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SECOND
SECTION
CASE OF
TALABÉR v. HUNGARY
(Application
no. 37376/05)
JUDGMENT
STRASBOURG
29
September 2009
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 Talabér v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
judges,
and
Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37376/05) 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 Attila József
Talabér (“the applicant”), on 6 October 2005.
- The
applicant was represented by Mr Á. Békés, 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 that his conviction had been upheld without him or
his lawyer attending the session in the appellate court, in breach of
Article 6 §§ 1 and 3 of the Convention.
- On
24 April 2008 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 1953 and lives in Budapest.
A. The circumstances of the case
- In
November 2003
the Budapest I/XII District Public Prosecutor charged the applicant
with disorderly conduct and vandalism, punishable by three years of
imprisonment.
- The
Budapest Central District Court held hearings on 22 January, 28 March
and 28 April 2004. On the latter date it found the applicant guilty
of vandalism and fined him 90,000 Hungarian forints (HUF)
(approximately 337 euros (EUR)). The District Court relied on
documentary evidence, the opinion of an expert, and the testimony of
witnesses and the applicant.
- The
applicant appealed, seeking acquittal on the ground that the judgment
was ill-founded, and requested the court to hold a public hearing.
The Budapest Chief prosecutor also appealed, and requested the court
to quash the first-instance judgment and remit the case to the
District Court because of shortcomings in the finding of facts.
- The
Budapest Regional Court notified the applicant’s lawyer that it
would determine the appeal sitting in camera. In reply, the
lawyer put forward supplementary arguments and again requested the
court to hold a public hearing.
- On
7 April 2005 the Regional Court held a session in camera and
upheld the applicant’s conviction. The applicant, his lawyer
and the prosecutor were absent.
- The
Regional Court reviewed the entirety of the proceedings and
established their lawfulness. Furthermore, it considered that the
findings of fact by the first-instance court were not ill-founded
within the meaning of section 351(2) of the New Code of Criminal
Procedure, and were thus suitable for an appellate review without
taking further evidence.
- However,
the Regional Court, relying on the existing case file, modified the
findings of fact as established by the first-instance court. When
delivering its judgement, it relied on the modified facts.
B. Relevant domestic law
- Act
no. XIX of 1998 on the [New] Code of Criminal Procedure provides, in
so far as relevant, as follows:
Section 346
“... (3) An appeal may concern questions of fact
or law.”
Section 351
“(1) The second-instance court shall base its
decision on the facts as established by the first-instance court
unless the first-instance judgment is ill-founded....
(2) The first-instance judgment is ill-founded if:
a) the facts have not been explored;
b) the first-instance court has failed to establish the
facts or the findings of fact are deficient;
c) the findings of fact are in contradiction with the
contents of the documents;
d) the first-instance court has drawn incorrect
conclusions from the findings of fact in regard to a further fact.”
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
(tárgyalás) ... shall be scheduled.”
Section 405
“(1) The court’s final decision on the
merits is susceptible to a [Supreme Court] review (felülvizsgálat)
if ...
c) the decision has been adopted amidst procedural
irregularities within the meaning of section 373(1) subparagraphs II
to IV.”
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 upheld by the
appellate court sitting in camera without him or his lawyer
being present, in violation of his defence rights guaranteed by
Article 6 §§ 1 and 3 of the Convention. Article 6 provides,
in so far 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;
...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant stressed that his right to a fair trial had been impaired
by the fact that the second-instance court had upheld his conviction
sitting in camera.
- The
Government maintained that both the principle of adversarial
procedure and that of ‘equality of arms’ had been
observed in the case, since the applicant and his defence counsel had
had the opportunity to study the statements and evidence submitted by
the public prosecutor and to address the witnesses and the experts.
All in all, he was not deprived of the procedural means which were
also available to the prosecution.
- Referring
in particular to the Constantinescu v. Romania judgment
(no. 28871/95, § 55, ECHR 2000-VIII), the Government
emphasised that the first issue to be addressed was whether the
Regional Court was to try questions of law or fact, that is whether
it was to review the case against the applicant in its entirety. In
this connection, it is to be noted that the appellate court’s
reformatory powers are very limited, in that it decides on the basis
of the facts as established by the first-instance court and does not
take evidence, unless the first-instance judgment is ill-founded and
its factual shortcomings can be remedied without extensive evidence
being taken. If, however, the latter is necessary, the appellate
court quashes the first-instance judgment and instructs the lower
court to resume the proceedings and complete the findings of fact, or
take evidence anew.
- The
Government emphasised that, in the present case, the Regional Court
had neither considered the first-instance judgment ill-founded nor
had found it necessary to take evidence or to hear the applicant. The
applicant’s case had not presented special circumstances
requiring the defendant to be heard by the appellate court, unlike
other cases which the Court has dealt with (cf. Constantinescu v.
Romania, op. cit., § 58; Botten v. Norway,
judgment of 19 February 1996, Reports of Judgments and
Decisions 1996-I, § 50). Neither the character of the
offence nor the nature of the evidence had imperatively required the
applicant to be heard by the appellate court: his credibility had not
been decisive in assessing the evidence. Lastly, the Government
pointed out that the appellate court, unlike the above-mentioned
cases where the second-instance court had found the defendants guilty
the first time, had simply reviewed the first-instance judgment which
had already convicted the applicant. In these circumstances, holding
a public hearing had not been necessary.
- The
applicant maintained that even if ‘equality of arms’ had
been observed in the case in that neither he nor the prosecution had
been present in the second-instance proceedings, this did not render
the proceedings fair as a whole, since a court may dispense with a
hearing only if the defendant waives this right. Since in the instant
case he had requested a hearing and the Regional Court was entitled
to decide on questions of both facts and law, a public hearing should
have been held in order for the requirements of Article 6 to be met.
