SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22449/08
by Tibor FAZEKAS
against Hungary
The European Court of Human Rights (Second Section), sitting on 
28 September 2010 as a Chamber composed of:
and Françoise Elens-Passos, ,
Having regard to the above application lodged on 6 May 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tibor Fazekas, is a Hungarian national who was born in 1972 and lives in Hosszúpályi. He was represented before the Court by Mr I. Barcsi, a lawyer practising in Debrecen. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 August 2005 criminal proceedings were initiated against the applicant and six co-accused on account of various offences which they had allegedly committed in their capacity as police officers. The applicant and another suspect retained Mr Barcsi as defence counsel. On 23 August 2005 the Győr District Court excluded Mr Barcsi from the proceedings. It held that because his two clients' interests conflicted, he was not eligible. This decision was later quashed by the Győr-Moson-Sopron County Regional Court. Subsequently, the other suspect retained another lawyer.
On 9 May 2006 a bill of indictment was preferred in the case.
On 17 January 2008 the District Court again excluded Mr Barcsi from the applicant's defence. On 3 March 2008 the Regional Court dismissed an appeal lodged by the applicant and Mr Barcsi. The courts observed that during the preliminary investigation Mr Barcsi had been retained by two defendants; however, since their testimonies had been contradictory, the double retainer had amounted to conduct against those defendants' interest. The court held that the conflict of interest between these defendants had a significant bearing on the outcome of the case, in that the defence of one might be to the detriment of the other. They applied section 45(1c) of the Code of Criminal Procedure, according to which a person acting against the interests of a defendant cannot act as defence counsel. Mr Barcsi's complaint to the Attorney General was to no avail.
Subsequently, a legal-aid lawyer was appointed for the applicant. On 21 March 2008 he complained to the District Court that, in his view, the legal-aid lawyer had not prepared his case adequately.
Hearings were held on 1 April, 8 May, 6 June and 18 September 2008. Closing statements were heard on 22 September 2008.
The District Court delivered a judgment on 6 October 2008. The applicant was found guilty of various charges and sentenced to three years and six months' imprisonment, to five years' prohibition from public affairs and to a fine of 500,000 Hungarian forints. The lapse of time since the commission of the offences was taken into account as a mitigating factor.
On appeal, the Regional Court scheduled a hearing for 1 March 2010. According to the information available in the case file, the case is still pending before the appellate court.
B.  Relevant domestic law
Act No. XIX of 1998 on the Code of Criminal Procedure provides as follows:
Complaint about the protraction of the proceedings
Section 262/A
“(1) The defendant, the defence counsel ... are entitled to file a written complaint with the trial court complaining about an omission ... allegedly committed by that court, requesting that the omitting court be instructed to perform the omitted procedural act or adopt a decision or ... take an appropriate action in the case within a reasonable time limit.
(2) Such a complaint may be filed if:
a) the law prescribes a time-limit for a court within which to perform a procedural act or to pass a decision and the time-limit has elapsed without any result,
b) a court has set a time-limit for [a participant of the procedure] within which to perform a procedural act, the time-limit has elapsed without any result, and the court has failed to impose on the one responsible the measures allowed by the law...
Section 262/B
(1) Except for the case specified under subsection (2), the trial court shall, within eight days, directly forward the files to the court competent to decide on the complaint. In an enclosed document, it shall set out the reasons which – according to its assessment – made impossible the performance of the procedural act or the passing of a decision.
(2) If the trial court itself finds the complaint well-founded, it shall, within thirty days counted from the receipt of the complaint, take or order to take appropriate measures in order to terminate the situation complained of. It shall inform the complainant of the manner in which the complaint has been settled...
 (4) If the [superior] court determining the complaint admits the complaint, it shall, by setting a time-limit, instruct the [trial] court to take ... the action required for the proper progress of the case .... If it finds the complaint ill-founded, it shall dismiss it in a reasoned decision. No further appeal shall lie against this decision...”
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. Moreover, under Article 6 §§ 1 and 3 (b) and (c), he complained that the exclusion of Mr Barcsi prejudiced his defence rights.
THE LAW
The applicant complained under Article 6 § 1 about the protraction of the proceedings. The Government principally submitted that in order to exhaust domestic remedies, he should have availed himself of the procedure provided in sections 262/A and 262/B of the Code of Criminal Procedure. The applicant did not address this issue in particular.
Article 35 § 1 provides as relevant:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
The Court observes that the applicant had at his disposal a remedy arguably capable of accelerating the procedure in some circumstances, namely a complaint under sections 262/A and 262/B of the Code of Criminal Procedure. The applicant has not called into question the effectiveness of this remedy, which the Government are therefore not required to prove. On introducing the application to the Court on 6 May 2008, the applicant must have been aware of the existence since 1 April 2006 of this remedy. Even if he had had doubts as to whether this legislation could be applied to his case and to the prospects of success of such a complaint, he should have applied to the domestic authorities prior to doing so to the Court. In these circumstances, the respondent State did not have an opportunity of redressing the alleged damage by domestic means within the framework of its own legal system, a principle inherent in Article 35 § 1 of the Convention (see e.g. Guzzardi v. Italy, 6 November 1980, § 72, Series A no. 39, and Cardot v. France, 19 March 1991, § 36, Series A no. 200). It must therefore be concluded that the applicant has not exhausted domestic remedies in this respect.
The applicant moreover complained under Article 6 §§ 1 and 3 about the alleged unfairness of the proceedings. However, the Court reiterates that the fairness of criminal proceedings can be examined only by viewing the procedure as a whole. Since the applicant's case is still pending, this complaint is premature.
It follows that the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Françoise Elens-Passos	Françoise Tulkens
	   Deputy Registrar	President