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SECOND
SECTION
CASE OF KÁROLY HEGEDŰS v. HUNGARY
(Application
no. 11849/07)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Károly Hegedűs
v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Guido
Raimondi,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11849/07)
against the Republic of Hungary lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Hungarian national, Mr Károly Hegedűs (“the
applicant”), on 5 March 2007.
- The
applicant was represented by Mr M. Róth, a lawyer practising
in Budapest. The Hungarian Government (“the Government”)
were represented Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
3. The
applicant complained, in particular, about the duration of the
criminal proceedings conducted against him and about the prohibition
on the alienation of his property.
- On
5 January 2011 the President of
the Second Section decided to give notice of the application
to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in
Budapest.
- On
27 May 1992 the applicant was interrogated on suspicion of fraud by
the Budapest Police Department. On 30 June 1992 the Ministry of the
Interior’s Passport Office withdrew his passport until the
termination of the criminal proceedings, pursuant to sections 2 and
13 of Act no. XXVIII of 1989 on Travelling Abroad. On 17 December
1992 the Budapest Police Department prohibited the alienation of a
car and a house, registered as property of the applicant. The aim of
this measure was to secure the eventual recovery of the gain from the
applicant’s alleged crime.
- The
Government submitted that the applicant had not filed a complaint
against the prohibition or filed a motion with the trial court to
have the measure discontinued. However, it can be verified from the
case file that he did so on 9 January 1993 and again on 3 March 1993.
- On
19 July 1994 the Budapest Chief Prosecutor’s Office preferred a
bill of indictment against the applicant, charging him with fraud and
forgery of private documents.
- After
several hearings, on 9 January 2002 the Pest Central District Court
acquitted the applicant. On appeal, on 12 November 2002 the Budapest
Regional Court quashed the District Court’s judgment and
remitted the case.
- In
the resumed proceedings, on 7 September 2005 the Pest Central
District Court again acquitted the applicant. The prosecution
appealed.
- On
1 July 2006 the travel ban imposed on the applicant was lifted due to
a change in the law.
- On
29 September 2006 the Budapest Regional Court upheld the District
Court’s judgment acquitting the applicant, and ordered that the
measure to freeze his assets be discontinued. This decision was
served on the applicant on 22 November 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement of
Article 6 § 1 of the Convention. The Government did not contest
that argument.
- The
proceedings began on 27 May 1992. However, the period to be taken
into consideration began only on 5 November 1992, when the
recognition by Hungary of the right of individual petition took
effect. Nevertheless, in assessing the reasonableness of the time
that elapsed after that date, account must be taken of the state of
proceedings at the time. The Court observes that the case had already
been pending on that date for over five months.
- The
proceedings ended on 22 November 2006. They thus lasted over
fourteen years for two levels of jurisdiction. In view of such
lengthy proceedings – and in the absence of any other reason
for inadmissibility – the application must be declared
admissible.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Pélissier and Sassi v. France [GC],
no. 25444/94, § 67, ECHR 1999-II). Having examined all the
material submitted to it, the Court considers that the Government
have not put forward any fact or convincing argument capable of
persuading it to reach a different conclusion in the present
circumstances. Having regard to its case-law on the subject, the
Court considers that the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement. There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF
THE CONVENTION
- The
applicant also complained about the protracted
prohibition on the alienation of his assets. The Court considers that
this complaint falls to be examined under Article 1 of Protocol No. 1
to the Convention, which provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government submitted that this complaint should be rejected for
non-exhaustion of domestic remedies since the applicant had failed to
file a complaint against it. The applicant contested this view.
- The
Court observes that the applicant formally complained about the
impugned measure on two occasions, on 9 January and 3 March 1993 (see
paragraph 7 above). It follows that the Government’s objection
cannot be sustained. The Court further notes that this complaint is
not manifestly ill founded within the meaning of Article 35 §
3 (a) of the Convention. It also notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
- The
applicant argued that the protracted attachment of his assets was an
unacceptable infringement of his property rights. The Government did
not submit any arguments on the merits of this complaint.
- The
Court considers that the measure undoubtedly constituted an
interference with the applicant’s right to the peaceful
enjoyment of his possessions. It remains to be ascertained whether
this interference was justified.
