CASE OF TALABÉR v. HUNGARY
(Application no. 37376/05)
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:
Ireneu Cabral Barreto,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The circumstances of the case
B. Relevant domestic law
“... (3) An appeal may concern questions of fact or law.”
“(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.”
“... (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 20051)
“(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 (tárgyalás) ... shall be scheduled.”
“(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.”
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; ...”
II. 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 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
Deputy Registrar President
1 On that date the Constitutional Court annulled this provision as being unconstitutional.