SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19942/02 
by Ferenc TÓTH 
against Hungary

The European Court of Human Rights (Second Section), sitting on 6 December 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs E. Fura-Sandström, 
 Mr D. Popović, judges
and Mr S. Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 24 April 2002,

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 Ferenc Tóth, is a Hungarian national, who was born in 1953 and lives in Tura, Hungary. He is represented before the Court by Mr J. Pajcsics, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a professional hunter. At the relevant time he had a firearms licence; through his interest in firearms he became acquainted with Mr R.B. and Mr G.S. In early 1995 R.B. gave the applicant a hand grenade as a present. In February 1997 Mr A.D., an acquaintance of G.S., met a person called “Peter” in a club. Peter asked A.D. whether he could procure 50 hand grenades for him. A.D. promised to look into the matter and obtained the applicant’s phone number from G.S. He repeatedly called the applicant to ask whether he could help him in procuring the hand grenades. The applicant eventually undertook to hand over to him the grenade he had received as a present. At their meeting Peter was also present and discussed the price of the grenades with them.

Afterwards, Peter called the applicant regularly, asking him to procure the 50 grenades. The applicant contacted R.B. and requested 10 or 20 hand grenades from him. On 10 March 1997 the applicant obtained 21 grenades from R.B. On the way home he met A.D. and Peter. They decided to conclude their business the following day. On 11 March 1997, instead of Peter, police officers arrived at the meeting and searched the applicant’s car. They found 21 hand grenades in it. The applicant was arrested together with A.D.

Subsequently, criminal proceedings were initiated against the applicant on charges of the abuse of explosives. During the investigation the applicant confessed to the offence. However, he maintained that he had been entrapped by Peter into committing it.

On 7 April 1997 the applicant’s lawyer requested the Budapest Public Prosecutor to investigate the matter of police entrapment, having regard to the suspicion that the person called Peter was an undercover police officer whose identity the Head of the National Police refused to reveal. The Prosecutor stated that Peter might be an undercover police officer who had secretly collected information about the applicant. However, he refused to open an investigation into the matter and took the view that the Head of the National Police had proceeded lawfully throughout.

The Budapest XIV/XVI District Public Prosecutor charged the applicant with the abuse of explosives. Subsequently, he was also charged with the abuse of firearms.

During the hearings before the Pest Central District Court the applicant maintained that, although he had committed the offence, he had not had any intention to trade in grenades and only did so because of the incitement by Peter, an undercover police officer. He claimed that the officer’s incitement had not been justified, since the police had no good reason to suspect the applicant of any prior involvement in selling hand grenades. He had no criminal record and there was nothing to suggest that he was predisposed to becoming involved in dealing in grenades until approached by Peter.

On 11 January 2000 the District Court convicted the applicant of the abuse of explosives and firearms, and sentenced him, as a cumulative punishment, to two years’ imprisonment, suspended for three years. In reaching its conclusion the District Court stressed the fact that the applicant had had no previous criminal record, that time had elapsed and that the applicant had confessed. The court established that a person called Peter had been involved in the case, but could not be identified. It relied on the testimonies of the accused and three witnesses, expert opinions and documentary evidence.

The applicant appealed. He argued that Article 6 § 1 of the Convention had been violated in that he did not have a fair trial before the District Court. He referred to the Court’s case-law, in particular the cases of Lüdi v. Switzerland (judgment of 15 June 1992, Series A no. 238) and Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV).

For its part, the Prosecutor’s Office appealed against the leniency of the sentence imposed on the applicant, having regard to the widespread bomb attacks taking place at the material time.

The Budapest Regional Court examined the applicant’s allegations concerning the fairness of the proceedings. It requested the Criminal Directorate of the National Police to supply information about the identity of Peter. It sought to have the police officer in charge of the operation exempted from his duty of confidentiality. The court intended to hear both men as witnesses. In reply to this request, the Head of the National Police stated that Peter was an informer acting on police instructions, pursuant to Article 64 § 1 (a) of the Police Act. He refused to give further information about Peter or to exempt his handler from his duty of confidentiality.

In these circumstances, the Regional Court was forced to endorse the first-instance court’s findings of fact. In its judgment of 12 December 2001 it upheld the applicant’s conviction and sentence.

The Regional Court held that the applicant and his accomplices would not have committed the offence without the pressure of the undercover police agent. However, it held as follows:

“The act committed by the defendants is an act which is obviously dangerous for society and which therefore matches the notion of a criminal offence (section 10 § 2 of the Criminal Code). Its danger for society cannot be questioned even if there was indeed a provocation by the police, that is, if instigation – known to or encouraged by the police – took place.”

The court considered that although the police instigation did not exonerate the applicant, his right to a fair trial was nevertheless infringed, notably in the light of the Teixeira and Lüdi cases. It also considered that the fact that the applicant would not have committed the offence, without incitement by Peter, was a factor to be taken into account when imposing sentence. Consequently, it rejected the prosecution’s request to increase the applicant’s sentence, despite its own finding that the offence was particularly dangerous for society, given the frequency of bomb attacks at the time. However, it did not mitigate the applicant’s sentence as requested by the latter in his appeal.

The court also noted that, in separate proceedings, the applicant had meanwhile been convicted of an abuse of ammunition by the Gödöllő District Court on 26 April 2001.

Concerning the assessment of the evidence, the Regional Court stated as follows:

“The findings of fact are based on lawfully obtained evidence, namely the defendants’ admissions, the police report on their apprehension and the information contained in the minutes of seizure. The doubt prevailing in the case (whether or not Peter instigated the crime) was assessed in the defendants’ favour – the court accepted their testimonies in this connection.”

B.  Relevant domestic law and practice

1.  Act no. 1 of 1973 on the Old Code of Criminal Procedure (as in force at the material time)

Section 284 § 1

“[... R]eview proceedings may be initiated ... if ...

(a) a person was ... convicted ... in breach of the substantive provisions of criminal law; ...”

Section 291 § 1

“The Supreme Court may quash the decision reviewed and instruct the lower-instance court ... to resume its proceedings, if:

a) the second-instance court gave its decision on the merits in breach of the substantive provisions of criminal law referred to under section 284 § 1, ... .”

Section 291 § 3

“In the hypothesis described under paragraph 1 subparagraph a) [of section 291], the Supreme Court may itself deliver a decision in accordance with the law, if this will result in the acquittal of the defendant, ... the discontinuation of the proceedings, or the imposition of a less severe punishment.”

2.  Act no. 4 of 1978 on the Criminal Code

Section 10 (Definition of a criminal offence)

“(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment.

(2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.”

Section 28 (Negligible danger for the society)

“A person, whose act at the time of perpetration represents little danger to society so that even the most lenient punishment ... is unnecessary, shall not be punishable.”

Section 263 (Abuse of explosives)

“(1) Any person who, without a licence, prepares, obtains, possesses or transfers to an unauthorised person explosives or blasting-agents or equipment for their use, commits a crime, punishable with imprisonment of two to eight years.”

Section 263/A (Abuse of firearms or ammunition)

“(1) Any person who

a) prepares, obtains, possesses or distributes firearms or ammunition without a licence,

b) exceeds the provisions of a licence relating to the preparation, obtaining, possession or trade of firearms or ammunition,

c) transfers his licensed firearm or ammunition to a person who has no licence;

commits a crime, punishable with imprisonment of two to eight years.”

3.  Case-law of domestic courts

BH1984. 256

“It is not allowed to deliver a judgment in which the court finds the defendant guilty of one of the cumulative offences with which the latter has been charged and imposes a sentence, while discontinues the proceedings in respect of another offence, having regard to its negligible danger to society (section 28 of the Criminal Code).”

COMPLAINTS

The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that his right to a fair trial was not guaranteed as he was convicted of an offence which he had committed only because of provocation by the police, and because he was unable to examine or have examined Peter or his handler as the key witnesses against him.

THE LAW

1.  The applicant complains that the criminal proceedings conducted against him were unfair, given that he was prosecuted for an act he only committed because the police had provoked him to do so. He relies on Article 6 § 1 which provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government argue that the complaint raised by the applicant in the present case is, in terms of domestic law, an issue of substantive criminal law, the question being whether instigation by the police deprived the applicant’s act of the danger it represented for society – which is an inherent element of a criminal offence under section 10 of the Criminal Code. The Regional Court’s findings on this point could have been challenged by the applicant before the Supreme Court under section 284 § 1 of the Code of Criminal, which had the power to quash the lower courts’ decision under section 291. Having failed to do so, the applicant has not exhausted domestic remedies.

