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SECOND
SECTION
CASE OF CSIKÓS v. HUNGARY
(Application
no. 37251/04)
JUDGMENT
STRASBOURG
5
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Csikós v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr J.-P. Costa, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mr S. Naismith, Deputy Section
Registrar,
Having
deliberated in private on 14 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37251/04) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr István Csikós
(“the applicant”), on 5 August 2004.
- The
applicant, who had been granted legal aid, was represented by Ms L.
Farkas, a lawyer practising in Budapest. The Hungarian Government
(“the Government”) were represented by Mr L. Höltzl,
Agent, Ministry of Justice and Law Enforcement.
- The
applicant alleged, in particular, that his conviction was upheld and
his sentence increased without him or his lawyer attending the
second-instance court’s session, in breach of Article 6 §§
1 and 3 of the Convention.
- On
8 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Budapest.
- On
18 March 2003 the Eger District Public Prosecutor’s Office
indicted the applicant and two other individuals for aggravated
extortion. The applicant was assisted by defence counsel of his
choice. After hearings held on 16 June and 8 October, on 13 October
2003 the District Court found the applicant guilty as charged and
sentenced him to 3½ years’ imprisonment. The court
relied on evidence given by the victim and several witnesses.
- The
prosecution appealed to have the sentence increased, while the
applicant appealed to be acquitted or to have his sentence reduced.
He also proposed that two further witnesses be heard.
- At
deliberations held in camera on 20 February 2004, the Heves
County Regional Court upheld the applicant’s conviction, while
increasing his sentence to 4 years’ imprisonment. Neither the
applicant nor his lawyer was present. In its reasoning, the court did
not deal with the proposal to hear two more witnesses.
II. RELEVANT DOMESTIC LAW
9. Constitution of the Republic of Hungary (Act no. XX
of 1949)
Section 57
“(1) In the Republic of Hungary, everyone is equal
before the law, and has the right to have any criminal charge against
him or his civil rights and obligations determined in a fair and
public trial by an independent and impartial court established by
law. ...
(3) Individuals subject to criminal proceedings are
entitled to the right of defence at all stages of the proceedings.
...”
10. Act no. XXXII of 1989 on the Constitutional Court
(“the Constitutional Court Act”)
Section 43
“(3) The Constitutional Court shall order the
review of such criminal proceedings as have been finally concluded
under unconstitutional legal provisions if the convicted person has
not yet been exempted from the legal effects of the conviction –
provided that from the nullity of the provision applied in the
procedure, the reduction or non-imposition of the punishment or
measure, or the exemption from or reduction of [criminal] liability
would follow.”
Section 48
“(1) Any person who claims to have suffered a
violation of his rights enshrined in the Constitution on account of
the application of an unconstitutional provision and has exhausted
all other legal remedies or there are no such remedies available, may
submit a constitutional complaint to the Constitutional Court.
(2) A constitutional complaint may be filed in writing
within 60 days of the service of the legally binding decision.”
11. Act no. XIX of 1998 on the [New] Code of Criminal
Procedure
Section 346
“(3) An appeal may concern questions of fact or
law.”
Section 353
“(2) In order to eliminate the ill-foundedness of
the first-instance judgment, evidence may be taken if the findings of
fact have not been established or are deficient. Evidence shall be
taken ... at a hearing.”
Section 360 (as in force until 26 May 2005)
“(1) Within 30 days of receiving the file, the
president of the panel in charge shall schedule, in order to deal
with an appeal, deliberations in camera (tanácsülés),
a public session (nyilvános ülés) or
a hearing (tárgyalás). ...”
Section 361
“(1) The second-instance court shall hold a public
session, if – the first-instance judgment being ill-founded –
the complete and/or correct findings of fact may be established from
the contents of the file or through drawing factual conclusions, or
if the defendant must be heard in order to clarify the circumstances
relevant for imposing the sentence.
(2) The second-instance court shall summon to the public
session those persons whose hearing it deems necessary ...”
Section 362
“(1) The second-instance court shall notify the
public prosecutor and – if they are not summoned – ...
the defendant and his lawyer of the public session. ...”
Section 363
“(2) In order to take evidence, a hearing ...
shall be scheduled.”
Section 416 (provisions formerly contained in section
406(1) a) and (2))
“(1) Review proceedings may be instituted against
a final decision on the merits if: ...
e) the Constitutional Court has ordered (elrendelte)
the review of criminal proceedings concluded by a final judgment,
provided that the defendant has not yet been exempted from the legal
consequences flowing from his conviction, or the execution of the
imposed punishment ... has not yet been terminated ... or its
enforceability has not yet ceased;
f) the determination of criminal liability or the
imposition of a sanction ... has been effected in application of a
criminal law provision, whose unconstitutionality has already been
established by the Constitutional Court, but the defendant has
already been exempted from the legal consequences flowing from his
conviction, or the execution of the punishment has already been
terminated or its enforceability has ceased ...”
