AS TO THE ADMISSIBILITY OF
Application No. 26692/95
by Gábor BETHLEN
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 10 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 January 1995
by Gábor BETHLEN against Hungary and registered on 14 March 1995 under
file No. 26692/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the observations submitted by the respondent Government on
14 February 1996;
- the applicant's submissions of 16 January 1995;
- the observations in reply, submitted by the applicant's
representative on 10 April 1996;
- the supplementary observations of 30 August 1996, submitted by
the respondent Government.
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1946, is a Hungarian national residing in
Nyírmártonfalva, Hungary. He is a farmer by profession. Before the
Commission he is represented by Mr. Cs. Józsa, a lawyer practising in
Debrecen.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
On 16 October 1993 at 11 a. m. the applicant was arrested by
Police Officer N.
The applicant claims that, in the course of his arrest and
subsequent detention, he was kicked and beaten up, in particular by
Police Officer N., and that, due to this ill-treatment, he suffered
several bruises.
On 30 December 1993 the Hajdúhadház Police Headquarters
(Hajdúhadházi Rendorkapitányság), acting as the first instance
contravention authority, convicted the applicant of riding a bicycle
in a state of intoxication and refusing to identify himself and imposed
a fine of HUF 30,000 on him. Upon the applicant's objection, he was
acquitted of the contraventions of riding a bicycle in an intoxicated
state and refusing to identify himself. However, he was fined for not
having kept his identity card with him.
On 15 February 1994 the Debrecen Prosecution's Department of
Investigation (Debreceni Ügyészségi Nyomozó Hivatal) terminated the
investigation against Police Officer N. The decision was served upon
the applicant on 21 February 1994.
On 18 March 1994 the Debrecen District Public Prosecutor's Office
(Debreceni Városi Ügyészség) dismissed the applicant's complaint about
the termination of the investigation. This decision was served upon the
applicant on 24 March 1994. The District Public Prosecutor's Office
stated that no further complaint could be brought against its
decision.
On 28 April 1994 the Hajdú-Bihar County Public Prosecutor's
Office (Hajdú-Bihar Megyei Foügyészség) rejected the applicant's
further complaint. The County Public Prosecutor's Office informed the
applicant that the prosecution authorities would not deal with any
further complaint of his, unless he would disclose relevant new facts.
In its letter of 16 September 1994 the Attorney General's Office
(Legfobb Ügyészség), in response to the applicant's further complaint,
informed his lawyer that there had been no legal ground to quash the
decisions about the discontinuation of the investigations against
Police Officer N.
B. Relevant domestic law and practice
S. 52 of the Constitution provides that the Attorney General of
Hungary shall be elected by the National Assembly upon nomination by
the President of the Republic and that he shall be responsible to the
National Assembly and shall submit reports on his activities.
S. 6 (1) of Act No. V of 1972 on Prosecution, as amended several
times, states that the public prosecutors are subordinated to the
Attorney General and they can be given orders only by the Attorney
General and the hierarchically superior public prosecutor. S. 20 (5)
provides that the public prosecution is independent, it is subject to
the acts of Parliament and other legal rules. S. 25 (1) states that the
public prosecutor shall examine without delay any complaints lodged
with the public prosecutor's office, take the necessary measures in
case of breaches of the law and inform the complainant of how the
complaint was disposed of.
The relevant parts of S. 148 of the Code on Criminal Procedure,
under the heading "Remedy during investigation", provide that anybody
aggrieved by the authority's decision, measure or omission, is entitled
to bring a complaint. If the authority itself does not admit the
complaint, it shall transfer the case-file and its own statement about
the complaint to the competent public prosecutor within 24 hours. The
public prosecutor shall decide upon the complaint within 8 days.
S. 339 (1) of Act No. IV of 1959 on the Civil Code, as amended
several times, provides that anybody unlawfully causing damages to
another person shall pay compensation for the loss. S. 349 of the Civil
Code, regulating the responsibility of persons acting in an official
capacity, provides that liability for damages caused in the sphere of
public administration can only be established, if they could not be
prevented by ordinary legal remedies to overcome the grievances. In its
decision No. Pf.I.20.128/1992, the Supreme Court held that an
inappropriate action taken by a policeman can serve as a basis for
liability according to S. 349 of the Civil Code. The decisions of the
Supreme Court are as a rule respected by inferior courts.
Rule 85 of the Regulations of the Police Service (Order of the
Minister of the Interior No. 1/1990. /I.1./ BM) provides that, in case
of breach of, or danger to, the public order and safety, the policeman
is empowered and, at the same time, is obliged to act. The policeman
is empowered and obliged to act, even if he is not on duty, in cases
when there is no policeman on duty around or when a policeman on duty
needs assistance in implementing an action.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
he was exposed to ill-treatment during his arrest and police custody.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 January 1995 and registered
on 14 March 1995.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
14 February 1996.
On 10 April 1996 the applicant's representative submitted
observations in reply to the respondent Government's observations.
On 30 August 1996 the Government submitted supplementary
observations, to which the applicant did not reply.
THE LAW
The applicant complains under Article 3 (Art. 3) of the
Convention that during his arrest and custody he was ill-treated by the
police.
Article 3 (Art. 3) provides that no one shall be subjected to
torture or to inhuman or degrading treatment or punishment.
The Government maintain that the applicant has failed to exhaust
domestic remedies at his disposal under Hungarian law. They submit in
particular that the applicant did not file an official liability action
under SS. 339 and 349 of the Hungarian Civil Code.
Moreover, he has failed to comply with the six months' time-limit
under Article 26 (Art. 26) of the Convention. They submit in particular
that in the present case the final decision was given by the Debrecen
District Public Prosecutor's Office on 18 March 1994, when it dismissed
the applicant's complaint about the termination of the investigation.
There were no further remedies available against this decision and the
applicant's subsequent complaints, lodged with higher prosecution
authorities, cannot be regarded as effective remedies.
Furthermore, the Government contest the applicant's allegations
of ill-treatment.
The applicant submits that, having regard to their civil nature,
in the context of official liability proceedings it cannot be
established that a criminal offence was committed against him.
Moreover, the final decision in his case was given by the Attorney
General's Office and was delivered upon him on 22 September 1994. His
application has, therefore, been lodged in time. He maintains that he
addressed the Attorney General's Office as it could have quashed the
earlier decisions about the discontinuation of the investigations.
Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken.
As regards the Government's objection as to the exhaustion of
domestic remedies, the Commission recalls that, in relation to
treatment contrary to Article 3 (Art. 3) of the Convention, raising
criminal charges against the officials concerned or, in the
alternative, filing a civil action for compensation are generally
effective remedies to be exhausted pursuant to Article 26 (Art. 26)
(cf., Nos. 5577-5583/72, Dec. 15.12.75, D.R. 4, p. 4; No. 19092/91,
Dec. 11.10.93, D.R. 75, p. 207; No. 11208/84, Dec. 4.3.86, D.R. 46, p.
182). The Commission considers that the applicant, by initiating
criminal proceedings against Police Officer N., had recourse to an
effective remedy for the purposes of Article 26 (Art. 26) of the
Convention.
As regards the question whether the application has been lodged
within the six months' time-limit, the Commission recalls that the six
months' period runs from the date of the final domestic decision after
effective and sufficient domestic remedies have been used
(No. 12945/87, Dec. 4.4.90, D.R. 65, p. 173). An extraordinary remedy
dependent on the discretionary power of a public authority cannot be
considered as an effective remedy (No. 14545/89, Dec. 9.10.90, D.R. 66,
p. 238).
In the present case, the Commission notes that the applicant
brought a complaint against the decision of the Debrecen Prosecution's
Department of Investigation, dated 15 February 1994, by which decision
the investigation against Police Officer N. had been terminated. On
18 March 1994 the Debrecen District Public Prosecutor's Office
dismissed his complaint, stating that no further complaint could be
brought against its decision. Thereupon the applicant lodged further
complaints with the County Public Prosecutor's Office and the Attorney
General's Office, in response to which he was informed that there had
been no ground for the amendment of the final decision and any
potential continuation of the investigation was subject to the
disclosure of new relevant facts.
The Commission, having regard to the relevant provisions of
domestic law, finds that the final decision in the case was given by
the Debrecen District Public Prosecutor's Office. No remedy was
available against this decision and the applicant was informed
accordingly. The applicant's ensuing petitions with the County Public
Prosecutor's Office and the Attorney General's Office were no effective
remedies for the purposes of the Convention. He was merely informed
that the prosecution authorities could not deal with his further
complaints, unless he submitted new relevant information. This action
did not interrupt the running of the period of six months under
Article 26 (Art. 26) of the Convention.
Consequently, the Commission considers that the final decision
in the case was given on 18 March 1994, when the Debrecen District
Public Prosecutor's Office dismissed the applicant's complaint against
the termination of the investigation. The applicant, however,
introduced his complaint only on 16 January 1995, i. e. after the six
months' time-limit had expired.
It follows that the application has been lodged out of time and
must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy