SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55228/00 
by Mária GECSE and Péter HERMÁN 
against Hungary

The European Court of Human Rights (Second Section), sitting on 9 March 2004 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 lodged on 20 December 1999,

Having regard to the partial decision of 17 December 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Mária Gecse and Mr Péter Hermán are Hungarian nationals who were born in 1954 and 1951, respectively, and live in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.

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

A.  Particular circumstances of the case

1.  Criminal proceedings against the applicants

On 23 September 1996 the applicants allegedly broke into the house of the first applicant's husband and, using violence, forced him to sign documents agreeing to the dissolution of their marriage.

On 24, 25 and 26 September 1996 the applicants were interrogated.

In December 1996 the Miskolc Public Prosecutor's Office preferred a bill of indictment against the applicants charging them with 'aggravated extortion', punishable by up to eight years' imprisonment under Article 323 § 2 of the Criminal Code.

The Miskolc District Court held hearings on 18 September, 11 November and 16 December 1997, 19 March, 5 May and 11 June 1998. On the latter date, the District Court convicted the applicants of extortion and sentenced them to two years' imprisonment. The execution of the sentence was suspended for four years.

On appeal, on 12 April 1999 the Borsod-Abaúj-Zemplén County Regional Court quashed the first instance decision and remitted the case to the District Court, essentially on the ground of procedural irregularities.

In the resumed proceedings before the District Court, on 29 October 1999 the applicants requested the court to postpone the hearing, which had originally been scheduled for 8 a.m. on 30 November 1999, to 10 a.m. on the same day. They claimed that, as they lived in Budapest, they could not arrive in Miskolc in time by public transport. The hearing was eventually re-scheduled for 7 March 2000.

On 24 February 2000 the Regional Court dismissed the applicants' motion for bias.

The hearings of 7 March and 5 October 2000 were adjourned since the applicants did not appear. Meanwhile, on 25 May 2000 the police unsuccessfully attempted to escort the second applicant to the courtroom.

On 24 November 2000 the Supreme Court rejected the applicants' motion that another court be appointed to hear the case.

On 20 March 2001 the District Court held a hearing. Subsequently it appointed the Budapest Forensic Medical Institute to give an opinion on the first applicant's health.

On 30 March 2001 the court ordered a telephone company to submit some information as evidence.

A further hearing took place on 7 June 2001.

A hearing scheduled for 5 February 2002 had to be postponed, apparently because of the first applicant's illness.

In reaction to the applicants' renewed motion for bias, on 7 October 2002 the Supreme Court appointed the Kazincbarcika District Court to hear the case.

A hearing scheduled by the Kazincbarcika District Court for 17 December 2002 had to be adjourned as the applicants did not appear.

On 3 February 2003 the District Court appointed a medical expert to confirm whether the first applicant's illness was such as to prevent her from appearing at the court hearings. On 31 March 2003 the expert presented his opinion in which he replied in the negative.

A hearing scheduled for 29 May 2003 had to be adjourned as the applicants did not appear.

On 16 September 2003 the second applicant was escorted by the police to the courtroom. Subsequently the court held a hearing and heard that applicant, witnesses and an expert.

On 9 October and 13 November 2003 the court held further hearings and heard the applicants, witnesses and an expert.

On the latter date the court convicted the applicants of 'infringement of personal liberty' and sentenced them to six months' imprisonment. The execution of the sentence was suspended for two years.

On 14 November 2003 both the applicants and the prosecutor appealed. The proceedings are still pending at second instance.

The applicants allege that, during the proceedings, they have not been allowed to leave the country.

2.  Civil action brought by the applicants

On 27 December 1996 an article was published in a daily newspaper on the events of 23 September 1996. The article was based on the results of the investigation and interviews with the applicants and the first applicant's husband.

On 6 March 1997 the applicants filed an action for damages against the newspaper with the Pest Central District Court.

On 2 January 1998 the District Court requested the applicants to complete their action, which they did on 28 January 1998. A further order to complete of 30 January was complied with on 23 February 1998.

On 19 May and 25 September 1998 the court held hearings. On 2 October 1998 it ordered the first applicant to complete the pleadings.

On 28 January and 22 April 1999 the court held hearings. On the latter date it dismissed the action.

On 8 June 1999 the applicants appealed.

On 22 February and 5 October 2000 the Budapest Regional Court held hearings. On the latter date, it dismissed the appeal.

On 21 December 2000 the applicants filed a petition for review.

On 26 February 2001 the Supreme Court appointed a legal-aid lawyer for the applicants. The lawyer, being indisposed, refused the appointment on 13 March. Another lawyer was appointed on 22 March. This lawyer completed the petition on 11 April. On 3 July 2001 the Supreme Court dismissed the applicants' petition for review.

B. Relevant domestic law

Legislation prior to 1 September 1998 on criminal defendants' travelling

Section 2 § 1 a) of Act no. 28 of 1989 on Travelling Abroad and on Passports (“the 1989 Act”, as in force until 31 August 1998) prohibited from travelling abroad anyone against whom criminal proceedings for a deliberate offence punishable by a sentence exceeding three years' imprisonment were being pursued, and for as long as those proceedings were pending.

Legislation between 1 September 1998 and 30 June 2003

As of 1 September 1998, this legislation was replaced by section 16 § 1 a) of Act no. 12 of 1998 on Travelling Abroad (“the 1998 Act”). This provision, as in force until 30 June 2003, prohibited from travelling abroad anyone against whom criminal proceedings for an offence punishable by a sentence of or exceeding five years' imprisonment were being pursued, and until a final decision was taken in those proceedings.

