CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 27791/95                       by István GERGELY                       against Hungary          The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 31 March 1995 by István GERGELY against Hungary and registered on 5 July 1995 under file No. 27791/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts, as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1928, is a Hungarian national living in Salgótarján.        In November 1991 the applicant's employer, Mr. A. ("A.") was arrested on charges of fraud. On 30 January 1992 the applicant was heard by the police as a witness.        On 31 January 1992 the applicant was informed by the Nógrád County Police Department (Nógrád Megyei Rendor-fokapitányság) that in the context of the above case, he was suspected of having committed forgery and smuggling in respect of the import of a car. Following this accusation, the applicant was allegedly not allowed to consult a counsel immediately.        On 5 February 1992 the car in question was seized by the Nógrád County Police Department. The applicant's complaints in this respect with the Nógrád County Prosecutor's Office (Nógrád Megyei Foügyészség) and the Attorney General's Office (Legfobb Ügyészség) were to no avail.        On 14 May 1992 the applicant's motion to challenge a police officer for bias was rejected by the National Police Department (Országos Rendor-fokapitányság).        On 31 July 1992 the Nógrád County Prosecutor's Office rejected the request of the applicant's counsel for the separation of the proceedings against him from those against A.        On 18 May 1993 the Balassagyarmat District Prosecutor's Office (Balassagyarmati Városi Ügyészség) preferred the bill of indictment against the applicant, charging him of smuggling and forgery. According to the bill of indictment, in October 1990 the accused A. had engaged the applicant and promised him to receive the car in question as part of his remuneration. In 1991 the applicant established a joint venture together with A.'s German relative, Mr. W. ("W."), who subsequently purchased and presented the car to the applicant as a business gift. The applicant cleared the car at the Hungarian customs under the title of gift. In the prosecution's opinion, the car was in fact not a gift from W., but part of the applicant's remuneration. According to the charges, this constituted the offence of smuggling, using a forged gift declaration.        On 3 September 1993 the Balassagyarmat District Court (Balassa- gyarmati Városi Bíróság) rejected the applicant's request that the car in question be returned to him. On 3 November 1993 the Nógrád County Regional Court (Nógrád Megyei Bíróság) dismissed his appeal.        On 12 November 1993, upon the applicant's request, his case was separated from the proceedings against A. and was transferred to the Salgótarján District Court (Salgótarjáni Városi Bíróság).        On 25 November 1993, the Investigation Surveillance Department of the Attorney General's Office (Legfobb Ügyészség Nyomozás Felügyeleti Foosztálya) rejected the applicant's repeated motion to challenge the police officer concerned for bias.        On 24 February 1994 the Salgótarján District Court convicted the applicant of smuggling and forgery. The Court refrained from fixing a sentence, pending a probationary period of one year. The Court also ordered the confiscation of the car in question. In the reasoning of its decision, the District Court proceeded from the statements made by the applicant as well as from the testimonies given by the investigating police officer Mr. H. ("H."), A. and W. and a further witness.        On 26 October 1994 the Nógrád County Regional Court (Nógrád Megyei Bíróság), upon the applicant's appeal, partly quashed this decision and terminated the criminal proceedings, issuing a reprimand against him. The Court found that the applicant had committed the offences of smuggling and forgery. However, his conduct did not warrant any other punishment than a reprimand. The Court upheld the seizure of the car. In its decision, the Regional Court relied - inter alia - on statements made by the applicant and by W. during the first instance proceedings and also heard evidence from two further witnesses. This decision was served upon the applicant on 2 December 1994.        On 2 January 1995 the Supreme Court rejected the applicant's petition for review as unsuitable to be evaluated on the merits. The Court pointed out that the applicant's petition was based on alleged factual unclarities, which did not, as such, provide a ground for review.   COMPLAINTS   1.    The applicant complains that the criminal charges against him were unjustified. He claims that his motion for challenge in respect of a police officer was in fact not assessed on the merits. He considers that the Regional Court failed to summon either W. or a further witness, namely Mr. K. ("K."), a financial manager formerly employed by A., in his favour. He further claims that the Court's decision relies solely on the allegedly false evidence given by H. and that the Court declined to take into account the applicant's withdrawal of a confession made during the investigation. He invokes Article 6 paras. 1 and 3 of the Convention.   2.    He further complains under Article 6 para. 1 that, due to the Nógrád County Prosecutor's Office's failure to separate his case from the one against his employer, the proceedings lasted unreasonably long.   THE LAW   1.    The applicant complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention about the alleged unfairness of the proceedings, and in particular about the Regional Court's taking of evidence.        Article 6 paras. 1 and 3 (Art. 6-1, 6-3), so far as relevant, provides as follows:        "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.      ...      3. Everyone charged with a criminal offence has the following minimum rights:      ...          d.     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".        It seems appropriate to look at these complaints from the points of view of paragraphs 1 and 3 of Article 6 (Art. 6-1, 6-3)taken together, especially as the guarantees in paragraph 3 represent aspects of the concept of a fair trial contained in para. 1 (Eur. Court H. R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29.)        As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 para. 3 (d) (Art. 6-3-c) leaves it them, again as a general rule, to assess whether it is appropriate to call witnesses, in the "autonomous" sense given to that word in the Convention system; it does not require the attendance and examination of every witness on the accused's behalf (cf., Eur. Court H. R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).        In the present case, the applicant failed to show that, assisted by defense counsel, he could not effectively exercise his defense rights or that the proceedings were otherwise unfair. As regards the taking of evidence, the Commission notes that the District Court heard several witnesses, including W. The Regional Court heard two further witnesses and re-assessed the evidence obtained during the first instance proceedings. The applicant failed to substantiate his complaint that the Court's decision was based exclusively on the evidence produced by H. Moreover, as regards his complaint in respect of the Court's alleged refusal to hear K. as a further witness, he did not specify the relevance of the statements to be made by K.        Having regard to all material before it, the Commission finds no sufficient grounds to conclude that the manner of the Regional Court's taking evidence or, in particular, the failure to hear the witness in question was incompatible with Article 6 (Art. 6).        Considering the circumstances of the case as a whole, the Commission finds no appearance of a violation of the applicant's rights under Article 6 paras. 1 and 3 (Art. 6-1, 6-3)of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains about the length of the criminal proceedings against him.        Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time".        The applicant complains about the length of proceedings which started on 31 January 1992, when the Nógrád County Police Department charged him of smuggling and forgery. However, the Commission recalls that according to the generally recognised rules of international law, for all Contracting Parties, the Convention governs only those facts which arose after it came into force in respect of the Party concerned. Hungary ratified the Convention on 5 November 1992. The Commission is, therefore, competent ratione temporis to deal with the complaint to the extent that it concerns the period subsequent to 5 November 1992.          The Commission finds that the relevant period to be examined under Article 6 para. 1 (Art. 6-1) ended on 2 December 1994, when the final decision of the Nógrád County Regional Court was served upon the applicant. The applicant's subsequent petition for review was no effective remedy in the circumstances of his case, the further period of one month should not therefore be taken into account.        Accordingly, the proceedings against the applicant lasted for about two years and one month subsequent to the Hungarian ratification of the Convention. At the date of the ratification the proceedings had lasted approximately nine months.        The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, namely, complexity, the conduct of the applicant and the conduct of the judicial authorities. In this instance the circumstances call for an overall assessment (cf., Eur. Court H.R., Ficara judgment of 19 February 1991, Series A, no. 196-A, p. 9, para. 17).        The Commission notes that the charges against the applicant related to the smuggling of a car. The proceedings against him initially formed part of a fraud case conducted against eleven other defendants. The applicant's conduct does not appear to have caused any significant delays. He requested the separation of his case at an early stage, but this request was granted only more than a year afterwards. This delay was attributable to the prosecution authorities. Nevertheless, having regard to the fact that the applicant's case was dealt with by the prosecution authorities and two court instances, the delay that occurred does not appear substantial enough for the total length of the proceedings to have exceeded an acceptable limit in the circumstances of the present case (cf., mutatis mutandis, Eur. Court H.R., Cesarini judgment of 12 October 1992, Series A, no. 245, p. 26, para. 20).        Consequently the applicant's complaint about the length of proceedings does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1).        It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)