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SECOND
SECTION
CASE OF POTAPENKO v. HUNGARY
(Application
no. 32318/05)
JUDGMENT
STRASBOURG
1
February 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 Potapenko 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,
Işıl
Karakaş,
Kristina
Pardalos,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32318/05) 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
Ukrainian national, Mr Alexandr Vlagyimirovics Potapenko (“the
applicant”), on 31 August 2005.
- The
Hungarian Government (“the Government”) were represented
by Mr L. Höltzl, Agent, Ministry of Public Administration and
Justice.
- On
24 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 Ukrainian
Government did not exercise their right under Article 36 § 1 of
the Convention and Rule 44 of the Rules of Court to intervene in the
proceedings.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Békéscsaba.
- On
15 September 1998 criminal proceedings were instituted against the
applicant – who had lived in Hungary since 1986 – and his
accomplices on charges of aggravated fraud and other offences.
- On
8 March 1999 the police withdrew the applicant's passport in view of
the pending prosecution. The applicant did not appeal against an
administrative decision of 15 April 1998 confirming this measure,
which thus became final on 18 May 1999.
- In
1999, and then on 15 August and 12 December 2000 and 16 December
2002 the applicant requested that his passport be returned to him;
the last occasion related to his attending his grandmother's funeral
in the Ukraine. His requests were to no avail. In pursuit of his
subsequent request of 17 October 2005, on 11 January 2006 he was
informed that the authority in charge was unable to locate his
passport. The passport was found and returned to him only on 11
September 2006.
- Meanwhile,
on 24 July 2002 the Budapest Public Prosecutor's Office preferred a
bill of indictment in the case.
- After
several hearings, on 26 April 2007 the applicant was acquitted.
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 contested that
argument.
- The
period to be taken into consideration lasted over eight years and
seven months for one level of jurisdiction. In view of such lengthy
proceedings, this complaint 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, among many other authorities, 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 2 § 2 OF PROTOCOL NO. 4 TO THE CONVENTION
- The
applicant also complained that the protracted withdrawal of his
passport had amounted to a violation of his freedom of movement. The
Court considers that this complaint falls to be examined under
Article 2 of Protocol No. 4 which provides as relevant:
“2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health
or morals, or for the protection of the rights and freedoms of
others.”
- The
Government contested this argument.
A. Admissibility
- The
Government submitted that the applicant had not appealed the decision
of 15 April 1999. Moreover, until 30 June 2003 he had had a
possibility under the law to request the authorities to re-examine
the grounds for the withholding of his passport. Had he done so, the
resultant administrative decision could have been appealed and
eventually subjected to judicial review. After 1 July 2003 he could
have submitted a similar request to the criminal court trying his
case. In sum, in their view, the applicant had not exhausted domestic
remedies.
- The
applicant contested these views in general terms.
- The Court observes that the
applicant requested at least on four occasions that his passport be
returned to him (see paragraph 8 above) but in vain. It is therefore
satisfied that he pursued such remedies as could reasonably be
expected in the circumstances. The obligation to exhaust domestic
remedies requires
only that
an applicant
make normal
use of remedies which are effective, sufficient and accessible in
respect of his Convention grievances (see Balogh
v. Hungary, no. 47940/99,
§ 30, 20 July 2004, and John
Sammut and Visa Investments Limited v. Malta (dec.),
no. 27023/03, 28 June 2005). When there is a choice of several
domestic remedies open to the applicant, Article 35 must be applied
to reflect the practical realities of that individual's position in
order to ensure the effective protection of the rights guaranteed
(see Yağiz v. Turkey,
no. 19092/91, Commission decision of 11 October 1993, Decisions
and Reports (DR) 75, p. 207). It follows that the complaint cannot be
rejected for non-exhaustion of domestic remedies.
- The
Court moreover 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
applicant submitted that it was unacceptable that he had been
prevented from leaving Hungary for some seven and a half years –
and this despite several individual relief requests. The Government
did not put forward any particular argument on the merits of this
complaint.
- The
Court reiterates that Article 2 of Protocol No. 4 guarantees to any
person a right to liberty of movement, including the right to leave
any country for another country to which he or she may be admitted.
Any measure restricting that right must be lawful, pursue one of the
legitimate aims referred to in the third paragraph of the
above-mentioned Convention provision and strike a fair balance
between the public interest and the individual's rights (see Baumann
v. France, no. 33592/96, § 61, ECHR 2001-V).
- The
Court is satisfied that the interference with the applicant's right
under Article 2 of Protocol No. 4 – whose existence and
lawfulness was not in dispute between the parties – pursued the
legitimate aim of securing his availability for trial, and hence the
maintenance of public order.
- As
regards proportionality, the Court notes that the applicant's
passport was withdrawn on 8 March 1999 and returned on 11 September
2006. His four requests for interim relief, including the one related
to the funeral of a close relative, were turned down. Thus, the
prohibition against his leaving the country remained unchanged for
over seven and a half years. The Court reiterates that, even where a
restriction on the individual's freedom of movement was initially
warranted, maintaining it automatically over a lengthy period of time
may become a disproportionate measure, violating the individual's
rights (see Riener v. Bulgaria, no. 46343/99, § 121,
23 May 2006; Luordo v. Italy, no. 32190/96, ECHR 2003-IX; and,
mutatis mutandis, İletmiş v. Turkey, no.
29871/96, ECHR 2005-XII).
- In
the Court's view, the travel ban in question amounted in reality to
an almost automatic, blanket measure of indefinite duration (see
Földes and Földesné Hajlik v. Hungary, no.
41463/02, §§ 32 to 36, ECHR 2006 XII). The Court
considers that this ran counter to the authorities' duty under
Article 2 of Protocol No. 4 to take appropriate care to ensure that
any interference with the right to leave a country remains justified
and proportionate throughout its duration, in the individual
circumstances of the case.
- It
follows that there has been a violation of the applicant's right to
leave Hungary, as guaranteed by Article 2 § 2 of Protocol No. 4
to the Convention.
III. 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 altogether 520,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
- The
Government contested the claim.
- 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 sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
12,500 under that head.
B. Costs and expenses
- The
applicant made no costs claim.
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
6 § 1 of the Convention;
- Holds there has been a violation of Article 2 §
2 of Protocol No. 4 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, EUR 12,500
(twelve thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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 amount 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 1 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
