AS TO THE ADMISSIBILITY OF
Application No. 28453/95
by Gábor BUSA
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 14 February 1995
by Gábor BUSA against Hungary and registered on 5 September 1995 under
file No. 28453/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1946, is a Hungarian national. He resides
in Géderlak, Hungary. He receives a disability pension.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
1. On 23 October 1993 Mr. I. T., the former companion of the
applicant's wife, reported to the Paks Police Department (Paksi
Rendorkapitányság) that the applicant possessed some unlicensed
weapons.
Subsequently, still on 23 October 1993, a police squad of eleven
persons forcibly caught the applicant in front of his home and
immobilised him for a few minutes. This action caused the applicant
some injuries on the face. Shortly afterwards the police officer in
charge of the squad informed the applicant that they were in search of
an armed deserter, namely Mr. J. T. - the nephew of Mr. I. T. -, and
that it had been reported to the police that the deserter might have
been hiding in the applicant's home. In the police's opinion, it was
necessary to immobilise the applicant in order to prevent him from
alerting the deserter, if the deserter was in fact hiding in the
applicant's home. The police squad subsequently searched the
applicant's home, without presenting a search warrant. The search, did
not reveal either the deserter or the weapons allegedly possessed by
the applicant.
According to a medical report dated 23 October 1993, the
applicant suffered several abrasions and haematomas on his face, which
were to heal within eight days.
On 24 October 1993 the applicant lodged a complaint with the
Investigation Office of the Szeged Prosecution (Szegedi Ügyészségi
Nyomozó Hivatal), referring to the allegedly unlawful police action and
to the minor bodily assault he had suffered. He also unsuccessfully
initiated criminal proceedings against Mr. I. T., charging him with
false accusation.
On 15 November 1993 the Investigation Office transferred the
applicant's complaint to the Kalocsa District Court (Kalocsai Városi
Bíróság). The Investigation Office confirmed the circumstances of the
impugned police action, as they had been presented by the applicant.
It found, however, that the police action did not qualify as an abuse
of official power (hivatali visszaélés buntette) within the meaning of
Section 225 of the Hungarian Criminal Code (a Bünteto Törvénykönyvrol
szóló 1978. évi IV. törvény). The Office also held that the applicant,
acting as private prosecutor, should pursue his complaint, as to the
minor bodily assault which he had suffered, before the Kalocsa District
Court. Moreover, the Office stated that it would initiate disciplinary
proceedings before the Head of the Bács-Kiskun County Police Department
(Bács-Kiskun Megyei Rendorfokapitányság Vezetoje), having regard to the
apparent shortcomings in the preparation of the police action in
question and to the police's failure to take account of the hostile
relations between the applicant and Mr. I. T., when launching their
intervention.
On 29 November 1993 the applicant lodged a complaint against the
decision of 15 November 1993 with the Csongrád County Public
Prosecutor's Office (Csongrád Megyei Foügyészség).
On 6 December 1993 the Public Prosecutor's Office dismissed his
complaint, finding that the information of the police about the
whereabouts of the deserter in question had lawfully warranted the
impugned police action. The Prosecutor's Office informed the applicant
that he could claim compensation from the Head of the Bács-Kiskun
County Police Department. In December 1993 the applicant claimed
compensation from the Head of the Bács-Kiskun County Police Department.
On 11 January 1994 the Kalocsa District Court discontinued the
applicant's private prosecution against the policemen in question. The
Court held that, since the policemen had not deliberately injured the
applicant during their action, their behaviour did not qualify as the
offence of bodily assault within the meaning of Section 170 (1) of the
Criminal Code.
On 18 February 1994 the Attorney General's Office (Legfobb
Ügyészség Nyomozás Felügyeleti Foosztály) dismissed the applicant's
complaint against the decision of 6 December 1993.
On 8 March 1994 the Bács-Kiskun County Regional Court (Bács-
Kiskun Megyei Bíróság) quashed the decision of the Kalocsa District
Court, dated 11 January 1994, and sent back the case to the
Investigation Office of the Szeged Prosecution, with a view to the
applicant's complaint being investigated as a charge of ill-treatment
in official proceedings (bántalmazás hivatalos eljárásban) within the
meaning of Section 226 of the Criminal Code.
On 9 March 1994, upon the applicant's complaint, the Ministry of
the Interior (Belügyminisztérium) informed the applicant that no
criminal liability on the part of the police arose in the case, whereas
the envisaged disciplinary proceedings were still subject to the
findings of the Investigation Office's investigation. The Ministry,
apologising for the incident, also stated that the actual damages,
caused by the police intervention to the applicant, had meanwhile been
compensated for by the Bács-Kiskun County Police Department. The
applicant states that the amount of compensation (HUF 5,167) covered
only a fraction of the damage.
