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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1294/H46-14 |
22 September 2017 |
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1294th meeting, 19-21 September 2017 (DH) Human rights
H46-14 Gazsó and Tímár group v. Hungary (Applications Nos. 48322/12, 36186/97) Supervision of the execution of the European Court’s judgments Reference documents |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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48322/12 |
GAZSÓ |
16/07/2015 |
16/10/2015 |
Pilot judgment |
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36186/97 |
TÍMÁR GROUP |
25/02/2003 |
09/07/2003 |
Structural problem |
Case description
This group of cases concerns the excessive length of civil and criminal proceedings and the lack of an effective remedy in this respect (violations of Articles 6 § 1 and 13).
In view of the scale of the problem, the European Court delivered a pilot judgment finding the above-mentioned violations in the case of Gazsó, concerning civil proceedings, and requested the respondent State to “introduce without delay, and at the latest within one year from the date on which the judgment becomes final”, that is by 16 October 2016, “an effective domestic remedy or combination of such remedies capable of addressing, in an adequate manner, the issue of excessively long court proceedings, in line with the Convention principles as established in the Court’s case-law”.
The Court had already found under Article 46 of the Convention in the case of Barta and Drajkó (No. 35729/12, final on 17/03/2014), concerning criminal proceedings, that “in view of the systemic situation which it has identified, … general measures at national level are undoubtedly called for in execution of the present judgment, measures which must take into account the large number of persons affected. … To prevent future violations of the right to a trial within a reasonable time, the respondent State should take all appropriate steps, preferably by amending the existing range of legal remedies or creating new ones, to secure genuinely effective redress for violations similar to the present one.”
Status of execution
Individual measures:
All the proceedings have been terminated except for seven cases which were still pending at domestic level when the European Court delivered its judgments.
General measures:
The Committee of Ministers has been supervising the cases of excessive length of judicial proceedings in Hungary since 2003, when the first judgment in this group of cases was delivered by the Court. The authorities have informed the Committee of the measures taken on a number of occasions.
A law providing for acceleratory remedies aimed at expediting pending proceedings entered into force in April 2006 (Act XIX of 2006). The authorities have also indicated that a number of legislative measures had been adopted with a view to enhancing the effective functioning of the judiciary.
At its 1136th meeting (March 2012) (DH), the Committee decided to transfer the group of cases for examination under the enhanced procedure, given the structural nature of the problem they revealed. It noted with concern that, despite the measures taken by the authorities (see above), the situation as regards excessive length of judicial proceedings did not appear to have improved in Hungary and it invited the authorities to take measures to reduce the length of domestic proceedings and to introduce effective domestic remedies in compliance with the Convention's standards, as set out in the Court’s case law.
In response to the Committee’s decision, the authorities again indicated a number of measures taken to solve the problem of lengthy court proceedings and the lack of an effective remedy in this respect. Besides the measures mentioned above, they referred, in particular, to a liability mechanism introduced in July 2003 (Act CX of 1999) as regards civil proceedings, different legislative amendments introduced to ensure the timely completion of criminal proceedings (Act LXXXIII of 2009; Act CLXXXIII of 2010; Act LXXXIX of 2011), and judicial reform restructuring the organisation and administration of justice (Act CLXI of 2011 and Act CLXII of 2011).
In their updated action plan of January 2015 (DH-DD(2015)50), the authorities acknowledged that general measures were required to shorten the length of judicial proceedings, improve the effectiveness of existing acceleratory remedies and create a compensatory remedy for excessively lengthy proceedings or a combination of the two types of remedies. A comparative analysis on best practices in this area was carried out in December 2014. At its 1222nd meeting (March 2015) (DH), the Committee noted with interest the authorities’ acknowledgment and urged them to intensify their efforts in this respect; it further invited them to provide by the end of April 2015 information on the content of the decisions announced and a calendar setting out the next steps envisaged.
In their action plan of May 2015 (DH-DD(2015)631), the authorities submitted that a new remedy for criminal cases would be introduced in the new Code of Criminal Procedure. In their updated action plan of December 2015 (DH-DD(2015)1377), they submitted that new procedural codes were being drafted for criminal and civil proceedings to expedite and streamline proceedings, define stricter rules of conduct for all parties and prevent delaying tactics. The new procedural codes were expected to be submitted to Parliament in 2016 and to enter into force in 2017. Furthermore, they indicated that separate legislation introducing a compensatory remedy for excessively lengthy civil, criminal and administrative proceedings would be adopted. The remedy would have no retroactive effect and would be based essentially on the German model (compare DH-DD(2013)1234, pp. 5-6). It was planned for the Act to be adopted by Parliament in October 2016.
