Exclusion from an official witness protection programme
II. RELEVANT DOMESTIC LAW 20. Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (“the Protection Act 2001”) provides as follows: Section 1 “For the purposes of this Act, the term: 1. “Protection Programme” means organised protection that cannot be secured within the framework of personal protection, which is granted to a witness, an aggrieved party, a defendant, a relative of the above persons or to any other person under threat on account of the person concerned, a) provided by the police under a civil law agreement concluded with the person under threat, and b) in the course of which the application of special measures (section 16) and – in order to help the social integration of the person concerned – mental, social, economic, human and legal support is needed; 2. “Agreement” means a civil-law agreement between the police and the person under threat on the latter’s enrolling in the Protection Programme, on the cooperation to be carried out under the Programme, and on the rights and obligations of the participants in the Protection Programme; 3. “Personal protection” means measures carried out, in pursuit of a separate decree..., by the police ... in order to secure personal protection for the participants in criminal proceedings and the officials of the authority in charge ...;” Section 7 “(4) To settle a dispute emanating from the agreement, the parties shall conduct conciliatory negotiations. If the parties are unable to settle the dispute in three days, either party may seek a judicial ruling. The Budapest High Court has exclusive competence to deal with such disputes and adjudicates them in non-contentious proceedings. Where appropriate, the court shall hear the parties in person.” Section 16 “(1) In order to prevent an unlawful act against the life, bodily integrity or personal liberty of the person concerned, the Scheme may apply the following special protection measures: a) placement (moving) of the person concerned in a safe place by changing his domicile or place of residence or by relocating a detainee covered by the Programme from the penitentiary institution in which he is placed into another one; b) granting personal protection for the person concerned; c) ordering that the data of the person concerned, stored in official registers, no longer be accessible and that any request for access to such data be signalled; d) change of name; e) change of identity; f) participation in international cooperation.” ii. ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies, such as judicial organs, investigating and prosecuting authorities, bar associations, and relevant social institutions. Appendix to Recommendation Rec(2005)9 THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 22. The applicants complained that their exclusion from the Witness Protection Scheme entailed the risk of the mafia making an attempt on their lives. The Court considers that this issue falls to be examined under Article 2 of the Convention which provides as relevant: “1. Everyone’s right to life shall be protected by law. ...” 23. The Government contested that argument. A. Admissibility 24. The Government submitted that the applicants had not exhausted domestic remedies, since they had not availed themselves of the judicial procedure under section 7(4) of the Protection Act 2001, or else of a tort action, claiming a breach of the agreement by the authorities. The applicants contested these views. The Court notes that section 7(4) is reserved for adjudicating disputes emanating from the agreement (see section 20 above), whereas the present application concerns the authorities’ decision to exclude the applicants altogether from the Scheme. For the Court, it is hardly conceivable that the unilateral termination by the authorities of this legal set-up falls into the category of ‘disputes emanating from the agreement’. However, even assuming so, the Court finds that the Government have not demonstrated in any manner how such a procedure would have effectively protected the applicants from the threats allegedly flowing from the removal of their cover identities. It is even less the case in respect of a tort action, which evidently would have taken time and resulted most likely in pecuniary compensation, if any. In sum, the Court is not persuaded that the legal avenues suggested by the Government represent effective remedies in the circumstances. It follows that the application cannot be rejected for non-exhaustion of domestic remedies. The Court further notes that, with regard to Ms H.H. and her children, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 25. Concerning Mr R.R., the Court would observe that when he was excluded from the Scheme, his position was altered only to the extent that he was transferred to the strict-regime section of S. Prison (see paragraph 18 above). In the absence of any elements pointing to risks which Mr R.R. is running in that institution, the Court finds that this part of the application is unsubstantiated and must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. The Court would stress that this conclusion is based on the first applicant’s present situation, that is, his incarceration under strict regime conditions at S. Prison, and does not exclude that any change in that situation which might expose the applicant to a risk might raise an issue under the Convention. B. Merits 26. The applicants submitted that their exclusion from the Scheme entailed the risk that criminal elements might take vengeance on them for the first applicant having been a collaborator of justice. In their view, the steps taken by the authorities after the termination of the programme, such as providing Ms H.H. with an emergency phone number and scarce visits by police officers provided no security whatsoever. The level of threat had never dropped since most of the persons representing risk to the family are still at large. 27. The Government specified that the applicants’ enrolment in the Scheme had been terminated not because of the elimination of threats, but because of the first applicant’s breaches of the programme’s rules. In any case, the level of threat had dropped since certain persons representing a potential threat to the applicants had been apprehended and sentenced to imprisonment in the same proceedings as the first applicant, that is, finally on 6 October 2010 (see paragraph 13 above). Subsequently, the authorities had carried out a further enquiry into the threats feared by the applicants but found no evidence pointing to real risks. To counter the remaining risks, if any, the authorities had nevertheless introduced personal protection measures for the family from the moment of terminating their enrolment. 28. The Court notes that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. 29. For the Court, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case (see Osman v. the United Kingdom, 28 October 1998, §§ 115-116, Reports 1998–VIII). 30. In the instant case, the Court notes that the applicants were enrolled in the Witness Protection Scheme shortly after the first applicant had become available to the authorities as a collaborator of justice. The parties’ submissions, rather vague, about the nature of the threats prevailing at that time do not enable the Court to assess whether they represented a real and immediate risk to the applicants’ lives. However, it notes that, in applying the rules of witness protection to the applicants’ case, the authorities implicitly accepted that there was a serious risk to their life, limb or personal liberty within the meaning of section 16 of the Protection Act 2011 (see paragraph 20 above). Given the well-known nature of mafia conflicts and the applicants’ unrefuted allegations about them being wanted by criminal circles – an assertion not implausible in the light of the first applicant’s having become a collaborator of justice enabling the unravelling of internationally organised criminal activities – the Court accepts that there was indeed a serious threat to the applicants’ lives (rather than only to limb or liberty), when the measure was originally put in place. 