On 24 June 1994 the Csongrád County Public Prosecutor's Office
informed the applicant that on 8 June 1994 the Deputy of the County
Chief Prosecutor (megyei foügyészhelyettes) had instructed the
Investigation Office to carry out the investigation in question.
In its decision of 1 August 1994 the Investigation Office found
that the use of force against the applicant by the police squad had
been contrary to the relevant provisions of the Police Service
Regulations (Rendorségi Szolgálati Szabályzat) and might have given
rise to disciplinary liability within the police. However, the
policemen had not committed the offence of ill-treatment in official
proceedings, since they had not deliberately ill-treated the applicant.
Moreover, having regard to the applicant's complaint about the light
bodily assault he had suffered, the Office sent the case back to the
Kalocsa District Court for further action.
On 6 October 1994 the Kalocsa District Court discontinued the
criminal proceedings, which had been initiated upon the Investigation
Office's decision of 1 August 1994. The District Court found that the
applicant, upon notification, failed to specify the persons to be
charged with the minor bodily assault against him.
On 25 October 1994 the Bács-Kiskun County Regional Court, upon
the applicant's appeal, quashed this decision and sent the case back
to the District Court.
On 21 November 1994, in the resumed proceedings, the District
Court ordered the Kalocsa Police Department (Kalocsai Rendor-
kapitányság) to carry out an investigation in the case with a view to
the identification of the members of the police squad.
On 20 January 1995 the Kalocsa Police Department discontinued the
investigation on the ground that it was impossible to identify the
policemen involved in the event concerned. On 22 June 1995 the Kalocsa
District Public Prosecutor's Office (Kalocsai Városi Ügyészség)
dismissed the applicant's complaint. The applicant's further complaints
with the Ministry of Justice (Igazságügyi Minisztérium) and the Office
of the Prime Minister (Miniszterelnöki Hivatal) were to no avail.
2. On 22 June 1994 the applicant brought an official liability
action before the Kalocsa District Court against the Ministry of the
Interior, claiming an additional HUF 650,000 as compensation for actual
material damages and HUF 24,000,000 as compensation for moral damages,
namely his constant anxiety allegedly due to the incident. The
proceedings were subsequently transferred to the Bács-Kiskun County
Regional Court for the reasons of competence.
On 14 November 1994 the Regional Court held a hearing.
On 3 March 1995 the Regional Court dismissed the applicant's
request for legal aid (pártfogó ügyvéd kirendelése) on the ground that
the requirements under Section 84 of the Hungarian Code on Civil
Procedure (a polgári perrendtartásról szóló 1952. évi III. törvény)
were not met.
On 12 April, 29 May and 18 September 1995 the Regional Court held
further hearings.
On 11 April 1996 the Regional Court awarded a compensation of
HUF 200,000 to the applicant, increased by interest of 20% p.a. as from
23 October 1993, and dismissed the remainder of his claims. In its
decision, the Regional Court relied on, inter alia, Sections 339 to 354
of the Hungarian Civil Code (a Magyar Köztársaság Polgári
Törvénykönyvérol szóló 1959. évi IV. törvény), concerning matters of
compensation liability. In the reasoning of its decision the Regional
Court established that, although the members of the police squad had
been properly instructed how to carry out the envisaged intervention,
they had executed their action without having warned the applicant of
the possibility of use of force. Due to their action, the applicant had
suffered some injuries which healed within eight days. His subsequent
motions to institute criminal proceedings against the members of the
police squad had eventually remained unsuccessful. The Regional Court
found that the police action in question had contravened the relevant
police regulations and the principles of the Hungarian Constitution,
the more, since the use of force by the police had been unjustified in
the circumstances of the case. The forcible police action, and the
search of the applicant's home without the production of a search
warrant gave rise to compensation liability on the part of the Ministry
of the Interior. As to the amount of the compensation payable, the
Court found, on the one hand, that the applicant had failed to
substantiate his claims to the extent that they concerned his alleged
material damages. Relying on expert psychological evidence, the Court
considered, on the other hand, that the deterioration in his mental
health, namely, the consequences of the psychological "shock" caused
by the incident and the emotional burden of the subsequent series of
criminal proceedings, could be compensated for by the awarded sum.
The applicant's appeal concerning the amount of compensation is
pending before the Supreme Court.
S. 253 (3) of the Hungarian Code of Civil Procedure (a polgári
perrendtartásról szóló 1952. évi III. törvény) provides that [in the
appeal proceedings] the second instance court may amend the decision
of the first instance court only within the limits of the appeal
claims.
