Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27791/95

by István GERGELY

against Hungary

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 31 March 1995 by

István GERGELY against Hungary and registered on 5 July 1995 under file

No. 27791/95;

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 facts, as they have been submitted by the applicant, may be

summarised as follows.

The applicant, born in 1928, is a Hungarian national living in

Salgótarján.

In November 1991 the applicant's employer, Mr. A. ("A.") was

arrested on charges of fraud. On 30 January 1992 the applicant was

heard by the police as a witness.

On 31 January 1992 the applicant was informed by the Nógrád

County Police Department (Nógrád Megyei Rendor-fokapitányság) that in

the context of the above case, he was suspected of having committed

forgery and smuggling in respect of the import of a car. Following this

accusation, the applicant was allegedly not allowed to consult a

counsel immediately.

On 5 February 1992 the car in question was seized by the Nógrád

County Police Department. The applicant's complaints in this respect

with the Nógrád County Prosecutor's Office (Nógrád Megyei Foügyészség)

and the Attorney General's Office (Legfobb Ügyészség) were to no avail.

On 14 May 1992 the applicant's motion to challenge a police

officer for bias was rejected by the National Police Department

(Országos Rendor-fokapitányság).

On 31 July 1992 the Nógrád County Prosecutor's Office rejected

the request of the applicant's counsel for the separation of the

proceedings against him from those against A.

On 18 May 1993 the Balassagyarmat District Prosecutor's Office

(Balassagyarmati Városi Ügyészség) preferred the bill of indictment

against the applicant, charging him of smuggling and forgery. According

to the bill of indictment, in October 1990 the accused A. had engaged

the applicant and promised him to receive the car in question as part

of his remuneration. In 1991 the applicant established a joint venture

together with A.'s German relative, Mr. W. ("W."), who subsequently

purchased and presented the car to the applicant as a business gift.

The applicant cleared the car at the Hungarian customs under the title

of gift. In the prosecution's opinion, the car was in fact not a gift

from W., but part of the applicant's remuneration. According to the

charges, this constituted the offence of smuggling, using a forged gift

declaration.

On 3 September 1993 the Balassagyarmat District Court (Balassa-

gyarmati Városi Bíróság) rejected the applicant's request that the car

in question be returned to him. On 3 November 1993 the Nógrád County

Regional Court (Nógrád Megyei Bíróság) dismissed his appeal.

On 12 November 1993, upon the applicant's request, his case was

separated from the proceedings against A. and was transferred to the

Salgótarján District Court (Salgótarjáni Városi Bíróság).

On 25 November 1993, the Investigation Surveillance Department

of the Attorney General's Office (Legfobb Ügyészség Nyomozás

Felügyeleti Foosztálya) rejected the applicant's repeated motion to

challenge the police officer concerned for bias.

On 24 February 1994 the Salgótarján District Court convicted the

applicant of smuggling and forgery. The Court refrained from fixing a

sentence, pending a probationary period of one year. The Court also

ordered the confiscation of the car in question. In the reasoning of

its decision, the District Court proceeded from the statements made by

the applicant as well as from the testimonies given by the

investigating police officer Mr. H. ("H."), A. and W. and a further

witness.

On 26 October 1994 the Nógrád County Regional Court (Nógrád

Megyei Bíróság), upon the applicant's appeal, partly quashed this

decision and terminated the criminal proceedings, issuing a reprimand

against him. The Court found that the applicant had committed the

offences of smuggling and forgery. However, his conduct did not warrant

any other punishment than a reprimand. The Court upheld the seizure of

the car. In its decision, the Regional Court relied - inter alia - on

statements made by the applicant and by W. during the first instance

proceedings and also heard evidence from two further witnesses. This

decision was served upon the applicant on 2 December 1994.

On 2 January 1995 the Supreme Court rejected the applicant's

petition for review as unsuitable to be evaluated on the merits. The

Court pointed out that the applicant's petition was based on alleged

factual unclarities, which did not, as such, provide a ground for

review.

COMPLAINTS

1. The applicant complains that the criminal charges against him

were unjustified. He claims that his motion for challenge in respect

of a police officer was in fact not assessed on the merits. He

considers that the Regional Court failed to summon either W. or a

further witness, namely Mr. K. ("K."), a financial manager formerly

employed by A., in his favour. He further claims that the Court's

decision relies solely on the allegedly false evidence given by H. and

that the Court declined to take into account the applicant's withdrawal

of a confession made during the investigation. He invokes Article 6

paras. 1 and 3 of the Convention.