12. Constitutional Court decision no. 20 of 26 May 2005
“(1) The Constitutional Court finds that section
360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure is
unconstitutional and therefore annuls it as of the date of delivery
of this decision. ...
(3) The Constitutional Court finds that Parliament has
committed an unconstitutional omission by failing to regulate, in Act
no. XIX of 1998 on the Code of Criminal Procedure and in accordance
with the requirements of legal certainty and fair trial, the scope of
those cases in which the appellate court may hold in camera
deliberations. The Constitutional Court invites Parliament to comply
with its legislative duties by 31 October 2005.
(4) The Constitutional Court holds that section 360(1)
of Act no. XIX of 1998 on the Code of Criminal Procedure was
unconstitutional and therefore this provision cannot be applied in
the following cases, concluded by a final judgment (jogerősen
befejezett ügyeiben nem alkalmazható): ... nos.
Bf.671/2003, 29.Bf.8790/2003, 22.Bf.9924/2003, 20.Bf.XI.8046/2004,
25.Bf.VIII.8647/2004, 3.Bf.328/2003, Bf.200/2004, 1.Bf.996/2004,
1.Bf.1905/2004 and 1.Bf.184/2004.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c)
OF THE CONVENTION (ABSENCE OF A PUBLIC HEARING)
- The
applicant complained that his conviction had been confirmed and the
sanction imposed on him aggravated by the appellate court sitting in
camera without his or his lawyer’s attendance, in violation
of his defence rights guaranteed by Article 6 §§ 1 and 3 of
the Convention. Article 6 provides as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by a ... tribunal. ...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
- The
Government argued that the application should be rejected for
non-exhaustion of domestic remedies, pursuant to Article 35 § 1
of the Convention, which provides as relevant:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ... .”
- The
Government contended that the applicant should have filed a
constitutional complaint under section 48 of the Constitutional Court
Act. The Constitutional Court had the power, under section 43(3) of
that Act, to order the review of criminal proceedings concluded in
application of unconstitutional legal provisions. In addition to
establishing a violation of the applicant’s rights under the
Constitution, that court could have provided him with a remedy
leading to complete reparation of the situation caused by the
violation, namely, by allowing for the reopening of the case in
review proceedings. Ten individuals, in situations identical to that
of the applicant, had successfully done so, as demonstrated by
Constitutional Court decision no. 20 of 26 May 2005 (paragraph 12
above).
- The
applicant maintained that a remedy could only be considered
“effective” for the purposes of Article 35 § 1 if it
provided “direct and speedy” protection of the rights
guaranteed by the Convention – a condition not met by the
constitutional court procedure: the cases resolved by the decision of
26 May 2005 had originated in convictions effected in 2003 or 2004.
In any event, in Hungarian legal literature, views were voiced that
the constitutional complaint procedure was nothing more than a
specific form of abstract norm control, that the Constitutional Court
did not have the power to impose a compulsory interpretation on
ordinary courts in the process of repairing a judgment, and that a
complaint to the Constitutional Court did not halt the implementation
of a judgment adopted in a particular case. Moreover, the ineffective
nature of the constitutional complaint was shown by the fact that, in
order for the Constitutional Court’s decision to bear weight,
the criminal case must be reopened and a trial held by an ordinary
court, which further extended the length of the proceedings and
denied the applicant direct and easy access to a domestic remedy.
- The
Court reiterates that the issue whether domestic remedies have been
exhausted is normally determined by reference to the date when the
application was lodged with the Court (see Baumann v. France,
no. 33592/96, § 47, ECHR 2001-V (extracts)). This rule
is subject to exceptions which may be justified by the specific
circumstances of each case (see Nogolica v. Croatia (dec.),
no. 77784/01, ECHR 2002-VIII). In the instant case, the Regional
Court gave the final judgment on 20 February 2004 and the
application was introduced on 5 August 2004. Subsequently, on 26 May
2005 the Constitutional Court annulled section 360(1) of the New Code
of Criminal Procedure which contained the impugned legal provision.
Nevertheless, section 43 of the Constitutional Court Act, on which
the successful complainants based their motions, was already in place
on the date of the introduction of the present case.
