SECOND SECTION DECISION

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SECOND SECTION DECISION Application no. 24851/10 DEBÚT Zrt.

1 SECOND SECTION DECISION Application no /10 DEBÚT Zrt. and Others against Hungary The European Court of Human Rights (Second Section), sitting on 20 November 2012 as a Chamber composed of: Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, András Sajó, Işıl Karakaş, Nebojša Vučinić, Helen Keller, judges, and Stanley Naismith, Section Registrar, Having regard to the above application lodged on 3 May 2010, Having deliberated, decides as follows: THE FACTS The applicants, DEBÚT Zrt., EGÚT Zrt. and Colas Dunántúl Zrt. are privately held companies limited by shares, registered under Hungarian law, with their seats in Debrecen, Eger and Zalaegerszeg, respectively. A. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.

2 2 DEBÚT Zrt. AND OTHERS v. HUNGARY DECISION The applicants are construction companies, against which the Competition Office conducted investigations on suspicion of an unlawful cartel agreement. The applicants and other companies were suspected of having shared the market for public road constructions between themselves. Under section 65/A of the Act Prohibiting Unfair Market Practices, on 27 February 2004 the Budapest Regional Court authorised the Office s investigators to enter the applicants premises and those of other related enterprises without prior notification and to search for direct evidence of their unlawful cartel agreement. No appeal lay against the authorisation. The investigators carried out dawn raids (that is, unannounced house searches very early in the morning) on the premises of several enterprises, including those of the applicants, and drafted an enquiry report on their findings. The applicants could have complained about the measure within three days but did not do so. On 14 July 2005 the Competition Board, the decision-making body of the Office, published on the Office s website its preliminary opinion drawn up on the basis of the report. In its decision of 22 September 2005 the Competition Board established that the applicants and other companies had indeed divided the market between themselves and imposed substantial fines on them. The applicants sought judicial review. They argued that the Board s decision had been adopted in biased proceedings and based partly on documents which had been retrieved in a manner contrary to Articles 6 and 8 of the Convention. On 6 February 2008 the Budapest Regional Court dismissed the action, holding that the Competition Office had conducted lawful proceedings and carried out properly reasoned and justified raids on the applicants business premises. On 15 October 2008 the Budapest Court of Appeal upheld this judgment. On 3 November 2009 the Supreme Court dismissed the applicants petition for review. All three court instances addressed the merits of the applicants arguments about the admissibility of the documents as evidence and the lawfulness of the procedure. COMPLAINTS The applicants complain under Article 6 1 that the procedure of the Competition Board of the Office, a tribunal, was unfair, just as much as that of the courts. Under Article 6 2 they submit that the Competition Board breached the principle of the presumption of innocence by its preliminary decision. They further complain under Article 8 that their right

3 DEBÚT Zrt. AND OTHERS v. HUNGARY DECISION 3 to respect for home was infringed, the dawn raids carried out against them were not necessary in a democratic society. Finally, they complain that no effective remedy was available to them against the above grievances, in breach of Article 13, and that the third parties also affected by the searches had no opportunity at all to complain about them. THE LAW 1. The applicants complain that the proceedings of the Competition Board and those of the courts were not fair. In their view, the Board is a tribunal within the meaning of Article 6 1, whose proceedings should have been in line with that provision, but were not. In particular, the documents submitted by the Board to the court in order to obtain authorisation for the dawn raids were not available to the applicants. Moreover, the court decisions authorising the search were not subject to appeal. Furthermore, the search operations were not conducted under effective control, the lawfulness of their method was not guaranteed by the presence of a police officer, and the three-day deadline for lodging a complaint against them was unduly short. Lastly, the third parties affected by the search had no opportunity at all to complain of the searches. Assuming the applicability of Article 6 1, the Court considers that any potential unfairness occurring in the Competition Board s proceedings must be seen as having been remedied by the ensuing three court instances which examined the merits of the applicants arguments about the admissibility of the documents as evidence (see, mutatis mutandis, A. Menarini Diagnostics S.R.L. v. Italy, no /08, 57 to 67, 27 September 2011; Fayed v. the United Kingdom, 21 September 1994, 61, Series A no. 294-B; Saunders v. the United Kingdom, 17 December 1996, 67, Reports of Judgments and Decisions 1996-VI). Moreover, there is no appearance that the courts themselves lacked impartiality or that their procedure was otherwise unfair. This complaint is therefore manifestly ill-founded within the meaning of Article 35 3 (a) and must be rejected, pursuant to Article 35 4 of the Convention. 2. The applicants also complain under Article 6 2 that the Competition Board infringed the principle of the presumption of innocence by the publication of its preliminary report. The Court observes that the applicants have not demonstrated in any manner how the impugned publication influenced the ensuing consideration of the case by three judicial instances. Therefore, there is no appearance of a violation of the principle of the presumption of innocence (see Daktaras v. Lithuania, no /98, 41 to 45, ECHR 2000-X; compare and contrast Poncelet v. Belgium, no /07, 49 to 61,

