OLAH v. HUNGARY
Inadmissible
The applicant, Mrs Józsefné Oláh, is a Hungarian national, who was born in 1972 and lives in Ózd. She is represented before the Court by Mr I. Furmann, a lawyer practising in Miskolc, who also assists “the Legal Defence Bureau for National and Ethnic Minorities” (hereafter the “NEKI”). 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 of Roma origin, as was her late husband, Mr Oláh. The other person involved in the case, Sergeant L.T. was born in 1970. In 1996 he joined the Budapest VI/VII District Police Department. Following ten months' training, he received his firearm in January 1997. On 24 July 1997 at around 10.30 p.m. Mr Oláh, accompanied by an accomplice, broke the window of a car parked some fifteen metres from the French Embassy in Budapest and stole the radio. That night Sergeant L.T. was on guard in front of the Embassy. Having noticed Mr Oláh and his accomplice, he left his sentry-box. Seeing a police officer in uniform approach, Mr Oláh handed the car radio to his accomplice and both men started to run. Sergeant L.T. ordered them to stop. Mr Oláh and his accomplice looked back but kept running. Sergeant L.T. drew a gun and started to pursue them from a distance of some twenty metres. During the chase, he saw a shiny object in the hand of one of the fugitives. In a nearby street he again ordered them to stop. When they failed to do so, he fired a warning shot. Some time later he again ordered them to stop and fired a second warning shot. After some one hundred metres, Sergeant L.T. lost sight of them. Following a tip-off from an eye-witness (E. B.), Sergeant L.T. went through the gateway to a house in order to search for them. The gateway opened up onto a yard which was crossed by a path. To the right of the path, there was a garden; the entrance door to the building was located to the left of the path. Mr Oláh hid himself by the entrance door; his accomplice was lying in the garden. The visibility in the yard, which was not lit, was one metre. Sergeant L.T. crossed the path holding his firearm in his right hand. As Sergeant L.T. passed by, Mr Oláh, leaning forward, made a sudden move towards him. Sergeant L.T. stepped aside, turned towards Mr Oláh and – holding his firearm at a height of some 1.2 metres – fired a non-targeted shot at him from a distance of 1.6 metres. The bullet entered the right side of Mr Oláh's chest between the sixth and seventh rib, in a downward direction. It passed through the liver and exited through the tenth rib, finally lodging itself in the entrance door at a height of 130.5 centimetres. Mr Oláh collapsed. Sergeant L.T. got his handcuffs ready, but having noticed that Mr Oláh's injuries were serious he decided that it was not necessary to use them. At this point the eye-witness E.B. arrived. Sergeant L.T. asked him to call an ambulance and continued his search for Mr Oláh's accomplice. The ambulance arrived and transported Mr Oláh to the National Institute for Traumatology at 11.21 p.m. where he underwent surgery. On 26 July 1997 he died due to circulatory and respiratory failure caused by haemorrhagic shock. Meanwhile, on 24 July 1997 at 11.30 p.m. the police inspected the scene of the incident and arrested Mr Oláh's accomplice who was still hiding in the grass. Outside the house where the incident took place, they found the two spent cartridges from the warning shots; the spent cartridge from the lethal shot was found in the yard, as was the stolen radio. On 25 July 1997 Sergeant L.T. reported the events to the Head of the Budapest VI/VII District Police Department. He maintained that, during the chase and, again, immediately before firing the lethal shot, he had seen a shiny object in Mr Oláh's hand. He had perceived the latter's sudden move away from the door towards him as an attack, probably with a knife. He further deposed that he had intended to shoot Mr Oláh in his thigh in self-defence. Subsequently, administrative proceedings were instituted against Sergeant L.T. with a view to examining the lawfulness of his use of his weapon. The opinion of a forensic weapons expert was also obtained. On 28 July 1997 the Head of the District Police Department discontinued these proceedings on the ground that “according to the information obtained, the police officer had used his firearm lawfully and professionally”. In the decision, it was established that although Sergeant L.T.'s shot had been aimed at Mr Oláh's thigh, Mr Oláh had in fact been hit on the trunk, because he had been in the act of descending the stairs leading from the entrance door. On 5 August 1997 the applicant, represented by Mr Furmann, lodged a complaint challenging the administrative decision. In reaction to this complaint, the Budapest Police Department suspended the proceedings pending the outcome of the criminal proceedings initiated against Sergeant L.T. (see below). Following Sergeant L.T.'s acquittal, the District Police Department discontinued the administrative proceedings on 21 February 2000. The applicant was informed of this decision. Subsequent to Mr Oláh's death, a second administrative procedure was opened in order to establish the circumstances of the death. On 30 July 1997 an autopsy was carried out by two forensic pathologists. On 2 September 1997 the Budapest V District Police Department discontinued the proceedings, having regard to the competent authority's conclusion that Sergeant L.T.'s use of his firearm had been lawful and to the finding that there was no appearance of any medical negligence in the treatment administered to Mr Oláh. The