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SECOND
SECTION
CASE OF SOMOGYI v. HUNGARY
(Application
no. 5770/05)
JUDGMENT
STRASBOURG
11
January 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 Somogyi v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria,
Kristina Pardalos,
Guido Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5770/05) 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 Tamás Pál
Somogyi (“the applicant”), on 11 January 2005.
- The
applicant was represented by Mr G. Havas, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
- The
applicant alleged that the execution of his Italian prison sentence
by the Hungarian authorities had been unlawful and that he had not
been compensated for this; moreover, he complained about the alleged
unfairness and length of other criminal proceedings conducted against
him in Hungary.
- On
3 March 2009 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 1951 and lives in Tököl.
A. The execution of the applicant's Italian prison
sentence in Hungary
- In
1999 the applicant was sentenced to eight years' imprisonment for
armed robbery by the Rimini Court in Italy. (The European Court of
Human Rights subsequently held that the unfairness of the underlying
proceedings gave rise to a violation of Article 6 § 1 of the
Convention by the Italian authorities and awarded the applicant just
satisfaction: Somogyi v. Italy, no. 67972/01, ECHR
2004 IV). The end date of this sentence was 28 December
2007.
- On
19 May 2003 the applicant was transferred to Hungary. On 20 October
2003 the Budapest Regional Court in Hungary held that he was to serve
the remainder of his sentence under a strict regime in a Hungarian
prison (fegyház) and that he could be released on
parole after serving four-fifths of the term, i.e. on 23 May 2006.
- The
applicant appealed. On 16 February 2006 the Attorney General's Office
intervened in the case, filing a motion for remedy in support of the
applicant. The Office argued that the service of the applicant's
sentence under a strict regime constituted an undue aggravation of
his penal situation, in breach of Article 11 of the Transfer
Convention, which entailed that he could be released on probation
only belatedly.
- On
14 March 2006 the Supreme Court quashed the Regional Court's
decisions concerning the regime of the applicant's transferred
sentence and his conditional release, holding that they were
unlawful. It held that the best approximation of the Italian sentence
in Hungarian law was to have imposed a medium regime (börtön)
on the applicant for the remainder of his prison term, release on
parole then being possible after having served three-quarters of the
sentence.
- On
17 March 2006 the applicant was released.
- Subsequently,
the applicant brought an official liability action against the
Regional Court. He claimed compensation for the fact that, because of
that court's wrong reconciliation of the Italian and Hungarian
penitentiary rules, he had been released on parole only on 17 March
2006, whereas under the medium regime he could have already been
released in November 2005. He also sought damages for having
erroneously spent two years and five months in a strict-regime
prison.
- After
divergent decisions, on 15 May 2008 the Supreme Court finally
dismissed the action. Concerning the belated release, it held that,
although the Regional Court's interpretation of the law had been
overruled, there was no indication that it had carried out the
complex task of reconciling the inconsistent Italian and Hungarian
rules with gross negligence giving rise to tort liability. As to the
period wrongly spent in a strict-regime prison, it noted that the
applicant had not substantiated that he had sustained any actual
damage.
B. Criminal proceedings against the applicant in
Hungary
- From
1994 onwards, criminal proceedings were conducted against the
applicant in Hungary for the abuse of firearms. On 6 February 2004
the Buda Central District Court sentenced him to four months'
suspended imprisonment. The court observed that unlicensed firearms
had been found in the applicant's car and, in so doing, it relied on
the testimony of several witnesses. It took into account the extreme
protraction of the case since 1994 as a crucial mitigating
circumstance entailing a suspended sentence.
- On
12 May 2005 the Budapest Regional Court upheld this judgment. On 15
November 2005 the Supreme Court dismissed the applicant's petition
for review.
II. RELEVANT INTERNATIONAL LAW
- The
Convention on the Transfer of Sentenced Persons (European Treaty
Series no. 112) provides as follows:
Article 9(3)
“The enforcement of the sentence shall be governed
by the law of the administering State and that State alone shall be
competent to take all appropriate decisions. ...”
Article 10
“1. In the case of continued enforcement, the
administering State shall be bound by the legal nature and duration
of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or
duration incompatible with the law of the administering State, or its
law so requires, that State may, by a court or administrative order,
adapt the sanction to the punishment or measure prescribed by its own
law for a similar offence. As to its nature, the punishment or
measure shall, as far as possible, correspond with that imposed by
the sentence to be enforced. It shall not aggravate, by its nature or
duration, the sanction imposed in the sentencing State, nor exceed
the maximum prescribed by the law of the administering State.”
Article 11(1)
“In the case of conversion of sentence, the
procedures provided for by the law of the administering State apply.
When converting the sentence, the competent authority: ...
d. shall not aggravate the penal position of the
sentenced person, and shall not be bound by any minimum which the law
of the administering State may provide for the offence or offences
committed.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (a) OF THE
CONVENTION
- Without
relying on any particular provision of the Convention, the applicant
complained that, because of a mistake made by the Hungarian courts,
he had unduly spent two years and five months in a strict-regime
prison and had been released four months later than could have been
expected.
- The
Government contested these views.
- The
Court considers that this complaint falls to be examined under
Article 5 § 1 (a) of the Convention which provides as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...”
A. Admissibility
- The
Court notes 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
Government submitted that the domestic courts had applied the
Transfer Convention and availed themselves of the margin of
appreciation inherent in that convention; they had not aggravated the
applicant's criminal situation either in respect of the prison regime
applied or his conditional release. Therefore, the imprisonment
actually served had not been disproportionate to the original
sentence imposed or exceeded it.
- The
applicant contested these views in general terms.
