CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 juin 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s36109428 { width:18.7pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sD73EB0F { width:14.21pt; display:inline-block } .sD6BE18B4 { width:200.44pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 23762/05 by Tamás József SÓTI against Hungary The European Court of Human Rights (Second Section), sitting on 8 June 2010 as a Chamber composed of:   Françoise Tulkens, President,   Danutė Jočienė,   Dragoljub Popović,   András Sajó,   Nona Tsotsoria,   Kristina Pardalos,   Guido Raimondi, judges, and Sally Dollé, Registrar, Having regard to the above application lodged on 3 June 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Tamás József Sóti, is a Hungarian national who was born in 1974 and lives in Budapest. He was represented before the Court by Mr P. Sebes, a lawyer practising in Budapest. The respondent Government were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. A.     The circumstances of the case On 4 September 1998 the applicant was sentenced to four months' imprisonment (“first conviction”). On 19 November 2002 he was sentenced to two years and four months' imprisonment in another case (“second conviction”). Meanwhile, from 18 April 2001 until 19 November 2002, he had been detained on remand in the context of yet another case. In these proceedings, on 22 December 2004 he was sentenced to three years' imprisonment. His pre-trial detention was credited towards the sentence (“third conviction”). In respect of the second and third convictions, a cumulative sentence was passed in which the applicant was subjected to altogether three years and seven months' (i.e. 43 months') imprisonment. This decision became final on 22   December 2004. Having regard to the cumulative sentence and to the one relating to the first conviction, he was liable to detention for altogether 47 months. His detention started on 18 April 2001; consequently, it should have been terminated by 18 March 2005. However, he was released only on 23 April 2005. In dismissing the applicant's ensuing complaint, the prison governor made reference to Decree no. 17/1997. (V.9.) IM. of the Minister of Justice on the Determination of the First and Last Day of Imprisonment. The governor established that the period theoretically corresponding to the cumulative sentence had indeed been served by the applicant by 17   November 2004. However, the decision on the cumulative sentence had become final only on 22 December 2004, and it was only from that day onwards that the applicant's continued detention could be regarded as corresponding to the four-month prison term flowing from the first conviction. The intervening period of one month and five days, although the applicant had spent it in prison, could not be deducted from this term. B.     Relevant domestic law Section 339(1) of the Civil Code provides: “Anyone who unlawfully causes damage to another person shall be obliged to pay compensation. S/he shall be exculpated if s/he proves that s/he proceeded in such a manner as can generally be expected in the given situation.” Section 349 provides: “(1) Liability for damage caused by the State administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage. ... (3) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities, unless otherwise provided by law.” COMPLAINT The applicant complained under Article 5 of the Convention that he had spent more time in prison than required by the court decisions. THE LAW The applicant complained that part of his prison sentence had been enforced beyond the term imposed by the courts, in breach of Article 5 of the Convention, which provides as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; ... 5.     Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” The Government submitted that the applicant should have filed an official liability action against the prison authorities. They submitted that the establishment of 22 December (rather than 17 November) 2004 as the starting date of the applicant's last prison term had been an administrative error, arguable in a civil court under section 349 of the Civil Code. The applicant contested this view, claiming that the impugned situation had been a direct consequence of the rigid application of penitentiary law, itself deficient. Article 35 § 1 of the Convention provides as relevant: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...” The Court is satisfied that a successful civil action under sections 339 and 349 of the Civil Code, based on the authorities' alleged culpability in wrongly establishing the starting date of the applicant's last prison term, could have provided adequate redress in the circumstances. Accordingly, the Court finds that the applicant has not exhausted the domestic remedies available to him under Hungarian law. It follows that the application must be rejected pursuant to Article 35 §§   1   and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Sally Dollé   Françoise Tulkens   Registrar   President