- However,
the Court observes that the Constitutional Court annulled section
360(1) without actually ordering the review of the criminal
proceedings in the cases of the successful complainants. This lack of
review is not palliated by that court’s finding that the
annulled provision “cannot be applied” in cases already
terminated (see paragraph 12 above in fine). It notes that the
situation of the applicant, who is apparently still affected by the
legal consequences of his conviction, is governed by section 416(1)
e) (formerly section 406) of the New Code of Criminal Procedure. For
this provision to come into play, the Constitutional Court must
expressly order the review of the criminal proceedings (see paragraph
11 above in fine), thereby allowing for complete reparation.
However, it did not do so in the cases of the successful
complainants, and the Government have not explained why, on the
contrary, it would have done so in the applicant’s case had he
lodged a constitutional complaint. In this connection, the Court
observes that section 43(3) of the Constitutional Court Act (see
paragraph 10 above) only requires a review to be ordered if “from
the nullity of the provision applied in the procedure, the reduction
or non-imposition of the punishment or measure, or the exemption from
or reduction of criminal liability would follow”. It is not
persuaded that these conditions are met when the annulment of
an unconstitutional provision of procedural – rather than
substantive – law is concerned, as in the instant case.
In
sum, section 43 of the Constitutional Court Act, read in conjunction
with section 416 (former section 406) of the New Code of Criminal
Procedure, does not provide a guarantee for successful complainants,
in a situation like that of the applicant, to have the appellate
proceedings repeated and thereby to obtain redress for the violation
of their Convention rights.
- In
these circumstances, the Court is not satisfied that a constitutional
complaint was an effective remedy in the applicant’s case. It
follows that the Government’s preliminary objection of
non-exhaustion of domestic remedies must be dismissed. Furthermore,
the Court notes that this complaint is not manifestly ill-founded,
within the meaning of Article 35 § 3 of the
Convention, and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Government submitted that, should the Court declare this complaint
admissible, they conceded a violation of the applicant’s rights
under Article 6 of the Convention.
- The
Court notes that the present application raises a problem similar to
that examined in the Belziuk v. Poland judgment (25
March 1998, Reports of Judgments and Decisions 1998 II,
p. 571, §§ 38 to 40), where analogous treatment led to the
finding of a violation of Article 6 § 1, taken in conjunction
with Article 6 § 3 (c) of the Convention. Whilst in
the instant case, in contrast to Belziuk, a problem of
“equality of arms” did not arise, since both the
prosecutor and the applicant were absent from the Regional Court’s
session, for the Court, the applicant’s sentence should not
have been increased, as a matter of fair trial, without him or his
lawyer being present.
- There
has accordingly been a violation of Article 6 § 1 read in
conjunction with Article 6 § 3 (c) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3
(d) OF THE CONVENTION (REFUSAL TO HEAR FURTHER WITNESSES)
- The
applicant moreover complained that the absence of an appellate
hearing also deprived him of an opportunity to have two more
witnesses called, which rendered the proceedings unfair, in breach of
Article 6 §§ 1 and 3 (d) of the
Convention.
- The
Court reiterates that, as a general rule, it is for the national
courts to assess the evidence before them, as well as the relevance
of the evidence which defendants seek to adduce. More specifically,
Article 6 § 3 (d) usually leaves it to them to assess whether it
is appropriate to call witnesses; it does not require the attendance
and examination of every witness on the accused’s behalf (cf.
Solakov v. the former Yugoslav Republic of Macedonia, no.
47023/99, § 57, ECHR 2001 X). The Court is satisfied
from the evidence in the case file that the mere fact that the
applicant could not call two further witnesses on appeal has not
rendered unfair the proceedings in their entirety. This complaint is
therefore manifestly ill-founded within the meaning of Article 35 §
3 and must be rejected, pursuant to Article 35 § 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant made no claim under this head in due time. In this
connection the Court notes that where an individual, as in the
instant case, has been convicted by a court in proceedings which did
not meet the Convention requirement of fairness, a retrial, a
reopening or a review of the case, if requested, represents in
principle an appropriate way of redressing the violation (see mutatis
mutandis Öcalan v. Turkey [GC], no. 46221/99, ECHR
2005 ..., §§ 207-210).
B. Costs and expenses
- The
applicant claimed 2,265 euros (EUR) for the costs and expenses
incurred before the Court.
- The
Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum claimed in full, less the
sum of EUR 850 which the applicant has already been paid under the
legal aid scheme of the Council of Europe, i.e. EUR 1,415.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the appellate
session, held in the absence of the applicant, admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 read in conjunction with Article 6 § 3 (c) of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,415 (one
thousand four hundred and fifteen euros) in respect of costs and
expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Done in English, and notified in writing on 5 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P.
Costa
Deputy Registrar President
