AS TO THE ADMISSIBILITY OF
Application No. 31506/96
by Istvánné RÉKÁSI
against Hungary
The European Commission of Human Rights sitting in private on
25 November 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
F. MARTINEZ
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 March 1996 by
Istvánné RÉKÁSI against Hungary and registered on 16 May 1996 under
file No. 31506/96;
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, a Hungarian citizen residing in Budapest, was born
in 1938 and is a pensioner.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 9 June 1994 the Budapest II District Municipality (Budapest
II. kerületi Önkormányzat Polgármesteri Hivatal Szabálysértési Iroda),
acting as the first instance dealing with "regulatory" offences (elso
fokú szabálysértési hatóság), found that, in a street quarrel, the
applicant had addressed Mrs. H. with rude expressions, such as "you
shitty leprotic gypsy whore, you stupid goose". In the reasoning of its
decision, the Municipality relied on witness evidence. The Municipality
held that the behaviour of the applicant amounted to the offence of
libel, as defined under S. 96/B (1) of Act No. I of 1968 on
"Regulatory" Offences (a szabálysértésekrol szóló 1968. évi I. törvény;
the "Regulatory Offences Act 1968"). The Municipality imposed a fine
of 6,000 Hungarian forints (HUF) on the applicant.
S. 96/B (1) of the Regulatory Offences Act 1968 provides that
anyone, who addresses defamatory phrases to another person or commits
any other similar action, shall be punished with a fine not exceeding
HUF 10,000.
In these and the subsequent proceedings the applicant was
represented by counsel.
On 17 November 1994 the Budapest Deputy of the Republic
(Köztársasági Megbízott Hivatala), upon the applicant's appeal, quashed
the decision of 9 June 1994 on the ground of shortcomings in the taking
of evidence.
On 6 December 1995, in the resumed proceedings, the Municipality,
following several hearings, found again that the applicant had
committed the offence of libel and imposed a fine of HUF 5,000. In the
reasoning of its decision, the Municipality relied on evidence given
by several witnesses. The Municipality also ordered that, in default
of payment, the fine be converted into imprisonment of five days.
On 14 February 1996 the Budapest Administrative Office (Budapest
Fováros Közigazgatási Hivatala) dismissed the applicant's appeal. Her
complaint to the Ministry of the Interior (Belügyminisztérium) was to
no avail. On 2 July 1996, in response to her further complaint, the
Budapest Public Prosecutor's Office (Fovárosi Foügyészség) informed her
that it had found the proceedings in question in conformity with the
relevant legislation and that there was no ground for the review of the
decisions in question. Her further complaint is pending before the
Attorney General's Office (Legfobb Ügyészség).
Meanwhile, the applicant had accused Mrs. H. of false accusation
before the Investigation Office of the Budapest Prosecution (Budapesti
Ügyészségi Nyomozó Hivatal). On 10 November 1995 the Investigation
Office refused to carry out investigations into her accusations. On
29 April 1996, following her complaint, the Budapest Public
Prosecutor's Office ordered the Investigation Office to investigate the
matter. On 9 May 1996 the Investigation Office discontinued the
investigations, finding that there was no suspicion of crime in the
case. On 6 June 1996 the Budapest Public Prosecutor's Office dismissed
the applicant's complaint. Her further complaint is still pending
before the Attorney General's Office.
Furthermore, apparently in July 1996 the Investigation Office of
the Fejér County Prosecution (Fejér Megyei Ügyészségi Nyomozó Hivatal)
refused to carry out investigations into the applicant's charges of
false accusation, brought against Mrs. H. On 5 August 1996 the Fejér
County Public Prosecutor's Office (Fejér Megyei Foügyészség) dismissed
the applicant's complaint.
B. The Hungarian reservation
Hungary's reservation, contained in the instrument of
ratification deposited on 5 November 1992, is worded as follows:
"In accordance with Article 64 of the Convention, the Republic
of Hungary makes the following reservation in respect of the right to
access to courts guaranteed by Article 6, paragraph 1 of the
Convention:
For the time being in proceedings for regulatory offences before
the administrative authorities, Hungary cannot guarantee the right to
access to courts, because the current Hungarian laws do not provide
such right, the decision of the administrative authorities being final.
The relevant provisions of the Hungarian law referred to above
are:
- Section 4 of Act No. IV of 1972 on courts, modified several
times, which provides that the courts, unless an Act stipulates
otherwise, may review the legality of the decisions taken by the
administrative authorities;
- An exception is contained in Section 71/A of Act No. I of 1968
on proceedings for regulatory offences, modified several times, which
allows for the offender to request judicial review solely against the
measures taken by the administrative authority to commute to
confinements the fine the offender had been sentenced to pay; no other
access to court against final decisions taken in proceedings for
regulatory offences is permitted."
COMPLAINTS
1. The applicant complains under Article 6 of the Convention about
the fine imposed upon her by the Budapest II District Municipality on
6 December 1995, as confirmed by the Budapest Administrative Office on
14 February 1996, and about the alleged unfairness of the "regulatory"
offence proceedings conducted against her on charges of libel.
