HAVAS v. HUNGARY - 64385/12 - Committee Judgment [2014] ECHR 1229 (13 November 2014)

In the case of Havas v. Hungary,

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

          Helen Keller, President,
          András Sajó,
          Robert Spano, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 14 October 2014,

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

PROCEDURE

1. The case originated in an application (no. 64385/12) 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 a Hungarian national, Mr Tamás Havas (“the applicant”), on 28 September 2012.

2. The applicant was represented by Ms E. Pivarnyikné Juhász, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3. On 26 October 2012 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1967 and lives in Budapest.

6. At the material time the applicant was a managing director of a tour operator limited liability company, HTC Kft.

7. On an unspecified date criminal investigations were opened against HTC Kft and another limited liability company on suspicion of bankruptcy fraud. On 8 September 2000 the Budapest VI/VII Police Department ordered the search of the applicant’s flat and vehicle, since there were grounds to believe that as the managing director of HTC Kft, he kept certain company documents at home.

8. On 14 February 2007 the applicant was heard as suspect on charges of bankruptcy fraud.

9. On 18 May 2007 the Budapest VI/VII District Public Prosecutor’s Office preferred a bill of indictment against the applicant, charging him with bankruptcy fraud.

10. The first hearing was held by the Pest Central District Court on 3 November 2009.

11. On 21 April 2012 the Pest Central District Court acquitted the applicant. The judgment became final on 1 August 2012.

THE LAW

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

12. 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 ...”

13. The Government contested that argument.

A. Admissibility

14. The Government submitted that the applicant had failed to exhaust domestic remedies in that he 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 applicant contested this argument in general terms.

16. The Court recalls its finding in Barta and Drajkó v. Hungary (no. 35729/12, 17 December 2013); and considers that the remedy suggested by the Government cannot be regarded as an effective one to be exhausted in cases of protracted criminal proceedings.

17. The Government’s objection of non-exhaustion of domestic remedies must thus be dismissed. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18. The applicant submitted that the criminal proceedings against him started on 8 September 2000, the day when the house search was ordered.

19. The Government contested this argument.

20. The Court reiterates that the period to be taken into consideration under Article 6 § 1 of the Convention must be determined autonomously. In criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; (see Neumeister v. Austria, 27 June 1968, p. 41, § 18, Series A no. 8). On occasions, it may start to run on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see, among other authorities, Eckle v. Germany, 15 July 1982, § 73, Series A no. 51).

21. In the present case the Court notes that the applicant was not implicated until the date of his questioning as suspect on 14 February 2007 which ended with his being charged with bankruptcy fraud by the Budapest VI/VII District Public Prosecutor’s Office on 17 May 2007.

It is true that a house search was carried out on 8 September 2000; nonetheless, through the search it was intended to obtain evidence of the offence of which two limited liability companies were suspected. This measure was therefore not an “official notification” to the applicant on an “allegation” that he had committed an offence (see
Reinhardt and Slimane-Kaïd v. France, 31 March 1998, § 93, Reports of Judgments and Decisions 1998-II).

22. In these circumstances, the Court considers that as of 14 February 2007 the applicant was under a “criminal charge”. Thus, the period to be taken into consideration began on that date and ended on 1 August 2012. It thus lasted approximately five years and six months for one level of jurisdiction.

23. 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).

24. 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).

25. 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 41 OF THE CONVENTION

26. 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

27. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

28. The Government contested this claim.

29. The Court considers that the applicant must have suffered some non-pecuniary damage. Ruling on the basis of equity, the Court awards him EUR 2,500 in respect of non-pecuniary damage.

B. Costs and expenses

30. The applicant also claimed HUF 1,778,372 (approximately EUR 5,680) for the costs and expenses incurred before the domestic courts and EUR 1,000 for those incurred before the Court.

31. The Government did not express an opinion on this matter.

32. 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 to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the full sum claimed for the proceedings before the Court, that is, EUR 1,000.

C. Default interest

33. 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 applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Helen Keller
Deputy Registrar President

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