3. In 1993 Mr. I. T. brought an action before the Kalocsa District
Court requesting that the right of custody over his two children, who
were living with the applicant and his wife, be transferred to him.
On 23 September 1994 the District Court dismissed Mr. I. T.'s
action and required him to pay child maintenance as from
1 January 1993. The decision, to the extent it concerned child
maintenance, was declared enforceable. On 14 June 1995 the Bács-Kiskun
County Regional Court confirmed the decision. The subsequent motions
to enforce the payment of the child maintenance were apparently
unsuccessful.
In 1995 the applicant's wife applied to the District Court for
an order for advance payment of the child maintenance. On 18 April 1996
the District Court dismissed her request on the ground that the
requirements for such an advance payment were not met. The appeal of
the applicant's wife is pending before the Regional Court.
COMPLAINTS
1. The applicant complains under Article 3 about the allegedly
inhuman and degrading manner of the police action in question. He
further complains that the police action amounted to a violation of his
right to liberty and personal freedom, as enshrined under Article 5.
Furthermore, he submits under Article 8 that the police action amounted
to an interference with his private life, which was not justified in
any manner, as the police took its action erroneously. In respect of
his complaints under Articles 5 and 8, he also invokes Article 18. He
also complains under Article 13 that the Hungarian authorities did not
properly pursue the investigation against the policemen involved.
2. The applicant alleges that the length of the compensation
proceedings has exceeded a reasonable time within the meaning of
Article 6 para. 1.
3. The applicant complains under Article 6 para. 3 that no legal aid
was granted to him in the compensation proceedings.
4. Finally, without invoking any particular provision of the
Convention, the applicant complains about the Hungarian authorities'
failure to arrange for the actual payment of the child maintenance due
to his wife.
THE LAW
1. The applicant complains under Article 3 (Art. 3) about the
allegedly inhuman and degrading manner of the police action in
question. He further complains that the police action amounted to a
violation of his right to liberty and personal freedom, as enshrined
under Article 5 (Art. 5). Furthermore, he submits under Article 8
(Art. 8) that the police action amounted to an interference with his
private life, which was not justified in any manner, as the police took
its action erroneously. In respect of his complaints under Articles 5
and 8 (Art. 5, 8), he also invokes Article 18 (Art. 18). He also
complains under Article 13 (Art. 13) that the Hungarian authorities did
not properly pursue the investigation against the policemen involved.
Article 3 (Art. 3) of the Convention provides that "no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment."
Article 5 (Art. 5) of the Convention safeguards the "right to
liberty and security of person".
Article 8 (Art. 8) of the Convention guarantees, inter alia, the
right to respect for one's private life.
The question arises whether the applicant can be regarded as a
victim for the purposes of Article 25 (Art. 25) of the Convention.
The Commission recalls that the word "victim", in the context of
Article 25 (Art. 25), denotes the person directly affected by the act
or omission which is in issue, the existence of a violation being
conceivable even in the absence of prejudice (cf., inter alia, Eur.
Court HR, Adolf v. Austria judgment of 26 March 1982, Series A no. 49,
p. 17, para. 37).
However, the fact that the national authorities have
acknowledged, and then afforded redress for, the breach of the
Convention, may warrant the reconsideration of the applicant's status
as a victim within the meaning of Article 25 (Art. 25). In such
circumstances, to duplicate the domestic process with proceedings
before the Commission and the Court would appear hardly compatible with
the subsidiary character of the machinery of protection established by
the Convention. The Convention leaves to each Contracting State, in the
first place, the task of securing the enjoyment of the rights and
freedoms it enshrines (cf., Eur. Court HR, Belgian Linguistic case,
judgment of 23 July 1968, Series A no. 6, p. 35, in fine, and
Handyside v. the United Kingdom judgment of 7 December 1976, Series A
no. 24, p. 22, para. 48). Accordingly, it has to be ascertained whether
the Hungarian authorities held that the applicant had been a victim of
the erroneous police action in question and, if so, whether they
granted redress (cf., mutatis mutandis, Eur. Court HR, Eckle v. Germany
judgment of 15 July 1982, Series A no. 51, pp. 30-31, paras. 66-67).
The Commission finds that on 9 March 1994 the Ministry of the
Interior apologised for the incident, confirming that the actual
damages caused by the police had been compensated for by the Bács-
Kiskun County Police Department. Moreover, in its decision of
1 August 1994, the Investigation Office of the Szeged Prosecution found
that the use of force against the applicant had been contrary to the
relevant provisions of the Police Service Regulations. Furthermore, in
its decision of 11 April 1996, the Bács-Kiskun County Regional Court
admitted in substance that the impugned police action had resulted a
violation of the applicant's rights under Hungarian law and that this
violation had warranted compensation under the Civil Code. The Regional
Court awarded the applicant a compensation of HUF 200,000, increased
by interest of 20% p.a. as from 23 October 1993.