2. The applicant also submits under Article 10 of the Convention
that the fine imposed upon her in the "regulatory" offence proceedings
amounted to a breach of her right to freedom of expression.
3. Furthermore, the applicant complains under Article 6 of the
Convention that the Hungarian authorities unfairly failed to carry out
investigations against Mrs. H. upon her accusations.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the fine imposed upon her by the Budapest II District
Municipality on 6 December 1995, as confirmed by the Budapest
Administrative Office on 14 February 1996, and about the alleged
unfairness of the "regulatory" offence proceedings conducted against
her on charges of libel.
a. Article 6 (Art. 6) of the Convention, so far as it is relevant,
provides as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
As regards the applicability of Article 6 (Art. 6) to the
"regulatory" offence proceedings, the Commission, having regard to the
criteria established in the case-law of the Convention organs (Eur.
Court HR, Öztürk v. Germany judgment of 21 February 1984, Series A no.
73, pp. 18-20, paras. 50-53; Lutz v. Germany judgment of 25 August
1987, Series A no. 123, pp. 22-24, paras. 51-57), notes that the
proceedings in question fell within the scope of "regulatory" offence
law according to the Hungarian legislation. However, the nature of the
offence and the nature and the degree of severity of the penalty
incurred might warrant classifying the offence with which the applicant
was charged as a criminal one under the Convention. In this respect,
the Commission notes in particular that the offence of libel
potentially affects the whole population and, in the legal system of
other member States, is regarded as a criminal offence. As regards the
further criterion, the Commission notes that the fine could amount to
HUF 10,000 and be converted into a term of imprisonment in certain
circumstances. Article 6 (Art. 6) might, therefore, in principle apply
to the present case.
Assuming the applicability of Article 6 (Art. 6), the applicant
is entitled to bring the final decision given by the administrative
authorities before a tribunal offering the guarantees of Article 6
(Art. 6). On the other hand, it is not required that the proceedings
before the administrative authorities comply with Article 6 (Art. 6)
(cf., Eur. Court HR, Belilos v. Switzerland judgment of 29 April 1988,
Series A no. 132, p. 30, para. 68).
b. The question arises whether the applicant's lack of access to
court is covered by the Hungarian reservation, made upon ratification
of the Convention, according to which "for the time being in
proceedings for regulatory offences before the administrative
authorities, Hungary cannot guarantee the right to access to courts,
because the current Hungarian laws do not provide such right, the
decision of the administrative authorities being final."
The Commission has considered whether this reservation satisfies
the requirements of Article 64 (Art. 64) of the Convention.
Article 64 (Art. 64) of the Convention reads as follows:
"1. Any State may, when signing this Convention or when
depositing its instrument of ratification, make a reservation in
respect of any particular provision of the Convention to the
extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general
character shall not be permitted under this Article.
2. Any reservation made under this Article shall contain a
brief statement of the law concerned."
The Commission recalls that "by 'reservation of a general
character' in Article 64 (Art. 64) is meant in particular a reservation
couched in terms that are too vague or broad for it to be possible to
determine their exact meaning and scope" (cf., Eur. Court HR, Belilos
v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 26,
para. 55).
In this respect, the Commission notes that the Hungarian
reservation refers to the lack of right to access to court, as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, in
proceedings for "regulatory" offences before the administrative
authorities. It contains a statement on the applicable legislation,
namely, that the proceedings under the scope of the Regulatory Offences
Act 1968, having regard to S. 71/A thereof, constitute an exception to
the general availability of court review of administrative decisions,
as guaranteed by S. 4 of Act No. IV of 1972 on Courts.
In these circumstances, the Commission finds that the Hungarian
reservation encompasses two laws which, taken together, constitute a
well-defined and coherent body of substantive and procedural
provisions. These provisions were all in force on 5 November 1992, when
Hungary ratified the Convention (cf. Eur. Court HR, Chorherr v. Austria
judgment of 25 August 1993, Series A no. 266, p. 34, para. 18).
It follows that the wording of the reservation in question does
not attain the degree of generality prohibited by Article 64 para. 1
(Art. 64-1) of the Convention.
Furthermore, the Commission recalls that the "brief statement of
the law concerned" required by Article 64 para. 2 (Art. 64-2) of the
Convention "both constitutes an evidential factor and contributes to
legal certainty"; its purpose "is to provide a guarantee - in
particular for the other Contracting Parties and the Convention
institutions - that a reservation does not go beyond the provisions
expressly excluded by the State concerned" (cf. Eur. Court HR, Belilos
v. Switzerland judgment of 29 April 1988, Series A no. 132, pp. 27-28,
para. 59; Weber v. Switzerland judgment of 22 May 1990, Series A no.
177, p. 19, para. 38). This does not, however, mean that it is
necessary under Article 64 para. 2 (Art. 64-2) to provide a
description, even a concise one, of the substance of the texts in
question.
