BARTA AND DRAJKÓ v. HUNGARY - 35729/12 - Chamber Judgment [2013] ECHR 1293 (17 December 2013)

In the case of Barta and Drajkó v. Hungary,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          Peer Lorenzen,
          András Sajó,
          Nebojša Vučinić,
          Paulo Pinto de Albuquerque,
          Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 26 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 35729/12) 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 two Hungarian nationals, Mr Pál Barta (the first applicant) and Mr István Drajkó (the second applicant) (“the applicants”), on 4 June 2012.

2. The applicants were represented by Mr T. Borsos, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3. The applicants alleged that the criminal proceedings conducted against them were excessive in length.

4. On 25 July 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1947 and 1975 respectively and live in Budapest.

6. On 15 February 2006 the first applicant was interrogated as a suspect on charges of tax fraud. On 5 February 2008 the second applicant was interrogated as a suspect on charges of tax fraud in connection with the same criminal proceedings.

7. On 13 May 2008 the Budapest IX District Public Prosecutor’s Office preferred a bill of indictment against both applicants and two other co-accused charging them with tax fraud, a conduct punishable under section 310 (1) of the Criminal Code, and other related crimes, including fraud and forgery of private documents.

8. The Pest Central District Court held a first hearing on 6 April 2011, when the four defendants gave evidence. The next hearing was scheduled for 1 September 2011. On that occasion the District Court took the evidence of six witnesses.

9. Two further hearings were held on 2 December 2011 and 4 April 2012.

The District Court adopted a judgment on 4 April 2012 finding the applicants guilty as charged. It fined the first applicant 600,000 Hungarian forints (HUF - approximately 2,000 euros (EUR)) and the second applicant HUF 300,000 (approximately EUR 1,000). Since none of the accused or the Public Prosecutor appealed, the District Court confined its reasoning to the statement of the facts and the applied legal provisions. The judgment was served on the applicants on 30 May 2012.

II. RELEVANT DOMESTIC LAW

10. Sections 262/A and 262/B of the Code of Criminal Procedure, which entered into force on 1 April 2006, introduced interlocutory complaints to expedite criminal proceedings. The sections in question provide:

Complaint about the protraction of the proceedings

Section 262/A

“(1) The defendant, the defence counsel ... are entitled to file a written complaint with the trial court complaining about an omission ... allegedly committed by that court, requesting that the omitting court be instructed to perform the omitted procedural act or adopt a decision or ... take appropriate action in the case within a reasonable time-limit.

(2) Such a complaint may be filed if:

a) the law prescribes a time-limit for a court within which to perform a procedural act or to pass a decision and the time-limit has elapsed without any result,

b) a court has set a time-limit for [a participant in the procedure] within which to perform a procedural act, but the time-limit has elapsed without any result, and the court has failed to impose on the one responsible the measures allowed by the law...”

Section 262/B

“(1) Except for the case specified in subsection (2), the trial court shall, within eight days, directly forward the files to the court competent to decide on the complaint. In an enclosed document, it shall set out the reasons which - according to its assessment - made impossible the performance of the procedural act or the passing of a decision.

(2) If the trial court itself finds the complaint well-founded, it shall, within thirty days counted from the receipt of the complaint, take or order to take appropriate measures so as to terminate the situation complained of. It shall inform the complainant of the manner in which the complaint has been settled...

(4) If the [superior] court determining the complaint admits the complaint, it shall, by setting a time-limit, instruct the [trial] court to take ... the action required for the proper progress of the case ... If it finds the complaint ill-founded, it shall dismiss it in a reasoned decision. No further appeal shall lie against this decision...”

11. In addition, section 64/A of the Code of Criminal Procedure provides for an expeditious procedure for a well-defined circle of cases, although without setting statutory time-limits.

Section 554/B of the Code of Criminal Procedure contains a list of types of cases considered to be of particular importance, which - under section 554/K - should be scheduled for the first hearing within three months [the arrival of the case file at the court].

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

12. The applicants complained that the length of the criminal proceedings conducted against them 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 ...”

13. The Government contested that argument.

A. Admissibility

1. Exhaustion of domestic remedies

14. The Government submitted that the applicants had failed to exhaust domestic remedies as they had not made a complaint under section 262/B of the Code of Criminal Procedure to expedite the procedure. In the Government’s view, such an application was an effective remedy as its use would have reduced the length of the proceedings.

15. The applicants argued that the District Court had failed to schedule the first hearing for almost three years following the filing of the bill of indictment and that during that time a request under section 262/B of the Criminal Procedure Code would not have remedied the delay.

16. The Court recalls that in the case Fazekas v. Hungary ((dec.), no. 22449/08, 28 September 2010) it found, in comparable circumstances, that that application was inadmissible on the ground of non-exhaustion of domestic remedies. Nonetheless, in that case the Court was prevented from examining in depth the question of effectiveness of the domestic remedy in question, since Mr Fazekas did not at all dispute the Government’s suggestions in this regard.

17. The Court also recalls its relevant findings in Tomé Mota v. Portugal ((dec.), no. 32082/96, ECHR 1999-IX) and Holzinger v. Austria (no. 1) (no. 23459/94, §§ 22-25, ECHR 2001-I).

