European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF BÉRES AND OTHERS v. HUNGARY

 

(Application nos. 59588/12, 59632/12 and 59865/12)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

17 January 2017

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 




In the case of Béres and Others v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Vincent A. De Gaetano, President,
          András Sajó,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
          and Marialena Tsirli, Section Registrar,

Having deliberated in private on 29 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

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.

THE FACTS

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.

II.  RELEVANT DOMESTIC LAW

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:”

Section 1

“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. §).”

Section 2

“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.”

Section 3

“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.”

Section 4

“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].”

Section 5

“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:

Article 175

“(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.”

THE LAW

I.  JOINDER OF THE APPLICATIONS

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.”

A.  Admissibility

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.

B.  Merits

1.  The parties’ submissions

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.

2.  The Court’s assessment

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, 27 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.

FOR THESE REASONS, THE COURT

1.  Decides, unanimously, to join the applications;

 

2.  Decides, unanimously, to join the Government’s preliminary objection concerning the inapplicability of Article 6 § 2 to the merits and dismisses it;

 

3.  Declares, unanimously, the complaint concerning Article 6 § 2 admissible;

 

4.  Declares, by a majority, the remainder of the applications inadmissible;

 

5.  Holds, by five votes to two, that there has been no violation of Article 6 § 2 of the Convention.

Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Marialena Tsirli                                                             Vincent A. De Gaetano
       Registrar                                                                              President

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinions of Judges De Gaetano and Kūris are annexed to this judgment.

V.D.G.
M.T.

 




DISSENTING OPINION OF JUDGE DE GAETANO

1.  I regret that I cannot share the view expressed by the majority in this case to the effect that there has been no violation of Article 6 § 2 of the Convention (operative point 5 of the judgment).

 

2.  I am no particular fan of the case-law that has spawned around Article 6 § 2 following on from Minelli v. Switzerland (25 March 1983, Series A no. 62), as one can immediately gather from even a cursory examination of my separate opinions in Ashendon and Jones v. the United Kingdom (nos. 35730/07 and 4285/08, 15 December 2011), Allen v. the United Kingdom ([GC], no. 25424/09, ECHR 2013), and Müller v. Germany (no. 54963/08, 27 March 2014). However, the instant case is one which, to my mind, involves a clear declaration of guilt by legislative act.

 

3.  I find the first two sentences of paragraph 32 of the judgment extraordinarily naive. Of course, neither Mr Béres, nor Ms Bende, nor Mr Stork, nor indeed any one of the applicants was mentioned by name in section 1 of the Amnesty Act. However, that provision clearly referred to an act which amounted to a criminal offence (to leave no room for doubt, the precise Article of the Criminal Code was indicated); it also referred to the precise context in which that act was committed, by giving not only the date and place, but also the manner of execution (“... by several persons chaining themselves to each other and to the gates”). In December 2011 the applicants were charged precisely with that particular offence occurring in those specific circumstances; in March 2012 the criminal investigation was discontinued only because of the amnesty created by the legislative act (“No criminal procedure can be instituted or continued on account of the crime of violation of personal liberty ... committed on 23 December 2011...”, emphasis added). No amount of hair-splitting, grammatical or otherwise, can alter the obvious: the applicants, who had committed the criminal offence in question (because the Amnesty Act had said so), were being amnestied; and only for that reason (and not, for example, because of lack of evidence, or because the limitation period had run its course) were the criminal proceedings discontinued.

 

 




 

DISSENTING OPINION OF JUDGE KŪRIS

A.  The Article 8 playground for reputation disputes

1.  I respectfully disagree with the majority that the complaint under Article 8 of the Convention is inadmissible. What is at stake is the applicants’ reputation, and this value clearly falls under Article 8.

2.  I find it difficult to comprehend why, say, in Erményi v. Hungary (no. 22254/14, 22 November 2016), which dealt with the premature termination of the applicant’s mandate as Vice-President of the Supreme Court (who, by the way, was compensated for the premature termination of his mandate as a judge), Article 8 was invoked and a violation of it was found, whereas in the instant case, where the applicants were found by an Act of Parliament to have committed a “crime”, the Court has held that “it has not been shown that the Act complained of had a bearing on the applicants’ private life” and that “its negative effects, if any, did not attain the level of seriousness required to bring Article 8 of the Convention into play” (emphasis added), and has found the complaint “incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a)” (see paragraphs 40-41 of the judgment).

This is inconsistent, to say the least. And callous to the reputation of the applicants.

3.  I must correct myself. In Erményi (cited above) I wrote that “Article 8 ... seems to have become all-embracing, because the notion of ‘private life’ has itself become all-embracing” (see my dissenting opinion, § 1).

It appears that, in fact, this Article is almost all-embracing, in the sense that it covers almost anything, except certain areas which traditionally are considered to be closely related to private life.

Reputation, for instance.

For the finding in the present case that the complaint under Article 8 is incompatible ratione materiae with the provisions of the Convention and therefore inadmissible is about nothing else but the Court’s approach to reputation - or, more precisely, about the denial of the Convention’s protection to individuals’ reputation, because infringements of the right to a reputation do not “attain the level of seriousness required to bring Article 8 of the Convention into play”.

Those defending their reputation have lost the game. Take it easy; it is only “play”.

B.  Naming the culprits

4.  Another, no less shocking, defect of the present judgment is that no violation of Article 6 § 2 has been found with regard to any of the applicants.

5.  The majority point out that “under [the Court’s] 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, 27 March 2014)” (see paragraph 31 of the judgment).

6. The above citation is not correct. It is a phraseological fusion of two parts of a much longer sentence, which have been mingled together. The full citation from Müller should be:

“In the light of the above considerations, and bearing in mind that, under the Court’s case-law, even the regrettable use of some unfortunate language does not have to be decisive given the nature and context of the particular proceedings (compare paragraph 46, above, in fine), the Court is satisfied that the execution of sentence chamber, when deciding on the applicant’s request for probationary release, did not demonstrate a lack of respect for the presumption of innocence which the applicant enjoys in respect of the criminal charge of which he has been acquitted.”

But it is not only the text of the citation which is not correct. The reference itself is inappropriate.

In Müller the applicant was someone who had been acquitted, and not found to have committed a “crime”. But this is not the greatest difference.

In Müller the applicant complained that the presumption of innocence had not been respected by the decisions given by two courts.

Courts, not a parliament!

It appears that the Court does not see the difference between courts and political institutions. This is off-limits.

7.  Anyway, why was this reference to “unfortunate language” included? My guess is because of the language of the impugned Amnesty Act, which is indeed “regrettable”, and its use “unfortunate”.

Very regrettable and very unfortunate.

8.  The language of a statute is not “only” language. The language of a statute is the text of the law. It is an expression of that law.

The language of the impugned Act is an expression of the law which labelled the applicants as guilty of a “crime”. This law is no less unfortunate than the language in which, regrettably, it is expressed.

9.  The situation under examination in the instant case is one involving conviction by legislation. Not by a court. I cannot see how the provisions of the Amnesty Act could be interpreted in any other way than as incriminating the applicants without a court procedure.

10.  The majority say that “there was nothing in the wording of the Amnesty Act that has linked the applicants themselves by name to the crime described therein” and that “no other circumstances allowed doubt to be cast on the applicants’ innocence” (see paragraph 32).

Does anyone believe this?

The language of this reasoning is not just “unfortunate”. It is not true.

The “link” is there - an obvious one. And there are plenty of “circumstances”.

11.  The Act refers to the precise place and date of the applicants’ actions, and describes those actions as clearly as one can. These actions of individuals are explicitly called a “crime” in the Act, and the legal characterisation of that “crime” is provided with the reference to the relevant Article of the Criminal Code. Upon enactment of the Act, the criminal investigation in respect of the applicants (and other suspects) was discontinued. It was discontinued because the Act obliged the police to discontinue it.

To sum up, the Act was passed because the investigation into the applicants’ actions was ongoing, and the investigation was terminated because the Act, tailored to the applicants’ situation, came into force.

The twenty-nine persons to whom the Act was applied were recognised as (that is, became) criminals on the day the Act was passed. They became criminals who, at the very same moment, were “exempted from punishment” by the parliamentary act of amnesty.

12.  What else could be needed for a conclusion by the Court that the applicants are “linked” to the “crime described therein”?

Why do they have to be “linked” to the “crime” by name? Where does that “criterion” come from?

And why only by name? Why do the words “several persons” not suffice?

What if the Act said “twenty-nine persons”, but indicated no names? Would that have been enough for the finding of a violation?

The Act would have looked truly bizarre had it included the twenty-nine names of the “criminals”, and maybe also their dates of birth, gender, addresses and other personal data, to ensure that they could not be mistaken for their namesakes. That would have been some “link”.

13.  Amnesties are not applied to those who are not convicted. They are not applied to those who are deemed innocent. By definition.

Amnesty is a category of criminal law.

To whom else, if not to the applicants (and their “accomplices” in the “crime” identified in the Act) was the amnesty in question applied?

If it was applied to no one else (at least the Government had not named anyone), then how can the Court say that there is no “link” between these applicants and the “crime”?

14.  We do not know whether Parliament opted not to include this information in the text of the Act and thus anonymised the victims after considering that this was a better approach just to be on the safe side. But this anonymisation helped the respondent Government. Otherwise they would have lost this case. Now they have won the game being “played”.

15.  Let us not hide our heads in the sand. The artificial reasoning of this judgment can hardly convince anyone.

C.  The judicial aegis for political justice

16.  The majority state that they do not want the Court to “substitute its own view for that of the [Hungarian] Constitutional Court”. True, in some other cases against the same respondent State, Hungary, the Court has been less scrupulous and has even foreseen a priori that the Constitutional Court would have examined a hypothetical application in some unsatisfactory way, and has therefore exempted applicants from the need to apply to that court (see my dissenting opinion in Király and Dömötör v. Hungary, no  10851/13, 17 January 2017).

17.  In the instant case the Constitutional Court declared the applicants’ complaint inadmissible, because, in its opinion, the complaint did not raise any constitutional-law issues of “fundamental importance”. Also, the complaint was time-barred (see paragraph 11 of the judgment).

Why did the Constitutional Court go on to reason that “the complaint ... was based on an erroneous interpretation of the law” and that “the language employed by the Act could not be interpreted as establishing that the applicants had indeed committed the offence”? These arguments were supposed to substantiate its assessment of the issues raised by the applicants as having no “fundamental importance”.

Did they succeed in that?

Isn’t the waterline between law and politics (however blurred at times) something of “fundamental importance”?

Again, some (but perhaps many) would find this reasoning of the Constitutional Court to be (to use the same words as in Müller (cited above), of which the majority remind the readership in paragraph 31; see paragraphs 5 and 6 above) “unfortunate”, and its employment “regrettable” - which would be not surprising from the point of view of the rule of law, which, for its part, sees a fundamental difference between law and politics.

18.  The fact that the complaint was time-barred sufficed, in itself, for its dismissal. From this perspective, the Constitutional Court’s reasoning as to the “erroneous interpretation of the law” comes close to dicta: please use the Wambaugh’s Inversion Test. The majority accord these dicta much greater force than dicta usually deserve. But as well as relying on the reasoning of the Hungarian Constitutional Court, they add their own reasoning as to the absence of a “link” between the applicants and the “crime described” in the Amnesty Act.

19.  It may very well be that, on the basis of the Hungarian Fundamental Law, the interpretation of which is the task of the Constitutional Court of that State, the language used in the Act really does not amount to an infringement of the applicants’ right to their reputation and to the presumption of innocence.

It may also very well be that the Hungarian Fundamental Law, as interpreted by the Constitutional Court, may sometimes (as in the applicants’ case) be blind to the merger of political decision-making and criminal law. Some would say that the Constitutional Court erred. It happens: courts do err, and not only constitutional ones.

20.  With a constitutional court this may happen, for example, when it finds itself in the midst of constitutional change and/or experiences pressure from the political branches of power attempting to narrow the constitutional court’s powers.

It also may happen when a constitutional court is acting under a new Constitution, but has to examine actions committed and laws (pertaining to those actions) passed at the time when the old Constitution was in place.

21.  The applicants committed their “crime” (as Parliament has called their actions) in late 2011. The new Fundamental Law of Hungary (which has effectively narrowed the Constitutional Court’s powers and could, by means of constitutional amendments, narrow them even more) came into force on 1 January 2012. The applicants’ case was examined by the Constitutional Court in 2012. I mention this only in passing, as part of the background to the case, and draw no conclusions from it.

22.  I agree with the majority that this Court should not “substitute its own view” on this issue “for that of the Constitutional Court”.

But the Court should have “its own view” as to whether such standards of interpretation of law and facts can be applied under the Convention.

If this judgment comes into force, then they can.

The Court should have “its own view” as to whether incrimination without a court procedure, by a political act alone, is normal under the Convention.

If this judgment comes into force, then it is.

And this would indeed be regrettable.

23.  Does this standard have a name?

Yes, it does. Political justice.

This is what the Hungarian Parliament has meted out in the applicants’ case and what -­ I regret to note ­- the Hungarian Constitutional Court and the Strasbourg Court have overlooked.

 

 

 




APPENDIX

No	Application No	Lodged on	Applicant Date of birth Place of residence	Represented by
1.	59588/12	10/09/2012	András BÉRES 01/06/1969 Budapest   Ambrus GERŐ 24/03/1986 Göd   Balázs POLÁKOVICS 04/12/1983 Budapest   Ágnes SEREGÉLY 04/01/1982 Budapest   Levente STORK 23/05/1988 Budapest	Dániel András KARSAI
2.	59632/12	10/09/2012	Anna BENDE 01/09/1981 Dunakeszi   Kinga Regina KALOCSAI 01/12/1986 Budapest   László MOLDOVÁN 09/05/1959 Budapest	Tamás FAZEKAS
3.	59865/12	10/09/2012	Katalin ÁMON 22/01/1987 Budapest   Áron GAJÁRSZKI 12/01/1976 Budapest   Judit SZÉKELYNÉ RÁKOSI Budapest 05/07/1956 Budapest	András Kristóf KÁDÁR