Communicated on 13 July 2017
FOURTH SECTION
Application no. 621/14
L.F.
against Hungary
lodged on 19 December 2013
STATEMENT OF FACTS
1. The applicant, Mr L. F., was a Hungarian national who was born in 1956 and lived in Gyöngyöspata. He was represented before the Court by Mr Sz. M. Sánta, a lawyer practising in Budapest.
2. The applicant died on 8 April 2015. On 1 September and 12 October 2016 his heirs, Ms L. F. (his widow), as well as Ms I. F., Mr L. F. Jr and Mr M. F. (his children), expressed the wish to pursue the application before the Court in his stead. They are represented before the Court by Ms S. Kapronczay, a lawyer practising in Budapest.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
4. The applicant and his family are of Roma origin.
5. Following anti-Roma demonstrations and paramilitary marches in Gyöngyöspata (see, for example, R.B. v. Hungary, no. 64602/12, 12 April 2016) the mayor of the municipality resigned and a politician of the Movement for a Better Hungary (Jobbik Magyarországért Mozgalom) was elected in his place as of July 2011. During his tenure, tensions between Roma and non-Roma inhabitants increased. One of the measures he adopted was the so-called “Érpatak model”, which referred to a social scheme established by the mayor of Érpatak based on the idea that social benefits should only be paid to residents who contribute to the development of the community and respect law and order, rather than to those who are “destructive”.
6. It appears that in preparing to introduce a similar scheme in Gyöngyöspata, on 13 October 2011 the mayor, the chief councillor of the mayor’s office and someone privately contracted by the mayor’s office turned up at the applicant’s house, accompanied by police officers. The police stayed outside, while the others went inside and inspected and measured every room. It is also alleged that video recordings were made of the interior, although this was later contested by the authorities. The applicant was not informed about the purpose of the visit. His wife and children were also present at the time.
7. According to a report by the Parliamentary Commissioner for the Rights of National and Ethnic Minorities, other Roma families were also subjected to similar inspections in Gyöngyöspata in October 2011. The Commissioner was of the view that the practice in question appeared to have no legal basis and invited the Heves County Governmental Office (Heves Megyei Kormányhivatal) to conduct a thorough investigation into the home inspections and take the necessary steps in order to restore legality and prevent similar breaches of law in the future.
8. On 19 October 2011 the applicant filed a criminal complaint about the inspection of his home, alleging unlawful entry onto private property.
9. On 23 November 2011 the Gyöngyös police dismissed the complaint as there was no evidence that an offence had been committed, given that the applicant had not requested the mayor and his colleagues to leave his home.
10. Responding to a police enquiry, the mayor’s office submitted that the aim of the inspection had been to verify whether the applicant’s home complied with the requirements of Government Decree no. 253/1997 (XII. 20.) on National Urban Planning and Construction (known by the abbreviation OTÉK). Section 85(4)(a) of that Decree stipulates that in each room there should be at least 15 cubic metres of air per person. The mayor’s office also added that the applicant’s wife was in receipt of a monthly housing allowance from the local municipality and the secondary aim of the inspection had been to verify the family’s living conditions.
11. On 12 December 2011 the applicant objected to the dismissal of his criminal complaint, arguing that the offence within the meaning of Article 176 of the Criminal Code (unlawful entry onto private property) could also be committed by someone pretending to conduct an official procedure, in which case it was unreasonable to require the victim’s objection against the intrusion. Therefore, the applicant was of the view that the investigation should verify whether there had been a genuine official procedure behind the visit, or whether it had been false.
12. On 21 December 2011 the Gyöngyös public prosecutor’s office dismissed the objection, finding the impugned decision lawful and duly reasoned.
13. On 16 January 2012 the applicant requested the Heves County Governmental Office to examine the procedure and verify, in particular, whether the persons who had entered into and inspected his home had been legally entitled to do so.
14. On 17 May 2012 the Heves County Governmental Office found that on 13 October 2011 there had not been any pending procedures in the framework of which the delegation of the mayor’s office could lawfully enter the applicant’s home. The Governmental Office also informed the applicant that the fulfilment of the OTÉK requirement concerning the cubic content of air in rooms could only be verified in the framework of specific building control procedures which did not fall within the competence of the local government. It further noted that, although it had obtained all relevant documents from the Gyöngyöspata local government concerning the housing allowance paid to the family, there did not appear to have been any decision adopted after July 2011 to assess the applicant’s family’s eligibility for that benefit.