- The
applicant also stressed that the judgment of the Regional Court
upholding the first-instance verdict was a decision on the merits.
Since it was delivered in camera, it in fact reduced the trial
to a single-instance proceeding. Lastly, the applicant referred to
the Court’s case-law requiring the same safeguards to be
implemented during the appellate trial as during the first-instance
proceedings, in particular the obligation to hold public hearings.
- The
Court constantly held that an oral and public hearing constitutes a
fundamental principle enshrined in Article 6 § 1. This principle
is particularly important in the criminal context, where generally
there must be at first instance a tribunal which fully meets the
requirements of Article 6 (see Findlay v. the United Kingdom,
judgment of 25 February 1997, Reports of Judgments and Decisions
1997 I, § 79) and where an applicant has an entitlement to
have his case “heard”, with the opportunity inter alia
to give evidence in his own defence, hear the evidence against him
and examine and cross-examine the witnesses.
- The
Court would not exclude that in the criminal sphere the nature of the
issues to be dealt with before the tribunal or court may not require
an oral hearing. Notwithstanding the consideration that a certain
gravity attaches to criminal proceedings, which are concerned with
the allocation of criminal responsibility and the imposition of a
punitive and deterrent sanction, it is self-evident that there are
criminal cases which do not carry any significant degree of stigma
(see Jussila v. Finland [GC], no. 73053/01, § 43, ECHR
2006 ...).
- However,
the Court is of the view that, in the determination of criminal
charges, the hearing of the defendant in person should nevertheless
be the general rule. Any derogation from this principle should be
exceptional and subjected to restrictive interpretation. The absence
of an oral hearing at second instance has led to violations in
several criminal cases (see Ekbatani v. Sweden, 26 May 1988, §
25, Series A no. 134; Helmers v. Sweden, judgment of 29
October 1991, Series A no. 212-A, §§ 31–32;
Kremzow v. Austria, judgment of 21 September 1993,
Series A no. 268 B, §§ 58–59;
Botten v. Norway, cited above, § 39; Belziuk
v. Poland, judgment of 25 March 1998, Reports 1998 II,
§§ 38 to 40; Constantinescu, cited above;
Sigurþór Arnarsson v. Iceland,
no. 44671/98, § 30, 15 July 2003; and Csikós
v. Hungary, no. 37251/04, ECHR 2006 ... (extracts)).
- It
is true that in the case of Fejde v. Sweden (judgment of 29
October 1991, Series A no. 212 C, § 33), no
violation of the applicant’s defence rights was found, although
no oral hearing had taken place before the appellate court. However,
in the Court’s view, this was a justified exception from the
above general rule, considering the minor character of the offence
with which he had been charged and the prohibition against increasing
his sentence on appeal.
- The
Court is however convinced that the present application does not
concern the exceptions set out in the cases of Fejde and
Jussila and that the general rule obliging the second-instance
courts to hold a hearing must be applied. It takes this view notably
because the charges against the applicant – disorderly conduct
and vandalism – indisputably belong to the core criminal law.
Furthermore, what was at stake for the applicant was imprisonment,
even if the actual sentence was only a fine; therefore it carried a
significant degree of stigma.
- Moreover,
since on appeal the applicant had sought his acquittal, for the Court
the importance of credibility also arose in view of the nature of the
offences in question. Consequently, the considerations relied on by
the Regional Court were capable of raising issues including such
matters as the applicant’s personality and character,
therefore, he should have been heard directly (see Kremzow, cited
above, § 67). The Court also notes that the applicant expressly
requested that a public, oral hearing be held before the appellate
court.
- The
Court notes that the Regional Court conducted a full review and
determined the applicant’s guilt anew. It draws special
attention to the fact that the appellate court modified the finding
of facts of the first-instance court and relied on a new factual
basis. It is irrelevant in this respect that, as a result of this
complete reconsideration, the Regional Court came to the same
conclusion as the first-instance court and upheld its judgment
without changing it on the merits. In sum, the Court is not persuaded
that dispensing with a hearing at second instance had been in
compliance with the requirements of a fair trial.
- Accordingly,
there has been a violation of Article 6 § 1 read in conjunction
with Article 6 § 3 (c) of the Convention.
II. 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 claimed HUF 90,000 for pecuniary damage (the amount of the
fine imposed on him) and HUF 300,000 (approximately EUR 1,125) for
non-pecuniary damage as just satisfaction.
- The
Government considered the applicant’s claims excessive.
- The
Court rejects the claim for pecuniary damage but considers that the
applicant must have suffered some non-pecuniary damage. Accordingly,
on the basis of equity, it awards him EUR 1,000 under this head.
Moreover, it 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, §§
207-210, ECHR 2005-IV).
B. Costs and expenses
- The
applicant claimed HUF 360,000 (approximately EUR 1,350) for the costs
and expenses incurred before the Court. He submitted a detailed
statement of the hours billable by his lawyer, corresponding to 13.5
hours of work (3 hours for client consultations, 1.5 hours for
studying the file, 2.5 hours for case-law research and 6.5 hours for
the preparation of submissions) spent by his lawyer on the case,
charged at an hourly rate of the equivalent of EUR 100 in Hungarian
forints.
- The
Government contested the claim.
- 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 were
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 claimed in full.
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 application admissible;
- 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
according to Article 44 § 2 of the Convention,
the following amounts, to be converted into Hungarian forints at the
rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,350 (one thousand three hundred and fifty
euros) plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
