Last Updated on November 21, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 27606/17
Gábor János SCHMIED
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:
Branko Lubarda, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 5 April 2017,
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
1. The applicant, Mr Gábor János Schmied, is a Hungarian national, who was born in 1960 and lives in Budapest. He was represented before the Court by Mr B. Arató, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant has Little’s disease. He possesses a special permit to use parking spots for disabled persons. However, on 14 April 2015 the Budapest VIII District Police Department fined him 20,000 Hungarian forints (approximately 60 euros) because of unlawful parking on a spot for disabled persons, the unlawfulness consisting in the fact that his permit to use such spots had not been displayed in his car. The authority relied on sections 11 and 224 of Act no. II of 2012 on Misdemeanours. Although during the proceedings the applicant submitted his permit, on 13 May 2015 the decision was upheld by the Pest Central District Court.
5. He requested the commutation of the fine to custody, as in general is permitted by section 12 of the Act. On 18 October 2016 the court rejected his request stating that according to point a) of section 10 of the same Act, if the person concerned is disabled as defined in Act no. XXVI of 1998 on the Rights and Equal Opportunities of Disabled Persons, such commutation was not possible.
B. Relevant domestic law
6. The Fundamental Law of Hungary provides:
Article VI
“(1) Everyone shall have the right to respect for his or her private and family life, home, communications and reputation.
…
Article XV
…
(2) Hungary shall guarantee the fundamental rights to everyone without discrimination based on any ground such as race, colour, sex, disability, language, religion, political or any other opinion, ethnic or social origin, wealth, birth or any other circumstance whatsoever.
…
(5) Hungary shall introduce specific measures to protect families, children, women, the elderly and the disabled.
Article XXIV
(1) Everyone shall have the right to have his or her affairs handled impartially, fairly and within a reasonable time by the authorities. This right includes the obligation of such authorities to give reasons for their decisions.
….”
Article XXVIII
(1) In the determination of his or her civil rights and obligations or of any criminal charge against him or her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
…
(7) Everyone shall have the right to seek remedy against judicial, administrative or other official decisions, which infringe upon his or her rights or legitimate interests.”
COMPLAINTS
7. The applicant submitted that the domestic proceedings were unfair and that he had been discriminated against, since, as a person living on disability pension, he had not been allowed to have the fine commutated to custody as would have been possible for others. He relied on Articles 6 and 14 of the Convention.
THE LAW
8. The applicant complained of the allegedly unfair and discriminatory measures he had been subjected to. The Court, who is master of the characterisation to be given in law to the facts of the case (Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that this complaint may raise an issue under Article 6 of the Convention, as well as under Article 14 read in conjunction with Article 8.
9. Article 6 § 1 provides as relevant:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
10. Article 8 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.”
11. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
12. The Government submitted that the applicant should have brought a constitutional complaint. The applicant disagreed.
13. The Court has already held that a constitutional complaint under section 26(1) and/or section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted for the purposes of Article 35§ 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary (see Szalontay v. Hungary (dec.), no. 71327/13, §§ 29-41, 12 March 2019).
14. The present case pertains to the applicant’s grievances concerning fair trial, respect for private life and prohibition of discrimination – rights enshrined in Articles 6, 8 and 14 of the Convention and Articles VI, XV, XXIV and XXVIII of the Fundamental Law (see paragraph 6 above).
15. It follows that the constitutional complaint was an effective remedy to exhaust in the circumstances.
16. Since the applicant did not avail himself of this legal avenue, the application must be rejected for non‑exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 October 2019.
Andrea Tamietti Branko Lubarda
Deputy Registrar President
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