MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-15

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-15 Gazsó group v. Hungary (Application No. 48322/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1067, CM/Del/Dec(2021)1406/H46-13

 

Application	Case	Judgment of	Final on	Indicator for the classification
48322/12	GAZSÓ GROUP (List of cases CM/Notes/1419/H46-15-app)	16/07/2015	16/10/2015	Pilot judgment

Case description

This group of cases concerns the excessive length of judicial proceedings in civil, criminal and administrative matters, and the lack of an effective remedy in this respect (violations of Articles 6 § 1 and 13).

The Committee of Ministers has been supervising cases concerning excessive length of judicial proceedings in Hungary since 2003, when the first judgment in this group (Tímár, No. 36186/97) was delivered by the Court. In March 2012 the Committee decided to transfer the group to the enhanced procedure, given the structural nature of the problem and the fact that, despite certain measures taken by the authorities, the situation did not appear to have improved.

In view of the scale of the problem, in 2015 the European Court delivered a pilot judgment in Gazsó (concerning civil proceedings), requesting 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 also referred to its findings in Gazsó as regards the “reasonable time” requirement in criminal cases (see, e.g., Nagy, No. 21225/10, final on 26 January 2016) as well as in cases concerning disputes before administrative courts (see, e.g., Somorjai, No. 60934/13, final on 28 November 2018, § 71).

Prior to that pilot judgment, the Court had already indicated under Article 46 of the Convention in Barta and Drajkó[1] (No. 35729/12, final on 17 March 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

Information on the payment of the just satisfaction is awaited in 24 cases.^[2] All the proceedings have been terminated except in 13 cases^[3] which were still pending at domestic level when the European Court delivered its judgments. Information is awaited on the progress of the domestic proceedings in these cases.

General measures

1.     Preventive measures

New codes of civil, administrative and criminal procedure entered into force in January and July 2018.[4] All the new codes contain a number of amendments tackling the root causes of the problem of excessive length of judicial proceedings and also provide for acceleratory complaint mechanisms to prevent protraction.[5] In December 2018 the Committee took note with interest of this development, which was expected to reduce the length of judicial proceedings, and called on the authorities to closely monitor and assess the practical impact of these legislative reforms as well as to provide relevant statistical information on the length of proceedings before all three jurisdictions, to allow an assessment of the impact of the measures (CM/Del/Dec(2018)1331/H46-14, § 4).[6]

At its June 2021 Human Rights meeting (1406^th) the Committee reiterated that “the presentation of up-to-date statistical information on the length of proceedings before all courts (including data on both “clearance rate” and “disposition time”) and on the discernible trends, allowing the Committee to assess the impact of the 2018 procedural reforms”, is required.

On 15 October 2021 the authorities submittedstatistical data on the evolution of the number of first instance proceedings pending more than two years, which decreased from 12,409 (on 31/12/2011) to 7,921 (on 31/12/2017) and 5,816 (on 31/12/2020). The total number of proceedings pending at the end of each period decreased from 210,898 in 2012 to 144,950 in 2017, and 94,909 in 2020 (see DH-DD(2021)1067, appendix I. and II.).

2.     Compensatory remedies

Until 2018, domestic law contained a liability mechanism potentially allowing for pecuniary compensation in respect of lengthy civil proceedings. The law currently in force no longer appears to contain any mechanism by which the courts could provide an effective compensatory remedy.

Since 2015, the authorities have been announcing the introduction of a specific compensatory mechanism. The Committee adopted three interim resolutions, in 2018, 2019 and 2020, on account of the lack of progress in this respect (CM/ResDH(2018)106, CM/ResDH(2019)152 and CM/ResDH(2020)180).

On 11 May 2021, the authorities tabled draft bill No. T/16218 for the introduction of a compensatory remedy for civil cases. They informed the Secretariat and provided an English translation of the bill
(DH-DD(2021)505). On 28 May 2021, the Secretariat’s assessment of the bill was sent to the authorities.