In the alternative, the Government draw attention to the fact that, in its judgment of 12 December 2001, the Budapest Regional Court acknowledged, in the light of the aforementioned Lüdi and Teixeira de Castro judgments, that the applicant’s right to a fair trial had been infringed on account of the role of the undercover police agent. Moreover, although the court held that the offence committed by the applicant was particularly dangerous for society because of the frequency of bomb attacks at the material time, it refrained from imposing a more severe sentence – which can be regarded as sufficient redress. (The court was not competent to mitigate the applicant’s cumulative sentence which corresponded to the minimum sanction prescribed for the other offence committed by him - an abuse of firearms, punishable with two to eight years’ imprisonment. Since the applicant was convicted of the latter offence – which he had committed without any incitement to do so – section 28 of the Criminal Code could not be applied (cf. case BH1984. 256 above).)

In sum, in the Government’s view, the recognition of a violation of the applicant’s right to a fair trial and the upholding the most lenient sentence possible provided the applicant with sufficient redress and, therefore, he can no longer be regarded as a victim for the purposes of Article 34 of the Convention.

Lastly, the Government argue that, in contrast to the case of Teixeira de Castro, the applicant’s impugned offence was not his first and was not limited to what the police had encouraged him to commit. In fact, he went beyond what he had been incited to do by the police. His sentence was the most lenient possible. Moreover, unlike either Mr Teixeira de Castro or Mr Lüdi, the applicant’s conviction was based on his own confession and the testimony of his co-defendants, rather than statements made by the instigator or other police officers. Therefore, the Government are of the opinion that the applicant cannot be considered to have been “deprived of a fair trial” as was the case in Teixeira de Castro, and therefore this complaint is manifestly ill-founded.

The applicant contests these views in general.

The Court considers that it is not necessary to examine the Government’s objections to the applicant’s victim status or the ill-founded nature of the grievance, since it finds the complaint to be inadmissible for the following reasons.

The Court shares the Government’s view that the crucial issue in the case was whether or not the applicant’s conduct constituted a crime, despite the fact that it was committed due to provocation by the police. The Regional Court held that his act had indeed constituted a crime, given its danger to society, under section 10 § 2 of the Criminal Code. The applicant had the possibility to challenge this interpretation of the substantive criminal law before the Supreme Court, under section 284 § 1 of the Code of Criminal Procedure. For its part, the Supreme Court, if it would disagree with the lower courts and establish a breach of substantive criminal law, had power to quash the second-instance judgment, and either remit the case under section 291 § 1, or acquit the applicant under section 291 § 3 of that Code. Since the applicant did not avail himself of this possibility, he has not exhausted domestic remedies, as required by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2.  The applicant further complains that his trial was unfair, since he could not obtain the attendance of Peter or his handler. He relies on Article 6 § 3 (d), which reads as follows:

“Everyone charged with a criminal offence has the following minimum rights: ...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

The Government observe that neither Peter nor his handler were available for the case of either the prosecution or the defence. To the extent that this complaint may be understood to concern their absence as witnesses for the prosecution, such a claim is incompatible ratione materiae with the provisions of the Convention. In so far as the complaint concerns Peter’s unavailability for the defence, the Government contend that this circumstance is immaterial, since the courts in any event accepted the applicant’s statement that the offence had been committed on Peter’s instigation.

The applicant contests these views, stressing that he was deprived of any possibility to question Peter or his handler, which impaired his defence rights.

The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused’s behalf (cf. Solakov v. “the Former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001-X).

In the present case, the Court recognises the crucial role which the police informers played, and observes that the domestic courts found it desirable to hear Peter and/or his handler. It is satisfied that since their attendance could not be secured, those courts accepted the defendants’ version of the events, establishing that they would not have committed the offences in question without instigation by Peter. In these circumstances, it cannot be argued that the defence rights of the applicant, in whose favour the principle in dubio pro reo was applied, were impaired on account of the non-attendance of these witnesses.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Naismith J.-P. Costa 
 Deputy Registrar President

TÓTH v. HUNGARY DECISION


TÓTH v. HUNGARY DECISION