SECOND SECTION

CASE OF HARRISON McKEE v. HUNGARY

(Application no. 22840/07)

JUDGMENT

STRASBOURG

3 June 2014

FINAL

13/10/2014
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
 HARRISON McKEE v. HUNGARY JUDGMENT 1

In the case of Harrison Mckee v. Hungary,

The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 13 May 2014,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 22840/07) 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 an Australian national, Mr Lee Sydney Harrison
McKee (“the applicant”), on 22 May 2007.
2. The applicant was represented by Mr M. Tomszer, a lawyer practising
in Budapest. The Hungarian Government (“the Government”) were
represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and
Justice.
3. The applicant alleged that, in the civil proceedings lodged against the
Hungarian authorities for compensation, the courts ordered him to pay
excessive court fees.
4. On 30 April 2013 the application was communicated to the
Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1948 and lives in Surfers Paradise,

Australia.
6. In 2003 the applicant, who was represented by a Hungarian lawyer
throughout the proceedings, initiated civil proceedings against a public
prosecutor assigned to the Hungarian Budapest Regional Public
2 HARRISON McKEE v. HUNGARY JUDGMENT

Prosecutor’s Office, the Budapest Regional Public Prosecutor’s Office

itself, and the Office of the Attorney General, alleging a violation of his
personality rights. Given the subject matter of the dispute, the applicant was
exempt from having to advance the court fees, by virtue of
section 64 of Act no. XCIII of 1990 on Stamp Duties, as in force at the
relevant time.
7. In particular, the applicant complained that a letter sent in the course
of criminal proceedings conducted against him by the public prosecutor to
the Pest Central District Court, the trial court in his case, had contained false
information about him and thus infringed his right to honour, dignity and
reputation.
8. The applicant subsequently modified his claim, seeking non-
pecuniary damages in respect of a violation of his personality rights in the
amount of 390,000,000 Hungarian forints (HUF) (approximately
1,314,000 euros (EUR)). It appears that the amount claimed was an
expression of the applicant’s personal estimation of the value of his
reputation, rather than a sum deduced from relevant domestic jurisprudence;
however, in the ensuing procedure the applicant maintained this claim.
9. The Budapest Regional Court delivered a judgment on
22 September 2005. It discontinued the proceedings against the Budapest
Regional Public Prosecutor’s Office, since it had no procedural standing. As
to the remainder of the claims, it held that the applicant’s right to reputation
had been violated by the public prosecutor’s statements and ordered the
public prosecutor to present her apologies to the applicant. However, it
dismissed the applicant’s claim for compensation, stating that it was
excessive and in any event he could not prove that he had suffered any
actual damage. The court further applied section 39 of Act no. XCIII of
1990 on Stamp Duties and ordered the applicant to pay HUF 879,000
(approximately EUR 2,900) in court fees. Under this rule, at the material
time, the amount of stamp duty in civil cases was 6% of the claim but
should attain a minimum of HUF 15,000 (approximately EUR 50) and
should not exceed a maximum of HUF 900,000 (approximately
EUR 3,000). In a subsequent supplementary decision on court costs, the
court explained that the law required the payment of court fees
proportionately to the dismissed part of the claim, and observed that the
applicant’s claim was far beyond the amounts normally awarded in similar
cases.
10. Both the applicant and the respondents appealed to the
Budapest Court of Appeal, which dismissed the appeal on 3 October 2006.
As regards the costs, the court upheld the position taken by the Budapest
Regional Court, that is, that the applicant should pay court fees calculated as
a percentage of the dismissed part of his claims. It further ordered the
applicant to pay HUF 900,000 (approximately EUR 3,000) in appellate fees.
 HARRISON McKEE v. HUNGARY JUDGMENT 3

11. The respondents sought the review of the final decision before the
Supreme Court, arguing that the statements of a prosecutor expressed in the
course of criminal proceedings could not violate the accused’s personality
rights, even if they were detrimental to him. By a decision of 4 July 2007
the Supreme Court quashed the final decision and dismissed the applicant’s
action in its entirety. It found that the opinion of the public prosecutor had
been expressed in the context of the criminal proceedings conducted against
the applicant and thus constituted a legitimate exercise of her powers as a
prosecutor. The Supreme Court further ordered the applicant to pay the
court fees related to the first- and second-instance and the review
proceedings in the amount of altogether HUF 1,836,000 (approximately
EUR 6,000), instead of the aggregate amount of HUF 4,300,000
(approximately EUR 14,200) in principle applicable under sections
42, 46 and 50 of the Act on Stamp Duties (see paragraph 13 below).

