{"id":1075,"date":"2019-04-17T15:22:55","date_gmt":"2019-04-17T15:22:55","guid":{"rendered":"https:\/\/laweuro.com\/?p=1075"},"modified":"2019-11-05T10:54:01","modified_gmt":"2019-11-05T10:54:01","slug":"case-of-hesz-and-others-v-hungary","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1075","title":{"rendered":"CASE OF HESZ AND OTHERS v. HUNGARY (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF HESZ AND OTHERS v. HUNGARY
\n(Application no. 17884\/12)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n19 February 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Hesz and Others v. Hungary,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a\u00a0Committee composed of:<\/p>\n

Georges Ravarani, President,
\nMarko Bo\u0161njak,
\nP\u00e9terPaczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 29 January 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 17884\/12) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by three Hungarian nationals, Ms Vikt\u00f3riaHesz (hereafter \u201cthe first applicant\u201d), Mr\u00a0G\u00e1borP\u00e1zm\u00e1nyi (hereafter \u201cthe second applicant\u201d) and Mr Mikl\u00f3sKecsk\u00e9s (hereafter \u201cthe third applicant\u201d), on 20 March 2012.<\/p>\n

2.\u00a0\u00a0The applicants were represented by Mr Cs. Visontai, a lawyer practising in Budapest. The Hungarian Government (\u201cthe Government\u201d) were represented by Mr Z. Tall\u00f3di, Agent, Ministry of Justice.<\/p>\n

3.\u00a0\u00a0On 25 June 2015notice of the application was given to the Government. On 1 December 2017 the Government were invited to submit further observations.<\/p>\n

THE FACTS<\/strong><\/p>\n

4.\u00a0\u00a0The first, second and third applicants were bornin 1971, 1947 and 1954 respectively, and live in Budapest.<\/p>\n

5.\u00a0\u00a0The second and third applicants, as well as the legal predecessors of the first and third applicant (Ms R\u00f3bertn\u00e9Hidas and Ms Mikl\u00f3sn\u00e9Kecsk\u00e9s) and other persons were co-owners of a plot of land of 4,847 sq. m (land\u00a0registry title no. 223591) in District XXII of Budapest. They also co\u2011owned a neighbouring plot of land of 423 sq. m (land registrytitle\u00a0no.\u00a0223592).<\/p>\n

6.\u00a0\u00a0On 19 January 1998 the Budapest District XXII Mayor\u2019s Office (hereafter \u201cthe local authority\u201d) ordered the partition of plotno. 223591 into two plots measuring 1,519 sq. m and 3,328\u00a0sq.\u00a0m. In the same decision, it requisitioned (lejegyz\u00e9s) the plot of 1,519 sq. m for the purpose of constructing a local public road and awarded compensation of 5,511,000\u00a0Hungarian forints (HUF \u2013 approximately 25,000 European Currency Units (ECU) (the predecessor to the euro) at the material time), to be distributed among the owners in proportion to their ownership shares.<\/p>\n

7.\u00a0\u00a0At the same time, the local authority also partitioned plot no.\u00a0223592 and requisitioned a part of that land with an area of 123 sq. m in exchange for compensation of HUF 376,200 (approximately ECU 1,700).<\/p>\n

8.\u00a0\u00a0The decisions were served on the first applicant\u2019s legal predecessor, the second applicant, the third applicant and the third applicant\u2019s legal predecessor, among other persons. They appealed against it.<\/p>\n

9.\u00a0\u00a0On 6 March 1998 the Budapest Public Administration Office (Budapest F\u0151v\u00e1rosK\u00f6zigazgat\u00e1siHivatala) upheld the first-instance decisions, which thus became final.<\/p>\n

10.\u00a0\u00a0On 25 March 1998 the local authority entered into possession of the requisitioned plots of land and paid the compensation to the applicants, who only provisionally accepted the sum, while reserving their right to bring court proceedings against the requisition orders.<\/p>\n

11.\u00a0\u00a0On 13 April 1998 some of the above-mentioned owners challenged the administrative decisions in court. The legal predecessor of the first applicant and the second applicant himself were parties to the proceedings, but not the third applicant or his legal predecessor.<\/p>\n

12.\u00a0\u00a0On 16 March 2005, following two remittals ordered by the Budapest Court of Appeal, the Budapest High Court delivered a first-instance judgment and dismissed the claim.<\/p>\n

13.\u00a0\u00a0On 30 November 2005 the Budapest Court of Appeal overturned the first-instance judgment and ordered new administrative proceedings. It held that the local authority\u2019s decision had been tainted by a procedural irregularity, in that the local authority\u2019s notary (who had adopted the decision of 19 January 1998) should have abstained from taking a decision in a case in which the local authority employing him had been one of the interested parties.<\/p>\n

14.\u00a0\u00a0Accordingly, the Budapest District XI Mayor\u2019s Office was appointed to conduct new first-instance administrative proceedings. On 7 February 2008 it adopted a decision identical to that of 19 January 1998 (see\u00a0paragraph 7 above).<\/p>\n

15.\u00a0\u00a0On 2 July 2008 the decision was upheld on appeal by the Public Administration Office of Budapest, with an amendment that the compensation figures should be increased by accrued interest.<\/p>\n

16.\u00a0\u00a0On 27 August 2008 the first applicant challenged the new administrative decision in court. The second and third applicants intervened (beavatkoz\u00f3) in the proceedings in support ofthe first applicant.<\/p>\n

17.\u00a0\u00a0On 11 March 2010 the Budapest High Court found for the applicants, quashed the administrative decision because it had been adopted on the basis of a legal provision previously annulled by the Constitutional Court, and ordered new proceedings.<\/p>\n

18.\u00a0\u00a0On 10 January 2015 the Budapest Government Office (Budapest\u00a0F\u0151v\u00e1rosKorm\u00e1nyhivatala) adopted a new administrative decision, with the same content as before, but on different legal grounds.<\/p>\n

19.\u00a0\u00a0On 9 February 2015 the applicants brought court proceedings against that decision.<\/p>\n

20.\u00a0\u00a0On 19 April 2016 the Budapest Administrative and Labour Court delivered its judgment. It dismissed the applicants\u2019 action as far as the requisition\u2019s lawfulness was concerned but quashed the administrative decision as regards the compensation amount. It held that the compensation amount should be set at such sum as reflected by an assessment of the value of the properties as at 2015 and that the assessment should be carried out in accordance with the provisions of Government Decree no. 58\/2015 (III.24). The government decree in question contained a table for the purposes of calculating social security pensions. In that table, different multiplication factors were associated with different years (from 1950 onwards), making it thus possible to calculate the current value of salaries and incomes received during previous employment.<\/p>\n

21.\u00a0\u00a0On 14 June 2017 the K\u00faria quashed the final judgment and remitted the case to the Budapest Administrative and Labour Court for the recalculation of the compensation amount. It held that the method of assessing the valuations applied in the first-instance judgment could not be used in the context of the case; instead, the amount to be paid should be calculated by an expert on the basis of the properties\u2019 market values on 10\u00a0January 2015, from which the compensation already received in 1998 (see paragraph 10 above) should be deducted.<\/p>\n

22.\u00a0\u00a0Throughout the court proceedings, the Land Registryhas retained a record of the dispute (perfeljegyz\u00e9s).<\/p>\n

23.\u00a0\u00a0The public road contemplated by the local authority\u2019s requisition order of 1998(see paragraph 7 above) has yet to be constructed. At the date of the latest information available to the Court (2 October 2018), the proceedings concerning the amount of compensation due to the applicants were still pending before the domestic courts.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n

24.\u00a0\u00a0The applicants complained that the length of the civil proceedings in question was incompatible with the \u201creasonable time\u201d requirement laid down in Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n

\u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n

25.\u00a0\u00a0The Court notes that the period to be taken into consideration began on 13 April 1998 in respect of the first and second applicants (see\u00a0paragraph\u00a012 above) and on 27\u00a0August 2008 in respect of the third applicant (see paragraph\u00a016 above). As at the date of the latest information available to the Court (2 October 2018), the proceedings were still pending before the domestic courts (see paragraph 23 above), they haveso far lasted for more than twenty years for three levels of jurisdiction in respect of the first and second applicants, and more than ten years in respect of the third applicant.<\/p>\n

26.\u00a0\u00a0The Court reiterates that the \u201creasonableness\u201d 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 of the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v. France [GC], no.\u00a030979\/96, \u00a7 43, ECHR 2000-VII).<\/p>\n

27.\u00a0\u00a0In the leading case of Gazs\u00f3 v. Hungary(no. 48322\/12, 16 July 2015), concerning proceedings which lasted almost six years and two months for three levels of jurisdiction, the Court found a violation in respect of issues similar to those in the present case.<\/p>\n

28.\u00a0\u00a0Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. 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 \u201creasonable time\u201d requirement.<\/p>\n

29.\u00a0\u00a0The applicants\u2019complaint is therefore admissible and discloses a breach of Article 6 \u00a7 1 of the Convention.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n

30.\u00a0\u00a0The applicants further complained that the requisition of their property had been unnecessary and unlawful, and that they had not received adequate compensation for the interference with their possession.<\/p>\n

They invoked Article 1 of Protocol No. 1 to the Convention, which reads as follows:<\/p>\n

\u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d<\/p>\n

31.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

32.\u00a0\u00a0The Court often considers it unnecessary to determine a complaint based on Article 1 of Protocol No. 1 separately, once a violation of Article\u00a06 \u00a7\u00a01 has been found on account of the protraction of the underlying civil proceedings (see HunguestZrt v. Hungary, no. 66209\/10<\/a>, \u00a7 23, 30 August 2016). However, it is of the view that, in the present case, examining the applicants\u2019 complaint under Article 1 of Protocol No. 1 is warranted, as the interference with their property rights appears to go beyond a mere consequence of the protraction of the case (see, mutatis mutandis, Hunguest\u00a0Zrt, cited above, \u00a7 24).<\/p>\n

33.\u00a0\u00a0Indeed, the Court notes that the decisions at issue were unlawful, as established by the domestic courts,throughout the period from 19 January 1998 to 10 January 2015 (seeparagraphs 13, 17 and 18 above). Furthermore, the applicants have been left in a state of uncertainty as to the fate of their plots of land over a long period of time (see Barcza and Others v.\u00a0Hungary, no.\u00a050811\/10, \u00a7 47, 11 October 2016).<\/p>\n

34.\u00a0\u00a0In the light of the above, the Court finds that the interference with the applicants\u2019 right to the peaceful enjoyment of their property was contrary to the requirement of lawfulness, and that therefore there has been a violation of Article 1 of Protocol No. 1. This finding makes it unnecessary for the Court to establish whether or not a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the applicants\u2019 fundamental rights (see,\u00a0mutatis mutandis, Iatridis v. Greece [GC], no. 31107\/96, \u00a7 62, ECHR 1999\u2011II).<\/p>\n

III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

35.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

36.\u00a0\u00a0Although a request for just satisfaction was made when the applicants lodged their application, they did not submit a specific claim for just satisfactionin respect of their complaint concerning the length of proceedings when requested to do so by the Court. However, they requested that the Court make an assessment on the basis of equity as regards the damage suffered as a result of the interference with their rights guaranteed by Article 1 of Protocol No. 1.<\/p>\n

37.\u00a0\u00a0The applicants also claimed 14,000 euros (EUR) for costs and expenses incurred before the domestic authorities and the Court.<\/p>\n

38.\u00a0\u00a0The Government contested the applicants\u2019 claim.<\/p>\n

39.\u00a0\u00a0In the circumstances, the Court considers it appropriate to award each applicant EUR 6,500 in respect of non-pecuniary damage incurred in connection with the violation of Article 1 of Protocol No. 1, as well as EUR\u00a01,000, jointly, for costs and expenses.<\/p>\n

40.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n

3.\u00a0\u00a0Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n

4.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 6,500 (six thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR 1,000 (one thousand euros) to the applicants jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n

(b)\u00a0\u00a0that 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;<\/p>\n

5.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n

Done in English, and notified in writing on 19 February 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Georges Ravarani
\nDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

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FOURTH SECTION CASE OF HESZ AND OTHERS v. HUNGARY (Application no. 17884\/12) JUDGMENT STRASBOURG 19 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Hesz and Others v. Hungary, The European…<\/p>\n

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