In the present case, the reference to the laws in question,
accompanied by an indication of the subject-matter of the relevant
provisions, makes it possible for everyone to identify the precise laws
concerned and to obtain any information regarding them. It also
provides a safeguard against any interpretation which would unduly
extend the field of application of the reservation (cf. Eur. Court HR,
Chorherr v. Austria judgment of 25 August 1993, Series A no. 266,
pp. 34-35, para. 20; Gradinger v. Austria judgment of 23 October 1995,
Series A 328-C, p. 65, para. 51).
Accordingly, that reservation complies with Article 64 para. 2
(Art. 64-2) of the Convention.
As the reservation is, therefore, in compliance with Article 64
(Art. 64) of the Convention and covers the applicant's lack of access
to court, the Commission finds that this part of the application is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 10 (Art. 10) of the
Convention that the fine imposed upon her in the "regulatory" offence
proceedings amounted to a breach of her right to freedom of expression.
Article 10 (Art. 10) of the Convention, so far as it is relevant,
reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
The Commission notes that the impugned measure, namely, the
imposition of a "regulatory" fine as a punishment for the statements
made by the applicant, was an interference with the applicant's
exercise of her freedom of expression. The fact that, in a given case,
that freedom is exercised other than in the discussion of matters of
public interest does not deprive it of the protection of Article 10
(Art. 10) (Eur. Court HR, Jacubowski v. Germany judgment of 23 June
1994, Series A no. 291-A, p. 13, para. 25). Such interference is in
breach of Article 10 (Art. 10, unless it is justified under paragraph
2 of Article 10, i.e. it must be "prescribed by law", have an aim or
aims that is or are legitimate under Article 10 para. 2 (Art. 10-2) and
be "necessary in a democratic society".
The interference was "prescribed by law", namely, by the relevant
provisions of the Regulatory Offences Act 1968. It also pursued a
legitimate aim under the Convention, i.e. "the protection of the
reputation or rights of others". It remains to be ascertained whether
the interference can be regarded as having been "necessary in a
democratic society".
The Commission recalls that the adjective "necessary" within the
meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a
"pressing social need". The Contracting States have a certain margin
of appreciation in assessing whether and to what extent an interference
is necessary, but this margin goes hand in hand with a European
supervision. Thus the measures taken at national level must be
justifiable in principle and proportionate (cf. Eur. Court HR, Observer
and Guardian v. the United Kingdom judgment of 26 November 1991,
Series A no. 216, pp. 29-30, para. 59; Jacubowski v. Germany judgment,
loc. cit., p. 14, para. 26).
In the present case, the requirements of protecting the
reputation and rights of others, namely of Mrs. H., must be weighed
against the applicant's freedom to inform third persons about her
personal dislike of Mrs. H.
The Budapest II District Municipality found that, in a street
quarrel, the applicant had addressed Mrs. H. with grossly rude
expressions. The Commission finds that the Municipality took into
account the nature of the applicant's statements and their capacity of
damaging Mrs. H.'s personal integrity and reputation.
In these circumstances, there were relevant and sufficient
reasons for the imposition of the fine upon the applicant. It cannot,
therefore, be said that the Municipality, in its decision confirmed by
the Budapest Administrative Office, overstepped the margin of
appreciation left to the national authorities.
Accordingly, there is no appearance of a violation of the
applicant's right under Article 10 (Art. 10) of the Convention.
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 (Art. 6) of the
Convention that the Hungarian authorities unfairly failed to carry out
investigations against Mrs. H. upon her accusations.
The Commission recalls that the Convention does not guarantee the
right to pursue criminal proceedings against third persons
(No. 10877/84, Dec. 16.5.85, D.R. 43, p. 185). Moreover, Article 6
(Art. 6) does not apply to proceedings aimed at instituting criminal
proceedings against third persons.
Furthermore, the Commission has repeatedly stated that the right
to enjoy a good reputation is a civil right. This line of case-law is
derived from No. 808/60, Isop v. Austria, Dec. 8.3.62, Yearbook 5,
p. 122, where the Commission held that "the right to enjoy a good
reputation and the right to have determined before a tribunal the
justification of attacks upon such reputation must be considered to be
civil rights within the meaning of Article 6 para. 1 (Art. 6-1)". This
case-law has been confirmed by the Court (cf., e.g., Eur. Court HR,
Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62).
In the present case the Commission, whilst maintaining the
general principle that the right to enjoy a good reputation constitutes
a "civil right" within the meaning of the above provision, considers
nevertheless that the proceedings chosen by the applicant to seek
rehabilitation against Mrs. H.'s alleged false accusations against her,
namely by way of the initiation of criminal proceedings, do not fall
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.
Unlike a civil action for making defamatory statements which could also
have been brought by the applicant under Section 84 of the Hungarian
Civil Code (Polgári Törvénykönyv), the purpose of the criminal
proceedings in question is to punish the accused person concerned for
having committed a criminal offence. However, the right of access to
the courts which Article 6 para. 1 (Art. 6-1) of the Convention grants
to anyone who seeks the determination of his civil rights does not
include any right to bring criminal proceedings against a third person
(cf., No. 7116/75, X. v. Germany, Dec. 4.10.76, D.R. 7, p. 92).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Deputy Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy