Resolution CM/ ResDH (2011)297 [1]

Execution of the judgment s of the European Court of Human Rights

Kmetty and Barta against Hungary

(Application No. 57967/00 , judgment of 16/12/2003, final on 16/03/2004

Application No. 26137/04, judgment of 10/04/2007, final on 10/07/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation s of the Convention found by the Court in these cases concern the failure to carry out effective investigation s into the applicants’ allegations of ill- treatment by the police (violations of Article 3) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant s the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)297

Information on the measures taken to comply with the judgments in the cases of Kmetty and Barta against Hungary

Introductory case summaries

These cases concern the lack of effective investigation s into the applicants ’ allegations of ill-treatment by the police in 1998 and 2002 (violations of Article 3).

In the case of Kmetty , the Court emphasised that, although an investigation had been carried out into the applicant ’ s allegations of ill-treatment, it suffered from a number of shortcomings. In particular, the investigating authorities limited their scrutiny of the medical evidence to obtaining an ex-post-facto opinion, which did not address the issue of whether or not the applicant had his injuries on arrival at the police station. Moreover, although the applicant claimed to have identified two of the police officers concerned, no confrontation between the applicant and all the suspects was organised in order to clarify the chronology of the events. Nor did it appear that the suspected police officers were questioned during the investigation, which deprived the applicant of any opportunity to challenge the alleged perpetrators ’ version of the events.

In the case of Barta , the Court noted that the following factors showed a reluctance to carry out an effective and thorough investigation: despite repeated requests by the applicant, the medical expert only reported on the injuries suffered by the police officer, not those of the applicant; the applicant ’ s complaint against the police officer was forwarded to the prosecutor under the same reference number as that concerning the charge against her of violence against an official arising out of the same incident; the police officer was never heard as a possible suspect; and the investigation authorities made no attempt to locate a potential witness. The Court also noted that the applicant ’ s appeal s against the decision of the Public Prosecutor ’ s Office to close the investigation and her private bill of indictment were dismissed without any factual reasons being given, without an evaluation of her medical expert ’ s opinion (which was commissioned by the applicant and which indicated that her version of the events was plausible, unlike that of the police officer) or reflections on any of her arguments. The Court noted that the private bill of indictment was the only avenue for the applicant to bring criminal charges following the dismissal by the Prosecutor General ’ s Office of her complaint against the decision to close the investigation, and that no appeal lies against a court decision dismissing a private bill of indictment (sections 229 and 233 of Act N o. 19 of 1998 on the (New) Criminal Procedure Code (in force since 01/07/2003)).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Kmetty

58967/00

-

4 700 EUR

1 300 EUR

6 000 EUR

Paid on 26/04/2004

Barta

26137/04

-

3 000 EUR

3 500 EUR

6 500 EUR

Paid on 18/09/2007

b) Individual measures

It is to be noted that in these cases, the Court did not conclude beyond reasonable doubt that the applicants had been subjected to treatment contrary to Article 3 of the Convention. Given the time elapsed since the events described in the judgments, it is highly doubtful that a fresh investigation would be capable of remedying the shortcomings identified by the Court, in particular those related to the assessment of medical evidence. Moreover, the Hungarian authorities noted that the reopening of criminal investigation s against the police officers accused of ill-treating the applicants should be ruled out today because of the expiry of the statute of limitations. In these circumstances, no individual measures apart from the payment of just satisfaction appear possible.

II. General measures

(a) Circular letter

The Prosecutor General ’ s Office sent a copy of the Kmetty judgment to all prosecutors with a circular letter drawing their attention to their obligation to carry out effective and thorough investigations into allegations of ill-treatment by police officers. The circular refers to a collection of judgments of the Court which was already sent to the prosecutors in 2005. It specifies that criminal investigations initiated following allegations of ill-treatment can only be discontinued if there remains no doubt that the alleged crime had not been committed. In addition, it indicates that where an investigation is abandoned without this condition being met, interested parties may request referral to a court which will decide on the questions of criminal responsibility.

(b) Legislative measures

The new Criminal Procedure Code entered into force on 01/07/2003. According to its Article 199, victims may refer their cases to a court whenever a prosecutor refuses to arraign the alleged perpetrator of a crime under investigation.

Furthermore, according to Article 169 (3) of the new Criminal Procedure Code, factual reasons must be cited in any decision on appeal against a prosecutorial decision to close an investigation. Similarly, in accordance with Article 257 of the same law, any court decision dismissing a private bill of indictment must include factual reasons. Such statement of reasons shall also include the facts and the pleadings advanced by the parties.

The rules concerning the dismissal of private bills of indictment were amended by Act No. LI of 2006. In particular, private bills of indictment may be dismissed only for formal reasons, while in all other cases they shall be admitted by the court. Therefore, the dismissal of a private bill of indictment is not possible on the ground of absence of factual or legal basis.

(c) Publication and dissemination

The Court ’ s judgments were published on the website of the Ministry of Justice and Law Enforcement ( www.irm.g o v.hu ) . T he Kmetty judgment was also published in the human rights quarterly Acta Humana , No. 1/2004.

These judgments were transmitted to the Attorney General ’ s Office . T he Kmetty judgment was also transmitted to the Office of the National Council of the Judiciary responsible for the training of judges and the relevant department of the ministry supervising the police force.

III. Conclusions of the respondent state

The government considers that no individual me asures are required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Hungary has thus complied with its obligations under Article 46, paragraph 1, of the Convention in the present cases.

[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.