At its June 2021 Human Rights meeting (1406^th) the Committee noted with interest the submission of the above-mentioned draft bill and “stressed the importance of the authorities taking into account the Secretariat’s previous and possible further comments on this bill to ensure the adoption of a Convention-compliant remedy”.

On 15 June 2021, Parliament adopted the bill (Act No. XCIV of 2021 on the Enforcement of Pecuniary Satisfaction Relating to Protraction of Civil Contentious Proceedings). The new legislation will enter into force on 1 January 2022.

The main features of this new legislation can be summarised as follows:

-       the scope of the compensatory remedy covers contentious civil proceedings;

-       as a general rule, the duration of court proceedings is considered reasonable if below 60 months; 

-       the legislation takes into account the length of different procedural stages as well, and it provides a broadened margin of appreciation for the domestic courts deciding on the compensation claim, allowing them to depart from certain pre-defined time-limits if they deem necessary;

-       compensation is calculated on the basis of a daily tariff, defined by a government decree;[7]

-       compensation is available in respect of both pending and terminated proceedings; and

-       the compensation claim can be brought in non-contentious, written court proceedings, solely based on documentary evidence; the first instance decision can be appealed according to the general rules.

As regards the introduction of compensatory remedies for administrative and criminal cases, the Committee at its June 2021 Human Rights meeting “noted with great concern the absence of sufficiently tangible progress since the (…) examination of this group of cases (…) in March 2021, notably that no concrete plan has been provided regarding the establishment of compensatory remedies for administrative and criminal cases” and reiterated that, to resolve the problems identified by the Court in this group of cases, the authorities are required to establish “a concrete plan for the adoption of a remedy (or a combination of remedies) covering all types of judicial proceedings”.

Recalling that no remedies will be in place until 2022 at the earliest and that there is a continuously high number of similar cases pending before the Court, and aiming to ensure that the authorities consolidate the progress recently made, the Committee invited the Secretary General “to raise the issue of implementation of the Court’s pilot judgment in her contacts with the Hungarian authorities, calling on them to urgently take all measures necessary to resolve the long standing problem presented by this group of cases, and urging them to immediately engage in an enhanced dialogue about this group at decision-making level”.

On 6 July 2021 the Secretary General sent a letter to the Hungarian Minister of Justice, requesting her support in ensuring that the remaining outstanding measures identified by the Committee are adopted rapidly. The issue was also raised in bilateral meetings in October and November 2021 between the Secretary General and the Minister of Justice.

On 15 October 2021 the authorities submitted an English translation of the bill adopted in June 2021
(DH-DD(2021)1067). They further indicated that parliamentary elections will be held in April 2022 and that the new government will study the practical experiences of the implementation of the new compensatory remedy for civil cases. The proposal for a remedy covering other types of judicial proceedings could be prepared by the government by 30 June 2023 on the basis of these experiences (DH-DD(2021)1067, no. 2).

Analysis by the Secretariat

Individual measures

In 11 cases of this group the just satisfaction awarded by the Court was duly paid on time and the domestic proceedings have been terminated. The Committee may thus wish to close the supervision of these cases and adopt the draft final resolution attached to these notes.

Information on individual measures is outstanding in a significant number of cases in this group (see above) on which the Committee has been repeatedly requesting information since December 2018 (CM/Notes/1331/H46-14). It might therefore wish strongly to urge the authorities to provide information, by the end of December 2021, on all outstanding individual measures.

General measures

1.      Preventive measures

The statistical data provided by the authorities reveal a reassuring general trend as regards the length of domestic court proceedings. The number of first instance proceedings pending more than two years dropped to less than half since 2011. An even more significant decrease can be observed in the total number of proceedings pending. The 2018 procedural reforms appear to have contributed to consolidating these positive trends. The Committee might wish to note with interest the positive general trend revealed by the statistical data provided and encourage the authorities to continue their efforts in resolving the problem of excessively lengthy court proceedings at the stage of prevention.

Nevertheless, for a proper assessment, more precise statistical data is required. As set out previously (CM/Notes/1331/H46-14), the authorities are expected to provide detailed statistical information on the development of the length of proceedings before all three jurisdictions (civil, criminal and administrative) in order to allow for an assessment of the impact of the measures taken and the measures still required. It would be particularly useful to receive information in line with the performance indicators developed by CEPEJ to assess court efficiency, namely on the clearance rate, on the disposition time as well as on the number of incoming cases per instance during the year, the number of resolved cases and the number of pending cases at the end of the year (see European judicial systems – Efficiency and quality of justice, CEPEJ Studies No. 26, 2018, pp. 237-239). Accordingly, the Committee might wish to strongly urge the authorities to provide more detailed statistical information on the length of proceedings before all three jurisdictions allowing a comprehensive assessment of the situation.

2.      Compensatory remedy for civil cases

The recent adoption of the bill introducing a compensation scheme for excessively long civil proceedings and its impending entry into force on 1 January 2022 are important positive developments in this group of cases and may be noted with satisfaction.

As regards the content of the new legislation, the Secretariat’s assessment is broadly positive. It is noteworthy that, compared to the previous draft concept of December 2020, important adjustment were made (cf. the shortcomings identified in the Memorandum prepared by the Department for the Execution of Judgments of the European Court of Human Rights on 11 March 2021, H/Exec(2021)2). In particular, the pre-defined time-limits for the determination of the reasonableness of the length of the proceedings now also take into account different procedural stages. This modification, together with a broadened margin of appreciation of the domestic courts to depart from the pre-defined time-limits, prima facie appears to allow for sufficient flexibility and a Convention-compliant interpretation of the reasonableness of the length.

It is regrettable however that the law was adopted without taking into account the comments made on other potential issues, in particular the following:[8]

·         The scope of application of the remedy is limited to contentious civil proceedings and it does not cover, as it is required under the Court’s case-law, all types and stages of civil proceedings.[9]

·         Shorter time limits apply to proceedings in certain types of cases calling for particular expedition (i.e. civil status and capacity, child maintenance, rectification of false press statements, employment disputes); however, the Court’s case-law extends the requirement of special diligence and expedition to a wider range of cases, including cases concerning child custody,[10] parental responsibility and contact rights,[11] or applicants who suffer from an incurable disease and have reduced life expectancy.[12]

Furthermore, detailed information on the compensation tariff determined by the relevant Government Decree,[13] and in particular the compliance of the level of compensation with the Court’s case-law, is still awaited.[14]

In the light of the above, the remedy’s compliance with the Court’s case-law will depend on its implementation in practice and the domestic courts’ case-law, which remains to be assessed following the entry into force of the new legislation.

The Committee might wish to note with satisfaction the adoption of the bill introducing a compensatory remedy for excessively long civil proceedings and its impending entry into force on 1 January 2022. Given that its implementation by the domestic courts in line with the Court’s case-law will be key to ensuring its compliance with the Convention, and with a view to avoiding a risk of an influx of new applications to the Court, the Committee might wish to firmly call on the authorities to ensure the Convention-compliant application of the new compensatory remedy and invite the authorities to submit concrete information on its implementation in practice, as well as a detailed analysis of the compensation tariffs determined by the relevant Government Decree and its compliance with the Court’s case-law.

3.      Introduction of compensatory remedies for administrative and criminal cases

The lack of sufficiently tangible progress in respect of the outstanding compensatory remedies for administrative and criminal cases has been a matter of utmost concern. Almost eight years have elapsed since the Court called for the introduction of effective remedies in the case of Barta and Drajkó, a case that concerned criminal proceedings. As already recalled numerous times, more than five years have passed since the expiry of the deadline set by the Court in its pilot judgment.

Against this background, the authorities’ plan to prepare a proposal for a remedy covering other types of judicial proceedings by the end of June 2023 is an important development. However, given the technical nature and the circumscribed nature of the issues at stake, this timetable appears overly lengthy. The Committee might therefore wish to note the authorities’ timetable and strongly encourage them to explore any possible avenues for accelerating their planning.

Lastly, the Committee might wish to resume examination of this group of cases, in the light of the information received by the end of June 2022, at one of its Human Rights meetings in 2022 or 2023.

Financing assured: YES