RÓZSA v. HUNGARY
Inadmissible
András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
1. The applicants, Mr Ferenc Rózsa and Mr István Rózsa, are Hungarian nationals, who were born in 1951 and 1949 respectively and live in Budapest. 2. In its judgment of 28 April 2009 in the case of Ferenc Rózsa and István Rózsa v. Hungary (no. 30789/05), the Court found that the respondent Government had breached the applicants’ right of access to a court, as guaranteed by Article 6 § 1 of the Convention, since the authorities had excluded their ability to bring an action in damages against the domestic courts which had ordered the allegedly unlawful liquidation of their company. Their locus standi had been denied in the domestic proceedings on the ground that their company was in liquidation and only the liquidator had the capacity to conduct legal proceedings in its name. 3. The Court noted in the judgment that the purpose of the restriction on the shareholders’ capacity to take legal proceedings was intended to protect the rights and interests of the company’s creditors. However, it found that no fair balance had been struck between the general interest of securing the payment of creditors and the applicants’ personal interest in having access to a court. 4. The Court noted in paragraph 29 of the judgment, concerning the application of Article 41 of the Convention, that “where an individual, as in the instant case, has been denied access to a court in a manner irreconcilable with the Convention requirement of fairness, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation.” 5. Following the Court’s judgment, on 29 August 2009 the applicants requested the domestic courts to reopen their case. The Pest County Regional Court considered that the applicants’ request was time-barred and dismissed their motion without an examination on the merits. It observed that the applicants had not requested the reopening of their case within the objective, statutory time-limit prescribed by section 261(3) of the Code of Civil Procedure, that is, within five years counted from the date when the final domestic decision given in the principal case had become binding. The court reasoned that the five-year time-limit had started to run on the day of service of the final domestic decision, that is, on 13 April 2004, whereas the motion for reopening had been introduced only on 29 August 2009, thus outside the prescribed period. 6. In reply to the applicants’ argument that the proper execution of the Court’s judgment of 28 April 2009 necessitated the reopening of their case at any rate, the court observed that there was nothing in the operative part of the judgment indicating an obligation in that sense, since it only referred to Article 41 of the Convention concerning just satisfaction. 7. On 19 January 2011 the Budapest Court of Appeal dismissed the applicants’ appeal, endorsing in essence the first-instance court’s reasoning. It noted that although, under Article 46 of the Convention, Hungary had undertaken to abide by the final judgments of the Court, the judgment in question merely entailed the obligation to pay just satisfaction to the applicants, and paragraph 29 of the judgment contained no more than guidance as to the means by which the domestic authorities could give effect to the Court’s ruling. Furthermore, it held that the domestic courts remained bound by the domestic procedural rules applicable to the reopening of civil cases. The court observed that should the applicants consider the provisions of the Code of Civil Procedure to be contrary to the Convention, and thus unconstitutional as well, they were entitled to request the ex post constitutional review of those provisions before the Constitutional Court.