EHRM, 04-12-2012, nr. 19400/11

The first applicant, Mr R.R., is a Serbian national who was born in 19… and lives in Hungary. The second applicant, Ms H.H., a Hungarian national, is his common-law wife who was born in 19… The other three applicants are their minor children.

On 12 June 2007 the first applicant, once active in a drug-trafficking mafia run by Serbians in a European country and subsequently in hiding in Hungary under a false identity, was apprehended by the Hungarian police. It is disputed whether he turned himself in or was arrested. He admitted to various offences he had committed and gave information, secretly, about the activities of the mafia in question, enabling prosecution against it. He was offered a plea bargain which he accepted. Subsequently the Hungarian prosecution, despite his complaints, joined his own case to the one conducted against the criminals he had been informing about. This required him to appear in open court, disclose his identity and act publicly as a collaborator of justice.

Since this event apparently resulted in the applicants being exposed to vengeance from the Serbian mafia, the family was enrolled in the Witness Protection Scheme on 28 August 2007. The agreement on their enrolment contained a clause to the effect that if it was cancelled on account of a breach of the rules of the Scheme by the first applicant, the whole family would be excluded from the Scheme.

Within the framework of the Scheme, the following measures of special protection were introduced, in compliance with section 16(1a-c) of Act no. LXXXV of 2001 on the Protection Programme for Participants in Criminal Proceedings and Collaborators of Justice (‘the Protection Act 2001’). The applicants were issued with new personal documents as part of providing them with new identities.

Ms H.H. and the children were accommodated in a three-room, then in a four-room ‘safe flat’ and finally in a five-room family house. The two elder children attended school, while the youngest child — who suffers from medium-grade autism — attended a crèche providing special care, then a kindergarten. The applicants submitted that, in any case, no adequate care was provided in respect of this child's condition — an assertion disputed by the Government. They further alleged that during this time the Scheme's operatives insisted that the first and second applicant should break up their relationship.

On or some time after their admission to the Scheme, the family — having otherwise no regular income in excess of the various welfare allowances due under the law — started to receive a monthly subsistence allowance. Their rent, public utility bills, health care and schooling costs (including those related to the situation of the youngest child, in particular the fee of a teacher specialised in developing pedagogy) were wholly or partly paid by the Scheme. Resources were allotted to the children's clothing, the maintenance of the family's car and their travel costs incurred when visiting the first applicant, who was in detention. The latter also received a sort of allowance with regard to his participation in the Scheme.

The amounts of these disbursements were raised several times.

During this time, the first applicant was imprisoned in an unspecified jail. As to his contact history during the programme, the Government submitted that the family had kept regular contact with him through emailing, phone calls and in the form of monthly visits (an hour per month as per the witness protection agreement). If a visit was, for some reason, omitted, it was substituted either by another occasion or by prolonging the next visit. The last time the first applicant and his family met while the programme was running was on 26 January 2012. The next visit, scheduled for 9 February 2012, was cancelled due to the illness of the youngest child. Arrangements for a substitute visit could not be made, since on 28 February 2012 the first applicant was found in the possession of prohibited articles (see paragraph 14 below) and subjected to a 30-day, then a 10-day confinement; and on 12 April 2012 the applicants' enrolment in the programme was cancelled altogether.

A month or so after his enrolment in the Scheme in 2007, the first applicant's whereabouts were communicated to his lawyer; the latter subsequently attended several of his meetings with operatives of the National Bureau of Investigations.

The first applicant submitted that during his trial his mother was assaulted at her home in Serbia and the perpetrators made it clear to him, in an unknown manner, that the assault was in connection with him being a collaborator of justice. He emphasised that he did not change his mind about becoming a collaborator of justice although a significant sum of ‘blood money’ had been set by the Serbian mafia on his head because of this, and his parents had been — and still were — being harassed by the Serbian authorities and the mafia.

The Government submitted that the operatives of the Scheme carried out, as is the standard practice, a careful assessment of potential threats to the applicants, including interviewing some of the first applicant's relatives.

