Přehled
Rozhodnutí
SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 47940/99
by Sándor BALOGH
against Hungary
The European Court of Human Rights (Second Section), sitting on 13 May 2003 as a Chamber composed of
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr M. Ugrekhelidze,
Mrs A. Mularoni, judges
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 8 April 1999 and registered on 6 May 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Sándor Balogh, is a Hungarian national of Roma origin, born in 1958 and living in Miskolc, Hungary. He is represented before the Court by Mr I. Furmann, a lawyer practising in Miskolc, who also assists “the Legal Defence Bureau for National and Ethnic Minorities” (hereafter the “NEKI”).
The respondent Government are represented by Mr L. Höltzl, Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 August 1995 the applicant, accompanied by a Ms B. and a Mr S., was selling coal from a truck on a door-to-door basis in Orosháza. After an aborted transaction, some would-be purchasers reported to the local police that the three had left their yard without having returned their fuel vouchers. At about 5.45 p.m. two local police officers halted the applicant’s truck and instructed him and his companions to report to the Orosháza Police Station. The applicant was interrogated there by police officers S. and K.
The applicant states that during the interrogation one of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder. The officers demanded that he reveal where the stolen vouchers had been hidden.
On being released after two hours of interrogation, his face was red and the left side was swollen. This was witnessed by Ms B. and Mr S. as well as by a Mr B. and a Mr M.
Having returned to his home in Miskolc on 11 August 1995, the applicant consulted Dr V., the local doctor, who advised him to report to the Ear, Nose and Throat Department of Diósgyőr Hospital. On 14 August 1995 Dr C. carried out an operation to reconstruct his ear drum which had been damaged as a result of traumatic perforation. On 16 August 1995 Dr C. reported the case to the police.
On 28 August 1995 the applicant was released from hospital. In the medical report issued on his release it was stated, without reference to any precise date, that the applicant had sustained a traumatic perforation of the left tympanic membrane. This conclusion also figured in two further medical reports issued later by Dr C. on 25 August 1995 and Dr V. on 29 September 1995. The lesion suffered by the applicant was characterised in a follow-up medical report dated 10 September 1997 as “low-to medium-grade loss of sound perception” in the left ear.
On 25 September 1995 the Szeged Investigation Office informed the applicant that criminal proceedings had been instituted against the police officers involved on the basis of information submitted by Dr C. on 16 August. The police officers were charged with the offences of “forced interrogation” and “ill-treatment committed in official proceedings”.
The Investigation Office heard the applicant and four witnesses. These witnesses testified to having seen the applicant with a red and swollen face following his interrogation at the Orosháza Police Station. The Investigation Office also heard Dr V. and three police officers who were on duty at the police station at the time of the applicant’s interrogation. Based on this evidence, the Investigation Office identified police officers S. and K. as suspects. These officers denied the accusations when questioned on 15 November 1995.
On 16 November 1995 a medical expert appointed by the Investigation Office expressed the opinion that it could not be excluded that the applicant’s injury had been caused as alleged. However, in the expert’s opinion it could not be determined whether the injury in question had been caused to his ear before, during or after his interrogation.
On 30 November 1995 the Investigation Office discontinued the criminal proceedings against police officers K. and S. for lack of conclusive evidence. On 12 December 1995 the applicant filed a complaint against the discontinuation order.
On 24 January 1996 the Orosháza District Public Prosecutor’s Office ordered the investigations to be resumed and that confrontations be organised between the applicant and the police officers concerned and between various witnesses. It also ordered that further witnesses be heard.
In the framework of the resumed proceedings, the Csongrád County Investigation Office, on 1 March 1996, confronted the applicant with the two suspects and a further police officer who was heard as a new witness.
On 6 March 1996 the Investigation Office discontinued the investigation. Relying on the testimonies given, on the one hand, by the applicant and his companions and, on the other hand, by the police officers involved in the case, as well as on a confrontation involving all three of them, the Investigation Office found that the two versions of events could not be reconciled. Since there was no direct witness to the alleged incident and the medical opinion in the case was not conclusive as to the time when the applicant’s injury had been inflicted, the Investigation Office was obliged to dismiss the applicant’s accusations as unsubstantiated and discontinue the proceedings. The order drew the applicant’s attention to his right to lodge a complaint with the Public Prosecutor’s Office under section 148 §§ 1 and 4 of the Code of Criminal Procedure challenging the discontinuation of the case. This order was served on the applicant on 11 March 1996. The applicant did not file an objection to the order.
On 30 March 1998 the applicant claimed damages from the Ministry of the Interior on account of the incident. In reply, on 16 April 1998 he was informed by the competent Békés County Police Department that he was not eligible for compensation because he had failed to file a complaint against the discontinuation order of 6 March 1996 and thus to make use of an ordinary legal remedy, which was a precondition for establishing official liability.
On 22 April 1998 the applicant appointed the NEKI to take his case. A further medical opinion obtained by the NEKI on 19 August 1998 stated that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear. Although he did not have the earlier medical expert’s opinion at hand, the expert went on to qualify the applicant’s version of events as plausible.
Relying on this new evidence, the NEKI lodged on 25 August 1998 a complaint against the decision of 6 March 1996 with the Attorney General’s Office requesting that the criminal proceedings be re-opened in accordance with section 141 of the Code of Criminal Procedure.
On 5 October 1998 the Csongrád County Public Prosecutor’s Office finally dismissed this complaint. In its reasoned decision, the Public Prosecutor’s Office stated that:
“[it] had thoroughly examined all the documents contained in the case-file.”
The decision mentioned that in the absence of coherent testimonies or a conclusive medical expert opinion it was impossible to prove either that the applicant’s injury had been caused during his police detention or that it had been inflicted by the suspected police officers. The Public Prosecutor’s Office noted the delay between the applicant’s interrogation on 9 August and his seeking medical help only on 11 August 1995. The decision stated that the new expert opinion did not contain any new facts warranting the continuation of the investigation or the laying of charges against suspects. The Public Prosecutor’s Office concluded that the case should be discontinued since it was impossible to prove the applicant’s allegations. The decision was served on the NEKI on 14 October 1998.
B. Relevant domestic law
Section 55 § 1 of Act no. 1 of 1973 on the Code of Criminal Procedure, as amended, provides:
“A civil party is a victim who lays a civil-law claim for determination in criminal proceedings.”
Section 141 of the Code of Criminal Procedure provides:
“(1) The discontinuation of an investigation does not preclude that the criminal proceedings in the same case may be later continued.”
Section 148 of the Code of Criminal Procedure provides:
“Remedy during investigation
(1) Anyone aggrieved by the authority’s decision, measure or omission, is entitled to file a complaint.
(...)
(4) Such complaint may be lodged with the authority within eight days from the date of the notification of the decision or from the date on which the complainant becomes aware of the measure or omission.
(5) If the authority itself does not accept the complaint, it shall transfer the case file and its own statement concerning the complaint to the competent public prosecutor within 24 hours. The public prosecutor shall decide on the complaint within eight days.
(6) A complaint may be rejected if it has been lodged outside the [above] time-limit or by an unauthorised person.”
Section 339 § 1 of Act no. 4 of 1959 on the Civil Code, as amended, provides:
“Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. He shall be exculpated if he proves that he proceeded in such manner as can generally be expected in the given situation.”
Section 349 of the Civil Code provides:
“(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage.
(...)
(3) These rules shall also apply to liability for damage caused by courts or the prosecution authorities, unless otherwise provided by law.”
Section 3 § 5 of Act no. 3 of 1952 on the Code of Civil Procedure, as amended, provides:
“Unless the law provides otherwise, in the civil procedure, the court shall not be bound, when taking evidence, by any formal rule or given method or application of specific means; it may freely use the parties’ submissions and may use any other evidence which is suitable for establishing the facts. ...”
Section 4 § 1 of the Code of Civil Procedure provides:
“When taking its decision, the court shall not be bound by a decision of another authority or by a disciplinary resolution, or the findings of fact contained therein.”