15. On the basis of that information, the applicant filed another criminal complaint, alleging unlawful entry onto his private property by means of a fake official procedure, as well as abuse of authority. He called the authorities’ attention to the perceivable racist motive behind the inspection.
16. On 3 August 2012 the Gyöngyös police dismissed the applicant’s complaint, repeating in essence the reasoning of the decision adopted on 23 November 2011. It also added that the offence of unlawful entry onto private property could only be committed intentionally – if the alleged perpetrator was (mistakenly) persuaded to have the necessary entitlement or consent of the victim, there could be no criminal liability. As regards the alleged abuse of authority, the police said that the delegation had not intended to cause unlawful disadvantage or obtain unlawful advantage – these being constituent elements of the offence in question.
17. On 6 August 2012 the applicant objected to the decision of the Gyöngyös police.
18. On 22 August 2012 the Gyöngyös public prosecutor’s office ordered an investigation into the applicant’s criminal complaint. It was conducted by the Hatvan police. The Gyöngyös police requested its exclusion from the case in the light of the regular contact between the police officers in Gyöngyös and the mayor and his colleagues.
19. On 28 May 2013 the Hatvan police discontinued the investigation. They said that the inspection of the applicant’s home had related to a request for housing allowance submitted by the applicant’s wife on 5 July 2011.
20. On 11 June 2013 the applicant objected to the discontinuation of the investigation. He alleged, in particular, that his wife’s request for housing allowance had already been granted on 31 July 2011. Therefore, there had not been any procedures pending in that case on 13 October 2011 –information also confirmed by the Heves County Government Office on 17 May 2012.
21. On 19 July 2013 the Gyöngyös public prosecutor’s office dismissed the applicant’s objection concerning the discontinuation of the investigation. It held, in essence, that Decree no. 3/2009 (II. 2.) of the Assembly of the Local Government of Gyöngyöspata on Social Benefits (see paragraph 24 below) had been amended as of 28 September 2011 and it was that amendment which had made the home inspection necessary. Therefore, in the opinion of the prosecutor’s office, the impugned inspection did not constitute a criminal offence, even if it had not been conducted in full compliance with the provisions of Act no. CXL of 2004 on the General Rules of Administrative Proceedings and Services.
22. For fear of retribution, the applicant did not initiate a subsidiary private prosecution.
B. Relevant domestic law
23. The relevant provisions of the old Criminal Code (Act no. IV of 1978, in force at the material time) provided as follows:
Unlawful entry onto private property
Article 176
“(1) Any person who enters onto, or remains on, the home or other property or the confines attached to such, of another person by force, threat, or by pretending to conduct an official procedure, is guilty of a minor offence punishable by imprisonment of up to two years. ...”
Abuse of authority
Article 225
“Any public official who, with the aim of causing unlawful disadvantage or obtaining unlawful advantage, breaches his official duties, exceeds his official authority, or otherwise abuses his position of authority, is guilty of an offence punishable by imprisonment of up to three years.”
24. The relevant provision of Decree no. 3/2009 (II. 2.) of the Assembly of the Local Government of Gyöngyöspata on Social Benefits, as amended, provides:
Section 7
“(1) Prior to the granting of benefits governed by the present decree, a social inquiry report should be made about the social situation of the applicant and his or her close relatives living in the same household ...”
COMPLAINTS
25. The applicant complained under Article 8 of the Convention of a violation of his right to respect for his home, in that the mayor of Gyöngyöspata and his colleagues had unlawfully entered and inspected his home.
26. He further alleged that he had been subjected to that inspection on account of his Roma origin. In that connection, he complained of a violation of Article 14 of the Convention, read in conjunction with Article 8. He also argued that the respondent State had failed to comply with its obligation to take all reasonable steps to uncover any possible racist motives behind the incident.
27. In connection with the investigation into the inspection, the applicant complained of a manifest reluctance on the part of the authorities and alleged that they had erroneously interpreted the relevant legal provisions, leading to the ineffectiveness of the remedies pursued, in breach of Article 13 of the Convention read in conjunction with Article 8.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his home, contrary to Article 8 of the Convention?
2. In particular, has there been a violation of the respondent State’s positive obligation under the same provision on account of the authorities’ alleged failure to take all reasonable steps to uncover any possible racist motives behind the incident (see, mutatis mutandis, R.B. v. Hungary, no. 64602/12, § 88, 12 April 2016)?
3. Has the applicant suffered discrimination on the grounds of his Roma origin, contrary to Article 14 of the Convention read in conjunction with Article 8?
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