage and EUR 20,000 in respect of
non-pecuniary damage.
- The
Government contested these claims.
- 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 applicants must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards them,
jointly, EUR 9,600 under that head.
- The
applicants also claimed EUR 3,500 for the costs and expenses incurred
before the domestic courts and the Court. The Government contested
the claim.
- Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the applicants the sum of EUR
1,000 in respect of all costs and expenses incurred.
- 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 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 applicants, jointly, within three
months, the following amounts, to be converted into Hungarian forints
at the rate applicable at the date of settlement:
(i) EUR
9,600 (nine thousand six hundred 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 applicants, 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 15 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Ireneu
Cabral Barreto
Deputy Registrar President