Section 152 § 1 of the Code of Civil Procedure provides:
“If the adjudication of a case depends on a preliminary matter on which a criminal court ... must decide, the [civil] court may suspend its proceedings until that procedure has been finally concluded ...”
COMPLAINTS
The applicant complains under Article 3 of the Convention of ill-treatment by the police and the absence of an effective investigation into his complaint.
Moreover, he complains under Article 6 § 1 that, in the course of the proceedings following his accusations against the police officers involved, he had no access to an independent and impartial tribunal and that the prosecution’s discontinuation of the investigation into his case prevented him from seeking compensation from the civil courts.
He also complains under Article 13 about the absence of an effective remedy in that his allegations were examined only by the prosecution authorities rather than by an independent tribunal.
Lastly, he submits under Article 14 read in conjunction with Articles 3 and 13 that he was discriminated against on account of his Roma origin.
THE LAW
1. The applicant complains that he was ill-treated by the police and that no adequate investigation into his complaints was carried out, in breach of Article 3 of the Convention which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 35 § 1 of the Convention provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
a. The Government point out that the applicant did not exhaust domestic remedies in that he did not file a complaint against the discontinuation order of 6 March 1996 (served on him on 11 March 1996) within the eight-day time-limit prescribed by section 148 § 4 of the Code of Criminal Procedure. The lack of a timely complaint was not compensated by the NEKI’s submissions to the Attorney General’s Office lodged on 25 August 1998: this motion relied on new evidence and comprised a request to have the criminal proceedings re-opened in accordance with section 141 of the Code of Criminal Procedure. As the granting of such a request fell within the prosecuting authorities’ discretionary power, that remedy must be considered extraordinary and thus not effective.
Even assuming, however, that domestic remedies were indeed exhausted and the decision of 6 March 1996 was the final decision in the domestic proceedings, the Government observe that the application was introduced only on 8 April 1999, i.e. more than six months later.
The applicant submits that the NEKI’s submissions of 25 August 1998 constituted an effective remedy and that the final decision in the case was given by the Csongrád County Public Prosecutor’s Office on 5 October 1998. This is corroborated by the fact that the NEKI’s motion was not rejected as time-barred in application of section 148 § 6 of the Code of Criminal Procedure; rather, a thorough examination of all the documents contained in the case file gave rise to a formal reasoned decision. In sum, both the requirement of exhaustion of domestic remedies and the six-month time-limit were observed in the case.
The Court recalls that the six-month time-limit is an autonomous rule which must be interpreted and applied in a given case in such a manner as to ensure the effective exercise of the right of individual petition (Alfred Worm v. Austria, no. 22714/93, Commission decision of 27 November 1995, Decisions and Reports (DR) 83-A, pp. 17, 24). The six-month period runs from the date of the final domestic decision after effective and sufficient domestic remedies have been used (Hatjianastasiou v. Greece, no. 12945/87, Commission decision of 4 April 1990, DR 65, pp. 173, 177). Likewise, the obligation to exhaust domestic remedies requires that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs (Mathias Berns and Joseph Ewert v. Luxembourg, no. 13251/87, Commission decision of 6 March 1991, DR 68, pp. 137, 164).
The Court observes that section 141 of the Code of Criminal Procedure allows for the continuation of a criminal investigation notwithstanding a discontinuation order. In the present case, the NEKI, once in possession of new evidence concerning the applicant’s case, requested that the proceedings be continued in application of this provision. The County Public Prosecutor’s Office did not reject the complaint as time-barred; rather, it carried out an in-depth examination of the applicant’s allegations. It reconsidered the evidence before it and gave a reasoned decision. For the Court, nothing in this decision alluded to its extraordinary nature, as suggested by the Government, in comparison with the earlier decisions of the prosecuting authorities. Although it found the applicant’s renewed arguments inconclusive, the County Public Prosecutor’s Office embarked on an evaluation of the merits of the applicant’s allegations and was in a position, potentially, to remedy the applicant’s complaints.
