CASE OF LÓZAY v. HUNGARY

FIRST SECTION

CASE OF LÓZAY v. HUNGARY

(Application no. 40246/19)

JUDGMENT
 

STRASBOURG

15 February 2024

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

In the case of Lózay v. Hungary,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Alena Poláčková, President,
 Péter Paczolay,
 Gilberto Felici, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 40246/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 July 2019 by a Hungarian national, Mr János Lózay (“the applicant”), who was born in 1967, lives in Heilbronn and was represented by Mr D. A. Karsai, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 23 January 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the use of force by the police against the applicant resulting in injuries and the alleged lack of an effective investigation into the incident. It raises issues under Article 3 of the Convention.

2.  Late in the evening on 28 July 2017 the applicant was present on the terrace of a pub in the village of Majosháza, which was licensed to be open until 10 p.m. Police were passing by at 10.45 p.m., calling on the managers of the pub to close the premises, but in vain. They returned at 11.20 p.m. at which point in time only the applicant and the two managers were present on the terrace. The two police officers, one male and one female, ordered the pub to be closed immediately. According to the police report drawn up later, the applicant was then throwing insults at the officers. They in turn asked the applicant to produce an identity document. The applicant complied with this instruction.

3.  According to the applicant’s version, he started video-recording the conduct of the police, using his tablet; the female officer tried to grab the tablet, but the applicant would not let go of it. According to the testimonies given by the managers, the female officer had obtained the tablet, but the applicant was reaching for it, perhaps touching the officer. According to the Government, the applicant, drunken, acted aggressively towards the female officer. Subsequently, the male officer forced the applicant on the ground and handcuffed him.

4.  The applicant was committed to the local police station. He was held there for about two hours. During that time, a medical report was issued which recorded that the applicant sustained two abrasions of a few centimetres each, one on the right shoulder and one on the right knee.

5.  The applicant submitted a criminal complaint on 22 December 2017, complaining of the violent police measure.

6.  An investigation ensued. The authority examined the applicant’s testimony, various police reports, the local mayor’s statement on the unavailability of any relevant CCTV footage, and the witness testimonies of the managers of the pub.

7.  On 17 December 2018 the public prosecutor’s office rejected the criminal complaint and discontinued the investigation. According to the decision, the police measure had been lawfully applied and not constituted a criminal offence. The presumption of the police measure – taken in reaction to an assault – having been lawful could not be refuted.

8.  The applicant lodged a complaint with the Attorney General. It was rejected on 24 January 2019 on essentially the same grounds as the previous decision.

9.  The applicant complained under Article 3 of the Convention that he had been ill-treated by the police and that the authorities had failed to conduct an effective investigation.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10.  As to the admissibility, the Government argued that the applicant had not exhausted domestic remedies in that he had not pursued a substitute private prosecution. The applicant disagreed.

11.  The Court has already held in a number of cases that applicants were not required, as a matter of exhaustion of domestic remedies, to pursue a substitute private prosecution, essentially because to do so would represent the pursuit of a legal avenue which would have the same objective as their criminal complaints (see recently Pósa v. Hungary, no. 40885/16, §§ 17-21, 7  July 2020; R.S. v. Hungary, no. 65290/14, § 38, 2 July 2019). Consequently, the Government’s related objection must fail.

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

13.  As to the merits, the applicant argued that the police had been brutal and the investigation inadequate. The Government disagreed, asserting that the police measure was lawful and proportionate, and was duly investigated into.

14.  The general principles concerning ill-treatment by State agents have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015).

15.  In the present case, the Court observes that the applicant suffered abrasions as a consequence of the police measure (see paragraph 4 above). For the Court, this attains the minimum level of severity required to bring Article 3 of the Convention into play (see Bouyid, cited above, §§ 103-113).

16.  It remains to be considered whether the State should be held responsible under Article 3 for these injuries.

17.  It has not been in dispute that the applicant was subject to use of force by a police officer. However, the facts are contradictory as to what conduct on his side warranted that (see paragraph 3 above). The Court notes that the investigation failed in particular to clarify the circumstances of the struggle over the tablet or to elucidate whether and in what manner the applicant’s behaviour was aggressive or necessitated the use of force. Consequently, the Court finds it impossible to establish on the basis of the evidence before it whether the use of force by the police was excessive to overcome the applicant’s resistance, if any, during the police measure (see Kmetty v. Hungary, no. 57967/00, § 36, 16 December 2003).

18.  The Court, however, recalls that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. The relevant general principles have been summarised in Bouyid (cited above, §§ 114-123).

19.  The Court observes that, prompted by the applicant’s complaint, the authorities carried out an investigation into his allegations. While a CCTV recording proved unavailable, the applicant and the two witnesses present at the time of the events were heard. However, the police officers themselves were not questioned in person during the investigation. In their regard, the prosecutor’s office merely relied on the reports drawn up by the police authority. Hearing the officers in person, and eventually confronting them with the applicant would have been of crucial importance. This is so because an unresolved conflict stretched between the testimonies of the applicant and the witnesses, and the police reports as to the applicant’s conduct, the struggle over the tablet and the alleged insults uttered (see paragraphs 2-3 and 17 above).

20.  The Court takes note of the argument of the Government to the effect that the police officers could not be questioned either as witnesses, because of the risk of self-incrimination, or as suspects, in the absence of a well-founded suspicion of a crime. It, however, finds little force in this consideration, rather circular in nature, which effectively barred the applicant from access to the suspected police officers and thus deprived him of any opportunity to challenge the alleged perpetrators’ version of the events (see Nagy v. Hungary, no. 43441/15, § 36, 26 May 2020, and R.B. v. Hungary, no. 48444/18, § 15, 19 January 2023). Indeed, the questioning of the police officers and the confrontation between them and the applicant could have contributed to the clarification of the events (see Kmetty, cited above, §§ 41‑42; Borbála Kiss v. Hungary, no. 59214/11, § 37, 26 June 2012).

21.  Having regard to the above considerations, the Court concludes that the investigation into the applicant’s allegations of ill-treatment by the police was not adequate. There has accordingly been a breach of Article 3 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,800 plus VAT in respect of costs and expenses incurred before the Court. This latter sum corresponds to 29 hours of legal work, billed at EUR 200 plus VAT.

23.  The Government contested these claims.

24.  On the basis of equity, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

25.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State 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 3,000 (three 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;

Done in English, and notified in writing on 15 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Attila Teplán Alena Poláčková
 Acting Deputy Registrar President