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KLARA KISS v. HUNGARY - 31754/04 [2008] ECHR 87 (29 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/87.html
Cite as:
[2008] ECHR 87
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SECOND
SECTION
CASE OF KLÁRA KISS v. HUNGARY
(Application
no. 31754/04)
JUDGMENT
STRASBOURG
29
January 2008
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 Kiss v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
András
Baka,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Antonella
Mularoni,
Danutė
Jočienė,
Dragoljub
Popović,
judges,
Sally
Dollé, Section Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 31754/04) 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 Klára
Kiss (“the applicant”), on 18 August 2004.
The
Hungarian Government (“the Government”) were represented
by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
On
12 October 2006 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 1939 and lives in Budapest.
On
4 December 1995 the applicant complained to the Budapest III District
Municipality about the nuisance her neighbour was causing by using
her flat as a hairdressing salon. On 5 March 1996 the Municipality
dismissed the neighbour’s request for leave to use the flat in
question as a hairdressing salon. The decision was upheld by the
Budapest Administrative Office on 2 May 1996. The neighbour sought
judicial review. The applicant, as a person whose lawful interest was
at stake, was party to these and the ensuing administrative
proceedings, under section 3(4) of the Code of Administrative
Procedure as in force at the material time.
On
29 April 1997 the Pest Central District Court quashed the
administrative decisions and remitted the case to the first instance
administrative authority.
On
28 August 1998 the District Municipality issued the permit requested
by the neighbour. On 3 February 1999 the Budapest Administrative
Office quashed this decision and remitted the case to the first
instance administrative authority.
The
District Municipality again issued the permit in question on 31 May
1999. On 24 September 1999 the Budapest Administrative Office quashed
this decision and remitted the case to the first instance
administrative authority.
On
23 April 2001 the District Municipality discontinued the
administrative proceedings. On 19 July 2001 this decision was quashed
by the Budapest Administrative Office.
In
the resumed administrative proceedings, on 29 October 2001 the
District Municipality prohibited the neighbour from continuing to use
the flat as a hairdressing salon. On 4 January 2002 this decision was
upheld by the Budapest Administrative Office.
The
neighbour sought judicial review. On 4 November 2003 the applicant’s
intervention in these proceedings was allowed.
On
26 February 2004 the Budapest Regional Court quashed the prohibition,
observing that the administrative authorities had never actually
completed the principal proceedings concerning the neighbour’s
request for leave to use the flat as a hairdressing salon.
In
the resumed administrative proceedings, on 10 June 2005 the District
Municipality issued the leave requested. On 28 June 2005 the
applicant filed an appeal which was dismissed on 1 August 2005.
On
21 September 2005 the applicant sought judicial review under section
327(1) of the Code of Civil Procedure. According to the information
currently in the case file, the proceedings are still pending; a
hearing took place on 12 December 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the 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 fair ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 4 December 1995 and,
according to the information in the case file, has apparently not yet
ended. It has thus lasted over 12 years [to be updated] for
two administrative instances and one level of court jurisdiction.
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
application (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 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
The
applicant also complained about the alleged unfairness and the
outcome of the proceedings. The Court observes that the proceedings
are still pending. Therefore, this complaint is premature and must be
rejected for non-exhaustion of domestic remedies, pursuant to Article
35 §§ 1 and 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 621,914 Hungarian forints (HUF) (approximately
2,444 euros (EUR)) in respect of pecuniary damage and HUF 2.5 million
(EUR 9,826) 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 applicant must have sustained some
non-pecuniary damage and considers that it should award the full sum
claimed in this connection, i.e. EUR 9,826.
B. Costs and expenses
Submitting
the relevant invoices, the applicant also claimed HUF 71,576
(EUR 282) for various clerical costs incurred before the Court.
The
Government did not express an opinion on the matter.
The
Court considers that the sum claimed should be awarded in full.
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 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 9,826 (nine
thousand eight hundred and twenty-six euros) in respect of
non-pecuniary damage and EUR 282 (two hundred and eighty-two 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 29 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