In these circumstances, the Court is satisfied that the NEKI’s complaint dated 25 August 1998 pursued an effective remedy and that the decision of the County Public Prosecutor’s Office was the final domestic decision in the case. It follows that the application cannot be rejected for non-compliance with the six-month requirement set out in Article 35 § 1 of the Convention.
b. The Government also emphasise that, by not availing himself of an official liability action under section 349 of the Civil Code, the applicant failed to exhaust domestic remedies.
The applicant maintains that section 349 of the Civil Code is not applicable to the present case since, according to the case-law of the civil courts, the indictment of the perpetrators is a prerequisite for bringing an official liability action. Given that the investigations against the suspected police officers remained inconclusive, any civil claim based on the official liability of the authorities would have had no prospects of success.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, e.g., Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275–76, §§ 51–52).
In the present case, the applicant requested that a criminal investigation be opened against the police officers concerned and subsequently filed a complaint about the prosecuting authorities’ decision to discontinue those proceedings, insisting that a full examination of his allegations of ill-treatment be carried out.
In these circumstances, the Court considers that, having exhausted all the possibilities available to him within the criminal justice system, the applicant was not required, in the absence of a criminal prosecution in connection with his complaints, to embark on another attempt to obtain redress by bringing a civil action for damages (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3286, § 86).
It follows that the application cannot be rejected for non-exhaustion of domestic remedies.
2. The Government maintain that, according to the conclusions of the criminal investigations carried out by the domestic authorities, it can neither be excluded nor proven that the applicant’s injuries were inflicted by the two police officers who interrogated him. In this respect, the investigating authorities had to take into account the delay between the applicant’s interrogation and his first seeking medical help. Unlike in cases where an individual is taken into police custody but is found to be injured at the time of his release – and where consequently, it is incumbent on the State to provide a plausible explanation as to the cause of the injury – the applicant’s injuries were established only two days after his release. The burden of proof is therefore not borne by the Government.
The applicant emphasises that, given a victim’s difficulty to prove police brutality while in custody, it is for the Government to prove that their agents were not responsible for the victim’s injuries.
As to the procedural aspect of Article 3, the Government assert that the domestic authorities found the applicant’s allegations sufficiently credible for them to institute criminal proceedings against two suspects. In the course of these investigations, several witnesses were heard, the applicant was confronted with the suspects and opposing witnesses, and a medical expert opinion was obtained. However, the evidence thus gathered remained inconclusive and the suspects’ criminal liability could not be established beyond reasonable doubt.
The applicant contends that the prosecutors, who are exclusively in charge of examining allegations of police misconduct, lack sufficient independence and impartiality – with the result that there was a failure to carry out a thorough and effective independent investigation of the case.
3. The applicant also claims that he was denied effective access to a court, in breach of Article 6 § 1 of the Convention, which provides, inter alia:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”
The applicant submits that the decision of the prosecuting authorities not to bring criminal proceedings against the police officers who had allegedly ill-treated him denied him access to a court in respect of his potential civil claim for damages. Since the criminal proceedings were discontinued, it was not open to him to join such proceedings as a civil party under section 55 § 1 of the Code of Criminal Procedure in order to claim compensation. Moreover, although it would in theory have been possible for him to bring an action for compensation under section 339 of the Civil Code, since the damage in question arose out of an alleged criminal act, a civil court might, under section 152 § 1 of the Code of Civil Procedure, have stayed any such action until the issue of criminal liability had been decided. In sum, a civil action could not have been brought in the absence of a criminal indictment arising out of the same facts.
4. Furthermore, the applicant complains under Article 13 of the Convention that he did not have an effective remedy before the national authorities in that his allegations of ill-treatment were only examined by the prosecuting authorities.
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
5. Lastly, the applicant complains that his ill-treatment and the subsequent proceedings conducted by the authorities show that he was discriminated against on account of his ethnic origin, contrary to Article 14 read in conjunction with Articles 3 and 13 of the Convention.
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
6. The Court finds that the applicant’s complaints raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits.
S. Dollé J.-P. Costa
Registrar President