(Application no. 37251/04)
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:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
9. Constitution of the Republic of Hungary (Act no. XX of 1949)
“(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”)
“(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.”
“(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
“(3) An appeal may concern questions of fact or law.”
“(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). ...”
“(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 ...”
“(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. ...”
“(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.”
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION (ABSENCE OF A PUBLIC HEARING)
“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 Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... .”
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.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION (REFUSAL TO HEAR FURTHER WITNESSES)
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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.
Deputy Registrar President