At its 1250th meeting (March 2016) (DH), the Committee welcomed the authorities’ indication that they would introduce a compensatory remedy for excessively lengthy civil, criminal and administrative proceedings, and strongly encouraged them to respect the deadline of 16 October 2016 set in the Court’s pilot judgment for the introduction of an effective domestic remedy or combination of such remedies.
In October 2016, the authorities confirmed that they intended to take the legislative measures announced in December 2015. They indicated that the regulatory options concerning the new compensatory remedy had been elaborated at expert level and that the government would decide on the way to proceed by the end of 2016. They further announced that the Act providing for the new compensatory remedy could be adopted by Parliament by 1 July 2017 and enter into force on 1 January 2018.
At its 1273rd meeting (December 2016) (DH), the Committee “noted with regret that the authorities did not meet the deadline set in the Court’s pilot judgment, took note of the new calendar provided and strongly encouraged the authorities to review it so that the required compensatory remedy enters into force as soon as possible”.
In their latest action plans of February (DH-DD(2017)220) and June 2017 (DH-DD(2017)696), the authorities submitted that new procedural codes for civil, criminal and administrative proceedings would enter into force on 1 January 2018. The procedural amendments introduced are expected to simplify and accelerate judicial proceedings and thereby contribute to the shortening of their length (for the details, see DH-DD(2017)696).
As regards civil proceedings, a preparatory (written) phase will be introduced before first-instance courts, aimed at clarifying the scope of the case and fixing the claims of the parties; further, it will in principle be impossible to raise new claims after the first hearing or a relevant order of the court; representation by legal counsel will be mandatory in all cases except before district courts; the rules of evidence will be more elaborate; and at the appeal stage, the possibilities to quash first instance judgments will be reduced. The power of the appeal court to amend first instance judgments will be reinforced and the right to file a petition for review to the Kúria will be limited to cases exceeding the value of HUF 5 million (approx. EUR 16,000).
As regards administrative proceedings, the most important provisions expected to accelerate proceedings relate to default judgments in cases where administrative authorities fail to observe time-limits for their decisions.
As regards criminal proceedings, the rights of the defence will be reinforced and access to the case-file will be granted as from the first questioning as a suspect; a preparatory hearing will fix the scope of the case and new motions for evidence can thereafter be submitted only in exceptional circumstances; the possibility to hold trials in absentia or hearings without the defendant will be enlarged; and the appeal courts’ power to amend first instance judgments will be strengthened. The authorities further informed the Committee that no decision had yet been made as regards the possible content of the announced Act providing for the new compensatory remedy and that such an Act could enter into force no sooner than 1 July 2018.
On 16 August 2017 (DH-DD(2017)866), the authorities submitted that, on 8 August 2017, inter-ministerial and inter-institutional coordination began regarding the concept of a new horizontal law introducing effective domestic remedies as requested by the Court. Further, the Hungarian Government reiterated their full commitment to the Convention system and, to counter the delay in the execution of the Court’s pilot judgment, undertook to make all necessary efforts in order to find ad hoc solutions, such as friendly settlements or unilateral remedial offers (unilateral declarations) in line with the Convention requirements as regards the cases already pending with the Court.
The judgments of the European Court were translated and published on the website of the government.
Analysis by the Secretariat
I. Individual measures:
In their action plan of February 2017 (DH-DD(2017)220) the authorities submitted an update on the current state of those proceedings still pending at domestic level. Regular updates are awaited on the further development of these proceedings (see Appendix) and on the measures taken to accelerate them.
II. General measures:
1. Introduction of an effective domestic remedy or combination of such remedies
According to the indications given by the Court in its pilot judgment in the case of Gazsó, an effective domestic remedy or combination of such remedies should have been put in place by 16 October 2016. Despite the Committee’s call on the authorities at the last examination of the group of cases in December 2016 to review their calendar and accelerate the legislative process, and contrary to their previous indications, the authorities, in their latest submissions, announced once more the further postponement of its possible entry into force to “no sooner than 1 July 2018”, which would be more than one and a half years after the expiry of the deadline. Moreover, the authorities have not provided any reasons for the repeated delay and, almost one year after the expiry of the deadline set by the Court, they are not in a position to present a draft bill.
In view of the 270 cases belonging to this group (see above), the almost 1,000 similar cases currently pending with the Court and the continuously high influx of new applications of this type being lodged with it, and taking into account that the problem has persisted for over 14 years, this development is a matter of serious concern. First, in view of the increasing number of applications brought before the European Court, the lack of progress puts an additional undue burden on the Convention system. Secondly, the Committee of Ministers has already pointed out in similar cases against other member States that “excessive delays in the administration of justice constitute a serious danger for the respect of the rule of law, resulting in a denial of rights enshrined in the Convention” (CM/Del/Dec(2011)1128/13) and that the failure to abide by the obligations deriving from a pilot judgment may create “a serious threat to the effectiveness of the Convention and of the European Court” (CM/Del/Dec(2011)1128/24).