II. RELEVANT DOMESTIC LAW

12. Act no. III of 1952 on the Code of Civil Procedure provides as
follows:
The notion of court costs

Section 75
“(1) Court costs – apart from the exceptions specified under the law – shall mean all
reasonable expenses that emerged in connection with the parties’ expedient and bona
fide litigation before or outside the court (costs of preliminary inquiries and
correspondence, procedural fees, witness fees, expert fees, the fees of guardians ad
litem and interpreters, the cost of remote hearings and inspections, etc.).”

Bearing of court costs

Section 77
“The court shall decide on the bearing of court costs in its judgment or in another
decision terminating the proceedings.”

Section 81
“(1) Where each party has won some claims and lost others, in determining the court
costs the court shall take into consideration the proportion of the successful and
unsuccessful claims as well as the sums advanced by the parties. If the difference
between the respective proportions and the sums advanced by the parties is
insignificant, the court shall order that each party should bear his own costs.
(2) In actions for damages or for other claims, the quantification of which is subject
to judicial discretion, the opposing party may be obliged to pay court costs in
proportion to the amount awarded against him even if the awarded amount is lower
than the one claimed, provided that the claimed amount cannot be regarded as
manifestly excessive.”
4 HARRISON McKEE v. HUNGARY JUDGMENT

Costs-and-fees-related arrangements

Section 84
“(1) Natural person parties (including interveners) unable to pay the costs of
litigation due to their income or financial position shall, upon request, be eligible for
full or partial exemption from payment of costs or fees. Exemption from payment of
costs or fees shall mean the following:
a) exemption from payment of court fees;
b) exemption from advancing and, unless this Act provides otherwise, paying the
costs and fees arising in the proceedings (witness fees, expert fees, the fees of
guardians ad litem and interpreters, public defender’s fees, cost of remote hearings
and inspections, etc.);
c) exemption from providing a security deposit for court costs;
d) request for representation by a legal aid lawyer, where it is allowed under the
law.”

Section 85/A
“(1) In lawsuits specified in a separate law the party (intervener) shall be eligible for
exemption from advancing court costs and expenses irrespective of his income or
financial situation and the criteria set forth in subsections (1)-(3) of section 85 (subject
matter exemption from advancing court costs and expenses).
(2) Where subject matter exemption from advancing court costs and expenses is
granted:
a) the costs and expenses specified in section 84 subsection (1) b) shall be advanced
by the state, except for those to be advanced by the party despite having been granted
subject matter exemption from advancing court costs and expenses;
b) a party shall be eligible for exemption from advancing court fees.”
13. Act no. XCIII of 1990 on Stamp Duties provides as follows:
Section 39
“(1) In civil contentious and non-contentious proceedings the duty base shall, unless
otherwise provided by law, be the value of the subject matter of the proceedings at the
time of their launching or, in remedy proceedings, the value of the claim or part of the
claim under dispute. ...”

Section 42
(1) For the duty base specified in sections 39-41, the amount of the duty shall,
unless otherwise provided by this Act, be as follows:
a) in contentious proceedings 6 % but not less than HUF 7,000 and not more than
HUF 900,000; ...”