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. While it is
normally in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, it is otherwise in
relation to cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention.
In such cases the Court can and should exercise a certain power to
review whether national law has been observed (Baranowski v.
Poland, no. 28358/95, § 50, ECHR 2000-III). Moreover, any
deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must
equally be in keeping with the very purpose of Article 5, namely
to protect the individual from arbitrariness (see, among many other
authorities, Chahal v. the United Kingdom, 15 November
1996, § 118, Reports of Judgments and Decisions 1996-V).
- In
the present case, the Court observes that on 14 March 2006 the
Supreme Court quashed the Budapest Regional Court's ruling on the
regime of the applicant's transferred sentence and his conditional
release, establishing that it had been unlawful (see paragraph 9
above). Although the applicant was released soon afterwards in
application of the medium regime ordered by the Supreme Court (see
paragraph 10 above), the Court notes that the national law was thus
not complied with in respect of the preceding period of his
detention. It follows that the applicant's deprivation of liberty, in
its part up to 14 March 2006, was not “in accordance with a
procedure prescribed by law”. There has accordingly been a
violation of Article 5 § 1 (a) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- The
applicant also complained that he was not compensated for his
unlawful detention. The Court considers that this complaint falls to
be examined under Article 5 § 5 of the Convention, which reads
as follows:
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
- The
Government submitted that since the applicant's detention constituted
no breach of Article 5 § 1, he had no valid claim for the
purposes of Article 5 § 5 of the Convention. The applicant
contested this view.
A. Admissibility
- The
Court notes 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 recalls that Article 5 § 5 is complied with where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4
(see Wassink v. the Netherlands, 27 September 1990, § 38,
Series A no. 185-A). The right to compensation under paragraph 5
therefore presupposes that a violation of one of the other paragraphs
has been established, either by a domestic authority or by the
Convention institutions.
- In
the present case, the Court has found that the applicant's detention
constituted a breach of Article 5 § 1 of the Convention (see
paragraph 23 above). However, his related official liability action
was unsuccessful. The Court notes in particular that the Supreme
Court held that the Regional Court's wrong application of the law to
the detriment of the applicant did not give rise to tort liability,
essentially for want of gravity (see paragraph 12 above). For the
Court, however, the wrong interpretation of the law which resulted in
the applicant's unlawful detention represents the core of the issue
at hand, and the Supreme Court's ruling to require “gross
negligence” on the part of the erring court effectively
frustrated the applicant's right to compensation for the purposes of
Article 5 § 5 of the Convention. It follows that there has been
a violation of that provision.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained, without relying on any particular
provision of the Convention, that the Hungarian criminal proceedings
conducted against him (see paragraphs 13-14 above) had led to a wrong
outcome and lasted an unreasonably long time.
-
In so far as the applicant's complaint may be understood to concern
the assessment of the evidence and the result of the proceedings
before the domestic courts, the Court reiterates that, according to
Article 19 of the Convention, its duty is to ensure the observance of
the engagements undertaken by the Contracting Parties to the
Convention. In particular, it is not its function to deal with errors
of fact or law allegedly committed by a national court unless and in
so far as they may have infringed rights and freedoms protected by
the Convention. Moreover, while Article 6 of the Convention
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence or the way it should be
assessed, which are therefore primarily matters for regulation by
national law and the national courts (see García Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999 I). In the
present case, the Court is satisfied that the applicant's submissions
do not disclose any appearance that the courts lacked impartiality,
or that the proceedings were otherwise unfair or arbitrary.
- Concerning
the length of the proceedings, the Government argued that the
applicant could not claim to be a victim of a violation of Article 6
§ 1 in this respect, since the District Court, in its
judgment of 6 February 2004, had expressly acknowledged that the
proceedings had been unusually long and had provided redress by
imposing a suspended sentence (see paragraph 13 above). The applicant
contested this view.
- The
Court observes that the District Court acknowledged the duration of
the proceedings and held that the excessive protraction of the case
was a crucial mitigating factor. Because of this, it imposed a
relatively light prison sentence whose execution was suspended.
Against this background, the Court finds that the applicant obtained
adequate redress for the alleged violation of his right under
Article 6 § 1 of the Convention to the determination within
a reasonable time of the criminal charges against him. Accordingly,
he can no longer claim to be a victim, for the purposes of Article 34
of the Convention, of a violation of Article 6 § 1 (see Morby
v. Luxembourg (dec.), no. 27156/02, ECHR 2003-XI; Kalmár
v. Hungary, no. 32783/03, § 27, 3 October 2006; Dányádi
v. Hungary (dec.), no. 10656/03, 6 July 2006; Tamás
Kovács v. Hungary, no. 67660/01, § 26, 28
September 2004; Lie and Berntsen v. Norway (dec.),
no. 25130/94, 16 December 1999).
- These
complaints are therefore manifestly ill-founded within the meaning of
Article 35 § 3 and must be rejected pursuant to Article 35 §
4 of the Convention.
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 100,000 euros (EUR) in respect of pecuniary damage
and EUR 50,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have suffered some
non-pecuniary damage. Accordingly, on the basis of equity, it awards
him EUR 15,000 under this head.
B. Costs and expenses
- The
applicant claimed EUR 5,500 for the costs of his legal representation
– which should correspond to 55 hours spent on the case by his
lawyer, charged at an hourly fee of EUR 100 – as well as EUR
500 for miscellaneous expenses.
- The
Government contested these claims.
- Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 2,000 covering
costs under all heads.
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 complaints concerning the
lawfulness of the applicant's detention and the absence of
compensation admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 (a) of the Convention;
- Holds that there has been a violation of Article
5 § 5 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
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand 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 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
