CASE OF BÉRES AND OTHERS v. HUNGARY

1. The case originated in three applications (nos. 59588/12, 59632/12 and 59865/12) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Hungarian nationals, Mr András Béres, Mr Gergő Ambrus, Mr Balázs Polákovics, Ms Ágnes Seregély, Mr Levente Stork, Ms Anna Bende, Ms Kinga Regina Kalocsai, Mr László Moldován, Ms Katalin Ámon, Mr Áron Gajárszki and Ms Judit Székelyné Rákosi (“the applicants”), on 10 September 2012.
2. The applicants were represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3. The applicants alleged that the grounds on which the criminal proceedings against them had been terminated violated the presumption of innocence and the right to their reputation.
4. On 4 March 2015 the complaints concerning Articles 6 and 8 of the Convention were communicated to the Government and the remainder of the applications was declared inadmissible according to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. A list of the applicants is set out in the appendix.
6. On 23 December 2011 the applicants, political activists, participated in a demonstration organised by the political party “Politics Can Be Different ’ ” ( Lehet Más a Politika ). The demonstrators blocked the entrance of a car park adjacent to the Parliament building by chaining themselves to each other and to concrete columns situated next to the entrance.
7. Following the incident the Budapest main police department opened criminal investigations against twenty-nine persons, including the applicants, on charges of violation of personal liberty under Article 175(1) of Act no. IV on the [old] Criminal Code.
8. On 9 March 2012 Parliament enacted Act no. XII of 2012 (“the Amnesty Act”) (see paragraph 12 below), which entered into force on 10 March 2012.
9. On 29 March 2012 the Budapest main police department discontinued the criminal investigation against the twenty-nine suspects, pursuant to Article 190 §§ 1 (e) and 2 of the Code on Criminal Procedure on the grounds that they had been granted amnesty. The applicants did not appeal against that decision.
10. On 6 September 2012 six of the applicants, Ms Bende, Ms Kalocsai, Ms Ámon, Ms Székelyné Rákosi, Mr Moldován and Mr Gajárszki, lodged a constitutional complaint requesting the Constitutional Court to declare sections 1, 2 and 4 of the Amnesty Act unconstitutional as infringing the right to their reputation and the principle of presumption of innocence.
11. The Constitutional Court declared the complaint inadmissible. It reasoned that the complaint did not raise any constitutional-law issues of “fundamental importance”, since it was based on an erroneous interpretation of the law. The Constitutional Court pointed out that the language employed by the Act could not be interpreted as establishing that the applicants had indeed committed the offence. In any event, the complaint was time-barred since it had been lodged outside the statutory 180 days ’ time-limit following the entry into force of the legislation.
12. Act no. XII of 2012 (the Amnesty Act) enacted by Parliament on 9 March 2012 reads as follows:
“On the occasion of the entry into force of the Fundamental Law of Hungary, Parliament exercises its power under section 1(2) point j) of the Fundamental Law to grant amnesty in the following terms:”
“Az Országgyűlés Magyarország Alaptörvényének hatályba lépése alkalmából az Alaptörvény 1. cikk (2) bekezdés j) pontjában meghatározott hatáskörében eljárva közkegyelmet gyakorol a következők szerint:”
“No criminal procedure can be instituted or continued on account of the crime of violation of personal liberty within the meaning of Article 175 of Act no. IV of 1978 (Criminal Code), committed on 23 December 2011 in the context of blocking entrances to the restricted area around the Parliament building, carried out by several persons chaining themselves to each other and to the gates.”
“Nem indítható, illetve nem folytatható büntetőeljárás a 2011. december 23-án az Országházat körülvevő elzárt terület egyes bejáratainak több személy egymáshoz, illetve a kapukhoz láncolásával megvalósított lezárásával összefüggésben elkövetett, a Büntető Törvénykönyvről szóló 1978. évi IV. törvény (a továbbiakban: Btk.) szerinti személyi szabadság megsértése bűntette miatt (Btk. 175. §).”
“Any person convicted prior to the entry into force of the present Act, solely of the crime specified in section 1 and falling under amnesty, shall be exempted from punishment and their name deleted from the criminal register.”
“Mentesül a büntetés végrehajtása, valamint a büntetett előélethez fűződő hátrányok alól az az e törvény hatálybalépése előtt jogerősen elítélt, akivel szemben kizárólag az 1. §-ban meghatározott és közkegyelem alá eső bűncselekmény miatt szabtak ki büntetést.”
“The amnesty shall extend to any minor offence committed in connection with the blocking of the entrance of the restricted area around the Parliament building by persons chaining themselves to each other and to the gates.”
“A közkegyelem kiterjed a 2011. december 23-án az Országházat körülvevő elzárt terület egyes bejáratainak több személy egymáshoz, illetve a kapukhoz láncolásával megvalósított lezárásával összefüggésben elkövetett szabálysértésekre is.”
“The amnesty shall extend to any confiscated object used for committing the criminal acts defined in the present Act (Article 77(1) point a) of the Criminal Code).”
“A közkegyelem kiterjed az e törvényben meghatározott bűncselekmény elkövetéséhez eszközül használt dolgok elkobzására is [Btk. 77. § (1) bekezdés a) pontja].”
“The present Act enters into force on the day following its promulgation.”
“ Ez a törvény a kihirdetését követő napon lép hatályba .”
13. Act no. IV of 1978 on the [old] Criminal Code, as in force at the material time, provided as follows:
“ (1) Any person who deprives another person of his personal freedom is guilty of an offence punishable by imprisonment for up to three years.
(2) Any person who acquires another person through trafficking in human beings and maintains the status of the victim by depriving him or her of personal freedom, and forces such victim into forced labour, is guilty of an offence punishable by imprisonment of between two and eight years.
(3) The punishment shall be imprisonment for up to five years in respect of subsection (1) and imprisonment of between five and ten years in respect of subsection (2), if the criminal act was committed:
a) for a malicious motive or purpose;
b) by feigning official action;
c) by tormenting the aggrieved party;
d) causing significant damage to interests;
e) against a person under the age of eighteen. ”
14. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
15. The applicants complained that the Amnesty Act, on the basis of which the criminal proceedings conducted against them had been terminated, had violated their right to be presumed innocent. They relied on Article 6 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
16. The Government submitted that Article 6 § 2 was not applicable to the institution of procedural amnesty exercised by Parliament, since the amnesty constituted neither a judicial decision of a prejudicial nature nor a statement of a public official.
17. The applicants argued that Article 6 § 2 was also applicable to a prosecution which had been terminated without a judgment in the strict sense due to the granting of amnesty and to statements made not only by a judge or court, but also by other public authorities, including Parliament.
18. Whether Article 6 § 2 of the Convention is applicable to the legislative act granting amnesty to the applicants is closely linked to the substance of the applicants ’ complaints. The Court therefore joins the Government ’ s preliminary objection to the merits.
19. 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.
20. The applicants submitted that the Amnesty Act had violated their right to presumption of innocence, since it had stigmatised them as being “guilty of a crime”. However, they had not committed any criminal act and, therefore, it could have been taken for granted that an eventual trial would have resulted in their acquittal in the absence of any crime committed. Nonetheless, the enactment of the legislation had deprived them of the opportunity to clear their name.
21. In the applicants ’ view, the legislation used the legal expression “committed” ( elkövetett ), which deliberately implied that they had committed a criminal offence for which their guilt had been established. They maintained that linguistically, the word “committed” could not but refer to the crime itself, rather than to the exercise of certain conduct. They argued that the legislature could very well have avoided such ambiguity by using different wording; however, the terminology it had chosen was clearly aimed at the stigmatisation of political opponents.
22. In the Government ’ s opinion, the language used in the law itself did not contest the innocence of the persons affected by the criminal proceedings. In their understanding, the word “commission” in the legislative text did not refer to the commission of a crime but was used to describe the act of the demonstrators, an evitable element of a piece of legislation granting amnesty. They further submitted that the legislative act did not in any way identify the applicants by their names but merely set out the facts to which it was applicable. The Government also highlighted the decision of the Constitutional Court, stating that the applicants ’ complaint about the infringement of their right to presumption of innocence was based on an erroneous interpretation of the law.
23. The Court ’ s case-law establishes that the presumption of innocence is infringed if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty unless he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards that person as guilty (see Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308; Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000-X; and A.L. v. Germany, no. 72758/01, § 31, 28 April 2005). The scope of Article 6 § 2 is not limited to pending criminal proceedings but extends to judicial decisions taken after a prosecution has been discontinued or after an acquittal (see Panteleyenko v. Ukraine, no. 11901/02, § 67, 29 June 2006). Moreover, the principle of the presumption of innocence may be infringed not only by a judge or court but also by other public authorities (see Virabyan v. Armenia, no. 40094/05, §§ 185-86, 2 October 2012 and the authorities cited therein).
24. The Court observes that the applicants ’ case was terminated at the pre-trial stage by the investigating authorities on the grounds that they had been granted amnesty under the Amnesty Act of 2012.
25. The Court notes the Government ’ s submissions according to which procedural amnesty granted by an Act of Parliament could not be considered as an act of a public authority and by its nature was incapable of calling into question the innocence of a person (see paragraph 22 above). However, in the Court ’ s view, the decision taken by the Budapest main police department is inseparable from the enactment of the Amnesty Act and can be understood as a “single procedural act effected in several stages” (see, mutatis mutandis, Adolf v. Austria, 26 March 1982, § 32, Series A no. 49). The prosecuting authorities ’ recourse to the Act cannot affect the existence, or retroactively alter the nature, of procedures conducted prior to the prosecution decision terminating the proceedings. Furthermore, Article 6 applies whenever a person is charged with any criminal offence, irrespective of whether the criminal offence was unpunished or non-punishable, in particular as a result of the decriminalisation of acts of a trivial nature (see Adolf, cited above, § 33).
26. The Court cannot therefore accept the Government ’ s argument that Article 6 § 2 is not applicable in the present case (see paragraph 16 above). It follows that the Government ’ s preliminary objection of incompatibility ratione materiae should be dismissed.
27. The Court is therefore required to determine whether in the present case the adoption of the Amnesty Act and the discontinuation of the criminal proceedings against the applicants allowed doubt to be cast on their innocence, even though they had not been proved guilty.
28. In so far as the existence of an infringement of the principle of presumption of innocence is concerned, the Court notes that the main dispute between the parties is whether the terms used in the impugned legislation are to be interpreted, grammatically or otherwise, as implying that the applicants were guilty of having committed a criminal offence, albeit amnestied, or whether those terms should be construed as meaning that the applicants had merely committed the physical act of “chaining themselves to each other and to the gates” (see section 1 of the Amnesty Act of 2012 quoted in paragraph 12 above).
29. In the Court ’ s view, as far as the legislation described the suspects ’ conduct in precise terms of facts, such wording in itself cannot be regarded as amounting to a declaration, equivalent to a finding of guilt, that the suspects ( unlawfully and with criminal intent) committed a punishable act.
30. As to the question whether, in addition to the description of the conduct of the suspects, the word “committed” used in the legislative act also referred to the commission of a crime, the Court notes that the matter was raised by some of the applicants before the Constitutional Court. Having reviewed the legislative act on the basis of their complaint, the latter found that its wording could not be interpreted in a way that would indicate that the applicants had committed the crime with which they had been charged (see paragraph 11 above).
31. In this respect, the Court notes that under its case-law even the regrettable use of some unfortunate language does not have to be decisive as to the lack of respect for the presumption of innocence given the nature and context of the particular proceedings (see Müller v. Germany, no. 54963/08, § 54, 2 7 March 2014). Furthermore, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014, and Delfi AS v. Estonia [GC], no. 64569/09, § 127, ECHR 2015). It is not the Court ’ s function to take the place of the national courts. Rather, apart from ascertaining whether the effects of the interpretation of domestic law by the domestic courts are compatible with the Convention (see, among others, Markovic and Others v. Italy [GC], no. 1398/93, § 108, ECHR 2006-XIV, and Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015), it is the Court ’ s role to ensure that the decisions of those courts are not flawed by arbitrariness or are not otherwise manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ‑ I).
32. In the present case, the Court notes that there was nothing in the wording of the Amnesty Act that has linked the applicants themselves by name to the crime described therein. Furthermore, no other circumstances allowed doubt to be cast on the applicants ’ innocence. In the light of these considerations, the Court sees no reason to substitute its own view for that of the Constitutional Court.
33. In so far as the applicants ’ complaint may be understood to be that they should have had a trial and a formal judgment (eventually leading to their acquittal), the Court notes that Article 6 does not guarantee a right to a particular outcome of criminal proceedings (see Deweer v. Belgium, 27 February 1980, § 49, Series A no. 35, and Withey v. the United Kingdom (dec.), no. 59493/00, 26 August 2003 ) and that the right to obtain a judgment in respect of criminal accusations is not absolute, in particular when there is no fundamental irreversible detrimental effect on the parties (see Kart v. Turkey [GC], no. 8917/05, § 113, ECHR 2009). The presumption of innocence is not, therefore, undermined by the fact that the criminal proceedings against the applicants ended without such a formal judgment.
34. There has accordingly been no breach of Article 6 § 2 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
35. The applicants complained that the wording of the amnesty provision had caused unjustified prejudice to their reputation, in breach of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
36. The Government contested the applicability of Article 8 in the present case. Referring to the case of A. v. Norway (no. 28070/06, 9 April 2009 ), they did not dispute that the right to protection of reputation fell within the notion of “private life” for the purposes of Article 8. However, they submitted that the applicability of Article 8 to such cases required that the attack on a person ’ s reputation attain a certain level of seriousness and be in a manner causing prejudice to the personal enjoyment of the right to respect for private life. They argued that in the present case, however, the attack on the applicants ’ reputation had not fulfilled that requirement established in the Court ’ s case-law.
37. The applicants submitted that they had suffered an attack on their reputation, which fell under “private life” within the meaning of Article 8. In particular, they argued that they were activists for political parties, and the Amnesty Act, by making an association between their criminal responsibility and the demonstration they had participated in, should be viewed in a political context.
38. The Court reiterates that the right to protection of reputation is a right which is encompassed by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI, and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012 ).
39. In the instant case the Constitutional Court held that the Amnesty Act of 2012 was not in breach of the applicants ’ right to protection of their reputation, since its alleged negative connotations were merely based on the applicants ’ erroneous interpretation of its wording (see paragraph 11 above). Furthermore, the Court notes that, apart from a reference to their political activism and the general political context, the applicants did not establish any actual or potential negative consequence of the legislative act on their private lives. In particular it does not appear that the applicants were identified by the public as persons having committed a crime.
40. In the light of the above, the Court considers that it has not been shown that the Act complained of had a bearing on the applicants ’ private life and that therefore, its negative effects, if any, did not attain the level of seriousness required to bring Article 8 of the Convention into play.
41. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
1. Decides, unanimously, to join the applications;