SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51751/99 by Imre LAKOS against Hungary

The European Court of Human Rights (Second Section), sitting on 11 March 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 24 August 1999 and registered on 11 October 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Imre Lakos, is a Hungarian national, who was born in 1941 and lives in Kecskemét, Hungary. He is represented before the Court by Mr I. Horváth, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a businessman and the owner of a foreign-trade company mainly involved in importing and exporting vodka.

A. Criminal proceedings

On 20 July, 14 and 28 October, 5 November 1993, 3 January 1994, 11 July and 18 August 1995, seven criminal procedures were instituted against the applicant and several other suspects. Between 20 and 27 July 1993 the applicant was in detention on remand. In these and the ensuing proceedings he was represented by a defence counsel of his choice.

The investigation case-files eventually consisted of some 5,000 pages.

In four bills of indictment dated 14 June 1994, 23 November 1995, 29 December 1995 and 9 February 1996, respectively, the Kecskemét District Public Prosecutor’s Office accused the applicant and fourteen other defendants of the offences of fraud, embezzlement, tax fraud, foreign exchange fraud, smuggling and the forgery of documents. The various charges were gradually joined on 4 December 1995, 20 February and 10 June 1996.

Between 27 March 1996 and 6 October 1997 the Kecskemét District Court held ninety-two hearings in the case. At eleven of these hearings, the taking of evidence could not progress on account of the absence of one or more of the co-accused for medical or other reasons. Between May and August 1996, no hearings could take place due to the applicant’s illness and hospitalisation. In these proceedings some ninety witnesses, including four foreigners, were heard and two experts – in graphology and auditing – presented their opinions. The case-file of the first-instance procedure consisted of some 2,000 pages.

On 15 October 1997 the District Court gave judgment concerning fourteen defendants. In the context of his various business activities, the applicant was convicted of two counts of smuggling, four counts of tax fraud, five counts of forgery of documents, three counts of fraud and two counts of attempted fraud, all the offences involving large sums of money. In its 249-page judgment, the District Court relied on extensive documentary evidence, witness testimonies and expert opinions. The applicant was sentenced to five years’ imprisonment and a fine. He was acquitted of the charges of embezzlement and the fraudulent concealment of funds. In respect of some other charges, the criminal proceedings were discontinued. The judgment containing the detailed reasons was delivered on 16 March 1998.

Both the prosecution and the applicant appealed. Their finalised appeals were submitted on 5 June 1998 and 14 January 1999, respectively.

On 17 February 1999 the Bács-Kiskun County Regional Court held a hearing and, on 24 February 1999, it upheld the applicant’s conviction while re-characterising some of his offences. The fine imposed on the applicant by the first-instance judgment was quashed. This judgment was served on 28 April 1999.

On 31 May 1999 the applicant himself submitted a petition for review by the Supreme Court. However, since representation by a lawyer is compulsory in review proceedings before the Supreme Court, it was not until 10 July 2000 – when the applicant’s lawyer submitted a proper petition – that the actual review proceedings commenced in the case. On 12 February 2001 the Supreme Court rejected the petition as being incompatible ratione materiae with the possible grounds for review set out in the Code of Criminal Procedure. As the applicant had not started serving his prison sentence and absconded, this decision had to be served on his lawyer on 13 March 2001. The applicant has absconded ever since.

B. Civil proceedings

In the context of a dispute concerning a real estate sales contract, in 1994 the applicant’s business partners forcibly evicted him from land which he had refused to surrender pending proceedings before the Kecskemét District Court. In turn, he applied to the Kecskemét Mayor’s Office seeking the protection of his possessions. His application was admitted and its enforcement ordered.

Pending another action brought by the applicant’s business partners with a view to challenging the decision of the Mayor’s Office, the District Court suspended the enforcement proceedings. The District Court’s subsequent unfavourable decision in the matter was not served on the applicant and became, in the absence of an appeal, final on 30 July 1996. The applicant took cognisance of this decision only on 28 October 1998.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him lasted an unreasonably long time.

2. Without giving any further explanation, the applicant also complains, under Article 6 § 1 of the Convention, that the decisions of the Hungarian courts in both the criminal and civil proceedings were wrong.

3. Lastly, the applicant complains under Article 5 of the Convention that his detention on remand was unjustified.

THE LAW

1. The applicant complains that the length of the criminal proceedings against him was unreasonable, in breach of Article 6 § 1 of the Convention which, in its relevant part, provides:

“In the determination of (...) any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...”

a) The Government maintain that the applicant has not exhausted the domestic remedies available to him under Hungarian law, as required by Article 35 § 1 of the Convention, which, in its relevant part, provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law... .”

The Government point out that the applicant has not brought an official liability action under section 349 of the Civil Code seeking compensation for damage suffered on account of the protracted criminal proceedings.

The applicant did not address this issue.