4 4 DEBÚT Zrt. AND OTHERS v. HUNGARY DECISION 30 March 2010). It follows that this complaint is likewise manifestly illfounded within the meaning of Article 35 3 (a) and must be rejected, pursuant to Article 35 4 of the Convention. 3. The applicants further complain under Article 8 that their right to respect for home was violated, in particular in that the dawn raids were unjustified in a democratic society. The Court observes that the measures complained of were indisputably lawful and pursued the legitimate aim of ensuring the economic well-being of the country by combating cartel practices. An unannounced courtordered search of the suspected companies business premises must be seen as an appropriate measure to collect evidence, without which the authorities had virtually no chance to unveil those activities. The Court notes that the domestic courts made a full review of the lawfulness of the searches which were apparently carried out by specialised investigators and were susceptible to a complaint procedure and that it was not found that they had been performed in an obtrusive manner (see, mutatis mutandis, Frank GmbH v. Germany (dec.), no /07, 15 November 2011). It is satisfied that the impugned measure served the purpose of searching for direct evidence of the applicants allegedly unlawful cartel agreement and was thus limited in nature, without any appearance of arbitrariness or entailing any disadvantage on the applicants side in excess of its very purpose. The Court has held that the protection of professional or business activities or premises would be consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities (see, for example, Marckx v. Belgium, 13 June 1979, 31, Series A no. 31; Niemietz v. Germany, 16 December 1992, 31, Series A no. 251-B). In certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company s registered office, branches or other business premises (see Société Colas Est and Others v. France, no /97, 41, ECHR 2002 III). However, contrary to private dwellings, corporate business premises do not necessarily serve the enjoyment of private and family life or personal development of individuals as is the case with private dwellings, which serves as one of the fundamental reasons for the specific protection granted to people s home. Such corporate premises are not prima facie related to a profession or business that may well be conducted from a person s private residence (see Niemietz, cited above, 30), and thus the corporate owners expectations of respect is not necessarily the same as is due to private dwellings or to premises related to the above professional and business activities of private persons. Where professional or business activities or premises were involved, and as long as the relevant legislation and practice affords adequate and effective safeguards against abuse in searches, the Contracting States entitlement to

5 DEBÚT Zrt. AND OTHERS v. HUNGARY DECISION 5 interfere might well be more far-reaching than would otherwise be the case (see Société Colas Est and Others, cited above, 48-49). In the circumstances of the present case, the impugned measure, susceptible to a complaint procedure (see above in chapter A of The Facts), cannot be regarded as disproportionate. This complaint is therefore manifestly ill-founded within the meaning of Article 35 3 (a) and must be rejected, pursuant to Article 35 4 of the Convention. 4. Concerning Article 13, the Court considers that, in the absence of an arguable claim from the perspective of the Articles invoked above and because Article 13 has no independent existence, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 3 (a) and must be rejected, pursuant to Article 35 4 of the Convention. 5. Lastly, for the Court, the applicants submissions addressing the alleged prejudice suffered by entities other than themselves are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 3 (a) and must be rejected, pursuant to Article 35 4 of the Convention. For these reasons, the Court by a majority Declares the application inadmissible. Stanley Naismith Registrar Guido Raimondi President

SECOND SECTION. CASE OF HARRISON McKEE v. HUNGARY. (Application no /07) JUDGMENT STRASBOURG. 3 June 2014 FINAL 13/10/2014

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