SECOND SECTION

CASE OF ZSOLNAY v. HUNGARY

(Application no. 44936/07)

JUDGMENT

STRASBOURG

22 January 2013

This judgment is final but it may be subject to editorial revision.

In the case of Zsolnay v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Peer Lorenzen, President,
	András Sajó,
	Nebojša Vučinić, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 44936/07) 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 four Hungarian nationals, Mr and Mrs István Zsolnay, Ms Klára Zsolnay and Mr György Zsolnay (“the applicants”), on 2 October 2007 respectively (see Annex for details).
2.  On 30 March 2010 Mr György Zsolnay died. His lawyer informed the Court that Mr Zsolnay’s wife and children, his successors (Ms Györgyné Zsolnay, Mr Péter Zsolnay and Ms Klára Edit Simányiné Zsolnay), wished to pursue the application.
3.  The applicants were represented by Mr A. Magyar, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.
4.  On 13 September 2010 the application was communicated 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
5.  The applicants are all Hungarian nationals who live in Budapest (for details, see Annex).
6.  In December 1985 the brother of three applicants (Ms Klára Zsolnay, Mr István Zsolnay and Mr György Zsolnay) brought an action against his siblings before the Pest Central District Court, requesting the court to establish his ownership on a real estate. In 1986, the respondents submitted a counter-claim against the plaintiff.
7.  On 26 September 1990 the District Court gave interlocutory judgment, establishing that the plaintiff had acquired ownership of part of the property. On 10 March 1992 the Budapest Regional Court suspended the proceedings, pending the adjudication of the counter-claims submitted by the respondents.
8.  In the resumed proceedings the District Court delivered an interlocutory judgment concerning the ownership proportions on 21 November 1996. On appeal, the Regional Court suspended the proceedings, pending the adjudication of the counter-claims, on 8 May 1997.
9.  The applicants’ counter-claims were dismissed by the District Court on 11 December 1997. This judgment was partly reversed on appeal on 29 September 1998. The Supreme Court upheld the first-instance decision while remitting some claims on 3 November 1999.
10.  On 29 June 2000 the fourth applicant, Mrs István Zsolnay joined the proceedings on the respondents’ side.
11.  On 23 January 2001 the applicants’ motion for the disqualification of a judge was dismissed.
12.  On 14 May 2003 the District Court gave a partial judgment. This was reversed in part on appeal on 19 January 2005 and upheld by the Supreme Court on 17 February 2006.
13.  Regarding the remainder of the claims, the District Court found partly for the applicants on 7 July 2006. The Budapest Regional dismissed the respondents’ counter-claim on 27 April 2007.
THE LAW
14.  The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
15.  The Government contested that argument. They argued in particular that a period of three years and eight months, when the proceedings had been suspended pending the adjudication of the respondents’ counter-claim, could not be imputed to them. Moreover, they considered that the applicants’ unjustified motion for the disqualification of a judge had slowed down the proceedings.
16.  The applicants contested these arguments.
17.  The Court observes that the adjudication of the respondents’ counter-claim – submitted as early as 1986 – formed an integral part of the proceedings, which cannot be considered separately for the purposes of the length of the proceedings. There is no appearance that the applicants abused their procedural rights in this respect. The delay arising out of these proceedings cannot thus be attributed to the applicants.
18.  As regards the unsuccessful motion for the disqualification of a judge, the Court is unable to share the Government’s view on this matter. It cannot be imputed to the applicants that they made use of their procedural rights guaranteed by the Code of Civil Procedure to question the impartiality of a judge, especially in the absence of any indication that their request was abusive.
19.  The Court observes that the period to be taken into consideration began only on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court notes that the case had been pending for about six years and eleven months on that date. The period in question ended on 27 April 2007. It thus lasted fourteen years and five months before three instances. In view of such lengthy proceedings, this complaint must be declared admissible.
20.  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 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.
21.  The applicants also complained under Article 6 § 1 of the Convention about the decisions given by the courts. In so far as this complaint 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 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 case, the Court considers that the applicants’ submissions do not disclose any elements of arbitrariness and, hence, no appearance of a violation of their rights under Article 6 of the Convention has been demonstrated. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.
22.  The applicants further complained that the length of the proceedings complained of had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1.
23.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
24.  Having regard to its finding under Article 6 § 1 (see paragraph 20 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23).
25.  Relying on Article 41 of the Convention, the applicants claimed various amounts in respect of pecuniary damage and non-pecuniary damage (see Annex). The Government contested the 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 and, on an equitable basis, awards under this head 12,800 euros (EUR) jointly to Mr and Mrs István Zsolnay, moreover jointly to the heirs of Mr György Zsolnay (Mr Péter Zsolnay, Ms Klára Edit Simányiné Zsolnay and Ms Györgyné Zsolnay), and separately to Ms Klára Zsolnay.
26.  The applicants did not submit costs claims.
27.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

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

3.  Holds that it is not necessary to examine the complaint under Article 1 of Protocol No. 1;

4.  Holds
(a)  that the respondent State is to pay 12,800 euros (EUR), plus any tax that may be chargeable, jointly to Mr and Mrs István Zsolnay, moreover jointly to the heirs of Mr György Zsolnay (Mr Péter Zsolnay, Ms Klára Edit Simányiné Zsolnay and Ms Györgyné Zsolnay), and separately to Ms Klára Zsolnay, in respect of non-pecuniary damage, to be converted into Hungarian forints 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Peer Lorenzen
	Deputy Registrar	President

Last name	First name	Year of birth	Pecuniary damage claimed (EUR)	Non-pecuniary damage claimed (EUR)	
Zsolnay	György	1944	156,000	21,500	
Zsolnay	Klára	1944	75,000	21,500	
Zsolnay	István	1938	25,000	21,500	
Zsolnay	Istvánné	1939