In these circumstances, the Commission considers that the
applicant can no longer claim to be a victim within the meaning of
Article 25 para. 1 (Art. 25-1) of the Convention.
2. The applicant alleges that the length of the compensation
proceedings has exceeded a reasonable time within the meaning of
Article 6 para. 1 (Art. 6-1).
Article 6 para. 1 (Art. 6-1) of the Convention, so far as
relevant, provides as follows:
"1. In the determination of his civil rights and obligations
... , everyone is entitled to a fair and public hearing within
a reasonable time ..."
The applicant complains about the length of compensation
proceedings which started on 22 June 1994, when he brought an action
before the Kalocsa District Court.
The Commission notes that the Bács-Kiskun County Regional Court
took the first instance decision in the case on 11 April 1996. The
applicant's appeal is pending before the Supreme Court.
The Commission finds that the proceedings in question have lasted
so far for about two years and four months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case, namely, complexity, the conduct of the
applicant and the conduct of the judicial authorities. In this instance
the circumstances call for an overall assessment (cf., Eur. Court HR,
Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9,
para. 17).
The Commission notes that the proceedings complained of related
to compensation claimed in the context of an erroneous police action
and involved several hearings as well as the taking of expert
psychological evidence. There is no indication of any significant
delays on the part of the Hungarian courts.
Although the applicant's case has so far been dealt with by only
one court instance, the total length of the proceedings does not exceed
an acceptable limit in the circumstances of the present case (cf.,
mutatis mutandis, Eur. Court HR, Cesarini v. Italy judgment of
12 October 1992, Series A no. 245, p. 26, para. 20).
Consequently the applicant's complaint about the length of
proceedings does not disclose any appearance of a violation of
Article 6 para. 1 (Art. 6-1).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains under Article 6 para. 3 (Art. 6-3) that
no legal aid was granted to him in the compensation proceedings.
Article 6 para. 3 (Art. 6-3) of the Convention, so far as it can
be understood to be invoked by the applicant, provides as follows:
"Everyone charged with a criminal offence has the following
minimum rights:
...
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;"
The Commission notes that on 3 March 1995 the Bács-Kiskun County
Regional Court, in the compensation proceedings, dismissed the
applicant's request for free legal aid on the ground that the
requirements under S. 84 of the Hungarian Code of Civil Procedure were
not met.
The Commission recalls that "the Convention's only express
provision on free legal aid is Article 6 para. 3 (c) (Art. 6-3-c) which
relates to criminal proceedings and is itself subject to limitations;
what is more, according to the Commission's established case-law,
Article 6 para. 1 (Art. 6-1) does not guarantee any right to free legal
aid as such." (Eur. Court HR, Airey v. Ireland judgment of 9 October
1979, Series A no. 32, p. 14, para. 26).
Nevertheless, Article 6 para. 1 (Art. 6-1) of the Convention
guarantees that in the determination of his civil rights and
obligations everyone is entitled to a fair hearing. The question could
be raised, therefore, whether the denial of free legal aid did prevent
the applicant from the enjoyment of this right (cf., Nos. 7823/77 -
7824/77, Dec. 6.7.77, D.R. 11, p. 221). In this respect the Commission
recalls that the task of the judge in proceedings to which Article 6
para. 1 (Art. 6-1) applies includes the ultimate responsibility for
ensuring the fairness of the proceedings, whether or not the parties
are represented, and this safeguarding principle is especially relevant
in contested proceedings where one of the parties appears in person.
It follows that the Commission's examination of the fairness of the
proceedings must be based upon their entirety and not on the isolated
question of whether the applicant was granted legal aid (cf., e.g., No.
9353/81, Dec. 11.5.83, D.R. 33, p. 141).
In the present case, the Commission finds that the applicant has
failed to show that the denial of free legal aid in the compensation
proceedings affected in any manner the fairness of the proceedings.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant, without invoking any particular provision of the
Convention, also complains about the Hungarian authorities' failure to
arrange for the actual payment of the child maintenance due to his
wife.
The Commission notes that on 18 April 1996 the Kalocsa District
Court dismissed the request of the applicant's wife that an advance
payment of child maintenance be awarded to her. Her appeal is pending
before the Bács-Kiskun County Regional Court.
It follows that this part of the application is premature 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