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SECOND
SECTION
CASE OF
SÁNDOR LAJOS KISS v. HUNGARY
(Application
no. 26958/05)
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 Sándor Lajos Kiss 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. 26958/05) 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 Sándor Lajos
Kiss (“the applicant”), on 15 July 2005.
- The
applicant was represented by Mr T. Fazekas, 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 of the appellate court, in breach of
Article 6 §§ 1 and 3 of the Convention.
- On
10 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 1976 and lives in Vác.
A. The circumstances of the case
1. The first set of criminal proceedings
- In
January 2002 the Pest Central District Court found the applicant, a
recidivist offender, guilty of attempted blackmail and plunder and
sentenced him to eight years' imprisonment. On appeal, the Budapest
Regional Court, on 15 May 2003, re-characterised his actions as
offences of “taking the law into one's own hands”,
attempted aggravated assault and a violation of personal liberty, but
reduced his sentence to five years' imprisonment.
2. The second set of criminal proceedings
- In
February 2003 the applicant was charged with aggravated assault. In
the ensuing proceedings the applicant was assisted by court-appointed
defence counsel.
- After
holding three hearings, the Pest Central District Court found the
applicant guilty as charged on 26 February 2004. The District Court
took account of the protraction of the proceedings as a mitigating
factor and sentenced him to four years' imprisonment. The District
Court relied on documentary evidence, the opinion of a forensic
medical expert and the testimony of several witnesses as well as the
applicant.
- The
applicant appealed, seeking acquittal on the ground that the judgment
was ill-founded. The Budapest Regional Court notified the applicant's
lawyer that it would determine the appeal at deliberations in
camera. In reply, the lawyer put forward his arguments in detail
and requested the court to hold a public hearing. He asserted that
the court should hear further witnesses in order to establish the
facts fully.
- On
1 February 2005 the Regional Court held deliberations in camera
and upheld the applicant's conviction. The applicant, his lawyer and
the prosecution were not present. The Regional Court reviewed the
entirety of the proceedings and upheld 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 appellate
review without taking further evidence. This consideration enabled
the court to hold deliberations in camera, pursuant to section
360(1) of the Code of Criminal Procedure, without the attendance of
either the defence or the prosecution.
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 during the second set of criminal
proceedings 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 the second-instance proceedings were
carried on in accordance with the Code of Criminal Proceedings, as in
force in the relevant time. Therefore, both the principle of
adversarial procedure and that of 'equality of arms' were 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 had not been 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 reviewed the case against the applicant in its entirety. The
appellate court's reformatory powers are 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 to take evidence anew.
- The
Government emphasised that in the present case the Regional Court had
neither considered the first-instance judgment ill-founded nor found
it necessary to take evidence or to hear the applicant. The
applicant's case had not presented any special circumstances
requiring the defendant to be heard by the appellate court, unlike
other cases with 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
already convicting the applicant. In these circumstances it had not
been necessary to hold a public hearing.
- The
applicant maintained that, even if the proceedings had been formally
in line with the provisions of the Code of Criminal Proceedings, this
did not automatically mean that the principle of 'equality of arms'
had been observed in the case. In his view, the fact that neither he
nor the prosecution had been present at the second-instance
proceedings did not render the proceedings fair as a whole, since the
Regional Court was entitled to decide in both question of facts and
law. The applicant referred to the Court's case law in this respect
requiring the same safeguards to be implemented during the appellate
trial as during the first-instance proceedings, in particular the
obligation to hold a public hearing.
- The
Court has 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 be
nevertheless 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, 19 February 1996, § 39, Reports of
Judgments and Decisions 1996 I; 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 – aggravated assault
– indisputably belong to the core criminal law. Furthermore,
what was at stake for the applicant was imprisonment, and he was
actually sentenced to a four-year term, which obviously carried a
significant degree of stigma.
- Moreover,
since on appeal the applicant had sought acquittal, for the Court the
importance of credibility also arose in view of the nature of the
offence in question. Consequently, the considerations relied on by
the Regional Court were capable of raising issues going to such
matters as the applicant's personality and character, therefore
hearing him directly should have been necessary (see Kremzow,
cited above, § 67). The Court also observes that the
applicant expressly requested the holding of a public oral hearing
before the appellate court.
- The
Court notes that the Regional Court made a full review and had to
determine the applicant's guilt anew. 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained that during the first set of criminal
proceedings 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. The Court notes that the final judgment in
this case was given on 15 May 2003. However, the application was
lodged only on 15 July 2005, i.e. more than six months later. It
follows that this aspect of the application has been introduced
outside the six-month time-limit prescribed by Article 35 § 1
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 claimed 3,000 euros (EUR) for non-pecuniary damage as just
satisfaction.
- The
Government considered the applicant's claim excessive.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage. Accordingly, on the basis of equity, it awards
him EUR 1,500 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 also claimed EUR 1,000 for the costs and expenses incurred
in the proceedings before the Court. He submitted an itemised
statement of the hours billable by his lawyer, corresponding to ten
hours of work (three hours for client consultations, one hour for
studying the file, three hours for case-law research and three hours
for the preparation of submissions) spent by his lawyer on the case,
charged at an hourly rate of EUR 100.
- The
Government found the applicant's claim excessive.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds it reasonable to award the sum claimed in its entirety.
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 second set
of criminal 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 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 1,500 (one thousand five hundred euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
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