The Court recalls that an official liability action under section 349 of the Hungarian Civil Code cannot be considered, for want of relevant domestic case-law, an effective remedy in respect of the excessive length of either pending or terminated civil proceedings (see Nyírő and Takács v. Hungary (dec.), nos. 52724/99 and 52726/99 (joined), 17 September 2002, unreported; Erdős v. Hungary (dec.), no. 38937/97, 3 May 2001, unreported). On the same basis, the Court sees no reason to reach another conclusion in the present case concerning the length of criminal proceedings.

In the light of the foregoing, the Court concludes that the complaint cannot be rejected for non-exhaustion of domestic remedies.

b) The Government submit that the case was rather complex, both from a factual and legal point of view. The proceedings involved several counts on different offences; numerous suspects were involved; some ninety witnesses were heard and cross-examined and the judgments concerned fourteen co-defendants. The conduct of some of the co-accused caused certain delays, not attributable to the State. Notably, at eleven hearings, no taking of evidence could be effected on account of the absence of one or more of the co-accused for medical or other reasons. Although the overall length of the case was admittedly substantial, the Government are of the view that it did not exceed a reasonable time, especially given the volume of the investigation material and the absence of any particular period of inactivity attributable to the State authorities.

The applicant did not express himself on this point.

The Court first recalls that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court (see, for example, the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 22, § 42), such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted, or the date when preliminary investigations were opened (see the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, pp. 26-27, § 19; the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 41, § 18 and the Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 45, § 110). “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see the Deweer judgment cited above, p. 24, § 46).

In the present case, the Court observes that, in the first of the originally separate criminal proceedings, the applicant was notified of the charges against him on 20 July 1993. No arguments were advanced to show that any acts or decisions had been given beforehand such as to affect his situation negatively. Accordingly, the period relevant for the assessment of the length of the proceedings began to run on that date.

Furthermore, for the Court, the proceedings ended, at the latest, on 13 March 2001 when the Supreme Court’s decision was served on the applicant’s lawyer. The period under examination is thus some seven years and eight months for three levels of jurisdiction.

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities, which in this instance call for an overall assessment (see, among many other authorities, the Cesarini v. Italy judgment of 12 October 1992, Series A no. 245-B, p. 26, § 17).

The Court considers that the subject matter of the case before the domestic courts was undoubtedly complex, as shown, inter alia , by the seven separate investigations, four bills of indictment, the various economic offences and the numerous defendants. The joined investigation case-file comprised some 5,000 pages. Moreover, a substantial number of witnesses, including foreigners, had to be heard and two experts presented their opinions in the case. The first-instance case-file comprised some 2,000 pages and the first-instance judgment 249 pages.

Moreover, the Court finds that the applicant contributed to the protraction of the proceedings with his Supreme Court review petition, first without legal representation and then on incompatible grounds. The delay occasioned by this futile procedure amounted to at least one year and five months.

As regards the conduct of the authorities, the Court observes that the preliminary investigations in the case lasted, at the longest, some two years and seven months, from 20 July 1993 (when the applicant was notified of the charges against him in the first proceedings) until 9 February 1996 when the Kecskemét District Public Prosecutor’s Office preferred the last of the bills of indictment. For the Court, there is nothing to suggest, especially in view of the substantial volume of evidence collected during this time, that the authorities did not proceed with the requisite diligence or that there was any period of inactivity.

As to the first-instance trial, the District Court held ninety-two hearings during a one-and-a-half-year period between 27 March 1996 and 6 October 1997 which, in the Court’s view, indicates more than due diligence. While it is true that some delay occurred thereafter, until 16 March 1998, in the drafting of the detailed, reasoned judgment, the Court is satisfied that, during the appeal phase, no unreasonable delays occurred: having received the parties’ finalised appeals on 5 June 1998 and 14 January 1999, the Regional Court held a hearing on 17 February 1999 and gave its judgment on 24 February 1999.

Lastly, as regards the review proceedings, the Court notes that it took the Supreme Court some seven months, between 10 July 2000 and 12 February 2001, to reject the applicant’s petition. However, in view of the fact that this petition was devoid of the necessary legal grounds and thus bound to fail, the Court is hesitant to attribute decisive importance to this period.

In sum, the Court considers that responsibility for the protracted character of the proceedings cannot be ascribed to the Hungarian authorities. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicant also complains that his conviction was wrong.

The Court reiterates that, in so far as the applicant’s complaint may be understood as contesting the assessment of the evidence and the outcome of the proceedings before the domestic courts, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, according to Article 19 of the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the present case, the applicant’s submissions do not disclose any appearance that the applicant, assisted by the defence counsel of his choice throughout the proceedings, could not properly exercise his defence rights, that the domestic courts lacked impartiality or that the proceedings were otherwise unfair.

It follows that this part of the application is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Lastly, the applicant complains that his detention on remand was unjustified and that the civil court decision was wrong.

The Court notes that the applicant’s detention ended on 27 July 1993 and that he took cognisance of the civil court decision on 28 October 1998, whereas he only introduced his application on 24 August 1999. It follows that this part of the application has been lodged outside the six-month time-limit prescribed by Article 35 § 1 and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President