The Committee might therefore wish to note that the new calendar provided does not appear reconcilable with the respondent State’s obligations deriving from the pilot judgment; to express its profound concern that almost one year after the expiry of the deadline set by the Court no tangible progress has been achieved as regards the introduction of a domestic remedy; and strongly to urge the authorities to double their efforts in this regard, to speed up the legislative process and to provide a revised calendar setting out the next concrete steps.
In this context Recommendation CM/Rec(2010)3 of the Committee of Ministers to member States on effective remedies for excessive length of proceedings is recalled. Moreover, the Committee might wish to reiterate its request for information on the content and functioning of the announced draft law introducing a remedy for excessively lengthy proceedings before civil, criminal and administrative courts, in particular as regards its applicability to cases already pending before the European Court, and to keep the Committee informed on the further steps taken in the legislative process.
With regard to the increasingly large number of cases pending with the Court (see above; and Gazsó, §§ 35-36) the Committee might wish to note with satisfaction the government’s explicit expression of commitment to the Convention system and their undertaking to make all necessary efforts to find ad hoc solutions as regards cases already pending with the Court, such as friendly settlements or unilateral declarations in line with Convention requirements. In accordance with the principle of the subsidiarity of the Convention system, this would “constitute a means of alleviating the workload of the Court, as well as a means of providing a rapid and satisfactory solution for the parties” (see Resolution Res(2002)59 concerning the practice in respect of friendly settlements; see also Gazsó, § 40). In this context, the Committee might further wish urgently to call on all competent Hungarian authorities to take all necessary measures within their competence to ensure that existing domestic remedies (including as interpreted by the domestic courts) become effective as regards excessive length of proceedings, notably in the light of the direct effect accorded to the Convention and the judgments of the Court under Hungarian law (see, for example, CM/ResDH(2008)73) and of the government’s pleadings in cases such as Barta and Drajkó (No. 35729/12, § 14 et seqq.), Barna (No. 2) (No. 35364/09, § 13 et seqq.), Bartha (No. 33486/07, § 16 et seqq.), Agrola Trade Kft. (No. 8034/07, § 17), Sándor (No. 31069/11, § 13), Simkó (dec.) (No. 42961/98), Bodor (No. 31181/07, § 11 et seqq.).
2. Substantial measures to reduce the length of proceedings
The Committee might wish to note that new codes of procedure for civil, criminal and administrative proceedings will enter into force on 1 January 2018, introducing a number of amendments aimed at shortening the length of judicial proceedings. These measures appear to be a step in the right direction. The strengthening of the appeal courts’ power to amend first instance judgments, for example, is likely to contribute to the shortening of judicial proceedings as referral back to first instance courts appears to be a frequent reason for delayed proceedings. Similarly, stricter procedural rules can be expected to have a positive impact in this regard.
However, certain problems leading to protraction of proceedings appear to remain unresolved, such as, for example, the failure to schedule hearings in a timely manner (see, amongst many others, Nagy, No. 72262/12, final on 21 October 2014; Kastner, No. 61568/00, final on 29 September 2004, § 48) or periods of inactivity on the part of the domestic courts (see, amongst others, Ferencsik, No. 33275/08, final on 22 January 2013, § 13; Szikora, No. 28441/02, final on 22 February 2006, § 17). With regard to the large scale of the problem (see above), the Committee might wish to invite the authorities to examine whether these measures alone will be sufficient to solve the problem and to inform the Committee on the results of this examination.
When identifying the shortcomings in the domestic legal system leading to the problem at stake and trying to find appropriate solutions, the authorities may wish to draw inspiration from the good practice guide published by the European Commission for the Efficiency of Justice (CEPEJ) (“Structural measures adopted by some Council of Europe member States to improve the functioning of civil and administrative justice”, CEPEJ(2016)14). The substantial measures recently taken by other member States to shorten excessively lengthy proceedings might likewise serve as a source of inspiration (see, for example, the information submitted for the Atanasovic and Others group of cases against "The former Yugoslav Republic of Macedonia", DH-DD(2016)163; the Lukenda group of cases against Slovenia, DH-DD(2016)1212; the Kudła and Podbielski groups of cases against Poland, DH-DD(2015)1146; and the Ceteroni group of cases against Italy, DH-DD(2015)1157, including an information note on a programme to clear up the backlog of pending civil cases).
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Financing assured: YES |