applicant was informed of this decision. Subsequently, criminal proceedings were instituted against Sergeant L.T. on a charge of homicide. On 1 August 1997 Mr Furmann requested the Investigation Office of the Budapest Regional Public Prosecutor's Office to inform him about the state of these proceedings. On 5 August 1997 Mr Furmann submitted to the Budapest Investigation Office a power of attorney signed by Mr Oláh's mother. Meanwhile, a reporter and a cameraman from Hungarian Television who had been working at the scene of the incident on 24 July 1997 submitted a video and an audiotape recording of a conversation with Mr Oláh's accomplice about a knife found lying on the ground nearby. Both men were heard as witnesses on 1 and 11 August 1997, respectively. Two further witnesses were heard on 15 September 1997. One of them (E.B.) was the eye-witness who had given the tip-off to Sergeant L.T. and had been asked by Sergeant L.T. to call an ambulance; the other (Z.K.) lived in the house where the incident occurred. On 29 September 1997 Mr Furmann submitted two expert opinions which had been prepared at the request of the NEKI. On 30 September 1997 the Investigation Office appointed a forensic medical expert who submitted his opinion on 15 October 1997. On 8 October 1997 the Investigation Office appointed a forensic weapons expert who submitted his opinion on 27 October 1997. The opinion was based on an on-site demonstration. On 14 October 1997 the National Ambulance Service deposed that it had been called at 10.39 p.m. on the evening of the incident. On 29 October and 3 November 1997 the ambulance driver, the doctor and her assistant were heard as witnesses. On 3 November 1997 Mr Oláh's accomplice failed to appear at the Investigation Office where he was to be heard as a witness. He was eventually heard on 22 January 1998. On 19 November 1997 Sergeant L.T. was questioned by the Investigation Office as a suspect. A further on-site demonstration, attended by Mr Furmann, was held at 10.10 p.m. on 9 December 1997 in order to check the visibility conditions. On 30 December 1997 the National Service of Meteorology submitted information on the visibility conditions at the time of the incident. On 10 March 1998 Mr Furmann again requested information about the proceedings. On 19 March 1998 he was informed that the investigation had been completed and that the case had been transferred to the Budapest Public Prosecutor's Office. On 6 May 1998 the Public Prosecutor's Office preferred a bill of indictment against Sergeant L.T. charging him with homicide. On 8 July 1998 the Regional Court heard Sergeant L.T., a witness (Z.K.), the ambulance doctor, the cameraman and the forensic weapons expert. Mr Furmann had not been notified in advance of this hearing. On the same day Mr Furmann sent a letter to the presiding judge requesting that he be notified about the date of the next hearing. In his reply the presiding judge dismissed the request on the ground that Mr Furmann and his client, Mr Oláh's mother, could not be regarded as a party to the criminal proceedings in accordance with sections 53, 55 and 57 of the Code of Criminal Procedure. Nevertheless, the judge informed Mr Furmann of the dates of the subsequent hearings. At 12.10 p.m. on 13 July 1998 the Regional Court conducted an on-site inspection of the scene of the incident. The next hearing was held on 28 September 1998. The reporter, another journalist, the eye-witness E.B., four police officers and Mr Oláh's accomplice were heard as witnesses. Another hearing was held on 23 November 1998. On that occasion four police officers and the ambulance assistant were heard as witnesses. At the next hearing on 11 December 1998 the forensic medical expert and the weapons expert were heard. The parties presented their closing arguments. The public prosecutor proposed that Sergeant L.T. be acquitted by virtue of section 29(2) of the Criminal Code. He argued that the defendant should not be punished because he had been acting lawfully in self-defence even though he had exceeded the necessary force (elhárítás szükséges mértékének túllépése) in the circumstances. According to the public prosecutor, Sergeant L.T. could not have assessed properly the situation with which he was confronted on account of his fear and, given the circumstances, his over-reaction was justified. The public prosecutor however observed that the lawfulness of the use of a firearm in itself did not preclude the commission of a crime and referred to sections 15(1) and 17(2) of the Police Act in this connection. Counsel for the defence pleaded that Sergeant L.T should be acquitted primarily on the ground of the absence of any danger to society and hence the absence of a crime or, alternatively, by reason of lawful self-defence. On the same date the Regional Court acquitted Sergeant L.T., applying section 10(2) of the Criminal Code. The court found it impossible to determine whether Mr Oláh had been armed at the time of the incident. In particular, it remained unclear whether Mr Oláh or his accomplice had had an object in their hands and, if so, whether that object had been a knife, the stolen radio or an object which the offenders had been using to smash the car window. The court observed that the knife apparently found during the inspection of the scene had been lost and could no longer be located in police storage. Moreover, the court, relying on the opinions of the weapons expert and the two forensic pathologists, considered it proven that Mr Oláh had been shot while leaning or moving forward, rather than standing