Lexploria

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

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RÉKÁSI v. HUNGARY

RÉKÁSI v. HUNGARY