SECOND SECTION

CASE OF SZÉCHENYI v. HUNGARY

(Application no. 1233/06)

JUDGMENT

STRASBOURG

20 December 2011

This judgment is final but it may be subject to editorial revision.

In the case of Széchenyi v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Dragoljub Popović, President,
	András Sajó,
	Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 29 November 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1233/06) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr István Tibor Széchenyi (“the applicant”), on 23 December 2005.
2.  The applicant was represented by Mr I. Barbalics, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
3.  On 13 September 2010 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1955 and lives in Szentendre.
A.  Divorce proceedings and division of matrimonial property
5.  On 29 August 1996 A.P. filed an action for divorce and child custody against the applicant before the Pest Central District Court. She further indicated in the motion that she wished to settle the division of matrimonial property in separate legal proceedings.
6.  On 6 July 1999 the plaintiff requested the District Court to establish her ownership of a common real estate and to divide the matrimonial property.
7.  After having held several hearings, the District Court delivered a partial judgment on 14 April 2000, dissolving the parties’ marriage, deciding about the child’s placement and regulating the applicant’s access rights. On appeal the Budapest Regional Court upheld the first instance judgment on 6 February 2001.
8.  As regards the division of matrimonial property, the District Court delivered its judgment on 24 November 2004, which was partly modified on appeal by the Budapest Regional Court on 24 May 2005.
B.  Proceedings for change of child custody
9.  Despite the final judgment regulating the applicant’s access rights (see paragraph 7 above), the mother failed to comply with the arrangements, therefore preventing the applicant from seeing his son.
10.  On 16 April 2002 the applicant brought an action before the Budapest II/III District Court, requesting the modification of his child’s placement. Moreover, he requested joint exercise of his parental rights related to the management of his child’s property. He claimed that the mother had not acted in the child’s best interest when concluding an exchange agreement concerning a real estate in the child’s property, which had been approved by the competent guardianship authority on 9 July 2001.
11.  On 28 May 2003 the District Court dismissed the applicant’s action. On appeal, the Budapest Regional Court upheld the first-instance judgment on 29 January 2004.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12.  The applicant complained that the length of the divorce proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
13.  The Government contested that argument, stressing that the period to be taken into consideration only started on 6 July 1999, when the plaintiff submitted her request for the division of the matrimonial property.
14.  The Court observes that the divorce proceedings proper ended on 6 February 2001. However, the application was introduced only on 23 December 2005, i.e. more than six months later. This part of the complaint therefore failed to comply with the six-month rule prescribed by Article 35 § 1, and must be rejected pursuant to Article 35 § 4 of the Convention.
15.  As regards the part of the proceedings related to the division of matrimonial property, the Court observes that the District Court could not start to deal with this question until the plaintiff’s request to that effect on 6 July 1999. The period which preceded this date cannot therefore be imputed to the Government. As a consequence, the period to be taken into consideration began only on 6 July 1999 and ended on 24 May 2005. It thus lasted five years and ten months for two levels of jurisdiction. In view of such lengthy proceedings, this part of the complaint must be declared admissible.
16.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
17.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
18.  The applicant also complained, relying on Article 5 of Protocol No. 7 to the Convention, that the mother of his child had failed to comply with the final court judgment regulating his access rights. He was therefore unable to see his son regularly until the beginning of 2005. He further complained that his request to exercise jointly his parental right concerning the management of the child’s property had been dismissed. Lastly, the applicant complained under Article 1 of Protocol No. 1 to the Convention read in conjunction with Article 13 of the Convention that the domestic authorities had failed to ensure the protection of his son’s property, when they had approved the exchange agreement concluded by the mother.
19.  The Court observes that, even assuming the domestic authorities’ responsibility for not ensuring the applicant’s visiting rights, the situation settled in the beginning of 2005. Moreover, the Budapest Regional Court’s judgment dismissing the joint exercise of parental rights was delivered on 29 January 2004. However, the application was only lodged on 23 December 2005, i.e. more than six months later than either of these dates.
20.  It follows that this part of the application failed to comply with the six-month rule prescribed by Article 35 § 1, and must be rejected pursuant to Article 35 § 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
21.  Article 41 of the Convention provides:
“If 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.”
A.  Damage
22.  The applicant claimed 85,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
23.  The Government contested the claim.
24.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some non-pecuniary damage due to the unreasonable length of the proceedings. Ruling on an equitable basis, it awards him EUR 4,000 under that head.
B.  Costs and expenses
25.  The applicant also claimed EUR 2,500 for the costs and expenses incurred before the Court. This amount should correspond to the legal fees billable by his lawyer, namely 20 hours of legal work charged at an hourly rate of EUR 125.
26.  The Government did not express an opinion on the matter.
27.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court considers it reasonable to award the applicant, who was represented by a lawyer, the sum of EUR 1,000 under this head.
C.  Default interest
28.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning the excessive length of the proceedings concerning the division of matrimonial property admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement:
(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 December 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Dragoljub Popović
	  Deputy Registrar	President