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SECOND
SECTION
CASE OF BODON v. HUNGARY
(Application
no. 16412/05)
JUDGMENT
STRASBOURG
30
October 2007
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 Bodon v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr G. Bonello,
Mr I. Cabral
Barreto,
Mr M. Ugrekhelidze,
Mrs A.
Mularoni,
Mr D. Popović, judges,
and Mrs S.
Dollé, Section Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16412/05) 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 Ferenc
Bodon (“the applicant”), on 3 May 2005.
- The
applicant was represented by Mr I. Barbalics, a lawyer practising in
Nagyatád. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- On
16 April 2007 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Budapest.
- On
13 June 1996 the applicant was arrested on charges of smuggling. He
was detained until 10 June 1997.
- On
26 May 1998 the applicant and his 11 accomplices were charged by the
Budapest XVIII/XIX District Public Prosecutor's Office with having
participated in a gang of smugglers involved in illegally importing
merchandise (mainly perfumes and sweets) worth over 100 million
Hungarian forints, from Austria to Hungary.
- On
17 December 1998 the Customs Authority seized a large amount of
merchandise, mainly spirits and cosmetics, held by the applicant.
- After
having held several hearings and obtained the opinions of experts, on
18 June 2004 the Budapest XVIII/XIX District Court held a public
hearing, which the applicant's lawyer attended, and discontinued the
criminal proceedings against the applicant and his accomplices,
observing that their conduct was no longer punishable subsequent to
Hungary's accession to the European Union. The court ordered that the
seized goods should be returned to the applicant. He states, however,
that the Customs Authority had meanwhile sold the merchandise. The
decision was served on the applicant's lawyer on 8 November
2004.
- On
1 April 2005 the applicant filed an action against the State for
compensation on account of his pre-trial detention. On 7 June 2005
the Budapest Regional Court dismissed the action, in a procedural
decision, observing that it had been introduced outside the six-month
statutory time-limit which had run from the pronouncement of the
final decision on 18 June 2004.
- On
24 November 2005 the Budapest Court of Appeal quashed this decision,
holding that the applicant's claims had to be examined on their
merits.
- In
the resumed proceedings, on 1 March 2006 the Regional Court dismissed
the applicant's claims as being statute-barred.
- On
26 September 2006 the Court of Appeal upheld this decision. Examining
the applicant's claims from the perspective of the Codes of Criminal
and Civil Procedure and Articles 5 § 5 and 13 of the Convention,
the Court of Appeal was satisfied that the final decision had been
pronounced on 18 June 2004 and that the applicant's claims were
consequently statute-barred.
- On
26 April 2007 the Supreme Court dismissed the applicant's petition
for review.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 13 June 1996 and ended
on 8 November 2004, when the final decision of 18 June 2004 was
served on the applicant. It thus lasted over eight years and four
months for one level of jurisdiction.
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 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,
and 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)
- 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 Pélissier and Sassi, cited above).
- 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 5 of the Convention about his
pre-trial detention. Moreover, relying on Articles 13 and 17 of the
Convention and Article 1 of Protocol No. 1, he complained that the
order to return the seized goods to him had only been made at the end
of lengthy proceedings – and in vain, since the Customs
Authority had meanwhile sold them.
- However,
as regards the applicant's pre-trial detention, the Court notes that
it ended on 10 June 1997, more than six months before the application
was lodged with the Court. Accordingly, this part of the case must be
rejected as being out of time. Insofar
as the Article 5 complaint is also related to the applicant's claim
for compensation, the Court observes that the applicant failed to
exhaust domestic remedies in due and proper form (paragraphs 9-11
above). This part of the application must therefore be rejected
pursuant to Article 35 §§ 1
and 4 of the Convention.
- As
to the complaint under Article 1 of Protocol No. 1, in the Court's
view, the seizure of the applicant's merchandise had been necessary
to control the use of property to secure the possible payment of
penalties, within the meaning of the second paragraph of Article 1 of
Protocol No. 1. In the absence of any evidence that this measure had
been arbitrary, the Court finds that this complaint is manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention.
- To
the extent that this complaint may concern the impossibility to
recover the merchandise in kind, the Court considers that the
applicant should have sued the Customs Authority for the value of the
goods which had been in its custody but were sold, apparently due to
their perishable nature, or for any financial loss he may have
suffered because of this. He has therefore failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention.
- Lastly,
since the applicant had at his disposal a possible civil action to
recover the value of the lost goods, although he did not use it, his
Article 13 complaint is also manifestly ill-founded.
- It
follows that this part of the case must be rejected pursuant to
Article 35 §§ 1, 3 and 4 of 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 20,000 euros (EUR) in respect of non-pecuniary
damage, plus EUR 100 in respect of each day of his detention.
- The
Government contested these claims.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 8,000.
B. Costs and expenses
- The
applicant claimed EUR 5,068 in respect of the costs and expenses
incurred in the domestic proceedings for compensation, and EUR 2,500
in respect of those incurred before the Court.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to 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 information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings. Moreover, it
notes that request relating to the proceedings before the Court has
not been substantiated by any relevant documents and must therefore,
likewise, be rejected.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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, EUR 8,000
(eight thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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 30 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