In the Portuguese case the Court found that an application under sections 108 and 109 of the Portuguese Code of Criminal Procedure was an effective remedy as regards complaints about the length of proceedings. The relevant provisions of the Portuguese Code of Criminal Procedure envisage an application for procedural acceleration (pedido de aceleraçao processual), when the time-limits provided for by law for any step in the proceedings are exceeded, by which the High Judicial Council (Conselho Superior da Magistratura) or the Attorney-General are requested to fix a time-limit for taking a procedural measure. As the Court pointed out, the time-limits which Article 108 referred to were, as a general rule, the length of inquiries, judicial investigation and the scheduling of the first hearing.

Similarly, in the Austrian case the Court found that an application under section 91 of the Austrian Courts Act, whereby a higher court is requested to impose an adequate time-limit on a lower court for taking a procedural measure with which it has been dilatory, was an effective remedy as regards complaints about the excessive length of proceedings (see also, in the context of criminal proceedings, Talirz v. Austria (dec.), no. 37323/97, 11 September 2001).

18. However, the Court also held that the effectiveness of a remedy to accelerate proceedings may depend on whether it has a significant effect on the length of the proceedings as a whole (see Holzinger (no. 1), cited above, § 22). Thus, where proceedings include a substantial period during which there is no possibility to accelerate them, such remedy cannot be considered effective (see Holzinger (no. 2) v. Austria, no. 28898/95, §§ 21-22; and Polz v. Austria, no. 24941/08, § 33, 25 October 2011).

19. In the present case, the Court observes that under section 262/A of the Hungarian Code of Criminal Procedure, a complaint with a view to accelerating the proceedings can be made only in respect of delays caused in the judicial proceedings, as opposed to the investigation phase. Furthermore, this possibility is present only if the law prescribes a specific time-limit for the court to accomplish a procedural act and the time-limit has elapsed or if the court prescribes a time-limit for the parties or other persons involved in the proceedings and, following their omission, the court fails to apply the measure provided by law against them.

20. The Court notes that, in the first applicant’s case, the investigation had already lasted two years before the indictment was preferred and that section 262/A does not provide a remedy against delays caused by the investigative authorities.

21. Moreover, the first hearing was scheduled for 6 April 2011, approximately three years after the bill of indictment had been preferred. Since the Code of Criminal Procedure does not prescribe a specific time-limit for scheduling the first hearing with the exception of cases of particular importance as listed in section 554/B (see paragraph 11 above), for the Court, this delay was unlikely to have been effectively remedied by a complaint under section 262/A.

22. Thus, the criminal proceedings included a substantial period (in the case of the first applicant, five years and in the case of the second applicant, three years) during which there was no possibility to accelerate them by making a complaint under section 262/A. In these circumstances, the Court considers that the applicants were not required to make use of the remedy provided for by section 262/A of the Code of Criminal Procedure, so as to comply with Article 35 § 1 of the Convention.

23. At this juncture, the Court observes that the Code of Criminal Procedure does not provide specific time-limits for the key phases of criminal proceedings, such the termination of investigations, the scheduling of hearings or the completion of the proceedings in general, with the exception of cases of particular importance (see paragraphs 11 and 21 above).

24. Moreover, the Government have not so far demonstrated that the legal avenue referred to is indeed capable of accelerating the proceedings or securing reparation for delays already sustained. For the Court, quite some uncertainty remains as to the effectiveness of the remedy in question, especially in the absence of relevant examples.

25. In addition, it appears that a complaint for acceleration of the proceedings has no binding effect on the court concerned (see Hartman v. the Czech Republic, no. 53341/99, § 83, ECHR 2003-VIII), nor is its eventual rejection subject to an appeal (see Lukenda v. Slovenia, no. 23032/02, § 63, ECHR 2005-X). In these circumstances, this remedy cannot have any significant effect on expediting the proceedings as a whole.

26. Therefore, the Court considers that the remedy suggested by the Government cannot be regarded as an effective one to be exhausted in cases of protracted criminal proceedings.

27. The Government’s objection of non-exhaustion of domestic remedies in respect of both applicants must thus be dismissed.

2. The applicant’s victim status

28. While the Government have not explicitly raised the issue of whether the applicants can claim to be victims of a violation of Article 6 § 1 of the Convention, they have nevertheless referred to the fact that the District Court took the long duration of the proceedings into consideration as a mitigating circumstance in sentencing the applicants.

29. The applicants contested that argument. They submitted that there was nothing in the reasoning of the District Court’s judgment suggesting that the infringement of their right to a hearing within a reasonable time had been acknowledged when fixing their sentences.

30. The Court reiterates that an applicant may lose his victim status only where the State has acknowledged, either expressly or in substance, the breach of the Convention and has afforded adequate redress for such breach, such as reducing the sentence in an express and measurable manner (see Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X; Beck v. Norway, no. 26390/95, 26 June 2001, § 27).

