BODOR v. HUNGARY - 31181/07 [2011] ECHR 931 (14 June 2011)

JUDGMENT STRASBOURG 14 June This judgment is final but it may be subject to editorial revision . In the case of Bodor v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President, András Sajó, Paulo Pinto de Albuquerque, judges, and Françoise Elens-Passos , Deputy Section Registrar . Having deliberated in private on 24 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 31181/07) 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 Jenő Bodor (“the applicant”), on 12 July 2007 . The applicant was represented by Ms M. Regász, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. On 5 May 2010 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE The applicant was born in 1943 and lives in Érd. The applicant was arrested on 5 October 2000 on suspicion of having committed several counts of fraud and forgery of private documents. The Budapest X/XVII District Prosecutor's Office preferred a bill of indictment in respect of the applicant and forty-two other defendants on 19 June 2003. After issuing numerous arrest warrants, the Pest Central District Court held several hearings. On 19 February 2009 it delivered a judgment in respect of sixteen defendants. The public prosecutor submitted an appeal in case of two defendants, where the District Court stated in the reasoning of its judgment that the length of the criminal proceedings was taken into account among the mitigating circumstances. The first-instance judgment in respect of the applicant was delivered on 15 April 2010. The applicant was found guilty, inter alia , of aggravated fraud and was sentenced to one year of imprisonment whose enforcement was suspended for two years and exempted in advance from the effects of criminal conviction. The applicant did not appeal against this judgment and therefore received only a short version of the judgment, based on section 259 of the Code of Criminal Procedure, which did not contain a detailed reasoning. THE LAW The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. The Government contested that argument. The Government argued in particular that the applicant could not be considered as victim, as his sentence had been mitigated due to the protraction of the proceedings, therefore providing him sufficient redress. Even though the shortened judgment did not expressly contain the reasons for mitigation, the Government highlighted that the protraction of criminal proceedings is generally taken into consideration by the trial courts as a mitigating factor. Considering that the sentence for the offence for which the applicant was convicted would in theory be imprisonment from two to eight years, the applicant's lenient sentence resulted from the mitigation due to the length of proceedings. Moreover, the Government referred to the detailed judgment delivered in the same proceedings in respect of two other defendants, where the District Court had expressly acknowledged the protraction of the proceedings. Finally, the Government considered that the applicant waived his right to appeal against the judgment and therefore also waived his right to an explicit acknowledgment of the protraction of the criminal proceedings against him. The applicant contested these arguments. The Court recalls that the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle v. Germany , of 15 July 1982, Series A no. 51, § 66 and Beck v. Norway , no. 26390/95, 26 June 2001). However, in the present case, the reasons for mitigation cannot be established with certainty because the District Court delivered a shortened judgment. As regards the absence of appeal against the judgment, the Court is unable to share the Government's view on this matter. It cannot be imputed to the applicant that he did not lodge an appeal against the judgment, further contributing to the protraction of the proceedings. The Government's objection must therefore be rejected. The period to be taken into consideration began on 5 October 2000 and ended on 15 April 2010. It thus lasted nine years and six months for one level of jurisdiction. In view of such lengthy proceedings – and in the absence of any other reason for inadmissibility – the application must be declared admissible. 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 v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 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. Relying on Article 41 of the Convention, the applicant claimed 12,000 euros (EUR) in respect of non-pecuniary damage. The Government contested the claim, submitting that the finding of a violation by the Court should in itself be regarded as constituting just satisfaction for the applicant, having regard to the mitigation of his sentence. Moreover, they pointed out that it would be unjust to give double redress to those who had waived their right to a reasoned judgment in criminal proceedings as opposed to those who had not waived that right. The Court is of the opinion that in the absence of a detailed reasoning listing the reasons of mitigation, the grounds for the applicant's light sentence cannot be established with absolute certainty. Therefore the mitigation cannot constitute just satisfaction for the protracted length of the proceedings. It considers that the applicant must have sustained some non-pecuniary damage and awards him EUR 10,000 under this head. The applicant has not submitted a costs claim. 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 (a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten 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 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-Passos Dragoljub Popović Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII