AS TO THE ADMISSIBILITY OF
Application No. 21495/93
by József VÉN
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 30 June 1993 , the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 18 December 1992
by József VÉN against Hungary and registered on 10 March 1993 under
file No. 21495/93;
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 is a Hungarian citizen, born in 1948.
The facts, as submitted by the applicant and which may be deduced
from the documents lodged with the application, may be summarised as
follows:
The applicant joined the fire-brigade in 1969. In the summer of
1991 he served as the deputy chief of the Fejér County Fire-Brigade
(Fejér megyei Tüzoltóparancsnokság). His rank was that of lieutenant
colonel.
On 24 June 1991 he was given the task by his chief to run in a
new Renault Express car of the Fire-Brigade for its first 3.000
kilometers of use. During this running in the applicant and his wife
used the car also for personal purposes.
On 5 August 1991 the applicant was denounced by someone to the
National Headquarters of the Fire-Brigade (BM. Országos
Tüzoltóparancsnokság).
On 16 September 1991 The National Commander instituted a
disciplinary procedure against the applicant and his chief. The
applicant was charged with the use of the car for his own personal
purposes and with discrediting his office. During the proceedings the
National Commander gave an interview to the press in which he stated,
inter alia, that the applicant would be fired as this had been decided
by the Minister for Home Affairs.
The applicant claims that the rules of the disciplinary
proceedings were violated several times. For example, after being
informed about the facts of the alleged disciplinary offence under
domestic law, the superior officer has 15 days to decide whether to
institute a disciplinary procedure. In the present case the officer
took 42 days. The applicant was not given the right to examine
witnesses against him and also had no access to the documents of the
proceedings. The disciplinary measure was also imposed more then 3
months after the institution of the procedure, contrary to the
requirements of the Hungarian law.
On 18 October 1991 the applicant suffered a heart attack and
became 50% disabled. As a consequence of the heart attack the
disciplinary procedure was suspended for a while.
On 15 November 1991 the applicant lodged an application with the
Constitutional Court (Magyar Köztársaság Alkotmánybirósága).
On 2 March 1992, as a disciplinary measure, the applicant was
compulsorily retired by the Minister for Home Affairs. The decision
also stipulated that the applicant would only receive a pension from
the age of 55.
On 12 March 1992 the applicant amended his complaint lodged on
15 November 1991 with the Constitutional Court to take account of the
Minister's decision.
Under domestic law the Constitutional Court may control whether
legislation complies with the requirements of the Hungarian
Constitution. The general constitutionality of such laws may be
challenged by individuals, but the Constitutional Court may not
intervene in an individual's dispute with the State over the
application of laws in a specific case.
On 18 March 1992 the applicant lodged a complaint with the Deputy
Attorney General (Legföbb Ügyészhelyettes). He complained about
procedural flaws in his disciplinary proceedings.
On 4 May 1992 the General Supervisory and Civil Law Department
of the Attorney General`s Office (Legföbb Ügyészség Általános
Felügyeleti és Polgári Jogi Föosztály) informed him that although the
disciplinary decision was procedurally flawed they found no ground to
intervene.
On 8 December 1992 his complaint was rejected by the
Constitutional Court. The Constitutional Court declared that the
disciplinary rules referred to by the applicant were in compliance with
the Constitution.
COMPLAINTS
The applicant complains about an alleged lack of a fair and
public hearing, claiming that he had no right to challenge the
Minister's disciplinary decision, and that there was also a lack of an
impartial tribunal, contrary to Article 6 of the Convention. Under
this Article he also complains about certain alleged violations of the
domestic law and a lack of equality of arms. Finally, under Article 14
of the Convention, the applicant complains that as a civil servant and
a fireman he was discriminated against.
THE LAW
The applicant complains of an unfair hearing and discrimination,
contrary to Articles 6 and 14 (Art. 6, 14) of the Convention, in
relation to disciplinary proceedings against him.
The Commission notes that the disciplinary proceedings complained
of resulted in a decision taken by the Minister for Home Affairs,
dated 2 March 1992, i.e. before 5 November 1992, which is the date
of the entry into force of the Convention with respect to Hungary.
It is true that the applicant lodged a complaint with the
Constitutional Court, which was rejected after the ratification of the
Convention, namely on 8 December 1992.
The question therefore arises whether the fact that the
Constitutional Court took a decision in relation to this matter
subsequent to the ratification following the applicant's constitutional
appeal would nevertheless bring the matter within the Commission's
competence ratione temporis.
In this respect the Commission notes that under Hungarian law the
Constitutional Court is only entitled to control the constitutionality
of laws in their generality and cannot quash or modify specific
disciplinary measures taken against an individual by State officials.
In the present case, therefore, the Constitutional Court had
jurisdiction, theoretically, to declare unconstitutional and even quash
the disciplinary rules governing the profession of fireman. However,
it had no jurisdiction to quash the decision of the Minister of Home
Affairs to compulsorily retire the applicant. The applicant's appeal
to this court cannot, therefore, be considered an effective remedy
according to the generally recognised rules of international law under
Article 26 (Art. 26) of the Convention. Accordingly, the final
effective decision in the present case is that of the Minister for Home
Affairs on 2 March 1992.
The Commission recalls that according to the generally recognised
principles of international law, for all Contracting Parties, the
Convention governs only those facts which arose after it came into
force in respect of the Party concerned. The applicant complains about
a disciplinary procedure which effectively finished before the
Convention`s entry into force in Hungary. It follows that the
Commission is not competent, ratione temporis, to examine the
disciplinary procedure (cf. mutatis mutandis No. 7775/77, Dec. 5.10.78,
D.R. 15 p. 143 at p. 158).
The application is therefore incompatible ratione temporis with
the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Acting President
Secretary to the First Chamber of the First Chamber
(M.F. BUQUICCHIO) (F. ERMACORA)
Full & Egal Universal Law Academy