CASE OF SOMOGYI v. HUNGARY
Remainder inadmissible;Violation of Art. 5-1-a;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1951 and lives in Tököl. 6. In 1999 the applicant was sentenced to eight years' imprisonment for armed robbery by the Rimini Court in Italy. (The European Court of Human Rights subsequently held that the unfairness of the underlying proceedings gave rise to a violation of Article 6 § 1 of the Convention by the Italian authorities and awarded the applicant just satisfaction: Somogyi v. Italy, no. 67972/01, ECHR 2004IV). The end date of this sentence was 28 December 2007. 7. On 19 May 2003 the applicant was transferred to Hungary. On 20 October 2003 the Budapest Regional Court in Hungary held that he was to serve the remainder of his sentence under a strict regime in a Hungarian prison (fegyház) and that he could be released on parole after serving four-fifths of the term, i.e. on 23 May 2006. 8. The applicant appealed. On 16 February 2006 the Attorney General's Office intervened in the case, filing a motion for remedy in support of the applicant. The Office argued that the service of the applicant's sentence under a strict regime constituted an undue aggravation of his penal situation, in breach of Article 11 of the Transfer Convention, which entailed that he could be released on probation only belatedly. 9. On 14 March 2006 the Supreme Court quashed the Regional Court's decisions concerning the regime of the applicant's transferred sentence and his conditional release, holding that they were unlawful. It held that the best approximation of the Italian sentence in Hungarian law was to have imposed a medium regime (börtön) on the applicant for the remainder of his prison term, release on parole then being possible after having served three-quarters of the sentence. 10. On 17 March 2006 the applicant was released. 11. Subsequently, the applicant brought an official liability action against the Regional Court. He claimed compensation for the fact that, because of that court's wrong reconciliation of the Italian and Hungarian penitentiary rules, he had been released on parole only on 17 March 2006, whereas under the medium regime he could have already been released in November 2005. He also sought damages for having erroneously spent two years and five months in a strict-regime prison. 12. After divergent decisions, on 15 May 2008 the Supreme Court finally dismissed the action. Concerning the belated release, it held that, although the Regional Court's interpretation of the law had been overruled, there was no indication that it had carried out the complex task of reconciling the inconsistent Italian and Hungarian rules with gross negligence giving rise to tort liability. As to the period wrongly spent in a strict-regime prison, it noted that the applicant had not substantiated that he had sustained any actual damage. 13. From 1994 onwards, criminal proceedings were conducted against the applicant in Hungary for the abuse of firearms. On 6 February 2004 the Buda Central District Court sentenced him to four months' suspended imprisonment. The court observed that unlicensed firearms had been found in the applicant's car and, in so doing, it relied on the testimony of several witnesses. It took into account the extreme protraction of the case since 1994 as a crucial mitigating circumstance entailing a suspended sentence. 14. On 12 May 2005 the Budapest Regional Court upheld this judgment. On 15 November 2005 the Supreme Court dismissed the applicant's petition for review. 15. The Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112) provides as follows: “The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” “1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. 2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.” “In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: ... d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.”