2. He further complains under Article 6 para. 1 that, due to the

Nógrád County Prosecutor's Office's failure to separate his case from

the one against his employer, the proceedings lasted unreasonably long.

THE LAW

1. The applicant complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention about the alleged unfairness of the

proceedings, and in particular about the Regional Court's taking of

evidence.

Article 6 paras. 1 and 3 (Art. 6-1, 6-3), so far as relevant,

provides as follows:

"1. In the determination of his civil rights and obligations or

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.

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf under

the same conditions as witnesses against him".

It seems appropriate to look at these complaints from the points

of view of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3)taken

together, especially as the guarantees in paragraph 3 represent aspects

of the concept of a fair trial contained in para. 1 (Eur. Court H. R.,

Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14,

para. 29.)

As a general rule, it is for the national courts to assess the

evidence before them as well as the relevance of the evidence which

defendants seek to adduce. More specifically, Article 6 para. 3 (d)

(Art. 6-3-c) leaves it them, again as a general rule, to assess whether

it is appropriate to call witnesses, in the "autonomous" sense given

to that word in the Convention system; it does not require the

attendance and examination of every witness on the accused's behalf

(cf., Eur. Court H. R., Bricmont judgment of 7 July 1989, Series A no.

158, p. 31, para. 89; Vidal judgment of 22 April 1992, Series A no.

235-B, pp. 32-33, para. 33).

In the present case, the applicant failed to show that, assisted

by defense counsel, he could not effectively exercise his defense

rights or that the proceedings were otherwise unfair. As regards the

taking of evidence, the Commission notes that the District Court heard

several witnesses, including W. The Regional Court heard two further

witnesses and re-assessed the evidence obtained during the first

instance proceedings. The applicant failed to substantiate his

complaint that the Court's decision was based exclusively on the

evidence produced by H. Moreover, as regards his complaint in respect

of the Court's alleged refusal to hear K. as a further witness, he did

not specify the relevance of the statements to be made by K.

Having regard to all material before it, the Commission finds no

sufficient grounds to conclude that the manner of the Regional Court's

taking evidence or, in particular, the failure to hear the witness in

question was incompatible with Article 6 (Art. 6).

Considering the circumstances of the case as a whole, the

Commission finds no appearance of a violation of the applicant's rights

under Article 6 paras. 1 and 3 (Art. 6-1, 6-3)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.

2. The applicant further complains about the length of the criminal

proceedings against him.

Article 6 para. 1 (Art. 6-1), so far as relevant, provides that

"in the determination of ... any criminal charge against him, everyone

is entitled to a ... hearing within a reasonable time".

The applicant complains about the length of proceedings which

started on 31 January 1992, when the Nógrád County Police Department

charged him of smuggling and forgery. However, the Commission recalls

that according to the generally recognised rules 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.

Hungary ratified the Convention on 5 November 1992. The Commission is,

therefore, competent ratione temporis to deal with the complaint to the

extent that it concerns the period subsequent to 5 November 1992.

The Commission finds that the relevant period to be examined

under Article 6 para. 1 (Art. 6-1) ended on 2 December 1994, when the

final decision of the Nógrád County Regional Court was served upon the

applicant. The applicant's subsequent petition for review was no

effective remedy in the circumstances of his case, the further period

of one month should not therefore be taken into account.

Accordingly, the proceedings against the applicant lasted for

about two years and one month subsequent to the Hungarian ratification

of the Convention. At the date of the ratification the proceedings had

lasted approximately nine 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 H.R.,

Ficara judgment of 19 February 1991, Series A, no. 196-A, p. 9,

para. 17).

The Commission notes that the charges against the applicant

related to the smuggling of a car. The proceedings against him

initially formed part of a fraud case conducted against eleven other

defendants. The applicant's conduct does not appear to have caused any

significant delays. He requested the separation of his case at an early

stage, but this request was granted only more than a year afterwards.

This delay was attributable to the prosecution authorities.

Nevertheless, having regard to the fact that the applicant's case was

dealt with by the prosecution authorities and two court instances, the

delay that occurred does not appear substantial enough for the total

length of the proceedings to have exceeded an acceptable limit in the

circumstances of the present case (cf., mutatis mutandis, Eur. Court

H.R., Cesarini 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 likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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GERGELY v. HUNGARY

GERGELY v. HUNGARY

LEXI