Under section 19 § 1 a) of the same Act, the passport authority shall refuse to issue a travel document to, or withdraw it from, a person, on whom a travel ban under section 16 § 1 has been imposed.

Section 18 § 1 provides that the passport authority may – at the request of a citizen, on whom a travel ban under section 16 § 1 has been imposed – grant leave, on a ground worthy of special appreciation, to travel abroad for a definite period of time. Such leave is subject to approval by the public prosecutor or the trial judge.

Legislation subsequent to 1 July 2003

From 1 July 2003, the travel ban prescribed by section 16 § 1 a) of Act no. 12 of 1998 was annulled.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the criminal proceedings have lasted an unreasonably long time.

2. The applicants submit that, during the pending criminal proceedings against them, they have been prevented from leaving the country. They invoke Article 2 § 2 of Protocol No. 4 to the Convention.

3. Lastly, the applicants complain that the civil proceedings also lasted an unreasonably long time, in breach of Article 6 § 1 of the Convention.

THE LAW

1. The applicants complain that the criminal proceedings against them have lasted an unreasonably long time, in breach of Article 6 § 1 of the Convention which, in its relevant part, provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submit that the case was rather complicated, particularly in view of the need to have expert examinations. Moreover, the applicants contributed to the protraction of the proceedings by submitting unfounded motions for bias and by making themselves unavailable for several hearings. In contrast, there were no particular periods of inactivity which could be held against the domestic authorities.

The applicants contest these views.

The Court observes that the proceedings were instituted on 24 September 1996 and that they are still pending at second instance. The period under examination is thus approximately seven and a half years for two levels of jurisdiction.

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities, which in this instance call for an overall assessment (see, among many other authorities, Cesarini v. Italy, judgment of 12 October 1992, Series A no. 245-B, p. 26, § 17).

The Court considers that the mere fact that an expert needed to be involved has not rendered the present case complex.

As regards the conduct of the authorities, the Court observes that the judgment of 11 June 1998 was quashed because of procedural irregularities. Moreover, there was no development in the case between 7 June 2001 and 5 February 2002. However, the Court is hesitant to attribute decisive importance to the resultant delay, as there is nothing to suggest that the authorities did not proceed with the requisite diligence during the remainder of the proceedings.

Whilst an accused is not required to take an active role in the advancement of criminal proceedings, nevertheless, his or her conduct is relevant to the State's responsibility as to the overall length of the case.

As to the applicants' conduct in the present case, the Court observes that they did not attend the hearings scheduled for 30 November 1999, 7 March and 5 October 2000, 17 December 2002 and 29 May 2003. Moreover, on 25 May 2000 and 16 September 2003 the court had to seek the assistance of the police so as to ensure the applicants' attendance at the hearings. A hearing scheduled for 5 February 2002 had to be postponed on account of the first applicant's illness, whose conduct eventually necessitated an inconclusive medical examination as to her purported inability to attend court hearings. As a result of the applicants' evasive behaviour, only two hearings could be held, on 20 March and 7 June 2001, in the four-year period between the 1999 resumption of the proceedings and September 2003.

In these circumstances, the Court considers that the applicants significantly contributed to the length of the case and they thereby demonstrated their lack of genuine interest in an expeditious termination of the proceedings. Consequently, the responsibility for the protracted character of the proceedings cannot be ascribed to the Hungarian authorities.

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.

2. The applicants also complain that, having been prosecuted for a serious offence, they have been prohibited from leaving the country, in breach of Article 2 § 2 of Protocol No. 4.

Article 2 of Protocol No. 4, in its relevant part, reads as follows:

“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 submit that no travel ban was imposed on the applicants since their passports have not been withdrawn.

The applicants contend that the 1989 and 1998 legislation in force at the material time prevented them from leaving Hungary.

The Court observes at the outset that it cannot examine the applicants' situation from the perspective of the 1989 legislation, which was in force until 31 August 1998. It notes that the application was introduced only on 20 December 1999 and, contrary to the requirements of Article 35 § 1 of the Convention, more than six months after the repeal of the 1989 legislation.

It is also to be observed that the travel ban complained of was annulled from 1 July 2003.

As regards the period from 1 September 1998 until 30 June 2003, the Court notes that the applicants were, in principle, liable to a travel ban under section 16 § 1 a) of the 1998 Act. However, the applicants do not allege that the authorities actually prevented them from leaving the country on any occasion. It is undisputed that their passports have not been withdrawn. In these circumstances, the Court is satisfied that the ban complained of was not applied in the applicants' case. In any event, such a ban would not have been absolute, the possibility to seek leave to travel abroad being envisaged under section 18 of the 1998 Act.

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.

3. Lastly, the applicants complain that the civil proceedings lasted an unreasonably long time, in breach of Article 6 § 1 of the Convention.

The Government contest this view.

The Court observes that the proceedings started on 6 March 1997 and ended on 3 July 2001. They thus lasted four years and four months before three levels of jurisdiction.

No particular period of inactivity imputable to the judicial authorities can be observed. The Court is therefore satisfied that the overall length of the proceedings did not exceed a reasonable time within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application is likewise 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. Dollé J.-P. Costa 
 Registrar President

GECSE and HERMÁN v. HUNGARY DECISION


GECSE and HERMÁN v. HUNGARY DECISION