Section 46
(1) For the duty base determined in line with sections 39-41 the amount of the duty
shall, in case of appeal against a judgment, be 8% but not less than HUF 7,000 and not
more than HUF 900,000. ...”
 HARRISON McKEE v. HUNGARY JUDGMENT 5

Section 50
(1) For the duty base determined in line with sections 39-41 the amount of the duty
shall, in case of review against a judgment, be 10% but not less than HUF 10,000 and
not more than HUF 2,500,000.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14. The applicant complained that he was required to pay excessive

court fees following the dismissal of his action. He relied on Article 1 of
Protocol No. 1 to the Convention in this respect.
15. The Court reiterates that it has jurisdiction to review the
circumstances complained of by an applicant in the light of the entirety of
the Convention’s requirements. In the performance of that task it is, notably,
free to attribute to the facts of the case a characterisation in law different
from that given by the applicant or, if need be, to view the facts in a
different manner (see Streletz, Kessler and Krenz v. Germany [GC],
nos. 34044/96, 35532/97 and 44801/98, § 111, ECHR 2001-II). Thus, it
considers that the complaint is to be examined from the point of view of
Article 6 § 1 of the Convention and whether the excessive court fees
hampered the applicant’s right of access to a court (see Stankov v. Bulgaria,
no. 68490/01, §§ 49-67, 12 July 2007; and Zaharieva v. Bulgaria (dec.),
no 6194/06, § 87, 20 November 2012).
16. Article 6 § 1 of the Convention reads, as far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair ... hearing ... by [a] ... tribunal ...”
17. The Government contested the applicant’s arguments.

A. Admissibility

18. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.

B. Merits

19. The applicant maintained that he was obliged to pay disproportionate

court fees following the dismissal of his civil action. He argued that his
claim for compensation, although initially based on an emotional reaction,
6 HARRISON McKEE v. HUNGARY JUDGMENT

had not been excessive and had not justified the imposition of such court
fees.
20. The Government disagreed. They considered that, even assuming
that court fees collected by Hungarian courts for dealing with civil claims
constituted a form of restriction on the individual’s access to a court, they
were legitimate to regulate access to courts and not in themselves contrary
to Article 6 of the Convention. Referring to the particular circumstances of
the case, the Government’s position was that the applicant himself had been
responsible for the fact that he had been ordered to pay a significant sum in
court fees, as he had indicated a grossly exaggerated amount in his claim
when instituting the proceedings, in the light of the domestic practice on
compensation for violation of personality rights. The Government further
argued that the applicant was not obliged to advance the court fees, there
was a statutory upper payment limit, and the law provided for some
flexibility as to the payment of court fees. Thus, according to the
Government, the restrictions were proportionate to the aims pursued,
especially in view of the fact that the applicant’s action had been 97%
unsuccessful according to the first- and second-instance courts.
21. The Court reiterates that Article 6 § 1 of the Convention embodies
the “right to court” – of which the right of access is one aspect – as a
constituent element of the right to a fair trial. This right is not absolute. By
its very nature it calls for regulation by the State and may be subject to
limitations permitted by implication. However, these limitations must not
restrict or reduce a person’s access in such a way or to such an extent that
the very essence of the right is impaired (see
Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).
22. The requirement to pay fees to civil courts in connection with claims
they are asked to determine cannot be regarded as a restriction on the right
of access to a court that is incompatible per se with Article 6 § 1 of the
Convention (see Stankov, cited above, § 52). However, the amount of the
fees assessed in the light of the particular circumstances of a given case,
including the applicant’s ability to pay them, and the phase of the
proceedings at which that restriction has been imposed are factors which are
material in determining whether or not a person enjoyed his right of access
and had “a ... hearing by [a] tribunal” (see Kreuz v. Poland, no. 28249/95,
§ 60, ECHR 2001-VI).
23. Similarly to the case of Stankov (cited above) on excessive court
fees, the present application concerns the payment of a fee that was not a
pre-condition for the examination of the case. The applicant benefited from
a subject-matter exemption from advancing court fees, thus he did not need
to advance the court fees as a prerequisite to initiating proceedings, and he
was under the obligation to pay court fees only if he lost or partly lost the
case, proportionately to the dismissed part of the claim. The court fees were
only assessed at the conclusion of the first-instance proceedings – increased
 HARRISON McKEE v. HUNGARY JUDGMENT 7