31. Consequently, it has to be ascertained whether that risk was still real when the applicants were excluded from the programme, or else whether the authorities did all that could be reasonable expected of them to avoid that risk. As to its existence, the Court notes the Government’s explanation according to which the persons representing a potential threat to the applicants have been apprehended. However, the Government also admitted (see paragraph 17 above) that the programme had not been terminated because of the drop in the level of risks. In any case, since those incarcerations took place in 2010 at the latest (see paragraph 13 above), whereas the applicants were excluded from the programme only in April 2012, the Court is, for its part, unable to see any causal link between those arrests and the termination of the programme. In these circumstances, the Court observes that the applicants were excluded from the programme for reasons other than the elimination of risks, and finds that the Government have not shown in a persuasive manner that the risks have ceased to exist. It remains to be examined whether the authorities have effectively countered those risks. 32. The Court notes that the applicants’ cover identities were withdrawn and the children started to go to school under their real names. It is not unreasonable to suppose that their identities and whereabouts have become accessible to any person with the intention of harming them. In the face of this development, the Court cannot accept the Government’s assertion according to which the security previously guaranteed by the Scheme was substituted for, in a satisfactory manner, by the measures of personal protection, that is, the availability of an emergency phone number and the occasional visits by police officers. Given the importance of witness protection reflected by the Court’s case-law (see, although in different contexts, Ahorugeze v. Sweden no. 37075/09, § 121, 27 October 2011; and Doorson v. the Netherlands, 26 March 1996, §§ 69-70, Reports 1996 ‑ II) as well as by Recommendation Rec(2005)9 of the Committee of Ministers (see paragraph 21 above), the Court cannot but conclude that the authorities’ actions in this case may have potentially exposed Ms H.H. and her children to life-threatening vengeance from criminal circles and thus fell short of the requirements of Article 2 of the Convention. There has accordingly been a violation of that provision in respect of the second, third, fourth and fifth applicants. II. RULE 39 OF THE RULES OF COURT 33. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 34. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. The first applicant also complained under Article 5 that the joinder of his case to the one against other perpetrators had resulted in his exposure. The Court considers that these submissions do not raise any issue under Article 5 of the Convention. He further complained under Article 6 that his trial had been unfair in that the courts had assessed the evidence in a one-sided manner to his detriment. In so far as the first applicant’s complaint may be understood to concern assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). In the present case, the Court considers that there is no indication that the courts lacked impartiality or that the proceedings were otherwise unfair. He also complained that the alleged insistence of the Scheme’s operatives that the second applicant should break up with him amounted to a breach of Article 8 (see paragraph 8 above). The Court finds that this complaint is wholly unsubstantiated. Without relying on any particular provisions of the Convention, he lastly complained about the restrained conditions of his detention at S. Prison (see paragraph 18 above). The Court is satisfied that the conditions of the detention do not disclose any appearance of a violation of the first applicant’s Article 3 rights, the minimum level of severity required for this provision to come into play not being attained. Furthermore, the restrained conditions, not argued to be unlawful, can be seen as pursuing the legitimate aim of prevention of crime within the meaning of Article 8 § 2 and necessary in a democratic society to secure the first applicant’s personal security (see paragraphs 18 and 25 above); therefore, there is no appearance of a violation of the first applicant’s rights under Article 8 of the Convention in this connection either. It follows that the above complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. IV. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 36. The relevant parts of Article 46 of the Convention read as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...” 37. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998–IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000–VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004–I). The Court further notes that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001–I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005–IV). 38. With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004–V; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009; and Stanev v. Bulgaria [GC], no. 36760/06, § 255, ECHR–2012). 39. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 2, to indicate individual measures for the execution of this judgment without prejudice to any general measures required to prevent other similar violations in the future. It observes that it has found a violation of that Article on account of the fact that the authorities excluded the second, third, fourth and fifth applicants from the witness protection programme without satisfying themselves that the threat against the applicants was no longer there and without taking the necessary measures to protect their lives (see paragraph 32 above). 40. The Court considers that in order to redress the effects of the breach of the rights of the second, third, fourth and fifth applicants, the authorities should secure measures of adequate protection for these applicants, including proper cover identities if necessary, equivalent to those provided in section 16 of the Protection Act 2001 (see paragraph 20 above) until such time as the threat can be proven to have ceased. B. Article 41 of the Convention 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 42. Each applicant claimed 75,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage. The figure concerning pecuniary damage includes the loss of income incurred since the termination of their enrolment in the programme and the same for the future. 43. The Government contested these claims. 44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the second, third, fourth and fifth applicants must have suffered some non-pecuniary damage and awards them jointly, on the basis of equity, EUR 10,000 under this head. 2. Costs and expenses 45. The applicants also claimed EUR 4,790 plus VAT for the costs and expenses incurred before the Court. This figure includes the legal fees payable to the applicants’ lawyer, corresponding to 47 hours of legal work charged at an hourly fee of EUR 100 plus VAT as well as to EUR 90 of clerical costs. 46. The Government contested this claim. 47. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. 3. Default interest 48. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 (right to life) of the Convention as regards the children and their mother. It found that the applicants had been excluded from the programme in which they had initially been enrolled without the Hungarian Government having shown that the risks had ceased to exist and without having taken the necessary measures to protect their lives. The Court concluded that the Hungarian authorities had potentially exposed the children and their mother to life-threatening vengeance from criminal circles. It further held under Article 46 (binding force and execution) that adequate measures had to be taken to protect the family, including proper cover identities if necessary.