31. In the present case, the Court notes that the District Court fined the first applicant HUF 600,000 and the second applicant HUF 300,000. Since neither the applicants nor the Public Prosecutor appealed, the District Court issued a judgment with a short reasoning containing only the facts and the applied legal provisions. It did not state the elements that had been taken into consideration in sentencing or whether - and if so, how - the duration of the proceedings had been taken into account as a mitigating circumstance.

32. The Court therefore considers that, even assuming that the imposition of mere fines indeed corresponded to the undue length of the criminal proceedings, the measure does not fulfil the other requirement for removal of the applicants’ victim status, namely the acknowledgement of a breach of Article 6 § 1 of the Convention.

33. Consequently, the Court finds that the applicants can still claim to be victims of an alleged violation of Article 6 § 1 of the Convention.

34. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

35. The period to be taken into consideration began on 15 February 2006 in case of the first applicant and 5 February 2008 in the case of the second applicant and ended on 30 May 2012. It thus lasted six years and three months and four years and three months, respectively, for one level of jurisdiction.

36. 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, 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).

37. 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 e.g. Pélissier and Sassi v. France, cited above; and Fejes v. Hungary, no. 7873/03, 11 April 2006).

38. 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 violation of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 46 OF THE CONVENTION

39. Article 46 of the Convention provides:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

40. The Court refers to its case-law concerning the principles applicable to Article 46 of the Convention (see Xenides-Arestis v. Turkey, no. 46347/99, §§ 37-40, 22 December 2005; Cahit Demirel v. Turkey, no. 18623/03, §§ 43-48, 7 July 2009; İzci v. Turkey, no. 42606/05, §§ 94-99, 23 July 2013; and also Burdov v. Russia (no. 2), no. 33509/04, §§ 125-128, ECHR 2009; Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, §§ 49-52, 28 July 2009; Finger v. Bulgaria, no. 37346/05, § 113, 10 May 2011; and Rumpf v. Germany, no. 46344/06, §§ 59-61, 2 September 2010).

41. The Court has determined in the instant case that the respondent State failed to comply with its Convention obligations to secure the applicants a trial within a reasonable time and that the remedy referred to by the Government to accelerate the proceedings is inadequate.

42. In this regard, the Court points out that there are approximately one hundred cases currently pending before it against Hungary concerning the length of criminal proceedings. Moreover, the Court has so far found violations of Article 6 § 1 of the Convention concerning the length of criminal proceedings in approximately sixty cases in respect of Hungary. The Court observers that the violation of the applicants’ right to a trial within a reasonable time is not an isolated incident, but rather a systemic problem that has resulted from inadequate legislation and inefficiency in the administration of justice.

43. By becoming a High Contracting Party to the European Convention on Human Rights, the respondent State assumed the obligation to secure to everyone within its jurisdiction the rights and freedoms defined in Section 1 of the Convention. In fact, the States have a general obligation to solve the problems that have led to the Court finding a violation of the Convention. This should therefore be the primary goal of the respondent State (see Lukenda v. Slovenia, no. 23032/02, § 94, ECHR 2005-X).

44. Should violations of the Convention rights still occur, the respondent States must provide mechanisms within their respective legal systems for the effective redress of violations of the Convention rights.

45. As regards the financial repercussions a finding of a violation in the instant case may have on the respondent State, the Court reiterates that by virtue of Article 46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, with execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects.

46. Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Broniowski v. Poland [GC], no. 31443/96, § 192, ECHR 2004-V).

47. The Court has identified some of the weaknesses of the established legal remedies guaranteed by the respondent State (see paragraph 19 above). Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State’s obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment, measures which must take into account the large number of persons affected.

48. In this connection, in order to assist the respondent State to comply with its obligations under Article 46, the Court reiterates that it has already had the occasion to clarify States’ obligations with regard to the characteristics and effectiveness of legal avenues created to remedy complaints concerning excessive length of judicial proceedings (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-188, ECHR 2006-V; Athanasiou and Others v. Greece, no. 2531/02, §§ 54-56, 9 February 2006; Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, § 65, 10 June 2008; Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, §§ 125-129, 10 May 2011, and Ümmühan Kaplan v. Turkey, no. 24240/07, §§ 69-72, 20 March 2012).

49. To prevent future violations of the right to a trial within a reasonable time, the respondent State should take all appropriate steps, preferably by amending the existing range of legal remedies or creating new ones, to secure genuinely effective redress for violations similar to the present one.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. 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

51. The first applicant claimed 4,800 euros (EUR) and the second applicant claimed EUR 3,600 in respect of non-pecuniary damage.

52. The Government contested these claims.

53. On the basis of equity, the Court awards the first applicant EUR 3,000 and the second applicant EUR 2,000 in respect of non-pecuniary damage.

B. Costs and expenses

54. Each applicant claimed EUR 1,530 each for the costs and expenses incurred before the Court.

55. The Government contested these claims.

56. 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 sum of EUR 2,000, jointly, covering costs under all heads for the proceedings before the Court.

C. Default interest

57. 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

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicants, 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) to the first applicant and EUR 2,000 (two thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros) to the applicants, jointly, plus any tax that may be chargeable to the applicants, 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;

4. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

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