or hiding. Given that it was almost completely dark at the time of the incident, the court accepted that Sergeant L.T. could not properly decipher Mr Oláh's intention when the latter moved towards him. The Regional Court was satisfied that the defendant's action did not constitute a crime. Under sections 52(1) and 54(k) of the Police Act, he had been free to use his gun to avert an attack directed against his life or bodily integrity. His action had therefore not been “materially illegal” (materiális jogellenesség), that is, dangerous to society. In these circumstances, no criminal act had been committed – a conclusion which allowed the court to dispense with the examination of the question of self-defence, in particular whether it was lawful self-defence or excessive. The public prosecutor appealed against this judgment, requesting that the defendant be acquitted under section 29(2) of the Criminal Code. Subsequently, the public prosecutor withdrew the appeal. Consequently, on 1 June 1999 the Regional Court's judgment became final. On 8 January 1999 Mr Furmann requested a copy of the Regional Court's judgment. On 13 October 1999 Mr Furmann, submitting a power of attorney signed by the applicant on 1 October 1999, requested a copy of the case file from the Regional Court. He stated that the case file was needed in order to introduce an application with the European Court of Human Rights. On 20 October 1999 the Regional Court dismissed Mr Furmann's request on the ground that the applicant had not been a party to the criminal proceedings. On 2 November 1999 Mr Furmann appealed against this decision. He relied on the Convention and made references to the Court's case-law under Article 6 on the principle of equality of arms in criminal proceedings. On 6 December 1999 the Supreme Court dismissed the appeal holding that there was no connection between the cases referred to and the applicant's request for a copy of the case file. It was satisfied that the rejection of the request did not hinder the applicant's exercise of her right to lodge an application with the European Court of Human Rights. (1) Liability for damage caused in the sphere of State administration shall be established only if the damage could not have been be prevented by ordinary legal remedies or if the injured party has had recourse to ordinary legal remedies appropriate for preventing the damage. (3) These rules shall also apply to liability for damage caused in the judicial and prosecution spheres, unless otherwise provided by statute. (1) Any person who does an act which is necessary in order to prevent an unlawful attack against himself or another person, his own goods, or those of other persons, or against the public interest, or an unlawful attack directly threatening the above, shall not be liable to punishment. (2) A person shall not be punished either if he exceeds the necessary measure of prevention because he is unable to appreciate it due to fear or justifiable excitement (menthető felindulás). (3) The punishment may, without limitation, be mitigated if the perpetrator is restricted in appreciating the necessary degree of prevention through fear or justifiable excitement. (1) A criminal act is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which is dangerous to society and in respect of which the law imposes punishment. (2) An act or omission shall be deemed an act of danger to society if it violates or endangers the State, the social or economic order of the Republic of Hungary, a person or the rights of citizens. (1) The actions of the police shall not be such as to cause prejudice which is clearly disproportionate to the legitimate aim of the action. (2) If there exists several possible and appropriate actions or coercive measures in a given situation, the act or measure chosen should be the one which, besides ensuring efficiency, entails the least restriction, injury or damage to the person concerned. (2) During police actions, in the application of coercive measures, the infliction of injuries or deprivation of life should be avoided as far as possible. ... A police officer may use his firearm: ... (k) in order to avert an attack directed against his own life, bodily integrity or personal freedom. (1) A victim is a party whose rights or lawful interests have been infringed or endangered by the offence. (2) The victim: (a) may be present at any procedural acts carried out during the investigation, provided that the victim's presence is permitted by this Act, or during the trial, unless this Act states otherwise; (b) may have access to documents concerning him/her after the conclusion of the investigation, (c) may, at any stage of the proceedings, file motions or observations, and request information on his/her procedural rights and obligations, (d) may submit questions to be put to those heard at the hearing and may take the floor. (1) A civil party is a victim who files a civil-law claim for determination in the criminal proceedings. (5) In the event of the victim's death, his/her heir may become a civil party. However, the rights set out in section 53 will be applicable only in relation to the proof of the civil-law claim. (1) If possible, the court shall decide on the merits of the civil-law claim in the judgment or decision terminating the criminal proceedings. If this procedure delays the criminal proceedings significantly, the court may redirect the civil-law claim to other courts. (1) Copies of documents from the criminal case-files shall be issued to the ... civil party ... and his/her representative at their request.