by the costs of the second-instance and review proceedings – and were only
due once the judgments became final, that is, following the delivery of the
Supreme Court’s decision.
24. The applicant thus had “access” to all stages of the proceedings and
the courts examined his case on the merits and delivered binding judgments
(see paragraphs 9-11 above).
25. In this respect, the Court reiterates that the Convention is intended to
guarantee not rights that are theoretical or illusionary but rights that are
practical and effective. This is particularly so of the right of access to court
in view of the prominent place held in a democratic society by the right to a
fair trial (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). In
practical terms, the imposition of a considerable financial burden due after
the conclusion of the proceedings may well act as a restriction on the right
to a court. The costs order against the applicant constituted such a restriction
(see Stankov, cited above, § 54).
26. As the Court has held before, such a restriction will not be
compatible with Article 6 § 1 if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the means
employed and the aims sought to be achieved (see Deweer v. Belgium,
27 February 1980, § 48-49, Series A no. 35). Contracting States enjoy a
certain margin of appreciation in that respect but the ultimate decision as to
the observance of the Convention’s requirements rests with the Court (see
Kreuz v. Poland, no. 28249/95, § 60, ECHR 2001-VI). The Court must
examine, therefore, whether this was achieved in the present case.
27. As regards the aims pursued by the general rules on costs, the Court
has accepted in its previous case-law that they were compatible with the
general administration of justice, for example to fund the functioning of the
judicial system and to act as a deterrent to frivolous claims, which can be
accepted as compatible with Article 6 of the Convention (see Stankov, cited
above, § 57). The Court sees no reason to hold otherwise in the present case.
28. As regards the proportionality of the restriction, the Court notes at
the outset that the applicant initiated civil proceedings under section 84(1)
of the Civil Code alleging a violation of his personality rights, requesting
the domestic courts to establish an infringement of his right to a good
reputation, to order the respondents to provide “satisfaction” and to pay
compensation in the amount of HUF 390,000,000, all of which was finally
dismissed by the decision of the Supreme Court (see paragraph 11 above).
In the first- and second-instance proceedings the courts found that the
applicant’s action was 97% unsuccessful (see paragraph 20 above), and
imposed court fees on him established pro rata to the dismissed part of the
claim. These courts calculated the payable amount on the basis of the
statutory maximum per levels of jurisdiction, the combined amount of
which was nevertheless significantly less than the aggregated amount of 6%
and 8% of the claim. They relied on sections 42 and 46 of the Act on Stamp
8 HARRISON McKEE v. HUNGARY JUDGMENT

Duties (see paragraph 13 above), and levied HUF 897,000 and

HUF 900,000, respectively, on the applicant.
Subsequently the Supreme Court established the amount of the total
court fees for the three instances at altogether HUF 1,836,000 (compare and
contrast paragraphs 11 and 13 above).
29. The Court reiterates in this connection that, in order to determine
whether or not a person enjoyed the right of access to court, the amount of
the fees imposed is to be assessed in the light of the particular circumstances
of a given case, including the applicant’s ability to pay them, and the phase
of the proceedings at which that restriction has been imposed (see Kreuz,
cited above, § 60).
30. The Court notes in this regard that its task in cases arising from
individual applications is not to review domestic law in the abstract, but to
examine the manner in which that law has been applied to the applicants
(see, among other authorities, McCann and Others v. the United Kingdom,
27 September 1995, § 153, Series A no. 324; Pham Hoang v. France,
25 September 1992, § 33, Series A no. 243). In the applicant’s case the
Court finds it significant that, the Supreme Court fixed the aggregate court
fee in an amount of some HUF 2,464,000 (approximately EUR 8,100) less
than the statutory maximum which would have been in principle applicable
in the applicant’s case.
31. It is true that in the context of claims for damages for excessive
length of proceedings and unjustified pre-trial detention imputable to the
State, the Court has stated that rules regarding legal costs must avoid
placing an excessive burden on litigants where their action is justified as it
is paradoxical that, by imposing various taxes the State takes away with one
hand what it has awarded with the other (see Stankov, cited above, § 59; and
Scordino v. Italy (no. 1) [GC], no. 36813/97, § 201, ECHR 2006-V).
Nonetheless, the Court observes that, in reaching its conclusion that there
had been a breach of Article 6 § 1 of the Convention, regard was had to the
particular circumstances of those cases, namely that the court fees had
exceeded the sum awarded, despite the finding that the claimant suffered
damages that called for compensation by the State, rendering the remedy
nugatory. Similar considerations applied in the context of
Article 1 of Protocol No. 1 where the State was under the obligation to pay
compensation for expropriation, but the court fees were so high as to result
in a total lack of compensation (see Perdigão v. Portugal [GC],
no. 24768/06, § 72, 16 November 2010).
32. The Court considers that this case is to be distinguished, when
examining the question of proportionality, from those where court fees were
charged in respect of well-founded actions against the State. In the present
case the applicant’s action was dismissed in its entirety on the merits (see
Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 61 et seq.,
Series A no. 316-B; compare and contrast Apostol v. Georgia, no. 40765/02,
 HARRISON McKEE v. HUNGARY JUDGMENT 9

