SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17604/05
by György GOLDMANN and Júlia SZÉNÁSZKY
against Hungary
The European Court of Human Rights (Second Section), sitting on 1 September 2009 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 23 April 2005,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr György Goldmann and Ms Júlia Szénászky, are Hungarian nationals who were born in 1945 and 1947, respectively, and live in Hódmezővásárhely.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
In July 1995 the applicants, a married couple, were charged with embezzlement. After a remittal, the Békéscsaba District Court found the applicants guilty as charged and sentenced them to one year, suspended, of imprisonment in May 1998. On appeal, the Békés County Regional Court upheld the first-instance judgment in January 1999. The review bench of the Supreme Court upheld the final judgment in March 2000. The courts relied on documentary evidence, the opinion of experts and the testimony of witnesses and the parties.
In September 2001 the applicants requested a retrial. In 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 upheld the applicants’ conviction in September 2004. The applicants appealed, requesting their acquittal. The Békés County Regional Court, without holding a hearing, upheld the first-instance judgment on 26 January 2005. The courts relied on documentary evidence, the opinion of court-appointed experts and a private expert mandated by the applicants, as well as the testimony of witnesses and the defendants. The applicants submitted written observations to the case file, questioning the credibility of the opinion of the court-appointed experts.
The applicants lodged a petition for review with the Supreme Court, which was dismissed as incompatible ratione materiae with the relevant provisions of the Code of Criminal Procedure on 1 June 2005.
B. Relevant domestic law
Act no. 19 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 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.”
COMPLAINTS
The applicants complain under Article 6 of the Convention about the length and the unfairness of the proceedings. They submit in particular that the courts refused to hear the experts appointed in the criminal proceedings conducted against them but relied only on their written opinions. Moreover, they complain that the second-instance court did not hold a public, adversarial hearing in the reopened proceedings.
THE LAW
1. The Court notes that, due to an administrative error, the present application was declared inadmissible on 3 March 2009. The Court finds it appropriate therefore to restore the application to its list of cases and to make a further examination of the applicants’ complaints.
2. The applicants complain that the courts’ refusal to hear certain expert witnesses casts doubt on the fairness of the proceedings as a whole and, furthermore, that during the reopened proceedings the second-instance court determined their case in camera. Moreover, they complain about the length of the proceedings. They rely on Article 6 § 1 of the Convention which, in its relevant part, provides as follows:
“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...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to restore the application to its list of cases;
Decides to adjourn the examination of the application.
Sally DolléFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy