CEDH · PRESS;GENERAL;ENG — 20 juillet 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS 371 20.7.2004 Press release issued by the Registrar   CHAMBER JUDGMENT BALOGH v. HUNGARY   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Balogh v. Hungary (application no. 47940/99).   The Court held: by four votes to three, that there had been a violation of Article   3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights; unanimously, that there had been no violation of Article   13 (right to an effective remedy) of the Convention; unanimously, that there had been no violation of Article   6 (access to court); unanimously, that there had been no violation of Article   14 (prohibition of discrimination).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant, by four votes to three, 4,000   euros   (EUR) for pecuniary damage, EUR   10,000 for non-pecuniary damage and EUR   3,000 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Sándor Balogh, is an Hungarian national who was born in 1958 and lives in Miskolc, Hungary. He is of Roma ethnic origin.   On 9 August 1995 Mr Balogh was taken to Orosháza Police Station, where he was questioned for two hours concerning the whereabouts of a number of fuel vouchers which he and others had allegedly stolen. He claimed that one of the police officers repeatedly slapped him across the face and left ear while the other punched him on the shoulder.   The applicant was met on the ground floor of the police station by four of his companions who each testified that he had a red and swollen face and that he must have been beaten.   On his return to his home in Miskolc on 11 August 1995, he consulted the local doctor, who advised him to report to Diósgyőr Hospital. On 14 August 1995 an operation was carried out to reconstruct the applicant’s ear drum which had been damaged as a result of a traumatic perforation. Three medical reports stated that he had sustained a traumatic perforation of the left tympanic membrane. His injury was described, in a follow-up medical report, as “low-to-medium-grade loss of sound perception” in the left ear.   Criminal proceedings were opened against the police officers involved and, on 16 November 1995, a medical expert concluded that it could not be determined whether the injury in question had been caused before, during or after the police interrogation. On 30 November 1995 the criminal proceedings were discontinued. On 24   January 1996 the investigation was resumed. The Investigation Office found that it could not be excluded beyond all doubt when the injuries had been sustained.   As of 1 August 1996 the applicant’s working capacity was declared to have diminished by 50% on account of asthma bronchiale and impaired hearing. He was therefore unable to have his lorry driver’s licence renewed or to obtain employment as a driver. He applied unsuccessfully for compensation.   A further medical opinion found that a traumatic perforation of the tympanic membrane was usually caused by a slap on the ear and that the applicant’s account of how his injury occurred was plausible. Relying on this new evidence, the NEKI (the Legal Defence Bureau for National and Ethnic Minorities) requested that criminal proceedings be re-opened. However, the Public Prosecutor’s Office decided that the case should be discontinued since it was impossible to prove the applicant’s allegations.   2.     Procedure and composition of the Court   The application was lodged on 8 April 1999 with the European Court of Human Rights and by a decision of 13 May 2003, the Court declared the application admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Antonella Mularoni (San Marinese), judges , and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant alleged that he was ill-treated by the police and that the investigation into his complaint of ill-treatment was ineffective, in breach of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. He also relied on Article 6 §   1 (access to court) and Article 13 (right to an effective remedy). He further maintained that he was discriminated against on account of his Roma origin, relying on Article 14 (prohibition of discrimination).   Decision of the Court   Article 3 The Court noted that medical reports found that the applicant had suffered a traumatic perforation of the left tympanic membrane. According to a forensic expert, the most common cause of such injuries was a slap on the face. The applicant was said by his four companions to have left the police station with a red and swollen face, who all deposed, in consistent terms, that he must have been beaten.   It was true that the applicant did not seek medical help in the evening of the alleged incident, or the next day, but waited until 11 August 1995. However, considering that he immediately sought medical assistance on arriving in his home town, the Court was reluctant to attribute any decisive importance to the delay, which could not be considered so significant as to undermine his case.   It could not be overlooked that independent investigations were carried out into the applicant’s allegation. The prosecutor, whose task was made difficult on account of the absence of independent eyewitness testimony, heard statements from the applicant and his companions, and tested the veracity of their statements against evidence taken from the police officers who had been on duty at the police station and the officers who were alleged to have beaten him.   However, it still remained the case that the authorities had not provided any plausible explanation for the cause of the applicant’s injury. The Court concluded that the Hungarian Government had not satisfactorily established that the applicant’s injuries were caused otherwise than by his treatment in police custody.   The Court reiterated that, in respect of a person deprived of his liberty, any recourse to physical force which had not been made strictly necessary by his own conduct diminished human dignity and was, in principle, an infringement of Article 3. The requirements of an investigation and the undeniable difficulties inherent in the fight against crime could not justify placing limits on the protection of an individual’s physical integrity.   The Court concluded, by four votes to three, that there had been a violation of Article 3.   Article 13 The Court noted that the authorities were prepared to treat the applicant’s allegations seriously and that three prosecution bodies examined his complaints. The prosecuting authorities also agreed to re-open the investigation at the request of the NEKI .   The Court was satisfied that the investigations conducted were thorough and capable of leading to the identification and punishment of any State agent found to be responsible in the light of the evidence gathered. The prosecuting authorities also discharged their duties in an independent and impartial manner.   Considering that the applicant had available to him an effective remedy in relation to his complaint under Article 3, the Court found, unanimously, that there had been no violation of Article 13.   Article 6 §   1 The Court noted – as the applicant accepted – that he had not brought proceedings for compensation under section 339 of the Civil Code. Since he failed to do so, his submission that any such action would have been stayed was matter of speculation.   Furthermore, it appeared to be the applicant’s failure to file on time his complaint against the order to discontinue the investigations that had barred his access to a court for a possible official liability claim under section 349 of the Civil Code.   Finding, therefore, that the applicant had not been denied access to a court or deprived of a fair hearing, the Court held, unanimously, that there had been no violation of Article 6.   Article 14 Finding the applicant’s allegations of discrimination under the Convention to be unsubstantiated, the Court held, unanimously, that there had been no violation of Article 14.     Judge Baka joined by Judge Jungwiert and Judge Butkevych expressed a partly dissenting opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.