- Under
the Court’s case-law, Article 1 of Protocol No. 1, which
guarantees in substance the right of property, comprises three
distinct rules. The first, which is expressed in the first sentence
of the first paragraph and is of a general nature, lays down the
principle of peaceful enjoyment of property. The second rule, in the
second sentence of the same paragraph, covers deprivation of
possessions and makes it subject to certain conditions. The third,
contained in the second paragraph, recognises that the Contracting
States are entitled, among other things, to control the use of
property in accordance with the general interest. The second and
third rules, which are concerned with particular instances of
interference with the right to peaceful enjoyment of property, must
be construed in the light of the general principle laid down in the
first rule (Immobiliare Saffi v. Italy [GC], no. 22774/93, §§
44-46, ECHR 1999 V).
- The
Court observes that the applicant’s car and house were attached
for almost fourteen years. However, there was neither a de facto
expropriation nor a transfer of property. The applicant’s
regained the right of disposal over these assets when he was finally
acquitted (see paragraph 12 above). The measure thus amounted to
control of the use of property; and accordingly, the second paragraph
of Article 1 is applicable (cf. Tendam v. Spain, no. 25720/05,
§ 47, 13 July 2010).
- The
purpose of the measure was to secure the eventual recovery of the
gain from the crime allegedly committed by the applicant (see
paragraph 6 above). The Court is satisfied that it pursued a
legitimate aim in the general interest, as required by the second
paragraph of Article 1.
- The
Court reiterates that an interference, particularly one falling to be
considered under the second paragraph of Article 1 of Protocol No. 1,
must strike a “fair balance” between the demands of the
general interest and the requirements of the protection of the
individual’s fundamental rights. The concern to achieve this
balance is reflected in the structure of Article 1 as a whole, and
therefore also in its second paragraph. There must be a reasonable
relationship of proportionality between the means employed and the
aim pursued. In determining whether this requirement is met, the
Court recognises that the State enjoys a wide margin of appreciation
with regard both to choosing the means of enforcement and to
ascertaining whether the consequences of enforcement are justified in
the general interest for the purpose of achieving the object of the
law in question. In spheres such as housing, which plays a central
role in the welfare and economic policies of modern societies, the
Court will respect the legislature’s judgment as to what is in
the general interest unless that judgment is manifestly without
reasonable foundation (see Immobiliare Saffi v. Italy [GC],
op.cit., § 49).
- In
determining whether in the instant case the authorities struck a fair
balance between the demands of the general interest and the
protection of the applicant’s fundamental rights, the Court
accepts that the measure complained of falls within the State’s
wide margin of appreciation in securing the recovery of damages
caused by crime. However, it notes that this measure was in place for
some fourteen years, parallel to a trial whose length amounted to a
violation of Article 6 § 1 of the Convention (see paragraph 16
above) and which resulted in the acquittal of the applicant.
Moreover, there appears to be no domestic mechanism available to
compensate the applicant for the protracted immobilisation of his
assets and the eventual losses he may have suffered on that account.
In these circumstances, the Court cannot but conclude that the
prohibition at issue imposed an excessive burden on the applicant and
accordingly upset the balance that must be struck between the
protection of the right of property and the requirements of the
general interest. Consequently, there has been a violation of Article
1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained, without relying on any
particular provision of the Convention, that the protracted
withdrawal of his passport had amounted to a violation of his freedom
of movement.
- The
Court observes that the travel ban imposed on the applicant was
terminated at the latest on 1 July 2006 with the annulment of the
relevant legislative provisions (see paragraph 11 above). However,
the application was introduced only on 5 March 2007, i.e. outside the
six-month time-limit laid down in Article 35 § 1 of the
Convention. It follows that this part of the application must be
rejected, pursuant to Article 35 §§ 1 and 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage and awards him, on the basis of equity, EUR
19,000.
B. Costs and expenses
- The
applicant also claimed EUR 2,300 for the costs
and expenses incurred before the Court. This amount should correspond
to 20 hours of legal work billable by his lawyer at an hourly rate of
EUR 100, as per the time-sheet submitted, as well as EUR 300 incurred
in clerical costs.
- The
Government contested this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the full
sum claimed.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints
concerning the length of the proceedings and the prohibition on the
alienation of the applicant’s assets admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into
Hungarian forints at the rate applicable at the date of settlement:
(i) EUR
19,000 (nineteen thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
2,300 (two thousand three hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