§ 60, ECHR 2006-XIV), thus the question of the State’s duty to compensate
for wrongs imputable to its authorities did not arise.
33. The Court further notes the Government’s position to the effect that
the applicant himself was responsible for the fact that he was ordered to pay
a significant sum in court fees, as he had indicated an excessive amount in
his claim when instituting the proceedings. They suggested that the
applicant’s claim for the equivalent of approximately HUF 390,000,000 was
frivolous and grossly exaggerated. They relied in particular on the fact,
unrefuted by the applicant, that the latter had failed to prove in any way the
alleged damages and that he had been represented throughout the
proceedings by a lawyer, who must have been aware of the existing case-
law in this respect and the ill-founded nature of the claim (see paragraph 9
above). The Court sees no reason to doubt that the applicant, with the help
of his lawyer, could have determined what would have been a “reasonable”
claim in his case and thus the amount of the court fees payable in case of an
unsuccessful action. In this respect it must be stressed that applicants who
deliberately inflate the value of their claims for compensation cannot be
expected to be exempted entirely from the payment of court fees or from the
requirement to contribute in a reasonable amount to the costs of taking the
action (see Kupiec v. Poland no. 16828/02, § 49, 3 February 2009; and
Kuczera v. Poland, no. 275/02, § 45, 14 September 2010).
34. The Court finally notes that various procedural solutions existed
under Hungarian law to avoid placing an excessive burden on litigants,
including an upper limit of HUF 900,000 in the first and second-instance
proceedings and HUF 2,500,000 in review proceedings. Moreover, litigants
unable to pay court costs due to their income or financial position were
eligible for full or partial exemption from paying court fees.
35. The foregoing considerations lead the Court to the conclusion that
the imposition of court fees is an aim compatible with the good
administration of justice and that domestic law and proceedings provided
adequate safeguards not to constitute a disproportionate financial burden on
bona fide claimants. Thus, it cannot be held that the applicant was unduly
restricted in his right of access to a court.
There has not, therefore, been a violation of Article 6 § 1 of the
Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

36. The applicant further complained that in the civil proceedings for
damages for the infringement of his personality rights, the domestic courts
decided on the merits of his action in violation of Article 6 § 1 of the
Convention.
37. In so far as the applicant’s complaint may be understood to concern
assessment of the evidence and the result of the proceedings before the
10 HARRISON McKEE v. HUNGARY JUDGMENT

domestic courts, the Court reiterates that, according to Article 19 of the

Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In particular, it is
not its function to deal with errors of fact or law allegedly committed by a
national court unless and in so far as they may have infringed rights and
freedoms protected by the Convention. Moreover, while Article 6 of the
Convention guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence or the way it should be assessed,
which are therefore primarily matters for regulation by national law and the
national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999-I).
In the present case, the Court considers that the applicant’s submissions
do not disclose any appearance that the courts lacked impartiality or that the
proceedings were otherwise unfair or arbitrary. It follows that this part of
the application is manifestly ill-founded within the meaning of
Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the
Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the imposition of court fees
admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 3 June 2014, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi

Registrar President