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SECOND
SECTION
CASE OF TURÁN v. HUNGARY
(Application
no. 33068/05)
JUDGMENT
STRASBOURG
6 July
2010
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 Turán v.
Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and Stanley Naismith,
Deputy Section
Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33068/05) 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, Ms Tünde Turán
(“the applicant”), on 8 September 2005.
- The
applicant was represented by Mr B. Boldizsár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Public Administration.
- The
applicant alleged that the search of her law office by the police was
unlawful and in breach of her right to respect for “home”
within the meaning of Article 8 of the Convention.
- On
11 March 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Budapest.
- The
applicant is a lawyer. In September 2004 the Buda Surroundings
District Court ordered the search of her office, in application of
section 149 subsections (4) and (5) of the Code on Criminal
Procedure, and the seizure of documents concerning one of her
clients, A.F., who had been suspected of having been engaged in
illegal financial activities.
- On
20 October 2004 the police searched the applicant's office. The
search lasted from 9.45 a.m. until 12.55 p.m. in the presence of a
public prosecutor. The applicant herself did not arrive on the
premises before 10.25 a.m.
- The
Government claimed that until the applicant's arrival, another
lawyer, Dr M., whose practice was in the neighbouring but entirely
separate office, had been present. The applicant contended that Dr M.
had not been present inside her office under search, nor had she
represented her. According to the documents submitted, Dr M. was not
formally appointed to defend the applicant's interests, nor did she
sign the minutes of the search in such a capacity. Moreover, the
parties' submissions diverged as to whether the police seized all the
documents stored in the office or only those relating to A.F.
- Subsequently,
the applicant complained about the allegedly unlawful search and the
indiscriminate seizure of all documents found.
- On
5 November 2004 the Public Prosecutor's Office dismissed the
applicant's complaint concerning the alleged unlawfulness of the
search. The applicant appealed.
- On
25 November 2004 the District Court ordered the restoration of part
of the documents, which were unrelated to the case of the suspect.
- On
19 May 2005 the Pest County Public Prosecutor's Office reversed the
decision of 5 November 2004 and established that the search had been
unlawful in that neither the applicant nor a representative had been
present. It observed that Dr M. could not be considered a person
appointed to represent the applicant's interests; she had not been
appointed to this end by the authority in charge. The Office was
however of the view that the lawfulness had been restored by virtue
of the District Court's decision of 25 November 2004.
II. RELEVANT DOMESTIC LAW
- Under
section 149 subsections (4) and (5) of the Code on Criminal
Procedure, a house search (házkutatás) shall
normally be carried out in the presence of the person concerned. In
the absence of the latter or his/her representative, such a person
shall be appointed to that end as can be assumed with sufficient
certainty to represent appropriately the interests of the person
concerned.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the search of her office was unlawful and
unjustified, in breach of Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect
for his ... home...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application 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
Government argued that the applicant's absence during the measure
complained of was limited to 40 minutes. In any event, this
irregularity was imputable to the applicant who had been warned of
the upcoming search and had promised that she would arrive earlier on
the premises. In the Government's view, the scope of the search and
confiscation of documents was determined by the need to clarify as
profoundly as possible the background of the crime under
investigation. The officials had confiscated only those documents
which could reasonably be deemed relevant to the ongoing criminal
proceedings. In all, the Government submitted that the interference
with the applicant's privacy rights was not disproportionate.
- The
applicant submitted that Dr M. had not been representing her during
her absence, nor had she been appointed by the police to protect her
interests, therefore the measure as such had been unlawful. Moreover,
the confiscation of documents had been indiscriminate and not limited
to those relating to the case against A.F. In any event, on 19 May
2005 the Pest County Public Prosecutor's Office had established that
the search had been conducted in a manner in breach of the law.
- The
Court observes that it has not been in dispute between the parties
that the search of the applicant's law office had constituted an
interference with her right to respect for her “home” for
the purposes of Article 8 of the Convention. Indeed, the Court has no
reason to hold otherwise (cf. Niemietz v. Germany, 16 December
1992, Series A no. 251 B, §§ 27 to 38;
Rotaru v. Romania [GC], no. 28341/95, §§ 42 to 44, ECHR
2000 V).
- The
Court reiterates that an interference with the applicant's rights
under Article 8 § 1 will infringe the Convention if it does not
meet the requirements of paragraph 2 of Article 8. It should
therefore be determined whether it was “in accordance with the
law”, whether it pursued one or more of the legitimate aims set
out in that paragraph and whether it was “necessary in a
democratic society” in order to achieve those aims.
- The
Court observes that under section 149 subsections (4) and (5) of the
Hungarian Code on Criminal Procedure, a house search must normally be
carried out in the presence of the person concerned; in the absence
of the latter or a representative, such a person must be appointed to
that end as can be assumed with sufficient certainty to represent
appropriately the interests of the person concerned. It notes that in
the particular case neither the applicant nor a person representing
her interests was present during the first, crucial phase of the
search. Moreover, even assuming that Dr M. was present, the
Government has not submitted any evidence that she was a person
appointed to defend the applicant's interests. In these
circumstances, the Court cannot but conclude that the measure was
carried out in a manner at variance with Hungarian law. The same
conclusion has been reached by the Pest County Public Prosecutor's
Office. The Court is therefore satisfied that the measure was not in
accordance with the law.
There
has accordingly been a violation of Article 8 of the Convention.
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 15 million Hungarian forints
(HUF) in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court awards the applicant, on the basis of equity, EUR 3,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed HUF 3.6 million
for the costs and expenses incurred before the Court, the amount
being billable by her lawyer as per the retainer submitted.
- 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 were
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 sum of EUR 1,500 for the
proceedings before the Court.
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 application admissible;
- Holds that there has been a violation of Article
8 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, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five 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 6 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Deputy
Registrar President