However, although the first applicant repeatedly mentioned the setting of ‘blood money’ of 200,000 euros on his head by Serbian mafia men, no evidence corroborated this allegation in the eyes of the authorities. In the applicants' view, the gathering of information in this respect was insufficient.

After numerous hearings held between 5 November 2007 and 9 February 2009, on 23 February 2009 the Budapest Regional Court convicted the first applicant, as a member of a criminal organisation consisting of another 18 persons, of aggravated abuse of narcotics and of firearms and other offences and sentenced him to 14 years of imprisonment. In the reasoning of its 187-page judgment, the Regional Court relied inter alia on testimonies given by numerous experts and witnesses, including that of the first applicant, physical evidence, documents and information obtained through secret surveillance.

On 6 January 2010 the Budapest Court of Appeal reduced the first applicant's sentence to six years.

On 6 October 2010 the Supreme Court aggravated the first applicant's sentence to nine years.

Some of the persons who, in the authorities' perception, represented a threat to the applicants were convicted in the same proceedings.

During his ensuing detention, on 28 February 2012 a laptop computer and a mobile internet device, held without authorisation, were found by the guards in his cell. He was caught in the act of communication using a voice-over-internet service. It could not be established how the prohibited devices had been smuggled into the penitentiary. The identities of the person or persons the first applicant had communicated with could not be determined with certainty either. The authorities nevertheless deduced from the first applicant's oral statements and the circumstances that he might have maintained contacts with criminal circles.

As a sanction, the entire family was excluded from the Scheme on 12 April 2012. This was explained by the fact that, by carrying out illicit communications, the first applicant had seriously breached the clauses of the agreement with the Scheme. It was found that, by virtue of this exposure, he had become a source of danger in the first place for his family and also for the operatives of the Scheme. It was also recalled that the co-operation between him and the Scheme operatives had gradually become very difficult, since he had kept complaining about various matters and demanded advantages not provided in the protection agreement or their better implementation.

On the same day, the Scheme's operatives visited Ms H.H. and informed her about the termination of the programme and of the protection measures, and about the fact that their original identities would simultaneously be restored.

The Government submitted that the agreement with the first applicant had been cancelled because of him having repeatedly breached its provisions, rather than because the threat to him and his family had diminished. In any case, in their view, this threat had indeed decreased on account of the apprehension of those persons who represented a danger for the applicants. The applicants contested this view, submitting that, despite these incarcerations, the criminal organisation which was after the first applicant was still active and posing a real threat.

The Government further submitted that after the applicants' exclusion from the programme, another scheme called ‘personal protection’ had been put in place for them, in application of section 4(5) of Government Decree no. 34/1999. (II.26.). They had continued benefiting from the house, the car, the telephone line and the computer and other items as well as the allowances during the transitional period of one month or so. The Witness Protection Scheme had arranged for returning their original documents and the withdrawal of cover documents, and taken the requisite steps with regard to the maintenance, under their original names, of the family's health and social care and the children's schooling. The family's public utility bills due for April 2012 had been paid by the Scheme, which had also assisted them in moving house, including the provision of free transport and free temporary storage facilities. For the first applicant, ‘personal protection’ consisted of his relocation to the strict-regime department of S. Prison which is physically separated from the rest of the institution. Here, he has been placed in a cell of 6 square metres; the view from the window is blocked; he is entitled to have an open-air walk once a day for an hour.

The applicants submitted that, the programme having been terminated irrespective of the persistent threat, no real care had been taken of Ms H.H. and the children. The latter were bound to return to school under their real names; and, inevitably, the fact that the family had been in witness protection for five years must have been revealed as a consequence of this.

The measures of ‘special protection’ had included nothing but an emergency phone number available to Ms H.H. and scarce visits paid to the family by police officers enquiring if anything was wrong. The family's personal particulars and whereabouts became accessible to anyone.

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

Section 7

Section 16

Recommendation Rec(2005)9 of the Committee of Ministers to Member States on the protection of witnesses and collaborators of justice (adopted by the Committee of Ministers on 20 April 2005 at the 924th meeting of the Ministers' Deputies) reads as follows:

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:

The Government contested that argument.

The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until

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.

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.