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SECOND
SECTION
CASE OF BESSENYEI v. HUNGARY
(Application
no. 37509/06)
JUDGMENT
STRASBOURG
21
October 2008
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 Bessenyei v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and,
Françoise Elens-Passos Deputy Section
Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37509/06) 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 Károly
Bessenyei (“the applicant”), on 30 May 2006.
- The
Hungarian Government (“the Government”) were represented
by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
- On
11 March 2008 the
President of the Second Section decided to give notice of the
application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Kál, Hungary.
- On
an unspecified date in early 2001 criminal proceedings were initiated
against the applicant. On completion of the investigation, a bill of
indictment was preferred on 5 June 2001. The applicant and his
accomplice were charged with forgery of official documents.
- After
having held five hearings and obtained the opinion of an expert, on
28 May 2003 the Hatvan District Court gave judgment.
- On
appeal, on 27 February 2004 the Heves County Regional Court quashed
this judgment and remitted the case to the first-instance court.
- In
the resumed proceedings, the case was joined to another trial on
6 October 2004.
- Following
four hearings, on 29 September 2005 the applicant was acquitted.
After the prosecution had withdrawn its appeal, this judgment gained
binding force on 7 December 2005. The applicant was notified of this
on 17 January 2006.
- Between
25 June 2001 and 1 July 2003 the applicant was prevented from
travelling abroad, under section 16(1a) of Act no. 12 of 1998,
because criminal proceedings involving serious charges were pending
against him. This prohibition ceased to exist because of a change in
the legislation.
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, 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 an unspecified date in
early 2001 and ended on 17 January 2006. It thus lasted approximately
five years for two levels 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,
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, especially in view of the fact that the
applicant was eventually acquitted. Having regard to its case-law on
the subject, the Court finds 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 national authorities had prevented
him from travelling abroad pending the trial – in his opinion,
a disproportionate measure in breach of Article 2 § 2 of
Protocol No. 4 to the Convention.
Article
2 of Protocol No. 4 provides in so far 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 that view, arguing that the travel ban had only
lasted from 25 June 2001 until 1 July 2003, after which date the
applicant could have exercised his right to leave the country.
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 Article 2 of Protocol No. 4 guarantees to any
person the right to freedom 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 rights
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.
- However,
it must be observed that the prohibition in question remained
unchanged for over two years and was terminated due to a legislative
amendment. 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; Földes
and Földesné Hajlik v. Hungary, no. 41463/02,
§§ 30-36, ECHR 2006 ...; and, mutatis
mutandis, İletmiş v. Turkey, no. 29871/96, ECHR
2005-XII). In the Court's view, the authorities are not entitled to
maintain over lengthy periods restrictions on an individual's freedom
of movement without a periodic reassessment of their justification
(see Riener, cited above, § 124). However, such a
reassessment never took place in the applicant's case, which means
that the travel ban was in reality an automatic, blanket measure of
indefinite duration, which ended only by virtue of an intervening
change in the legislation.
- 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 one's 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 his country, as guaranteed by Article 2 § 2 of Protocol
No. 4.
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 7 million Hungarian forints
in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage. Ruling on an equitable basis, it awards him
EUR 4,000 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 that 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 4,000 (four
thousand 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 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
