FOURTH SECTION

DECISION

Application no. 51716/15 József PARAIZS 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 13 October 2015,

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, Mr József Paraizs , is a Hungarian national, who was born in 1943 and lives in Budapest. He was represented before the Court by Ms I. Generál , a lawyer practising in Budapest.

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

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

4. The applicant was the attorney of a person charged in criminal proceedings. On 1 March 2011 the Military Bench of the Budapest Regional Court ordered the search of the premises of his law firm. In the course of this, as required by law, a public prosecutor was present; and the authority seized some documents and the hard drive of the applicant ’ s computer.

5. He then brought a civil action claiming that the search had damaged his reputation and breached the lawyer-client privilege.

6. On 3 December 2013 the Budapest Surroundings High Court rejected his claim stating that the search had been ordered and executed in compliance with the law. On appeal, on 5 February 2015 the Budapest Court of Appeal upheld the decision.

7. In review proceedings, on 1 July 2015 the Kúria held that the interference with the applicant ’ s rights was reasonable and justified. It observed: (a) that the procedural guarantees in section 149(6) of the Code of Criminal Procedure were respected; (b) that the seizure of the hard drive was ordered by a court and carried out in the statutory presence of a prosecutor; (c) that the hard drive had been removed by a sworn-in IT expert and kept at the premises of the Public Prosecutor ’ s Office only for a day, the time strictly necessary to retrieve the documents indicated by the court order; (d) that the Public Prosecutor was obliged by law to respect the privacy of data and there was no indication or allegation that anybody else could have had undue access to the data; and (e) that the hard drive was then restored in the applicant ’ s computer the next day.

8 . The Fundamental Law of Hungary provides:

Article VI

“(1) Everyone shall have the right to respect for his or her private and family life, home, communications and reputation. Exercising the freedom of expression and the freedom of assembly shall not result in violating the private and family life, and the home of others.

(2) The State provides legal protection for the sanctity of the home.

(3) Everyone shall have the right to the protection of his or her personal data, as well as to have access to and disseminate information of public interest.

(4) An independent authority created by means of a cardinal law shall supervise the protection of personal data and the granting of the right of access to data of public interest.”

COMPLAINTS

9. The applicant complained that the search and seizure had infringed his right to respect for reputation and professional secrecy. He relied on Articles 6, 8, 17 and 18 of the Convention.

THE LAW

10. The applicant complained about the allegedly unjustified measures taken by the authorities in regard to his law office. 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 should be examined only under Article 8 of the Convention, which 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.”

11. The Government submitted that the applicant should have brought a constitutional complaint. The applicant disagreed.

12. The Court has already held that a constitutional complaint under section 26(1) and/or section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted for the purposes of Article 35 § 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary (see Szalontay v. Hungary ( dec. ), no. 71327/13, §§ 29-41, 12 March 2019).

13. The present case concerns the applicant ’ s allegation that the coercive measures complained of amounted to a breach of his right to respect for his private life, his home and his correspondence. These rights are enshrined in Article 8 the Convention and Article VI of the Fundamental Law (see paragraph 8 above).

14. It follows that the constitutional complaint was an effective remedy to exhaust in the circumstances.

15. Since the applicant did not avail himself of this legal avenue, the application must be rejected for non ‑ exhaustion of domestic remedies, according 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