FOURTH SECTION
CASE OF NAGY v. HUNGARY
(Application no. 43441/15)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
26 May 2020
 
This judgment is final but it may be subject to editorial revision. In the case of Nagy v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Branko Lubarda, President,
 Carlo Ranzoni,
 Péter Paczolay, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application against 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 Antal Sándor Nagy (“the applicant”), on 25 August 2015;
the decision to give notice to the Hungarian Government (“the Government”) of the complaint concerning Article 3 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 5 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns allegations of police brutality and the adequacy of the ensuing investigation. THE FACTS
1. The applicant was born in 1942 and lives in Gyömrő. He was represented by Mr T. Fazekas, a lawyer practising in Budapest and acting on behalf of the Hungarian Helsinki Committee. 2. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 2 May 2012 the applicant, who is of Roma origin, was taken to Gyömrő Police Station for questioning in connection with an act of theft committed by another person. 5. It appears that an altercation occurred between the applicant and two police officers present at the questioning, in the course of which the applicant sustained injuries. In the applicant’s submission, these were caused by blows and kicks, falling between chairs, and being dragged along the floor. 6. The applicant left the police station at about 5 p.m. At 8.43 p.m. he went to see a general practitioner, who noted a contusion on his chest. 7. At 8 a.m. on 3 May 2012 the applicant was examined at the local clinic, where he was found to have contusions on both wrists and arms, as well as on the left chest wall and in the left inguinal region. At 1.30 p.m. the same day he reported to another clinic, from where he was transported to Péterfy Sándor Hospital with a suspected ruptured spleen. This was, however, later ruled out. 8. On 6 May 2012 a prosecution was initiated on charges of ill-treatment by officers, upon a complaint made by the applicant’s daughter. 9. On 14 May 2012 the Gyömrő Police Station contacted the applicant to find out whether he was willing to participate in a hearing to be held by the local commander concerning the incident. The applicant replied in the negative, according to the report of the local commander. 10. On 16 May 2013 a medical expert gave an opinion on the applicant’s injuries. He found that the contusions he had sustained, which had healed within eight days, could have been caused by blows or, less plausibly, by falling on the ground and banging into furniture. According to a medical certificate issued on 30 May 2012, the applicant had contusions on the left chest wall and in the left inguinal region. 11. On 11 September 2013 the medical expert added to his opinion. On the basis of five photographs obtained in the meantime, he noted several contusions and bruises on the left lower arm and wrist, the left chest wall and one of the toes on the left foot. The opinion was inconclusive as to the origin of these injuries, all of which had healed within eight days. 12. On 29 October 2013 the Pest Surroundings Investigation Authority discontinued the case. Having questioned a number of indirect witnesses, it found that although it could not be ruled out that the applicant had been ill-treated – in particular given the medical evidence and the fact that he had not had any injuries before being taken to the police station – the evidence was insufficient to indict any particular officer. The Investigation Authority noted the applicant’s consistently reiterated account of the incident, according to which he had been yelled at and repeatedly hit by two officers, as a result of which he had fallen to the ground, banging into the furniture. 13. The applicant lodged a complaint, challenging in particular the medical expert opinion and seeking a face-to-face confrontation with the police officers who had taken him to the police station. 14. On 3 December 2013 the Pest County Chief Public Prosecutor dismissed the complaint, relying in particular on the inconclusive nature of the medical expert opinion as to the origin of the applicant’s injuries. 15. On appeal, on 21 August 2014 the Attorney General ordered the continuation of the investigation, considering that it had been insufficient. 16. On 26 March 2015 the Central Investigation Office again discontinued the case. It found that the applicant’s account of the events as to the origin of his injuries and the identities of the alleged perpetrators – who had been presented to him in a photo line-up – was contradictory and that the case could not therefore lead to the indictment of any particular officer. In the decision it was stated that Officer N., whom the applicant had repeatedly accused throughout the procedure, was sick and unavailable for questioning, for which reason a report prepared by him had been admitted to the case file. 17. On 14 May 2015 the Attorney General’s Office dismissed the applicant’s complaint. It upheld in essence the Central Investigation Office’s reasoning. The Attorney General’s Office noted that Officer N. had not been questioned in the case and held that his ailment should not have been an obstacle to his being questioned. However, it explained that the absence of such questioning had nevertheless been justified because Officer N. could not be interviewed either as a suspect (in the absence of a well-founded suspicion of an offence) or as a witness (because of the risk of self-incrimination). 18. The applicant submitted that Officer N. had been the only officer known to him by name from the outset, and that he had recognised him from the incident. Officer N. was at any rate easy to remember because his arm had been in plaster at the material time – a fact he had mentioned to the investigator during the questioning on 2 July 2013. The applicant had maintained from the beginning of the case that it had been Officer N. who had carried out the ill-treatment. THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
19. The applicant complained that he had been ill-treated by the police and that his allegation had not been adequately investigated, in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Admissibility
20. The Government argued that the applicant had not exhausted the available domestic remedies in that he had not pursued a substitute private prosecution. The applicant disagreed. 21. The Court has already held in a number of cases that applicants were not required, as a matter of exhaustion of domestic remedies, to pursue a substitute private prosecution, essentially because to do so would represent the pursuit of a legal avenue which would have the same objective as their criminal complaints (see R.S. v. Hungary, no. 65290/14, § 38, 2 July 2019; M.F. v. Hungary, no. 45855/12, § 34, 31 October 2017; R.B. v. Hungary, no. 64602/12, §§ 60-65, 12 April 2016; Borbála Kiss v. Hungary, no. 59214/11, §§ 25-27, 26 June 2012; see also Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006). Consequently, a substitute public prosecution cannot be considered an effective remedy whose exhaustion is required by Article 35 § 1 of the Convention. The Government’s preliminary objection of non-exhaustion of domestic remedies must therefore be dismissed. 22. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

Outcome for Article 3: violation