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GOLDMANN AND SZENASZKY v. HUNGARY - 17604/05 [2010] ECHR 1901 (30 November 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1901.html
Cite as:
[2010] ECHR 1901
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SECOND
SECTION
CASE OF GOLDMANN AND SZÉNÁSZKY v. HUNGARY
(Application
no. 17604/05)
JUDGMENT
STRASBOURG
30
November 2010
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 Goldmann and
Szénászky v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
regard to the above application lodged on 23 April 2005,
Having
regard to the partial decision of 1 September 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 17604/05) 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 two Hungarian nationals, Mr György
Goldmann and Ms Júlia Szénászky (“the
applicants”), on 23 April 2005.
The
applicants were represented by Mr J. Lakatos, a lawyer practising in
Szeged. The Hungarian Government (“the Government”) were
represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
The
applicants complained, in particular, about the unfairness and the
length of the criminal proceedings conducted against them.
On 1 September 2009 the Court decided to give notice of
the application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1945 and 1947 respectively and live in
Hódmezővásárhely.
On
26 August 1994 criminal proceedings were instituted against the
applicants, a married couple and both archaeologists. On 5 July 1995
a bill of indictment was preferred and the applicants were charged
with several counts of aggravated embezzlement, punishable in the
circumstances by up to three years of imprisonment. The alleged
offences concerned the alienation of numerous artefacts retrieved by
the applicants.
After
a remittal, on 21 May 1998 the Békéscsaba District
Court found the applicants guilty as charged and sentenced them to
one year of imprisonment, suspended for two years. On 7 January 1999
the Békés County Regional Court upheld this judgment.
The review bench of the Supreme Court confirmed the final judgment on
7 March 2000. The courts relied on documentary evidence, the opinion
of experts and the testimony of witnesses and the parties and
recognised the lapse of time from the commission of the offences as a
mitigating factor. After the lapse of the two-year period of
suspension on 7 January 2001, the applicants became exempted
(mentesülés) from all legal consequences of their
conviction.
On
5 September 2001 the applicants nevertheless requested a retrial. On
9 July 2002 the Békés County Regional Court, acting as
a second-instance court, ordered the retrial.
In
the resumed proceedings, after a remittal, the Gyula District Court
held two oral hearings and dismissed the applicants' retrial motion
on 15 September 2004. The court relied on documentary evidence,
the opinions of several newly appointed experts as well as the
testimony of witnesses and the defendants. The main question of
taking evidence was whether the items embezzled by the applicants –
that is, archaeological findings – had commercial value for the
purposes of the offence of embezzlement.
The
applicants appealed seeking acquittal. The Békés County
Regional Court upheld the first-instance decision on 26 January 2005,
without holding an oral hearing.
The
applicants lodged a petition for review. On 1 June 2005 the Supreme
Court dismissed the petition as inadmissible, without an examination
on the merits, since it was incompatible ratione materiae with
the relevant provisions of the Code of Criminal Procedure.
II. RELEVANT DOMESTIC LAW
Act no. XIX of 1998 on the New Code of Criminal
Procedure (as in force at the relevant time) provides 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 findings of fact established by
the first-instance court, unless the judgment of the latter is
ill-founded, or a new fact is alleged or new evidence is adduced in
the appeal..., based on which the second-instance court takes
evidence.”
Section 352
“(1) In case of
ill-foundedness ... the second-instance court:
a) shall complete or correct the
facts of the case if the facts can fully and correctly be established
from the contents of the documents, by factual conclusions or from
the evidence taken;
b) may establish the facts
differently from the first instance court if, on the basis of the
evidence taken, the defendant's acquittal or the discontinuation of
the proceedings is appropriate...
(3) In case of subsection (1), the
second-instance court may evaluate the evidence differently from the
first-instance court only in respect of those facts, in the context
of which evidence has been taken [before it].”
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
“(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 370
“(1) ... [T]he second
instance court shall uphold, reverse or quash the judgment of the
first-instance court, or shall dismiss the appeal.
(2) When reversing the
first-instance judgment, the second-instance court shall decide in a
judgment, otherwise in an order.”
Section 399
“(1) If [on the examination of the admissibility
of retrial motion] the court finds the motion well-founded, it shall
order retrial...”
Section 402
“(1) Where – depending on the results of the
hearing – the court establishes that the reopening is
well-founded it shall set aside the judgment delivered in the
original case, or the part challenged by the reopening, and shall
deliver a new judgment; whereas if it finds the reopening ill-founded
it shall deny retrial.”
Section 416
“(1) Review proceedings may be instituted against
a court's final decision on the merits of the case if: ...
g) a human rights organisation set up by an
international treaty has established that the conduct of the
proceedings or the final decision of the court has violated a
provision of an international treaty promulgated by an Act of
Parliament, provided that the Republic of Hungary has acknowledged
the jurisdiction of the international human rights organisation [in
question]...
(3) Under point g) of subsection (1) review proceedings
may also be instituted if the human rights organisation set up by an
international treaty has established a violation of a provision of
the international treaty for a procedural irregularity subject under
this Act only to appeal, but not to review. Review proceedings shall
not be instituted under point g) of subsection (1) if the
international human rights organisation has established a violation
of the «trial within a reasonable time» requirement.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF
THE CONVENTION (FAIRNESS OF THE PROCEEDINGS)
The
applicants complained that the proceedings were
not fair, in breach of Article 6 §§ 1 and 3, in that during
the retrial the second-instance court did not hold a public hearing
and that the courts allegedly refused orally to hear the experts but
relied only on their written opinions. They also invoked
Articles 7 and 13.
The
Government contested those arguments.
The
Court considers that these complaints fall to be examined under
Article 6 of the Convention alone, which provides as relevant:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time... 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 notes that this 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.
The
Government submitted that in the retrial phase of the instant case,
the competence of the Békés County Regional Court had
been rather limited. It had not been called on to examine anew all
facts of the case or make a full assessment of the applicants' guilt.
Instead, its task had been to verify the Gyula District Court's order
denying retrial, an order which itself had concerned only the
probative value of new evidence. The applicants did not face the risk
of a new sentence or the aggravation of the sanction. Indeed, the
case was orally heard at public hearings before three court instances
in the principal proceedings as well as before the first-instance
court in the retrial. The latter hearings had essentially concerned a
question of law, namely whether objects with cultural and historical,
rather than commercial, value could be the object of the offence of
embezzlement. In the Government's view, if an appeal court decides
only on questions of law, the court's failure to hear the applicant
in person or to hold a public hearing does not amount to a violation
of the right to a fair trial. In the present case, no special
circumstances had existed requiring the applicants to be heard in
person by the appeal court, since their credibility, intentions or
motive had not been decisive for the matter at hand. It could not
therefore be argued that the proceedings before the appeal court in
the retrial had constituted a full review governed by the same rules
as a principal trial on the merits.
The
applicants contested these views in general terms.
The
Court recalls that 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; Kremzow
v. Austria, 21 September 1993, §§ 58–59,
Series A no. 268 B; Botten v. Norway, 19 February
1996, § 39, Reports of Judgments and Decisions
1996 I; Constantinescu v. Romania, no. 28871/95, §§
55-56, 59-60, ECHR 2000 VIII; Tierce and Others v. San
Marino, nos. 24954/94, 24971/94 and 24972/94, §§
95-102, ECHR 2000 IX; Csikós v. Hungary, no.
37251/04, §§ 21–22, ECHR 2006 XIV
(extracts); and Marcos Barrios v. Spain, no. 17122/07,
§§ 32-43, 21 September 2010).
It
is true that in the case of Fejde v. Sweden (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 – because of the
minor character of the offence with which the applicant 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 exception set out in the case of Fejde and that
the general rule obliging the second-instance courts to hold a
hearing must be applied. This consideration holds true even for the
retrial in question, since the merits of the case were again embarked
on and new evidence was being taken. The Court takes this view
notably because the charges against the applicants – aggravated
embezzlement – indisputably belong to the hard core of criminal
law. Furthermore, what was at stake for the applicants was
imprisonment, and they were actually sentenced to a suspended prison
term, which obviously carried a significant degree of stigma (see, a
contrario, Jussila v. Finland [GC], no. 73053/01, §
43, ECHR 2006 XIII).
Moreover,
since the applicants had sought acquittal even on appeal at the
retrial stage, for the Court the importance of credibility also arose
in view of the nature of the offence in question. In particular, had
the applicants been allowed to make oral representations as to their
views on the commercial value of the object of the offence, the
Regional Court could have potentially drawn fresh conclusions as to
their culpability. In sum, the Court is not persuaded that dispensing
with a hearing at second instance was 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. In these
circumstances, the Court considers it unnecessary to examine
separately the applicants' further allegations concerning the hearing
of experts.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (LENGTH OF THE PROCEEDINGS)
The
applicants also complained under Article 6 § 1 of the Convention
that the criminal proceedings conducted against them lasted an
unreasonably long time.
The
Government contested that argument, stressing that the applicants had
obtained adequate redress for part of the duration in question, given
that the excessive length of the case was recognised as a mitigating
factor in their original conviction finally upheld on 7 March 2000.
The
Court observes that the proceedings lasted from 26 August 1994 until
1 June 2005, i.e. for ten years and nine months.
The
Court notes that the courts acknowledged the protraction of the
proceedings in the procedure leading to the applicants' principal
conviction accomplished on 7 March 2000. Taking this into account as
a mitigating factor, they imposed a relatively light prison sentence
whose execution was moreover suspended. Against this background, the
Court is satisfied that the applicants obtained adequate redress in
respect of this period of five years and six months, itself involving
three court instances (see Morby v. Luxembourg (dec.), no.
27156/02, ECHR 2003-XI; Kalmár v. Hungary, no.
32783/03, § 27, 3 October 2006; Dányádi v.
Hungary (dec.), no. 10656/03, 6 July 2006; Tamás Kovács
v. Hungary, no. 67660/01, § 26, 28 September 2004;
Lie and Berntsen v. Norway (dec.), no. 25130/94, 16
December 1999).
Moreover,
the Court observes that between 7 March 2000 (the date on which the
Supreme Court confirmed the final judgment) and 9 July 2002 (the date
on which the applicants were granted retrial) that is, for two years
and four months, no criminal proceedings were in progress.
Lastly,
the delay caused by the four-month period between 26 January and
1 June 2005 which corresponded to the applicants' futile
petition for review must be attributed to them.
After
deducting these periods, totalling eight years and two months, from
the overall length, the remaining duration is two years and seven
months for two levels of jurisdiction. In the absence of any
particular period of inactivity imputable to the authorities, the
overall length cannot considered as exceeding a “reasonable
time” for the purposes of Article 6 § 1. The Court
would note in this connection that the applicants became exempt from
all legal consequences of their conviction as early as on 7 January
2001 and that the extension of the proceedings after this date was
largely a result of their request for retrial, eventually
unsuccessful. 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
Mr
Goldmann claimed 57,244 euros (EUR) and Ms Szénászky
EUR 67,640 in respect of pecuniary damage. Moreover, they each
claimed EUR 12,000 in respect of non-pecuniary damage.
In
the Government's view, the finding of a violation would constitute
adequate just satisfaction.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects these claims.
However, it considers that the applicants must have suffered some
non-pecuniary damage. Accordingly, on the basis of equity, it awards
them each EUR 6,400 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
applicants made no costs claim.
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 fairness
of the proceedings 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 each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 6,400 (six thousand four hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Hungarian forints at the rate applicable at the date of settlement;
(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;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
