TOTH v. HUNGARY
Inadmissible
The applicant, Mr Ferenc Tóth, is a Hungarian national, who was born in 1953 and lives in Tura, Hungary. He is represented before the Court by Mr J. Pajcsics, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a professional hunter. At the relevant time he had a firearms licence; through his interest in firearms he became acquainted with Mr R.B. and Mr G.S. In early 1995 R.B. gave the applicant a hand grenade as a present. In February 1997 Mr A.D., an acquaintance of G.S., met a person called “Peter” in a club. Peter asked A.D. whether he could procure 50 hand grenades for him. A.D. promised to look into the matter and obtained the applicant’s phone number from G.S. He repeatedly called the applicant to ask whether he could help him in procuring the hand grenades. The applicant eventually undertook to hand over to him the grenade he had received as a present. At their meeting Peter was also present and discussed the price of the grenades with them. Afterwards, Peter called the applicant regularly, asking him to procure the 50 grenades. The applicant contacted R.B. and requested 10 or 20 hand grenades from him. On 10 March 1997 the applicant obtained 21 grenades from R.B. On the way home he met A.D. and Peter. They decided to conclude their business the following day. On 11 March 1997, instead of Peter, police officers arrived at the meeting and searched the applicant’s car. They found 21 hand grenades in it. The applicant was arrested together with A.D. Subsequently, criminal proceedings were initiated against the applicant on charges of the abuse of explosives. During the investigation the applicant confessed to the offence. However, he maintained that he had been entrapped by Peter into committing it. On 7 April 1997 the applicant’s lawyer requested the Budapest Public Prosecutor to investigate the matter of police entrapment, having regard to the suspicion that the person called Peter was an undercover police officer whose identity the Head of the National Police refused to reveal. The Prosecutor stated that Peter might be an undercover police officer who had secretly collected information about the applicant. However, he refused to open an investigation into the matter and took the view that the Head of the National Police had proceeded lawfully throughout. The Budapest XIV/XVI District Public Prosecutor charged the applicant with the abuse of explosives. Subsequently, he was also charged with the abuse of firearms. During the hearings before the Pest Central District Court the applicant maintained that, although he had committed the offence, he had not had any intention to trade in grenades and only did so because of the incitement by Peter, an undercover police officer. He claimed that the officer’s incitement had not been justified, since the police had no good reason to suspect the applicant of any prior involvement in selling hand grenades. He had no criminal record and there was nothing to suggest that he was predisposed to becoming involved in dealing in grenades until approached by Peter. On 11 January 2000 the District Court convicted the applicant of the abuse of explosives and firearms, and sentenced him, as a cumulative punishment, to two years’ imprisonment, suspended for three years. In reaching its conclusion the District Court stressed the fact that the applicant had had no previous criminal record, that time had elapsed and that the applicant had confessed. The court established that a person called Peter had been involved in the case, but could not be identified. It relied on the testimonies of the accused and three witnesses, expert opinions and documentary evidence. The applicant appealed. He argued that Article 6 § 1 of the Convention had been violated in that he did not have a fair trial before the District Court. He referred to the Court’s case-law, in particular the cases of Lüdi v. Switzerland (judgment of 15 June 1992, Series A no. 238) and Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV). For its part, the Prosecutor’s Office appealed against the leniency of the sentence imposed on the applicant, having regard to the widespread bomb attacks taking place at the material time. The Budapest Regional Court examined the applicant’s allegations concerning the fairness of the proceedings. It requested the Criminal Directorate of the National Police to supply information about the identity of Peter. It sought to have the police officer in charge of the operation exempted from his duty of confidentiality. The court intended to hear both men as witnesses. In reply to this request, the Head of the National Police stated that Peter was an informer acting on police instructions, pursuant to Article 64 § 1 (a) of the Police Act. He refused to give further information about Peter or to exempt his handler from his duty of confidentiality. In these circumstances, the Regional Court was forced to endorse the first-instance court’s findings of fact. In its judgment of 12 December 2001 it upheld the applicant’s conviction and sentence. The Regional Court held that the applicant and his accomplices would not have committed the offence without the pressure of the undercover police agent. However, it held as follows: “The act committed by the defendants is an act which is obviously dangerous for society and which therefore matches the notion of a criminal offence (section 10 § 2 of the Criminal Code). Its danger for society cannot be questioned even if there was indeed a provocation by the police, that is, if instigation – known to or encouraged by the police – took place.” The court considered that although the police instigation did not exonerate the applicant, his right to a fair trial was nevertheless infringed, notably in the light of the Teixeira and Lüdi cases. It also considered that the fact that the applicant would not have committed the offence, without incitement by Peter, was a factor to be taken into account when imposing sentence. Consequently, it rejected the prosecution’s request to increase the applicant’s sentence, despite its own finding that the offence was particularly dangerous for society, given the frequency of bomb attacks at the time. However, it did not mitigate the applicant’s sentence as requested by the latter in his appeal. The court also noted that, in separate proceedings, the applicant had meanwhile been convicted of an abuse of ammunition by the Gödöllő District Court on 26 April 2001. Concerning the assessment of the evidence, the Regional Court stated as follows: “The findings of fact are based on lawfully obtained evidence, namely the defendants’ admissions, the police report on their apprehension and the information contained in the minutes of seizure. The doubt prevailing in the case (whether or not Peter instigated the crime) was assessed in the defendants’ favour – the court accepted their testimonies in this connection.” “[... R]eview proceedings may be initiated ... if ... (a) a person was ... convicted ... in breach of the substantive provisions of criminal law; ...” “The Supreme Court may quash the decision reviewed and instruct the lower-instance court ... to resume its proceedings, if: a) the second-instance court gave its decision on the merits in breach of the substantive provisions of criminal law referred to under section 284 § 1, ... .” “In the hypothesis described under paragraph 1 subparagraph a) [of section 291], the Supreme Court may itself deliver a decision in accordance with the law, if this will result in the acquittal of the defendant, ... the discontinuation of the proceedings, or the imposition of a less severe punishment.” “(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment. (2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.” “A person, whose act at the time of perpetration represents little danger to society so that even the most lenient punishment ... is unnecessary, shall not be punishable.” “(1) Any person who, without a licence, prepares, obtains, possesses or transfers to an unauthorised person explosives or blasting-agents or equipment for their use, commits a crime, punishable with imprisonment of two to eight years.” “(1) Any person who a) prepares, obtains, possesses or distributes firearms or ammunition without a licence, b) exceeds the provisions of a licence relating to the preparation, obtaining, possession or trade of firearms or ammunition, c) transfers his licensed firearm or ammunition to a person who has no licence; commits a crime, punishable with imprisonment of two to eight years.” “It is not allowed to deliver a judgment in which the court finds the defendant guilty of one of the cumulative offences with which the latter has been charged and imposes a sentence, while discontinues the proceedings in respect of another offence, having regard to its negligible danger to society (section 28 of the Criminal Code).”