Communicated on 1 March 2017

FOURTH SECTION

Application no. 59648/13 Dávid VIG against Hungary lodged on 16 September 2013

STATEMENT OF FACTS

The applicant, Mr Dávid Vig , is a Hungarian national who was born in 1984 and lives in Budapest. He is represented before the Court by Mr T. Fazekas , a lawyer practising in Budapest.

The circumstances of the case

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

On 16 January 2013, the head of the National Police, applying section 26 of Decree 30/2011 (IX.22.) of the Minister of the Interior on the Police Service Regulation (“the Service Regulation”), ordered increased controls ( fokozott ellenőrzés ) on the whole of the territory of Hungary from 16 January to 31 March 2013.

During that period, between 29 and 30 March 2013, a cultural festival took place in the Sirály community centre in Budapest. On 29 March the Budapest VI. District Police Department drew up an operational plan for carrying out increased controls at the centre , apparently because it did not have the necessary operating license.

At about midnight on 30 March 2013 a number of police officers appeared at the centre and someone, apparently an employee, informed the people present that the police were to check everyone and that those who intended to leave were free to do so. Half an hour later everyone was asked to leave the premises and told that only those who underwent the police check could return.

The applicant submits that when he asked why the checks were being carried out he was told that the police were conducting a “night check”. The applicant insisted that under Act no. XXXIV of 1994 (“the Police Act”) a “night check” was not a legal basis for the police measure in question. He was then told that the police were searching for a missing person. Other participants were apparently informed that the operation was part of “increased controls”.

The applicant was asked to hand over his ID card, which he did, and then told to go outside with the police officers. The applicant states that he saw no reason to comply with the order once his identity had been checked but felt so intimated by the police officers surrounding him that he did not object. He submits that on the way out one of the officers tried to provoke him by pushing him.

The applicant ’ s outer clothing was searched, nothing incriminating was found and he was allowed to go on his way.

On 29 May 2013 the applicant lodged a complaint with the Constitutional Court under section 26 of Act no. CLI of 2011 (Constitutional Court Act) , challenging the constitutionality of sections 30(1)-(3) and 31 of the Police Act and section 26 of the Service Regulation.

On 7 June 2013 the complaint was declared inadmissible under section 30 (1) of the Constitutional Court Act, on the grounds that it was time-barred, since it had been lodged outside the statutory 180-day time-limit following the entry into force of the legislative provisions (1 May 1994 and 29 May 2013, respectively).

The applicant complained about the police measure to the Independent Police Complaints Board (“the Board”). He sought to challenge the legality of the police measures carried out in the course of the increased controls, stating that the provisions of the Police Act on increased controls, read together with the Service Regulation, gave the police an unfettered right to check and search anybody, without people concerned being able to know the reasons for the measure. Furthermore, since no specific circumstances had to be present for the measure, it was nearly impossible to challenge its legality and seek a remedy against it. Secondly, the applicant challenged certain procedural aspects of the identity check and search, namely that the police officers had failed to give him their identification numbers and the reasons for the measure, had used a tone of voice that had been injurious to his dignity, and had not informed him about his right to seek a remedy against the measures. He also maintained that the search of his clothing had had no legal basis and had served no other purpose than to intimidate him.

The Board found that the identity check and search of the applicant had been lawful and had not infringed his right to a private life and the protection of his personal data. Nonetheless, it stated that the search had had a repressive purpose and had thus violated his rights to a fair trial. Furthermore, the manner in which the measures had been carried out had violated the applicant ’ s right to dignity.

Subsequently, the applicant lodged a complaint with the Budapest Main Police Department, challenging the legality of the identity check and the search and the manner in which the measures had been carried out. He also maintained that the police officers had failed to identify themselves or the aim of the operation and had not informed him about the remedies available for such measures.

On 20 June 2014 the Police Department dismissed all of the applicant ’ s complaints, except as regards the manner in which the police had conducted the operation. The applicant sought judicial review of the decision before the Budapest Administrative and Labour Court. On 28 April 2016 the court rejected his claim. It held that it had no power to examine either the increased controls or the operational plan, and could only review the individual police measures that had been carried out. The court found that those measures had been in compliance with the relevant provisions of the Police Act.

The applicant did not submit a petition for review with the Kúria or an individual constitutional complaint under section 27 of the Constitutional Court Act with the Constitutional Court.

COMPLAINTS

The applicant complains that his being stopped and searched by the police under sections 29-30 of the Police Act in the course of the increased controls ordered pursuant to section 26 of the Service Regulation gave rise to violations of his rights under Articles 5 and 8 of the Convention . He also submits that he did not have an effective remedy to contest the infringement of his right to liberty and to a private life, contrary to Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the constitutional complaint an effective remedy within the meaning of this provision in respect of the applicant ’ s complaints under Articles 5 and 8 of the Convention?

2. Has there been a violation of the applicant ’ s rights provided in Article 5 and Article 8 of the Convention, read alone and in conjunction with Article 13?