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SECOND
SECTION
CASE OF AUPEK v. HUNGARY
(Application
no. 15482/05)
JUDGMENT
STRASBOURG
8
January 2009
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 Aupek v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and,
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 2 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 15482/05) 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 Gábor
Aupek (“the applicant”), on 20 April 2005.
- The
applicant was represented by Mr I. Tóth, a lawyer practising
in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice.
- On
29 April 2008 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Ercsi.
- On
19 August 1998 the applicant, a truck driver, was involved in a
multiple road accident. Subsequently he was interrogated as a suspect
for having negligently caused the death of six people and the serious
injury of five others, three of whom became permanently disabled.
- After
several hearings at which numerous witnesses testified and the
opinions of several experts were obtained, on 9 April 2002 the
Miskolc District Court acquitted the applicant.
- On
6 November 2002 the Borsod-Abaúj-Zemplén County
Regional Court quashed this judgment as unfounded.
- In
the resumed proceedings, the District Court held four hearings. On
6 May 2004 it found the applicant guilty as charged. It held
that, apart from the responsibility of another driver who had died in
the multiple collisions, the accident had essentially been caused by
the applicant's failure to maintain the brakes of his truck and his
grossly negligent driving. The applicant's offence was punishable
with two to eight years' imprisonment. The District Court took
account of the protraction of the proceedings as an important
mitigating factor and sentenced him to three and a half years'
imprisonment and a four-year prohibition on driving.
- On
appeal, on 13 October 2004 the Regional Court upheld the applicant's
conviction but reduced his sentence to two and a half years'
imprisonment and a three-year prohibition on driving.
- As
a consequence of a successful intervening constitutional complaint
concerning a procedural rule applied in the applicant's case, on
4 July 2005 the Attorney General's Office introduced a motion
for a review by the Supreme Court.
- On
3 October 2005 the Supreme Court's review bench quashed the Regional
Court's judgment and remitted the case to it.
- In
the resumed second-instance proceedings, a motion for bias lodged by
the applicant was dismissed the Debrecen Court of Appeal. The
hearings scheduled for 28 June and 20 September 2006 had to be
postponed for non-attendance by the applicant's representative. After
another hearing on 8 November, on 27 November 2006 the Regional Court
acquitted the applicant.
- On
21 June 2007 the Court of Appeal upheld this judgment. This decision
was served on 19 September 2007.
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, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 19 August 1998 and
ended on 19 September 2007. It thus lasted nine years and one month
for three levels of jurisdiction.
A. Admissibility
- In
respect of the period prior to 13 October 2004, the Government
submitted that the applicant could not claim to be a victim of a
violation of his right to a hearing within reasonable time, because
his sentence had been substantially mitigated on account of the
protraction of the proceedings. In their view, this part of the
application is therefore incompatible ratione personae with
the provisions of the Convention. The applicant contested this
argument.
- The
Court considers the mitigation in question to be immaterial,
particularly in the light of the applicant's eventual acquittal. It
follows that the Government's objection cannot be sustained. The
Court moreover finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
and the conduct of the applicant and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- 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, cited above).
- 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 finds that – although the applicant himself caused a
delay of approximately four months in the resumed second-instance
proceedings (see paragraph 12 above) – 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. 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 3,200 under that head, having regard also to his own
contribution to the protraction of the proceedings.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 plus VAT at 20% (a total of EUR
1,800) for the costs and expenses incurred before the Court. This
corresponds to 15 hours' of legal work charged by his representative
at an hourly rate of EUR 100 plus VAT.
- The
Government did not express an opinion on the matter.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that the sum claimed should be awarded in full.
C. Default interest
- The
Court considers it appropriate that the default interest 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of 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:
(i)
EUR 3,200 (three thousand two hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage,
(ii)
EUR 1,800 (one thousand eight hundred euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses,
to
be converted into Hungarian forints at the rate applicable at the
date of settlement;
(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 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
