CASE OF BARNA v. HUNGARY (No. 2)
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
4. The applicant was born in 1957 and lives in Budapest. 5. On 25 January 2006 the applicant brought an action in compensation in the context of water damage in her condominium. 6. After holding several hearings and obtaining expert evidence, on 18 March 2010 the Buda Central District Court found for the applicant. 7. On 6 October 2010 the Budapest Regional Court reversed this judgment. 8. On 2 June 2011 the Supreme Court rejected, without an examination on the merits, the applicant’s petition for review since it did not meet the statutory requirements. 9. Act no. III of 1952 on the Code of Civil Procedure, as amended by Act no. XIX of 2006, provides as follows: “(1) The party, the intervener or the public prosecutor participating in the proceedings are entitled to file a written complaint with the court hearing the case complaining about an omission specified in subsection (2) allegedly committed by that court, requesting the court having competence for the adjudication of the complaint to establish the omission and, by setting an appropriate time-limit, to instruct – in the cases specified under points a) and c) of subsection (2) – the omitting court to perform the omitted procedural act or to pass the omitted decision, and to take – in the case specified under point b) of subsection (2) – the most effective action in the given case. (2) Such a complaint may be filed where: a) the law prescribes a time-limit for the court within which to complete the proceedings, to perform a procedural act or to pass a decision and the time-limit has elapsed without any result, b) a court has set a time-limit for the public prosecutor, the person participating in the proceedings, the authority or person requested to perform a procedural act but the time-limit has elapsed without any result and the court has failed to impose on the omitter the measures allowed by the law, c) the court has failed to comply with its obligation to complete the proceedings within a reasonable time on account of the lapse of such time since the court’s last measure on the merits which was sufficient for the court to perform or order to perform a procedural act but the court failed to do so. (3) No complaint shall be filed against orders related to evidentiary acts or decisions subject to a separate legal remedy. (4) The complaint may be withdrawn by the complainant at any time until a decision on the merits is taken by the court. Complaints withdrawn shall not be re-submitted.” “(1) The court hearing the case shall examine the complaint within eight days from its receipt, and if it finds the complaint well-founded, it shall, within thirty days, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of how the complaint has been settled. (2) If the court hearing the case finds the complaint ill-founded, it shall transmit the complaint to the adverse party who may file observations on it within eight days from its receipt. After the expiry of the time-limit the court shall, within eight days, forward the file – together with the observations – to the court having competence for adjudicating the complaint. In its communication, the court hearing the case shall set forth its reasons for not performing the omitted procedural act or not passing the omitted decision. (3) A complaint challenging an omission of the district court shall be adjudicated by the regional court sitting in a committee of three professional judges; a complaint challenging an omission of the regional court shall be adjudicated by the court of appeal sitting in a committee of three professional judges; a complaint challenging an omission of the court of appeal shall be adjudicated by the Kúria sitting in a committee of three professional judges; a complaint challenging an omission of the Kúria shall be adjudicated in camera by another committee of the Kúria, within fifteen days from the receipt of the case-file. (4) Where the court adjudicating the complaint grants the complaint, it shall, by setting a time-limit, invite the omitting court to take – in the cases specified in section 114/A subsection (2) points a) and c) – the action required for the proper progress of the case and – in the cases specified in section 114/A subsection (2) point b) – to take the most effective action. Except for the cases specified in section 114/A subsection (2) point a), the court adjudicating the complaint shall not instruct the court hearing the case to perform a particular procedural act. If the court finds the complaint ill-founded, it shall dismiss it in reasoned decision. Against this decision no appeal may be filed. (5) If the submitter of the complaint repeatedly submits an ill-founded complaint in the same case the court adjudicating the complaint may impose a fine on him. (6) The provisions governing the submission and adjudication of appeals against orders shall be applicable to [such] complaints.”