SECOND SECTION

DECISION

Application no . 35999/11 J . P . against Hungary

The European Court of Human Rights (Second Section), sitting on 3 September 2013 as a Committee composed of:

Peer Lorenzen , President, András Sajó , Nebojša Vučinić , judges , and Atilla Nalbant, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 2 June 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms J .P. , is a Hungarian national, who was born in 1978 and lives in Budapest. She was represented before the Court by Mr T. Fazekas , a lawyer practis ing in Budapest.

A previous application of the applicant (no. 19313/08) was struck out of the list of cases on 8 September 2009, because the applicant had withdrawn it.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarized as follows.

On 4 October 2007 the applicant, who was then pregnant, was sentenced to 30 days ’ confinement after her conviction in regulatory offence proceedings for having committed prostitution. The applicant then wished to terminate her pregnancy. She considered that her hopeless financial situation and the fact that, as a prostitute, she could not know the identity of the father represented a situation amounting to a serious crisis within the meaning of section 5(2) of Act no. 79 of 1992 on the Protection of Foetal Life, which entitled her to an abortion.

After the commencement of her prison term at Pálhalma Prison on 5 October, the applicant was subjected to a medical examination on 8 October 2007 and found ten weeks pregnant. She was informed that, in order to undergo abortion in a civilian institution, she needed to request the interruption of the execution of her sentence, which she did on 9 October. Her request was faxed to the Gödöllő District Court on 10 October.

On 12 October 2007 the Gödöllő District Court dismissed the applicant ’ s request to have the sentence interrupted. In the reasoning, the judge in charge stated that “ the court was not going to assist her in a lawful but deviant conduct, that of extinguishing foetal life, which ran counter to the moral sense of the public ”.

This decision reached Pálhalma Prison on 16 October 2007. On receipt of the court ’ s decision, the prison administration secured an urgent appointment with the nearest civilian hospital. The applicant was escorted there by the prison services, without an interruption of her sentence. On the same day, the applicant was examined by ultrasound and her pregnancy was found to be somewhat less than twelve weeks old. She was informed orally that an abortion was still possible, but she stated that she had changed her mind and intended to keep the pregnancy.

The nurse marked on the applicant ’ s ultrasound result that, under the law on abortion, no such intervention was possible after the twelfth week of pregnancy. (Under the relevant law, an abortion can exceptionally be done, in addition to the aforesaid rule, until the eighteenth week of pregnancy, if the regular time-limit of twelve weeks has been missed because of an omission of a health institution or an authority.)

On 17 October 2007 the prison authorities nevertheless escorted the applicant to the local Service for the Protection of Families for an interview which was required by law in case she still wanted an abortion. At the interview, the applicant again declared that she had changed her mind and that she intended to keep her pregnancy.

On 1 November 2007 the applicant served her sentence and was released.

On 16 April 2008 she gave birth.

On 6 October 2008 the applicant filed an official liability action with the Fejér County Court. She claimed that the Gödöllő District Court and the prison administration had infringed her right to self-determination, in that she had not had an abortion, as well as her personality rights, on account of the personal opinion of the judge appearing in the reasoning of the decision of 12 October 2007.

On 29 January 2010 the Regional Court partly found for the applicant. It held that the expression” deviant” was prejudicial to the applicant ’ s dignity and granted her non-pecuniary damages. The Regional Court dismissed the remainder of the action, holding that the authorities had dealt with the applicant ’ s abortion request with the requisite diligence, and although she had not had a right to have her sentence interrupted on account of the abortion, she had nevertheless had – but not availed herself of – the possibility to have the abortion in a civilian hospital and within the statutory time-limit. Therefore, her right to self-determination had not been impaired.

On appeal, on 12 October 2010 the Budapest Court of Appeal reversed this decision and rejected the entirety of the action. It reiterated that there was sufficient evidence – that is, the applicant ’ s written and oral statements as well as testimonies given by witnesses – to prove that it had been the applicant herself who had eventually changed her mind and wanted no abortion. Her right to self-determination was not thus breached. Concerning the applicant ’ s dignity, the Court of Appeal established that the expression used by the judge was inappropriate, unethical and irreconcilable with the judicial activity. However, the applicant could not provide any evidence as to any damage she had sustained because of this infringement, therefore, no award was made.

In review proceedings, on 4 May 2011 the Supreme Court upheld the second-instance judgment. While recognizing the fact that the expression “deviant” was susceptible to injuring the applicant ’ s dignity as such, the Supreme Court pointed out that the applicant could not prove any actual prejudice because of the use of the impugned language and observed that a forensic psychologist who had examined the applicant found that she had not sustained any psychological consequence thereof. Concerning the question of self-determination, the Supreme Court endorsed the opinion of the lower courts, and held that the applicant had dispensed with an abortion exclusively of her own volition – which was made clear also by her subsequent statements made in court.

In the domestic litigation, the applicant did not argue that she had not been adequately informed of the potential extension of the abortion time ‑ limit to eighteen weeks.

COMPLAINTS

The applicant complained under Article 8, read alone or in conjunction with Article 14 of the Convention, that the unacceptable attitude of the Gödöllő District Court had resulted in her being deprived of the right to self-determination in terms of abortion. Furthermore, she asserted that she had not been adequately informed of the possibility concerning an abortion until the eighteenth week of pregnancy, in certain cases. Moreover, she complained under Article 6 about the manner in which the courts had assessed the evidence before them.

THE LAW

1. As regards Article 8 taken alone, the Court observes that the domestic courts have established that it was the applicant ’ s own choice to renounce abortion. It finds no elements in the case file that would demonstrate that this conclusion was arbitrary. Concerning the issue of the statement made by the GödöllÅ‘ District Court, the Court notes that it has been recognized by the domestic courts that this expression was in principle capable of hurting the applicant ’ s dignity; however, the Court is satisfied that the use of the impugned phrase did not have any bearing on the applicant ’ s right to self ‑ determination. The Court accepts that, in the circumstances of the present case, the finding of the domestic courts to the effect that the expression used was indeed prejudicial to the applicant ’ s dignity constituted, on its own, adequate remedy for the grievance suffered. It therefore considers that the applicant ’ s right to respect for private life was not interfered with.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

2. Furthermore, as regards the question of information on the applicability of the eighteen-week time-limit, it must be noted that this issue has never been brought up before the domestic authorities, either expressly or in substance. This part of the application thus must be declared inadmissible for non-exhaustion of domestic remedies and rejected, pursuant to Article 35 §§ 1 and 4.

3. As to Article 14, read in conjunction with Article 8, the Court considers that the facts of the case do not disclose any appearance of any discrimination in breach of that provision. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

4. Lastly, in so far as the applicant ’ s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to 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 (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, there is no appearance that the courts lacked impartiality or that the proceedings were otherwise unfair.

It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Atilla Nalbant Peer Lorenzen Acting Deputy Registrar President