FOURTH SECTION

DECISION

Application no. 1388/13 Z.E . against Hungary

The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:

Branko Lubarda , President, Carlo Ranzoni , Péter Paczolay , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 20 December 2012,

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

1. The applicant, Ms Z. E., is a Hung arian national, who was born in 1985 and lives in Budapest. The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr P. Tuza , a lawyer practising in Budapest.

2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.

The circumstances of the case

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

4. On 4 May 2007 the applicant lodged a criminal complaint with the Budapest XIII District Police Department against unknown perpetrators. In essence, she accused five police officers, involved in an incident with her, with rape and other offences.

5. On 7 December 2007 the investigation division of the Budapest Public Prosecutor ’ s Office discontinued the investigation against the officers, for want of sufficient evidence.

6. The applicant ’ s lawyer filed a complaint.

7 . The complaint was dismissed by the Budapest Chief Public Prosecutor ’ s Office, acting as a second-instance authority, on 16 January 2008.

8. The applicant, acting as a substitute private prosecutor, subsequently filed an indictment against the officers involved in the incident alleging sexual assault, deprivation of liberty and bribery.

9. On 8 March 2010 the Budapest Regional Court acquitted all five accused of all charges, for the lack of evidence. On appeal, on 20 June 2012 the Budapest Court of Appeal discontinued the criminal proceedings in respect of bribery, since the applicant had no legal standing to pursue private prosecution concerning this criminal offence. It upheld the first-instance acquittal as regards the remainder.

COMPLAINTS

10. The applicant complained under Articles 3, 6, 8 and 13 of the Convention that the authorities had not investigated the events of 4 May 2007 effectively. In her view, this state of affairs amounted to a violation of the State ’ s positive obligations to protect the individual ’ s physical integrity and private life and to provide a fair trial and effective remedies in this respect.

THE LAW

11. The applicant complained about the inefficiency of the investigations into her allegations of sexual abuse. The Court, who is master of the characterisation to be given in law to the facts of the case ( Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that this complaint may raise an issue under Articles 3 and/or 8 of the Convention.

12. Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

13. Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

14. The Government submitted that the application had been submitted outside the six-month time-limit laid down in Article 35 § 1 of the Convention, to be counted from the final decision of 16 January 2008 (see paragraph 7 above) which had marked the end of the effective remedies. The applicant disagreed, arguing that the substitute private prosecution had been an effective remedy in the circumstances.

15. The Court has already held in a number of cases that applicants were not required, as a matter of exhaustion of domestic remedies, to pursue substitute private prosecution, essentially because to do so would represent the pursuit of a legal avenue which would have the same objective as their criminal complaints (see R.S. v. Hungary , no. 65290/14, § 38, 2 July 2019; M.F. v. Hungary , no. 45855/12 , § 34, 31 October 2017; R.B. v. Hungary , no. 64602/12, §§ 60-65, 12 April 2016; Borbála Kiss v. Hungary , no. 59214/11, §§ 25-27, 26 June 2012; see also Matko v. Slovenia , no. 43393/98, § 95, 2 November 2006). Consequently, since the substitute public prosecution cannot be considered an effective remedy whose exhaustion is required by Article 35 § 1 of the Convention, it does not influence the running of the six-month time-limit for the purposes of the same provision (see R.S. v. Hungary , cited above, § 36, and Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016) .

16. It follows that the final domestic decision was that of the Budapest Chief Public Prosecutor ’ s Office of 16 January 2008 (see paragraph 7 above). It follows that the application, which was introduced on 20 December 2012, must be declared inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 October 2019 .

Andrea Tamietti Branko Lubarda Deputy Registrar President