Lexploria

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

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BUSA v. HUNGARY

BUSA v. HUNGARY