FOURTH SECTION
DECISION
Application no. 71327/13
Győző SZALONTAY
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 12 March 2019 as a Chamber composed of:
Jon Fridrik Kjølbro, President,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Egidijus Kūris,
Iulia Antoanella Motoc,
Georges Ravarani,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 7 November 2013,
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
1. The applicant, Mr Győző Szalontay, is a Hungarian national who was born in 1974 and lives in Kecskemét. He was represented before the Court by Mr A.K. Kádár, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Agent, Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was the managing director of company W. which leased and sub-leased the premises of a shopping mall in Budapest to hold musical events from 30 June 2009 onwards. In particular, company W. sub-leased the premises for a musical event held on 15 January 2011 to company D. which had previously organised concerts on the premises.
5. On the evening of the event, panic broke out in the crowded stairway of the mall. People tripped and fell, and in the resultant stampede three people were crushed to death.
6. Less than a day after the incident, the Minister of the Interior said that the police had identified the persons responsible (including the applicant). The mayor of the district concerned in Budapest expressed the view that the applicant’s unforgivable mistake had led to the fatalities and that she hoped that the applicant would be detained.
7. The ensuing criminal investigation was concluded by the investigation authority on 28 January 2011.
8. On 27 June 2012 the applicant was found guilty by the Pest Central District Court of the crime of “danger caused by negligent professional misconduct leading to fatal mass casualties in the course of employment”. The court sentenced the applicant to two years and eight months of light‑regime imprisonment and banned him from event organisation for two years. Two organisers and the security chief were also sentenced to imprisonment in the case.
9. On the basis of expert medical opinions, the first-instance court concluded that the three fatalities had been the result of pressure from the crowd accumulating on the stairs. In the light of this finding, the court was of the view – citing the opinion of the fire safety expert – that the safety criteria should have been assessed on the basis of the evacuation calculations included in the National Fire Safety Regulations, but that no such assessment had been carried out by the defendants. In addition, the defendants had failed to notify the competent fire brigade which therefore had not been able to examine the venue prior to the event. The first-instance court pointed out that the defendants had not claimed that anyone had performed any calculations in order to prepare an evacuation plan for the particular event. On the basis of the witness statements, the first-instance court concluded:
“[T]he occupational misdemeanour of the defendants created a risk for the guests at the entertainment facility as they did not arrange for any safe means of using the stairs and did not provide any exit or any other passage during admission either. For the clearly large number of guests, the single staircase of four flights (four rounds) was a source of risk itself.”
10. The first-instance court took into account the site inspection report and the photographs taken at the premises as evidence which proved that the potential escape route had been obstructed. The judgment established that securing the event had been a contractual obligation for the applicant and that, furthermore, he had been obliged to comply with all the relevant regulations (including notifying the authorities of the event).
11. In relation to the defence’s argument that the applicant had been misled by his co-organisers regarding the number of people attending the event (2,883 persons), the first-instance court noted that even the number of guests he had been aware of (1,500-1,800 persons) was far in excess of the authorised figure of 300. Addressing the defence plea that the police had also failed to comply with their obligation to take appropriate measures and that the liability of other persons should also have been investigated, the court pointed out that its obligation was to examine only the defendants and charges brought before it. Finally, in relation to the sentence, the first-instance court explained that the purpose of the punishment in this case was
“to raise the awareness of society as to due care, and not under any circumstances to go against the crystallised judicial practice of the courts just to be compliant with potential expectations of society.”
12. On 12 April 2013 the Budapest High Court, acting as a court of appeal, increased the sentence imposed on the applicant to three years and four months’ imprisonment but suspended the execution of half of it for a two-year probationary period. The judgment was served on the applicant’s counsel on 3 June 2013.
13. The court deemed it an aggravating circumstance for the defendants that in addition to the result of their actions, which had led to a large number of people being injured, the applicant, on account of his awareness of the limited capacity of the premises, had also been grossly negligent. The court took into account, for the benefit of all the defendants, the fact that more than two years had passed since the event and that a great deal of regret had been demonstrated by the applicant throughout the proceedings.
14. The High Court completed its findings of fact by noting the irregularities previously found by the Budapest Firefighting Headquarters which had established on 5 May 2010 that only 307 people could be safely evacuated from the venue, and on 10 December 2010 that there was no record of any evacuation calculations. Meanwhile, on 29 November 2010, the applicant had notified the commercial department of the local government of a catering activity for 300 people. Refuting the defence counsel’s arguments, the Regional Court held that the court of first instance had duly fulfilled its obligation to provide reasoning when
“it [had] stated in the facts that the accelerated admission of people to the venue, coupled with the impediment to free passage caused by the narrow pathway in front of the cloakroom, resulted in people accumulating on the stairs; consequently three individuals sustained fatal injuries and died onsite and eleven other individuals also sustained various injuries.”
15. In addition, the High Court agreed with the conclusion of the first-instance court that the number of mobile barriers used for admission was of special significance since the accelerated admission had resulted in extreme crowd levels building up and had thus been connected to the casualties. On the basis of the witness statements, the High Court concluded that in order to accelerate admission, a fourth admission position had been created with the applicant’s knowledge and approval, and without any objection on his part.
16. The High Court refuted the argument of the applicant’s defence counsel that the mass casualties had been caused by the panic prompted by rumours of a stabbing incident, and concurred with the District Court in holding that the findings of the competent authorities, concerning in particular the failure to comply with the maximum authorised number of guests and with the notification obligations, were important in establishing the degree of the applicant’s negligence.
17. In relation to the procedural shortcomings claimed by the defence counsel, the High Court stressed:
“... the records or other documents did not contain any indications suggesting a significant limitation of defence rights. According to the trial records, in the course of the questioning of witnesses and experts, the District Court granted the right to ask questions and make remarks to all defence counsel and defendants. That fact is certified on a number of pages of the records. ... It did not violate any rule when it found that the experts and witnesses had made statements in relation to the relevant issues and that no further questions needed to be asked.”
18. As to the expert opinions and the alleged procedural errors relating to the questioning of the experts, the High Court ruled that they had not had any significant impact on the judgment and that the defendant’s further applications for evidence to be taken had been immaterial in terms of the liability of the defendants.
19. During the proceedings, the applicant did not challenge any of the trial judges for bias.
20. The applicant did not lodge a constitutional complaint against the final judgment.
B. Relevant domestic law
1. The Fundamental Law
21. The Fundamental Law, in force as of 1 January 2012, provides as follows:
Article XXVIII
“(1) Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.
(2) No one shall be considered guilty until his or her criminal liability has been established by the final decision of a court.
(3) Persons subject to criminal proceedings shall have the right to a defence at all stages of the proceedings. Defence counsel shall not be held liable for their opinion expressed while providing legal defence.
(4) No one shall be held guilty or be punished for an act which at the time when it was committed did not constitute a criminal offence under Hungarian law or, within the scope specified in an international treaty or a legal act of the European Union, under the law of another State.
(5) Paragraph (4) shall not prejudice the prosecution or conviction of any person for any act which, at the time when it was committed, was a criminal offence according to the generally recognised rules of international law.
(6) With the exception of extraordinary cases of legal remedies laid down in an Act, no one shall be prosecuted or convicted for a criminal offence for which he or she has already been finally acquitted or convicted in Hungary or, within the scope specified in an international treaty or a legal act of the European Union, in another State, as provided for by an Act.
(7) Everyone shall have the right to seek a legal remedy against any court, authority or other administrative decision which violates his or her rights or legitimate interests.”
2. Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”)
22. The Constitutional Court Act, in force as of 1 January 2012, provides as follows:
Section 26
“(1) Under Article 24(2)(c) of the Fundamental Law, an individual or organisation involved in a particular case may lodge a constitutional complaint with the Constitutional Court where, owing to the application of a piece of legislation allegedly contrary to the Fundamental Law in the court proceedings conducted in the particular case,
(a) their rights enshrined in the Fundamental Law have been violated, and
(b) they have exhausted the available legal remedies or no remedies are available.
(2) By way of derogation from subsection (1), Constitutional Court proceedings may also be initiated under Article 24(2)(c) of the Fundamental Law in exceptional cases where
(a) the grievance has occurred directly, without a court ruling, as a result of the application or the taking effect of a provision of the law [allegedly] contrary to the Fundamental Law, and
(b) no remedy is available for redressing the injury, or the complainant has already exhausted the remedies.”
Section 27
“An individual or organisation involved in a particular case may lodge a constitutional complaint with the Constitutional Court against a court ruling allegedly contrary to the Fundamental Law under Article 24(2)(d) of the Fundamental Law, where the ruling on the merits of the case or another ruling closing the court proceedings
(a) violates the complainant’s right enshrined in the Fundamental Law, and where
(b) the complainant has already exhausted the remedies or no remedies are available.”
Section 28
“(1) In proceedings for the review of a judicial decision as defined in section 27, the Constitutional Court may also carry out an examination of the conformity of the piece of legislation with the Fundamental Law as described in section 26.
(2) In proceedings initiated under section 26, the Constitutional Court may also examine the constitutionality of a judicial decision.”
Section 29
“The Constitutional Court shall declare the constitutional complaint admissible if a conflict with the Fundamental Law has significantly affected the judicial decision, or if the case raises constitutional-law issues of fundamental importance.”
Section 30
“A constitutional complaint may be submitted in writing, within 60 days of the receipt of the contested decision, and, in cases defined in section 26 (2), 180 days of the entry into force of the allegedly unconstitutional provision of law.
...
(5) The Constitutional Court shall decide on constitutional complaints within a reasonable time ...”
Section 39
“(1) Unless otherwise provided for by this Act, the decisions of the Constitutional Court are binding on everyone.
(2) There shall be no remedy against the decisions of the Constitutional Court.
(3) The Constitutional Court shall itself establish the applicable legal consequences within the framework of the Fundamental Law and of this Act.”
Section 41
“(1) If the Constitutional Court holds, in proceedings referred to in sections 24 or 25-26, that a provision of law in force is in breach of the Fundamental Law, it shall strike down that provision partly or entirely.
...”
Section 43
“(1) If the Constitutional Court, in the course of proceedings referred to in Section 27 and on the basis of a constitutional complaint, declares that a judicial decision is contrary to the Fundamental Law, it shall quash the decision.
(2) Provisions of Acts that contain regulations governing court proceedings shall be applied to the procedural legal consequences of a Constitutional Court decision that quashes a judicial decision.
(3) In court proceedings that must be conducted as a consequence of the quashing of a judicial decision by the Constitutional Court, the decision of the Constitutional Court shall be followed with regard to the constitutional issue.
(4) The Constitutional Court, when quashing a judicial decision, may also quash judicial decisions or the decisions of other authorities which were reviewed in the decision in issue.”
Section 45
“(1) A legal instrument or provision thereof that has been struck down shall cease to have effect on the day after the publication of the Constitutional Court’s corresponding decision in the Hungarian Official Gazette and shall not be applicable from that day onwards; a legal instrument which has been promulgated but has not yet entered into force shall not enter into force.
(2) If the Constitutional Court strikes down a legal instrument applied in a particular case on the basis of judicial initiative or a constitutional complaint, the legal instrument in question shall not be applied in the case that led to the proceedings before the Constitutional Court.
...
(6) The Constitutional Court shall order the review of the criminal proceedings ... that have concluded with a final decision based on a legal instrument found to be in breach of the Fundamental Law if the striking down of the legal instrument or provision applied would result in the reduction or non-imposition of the punishment or measure or in exemption from or limitation of criminal ... liability.
(7) In the course of a review specified in subsection (6), the rules of ... the Act on Criminal Procedure ... shall be applied.”
Section 56
“(1) The Constitutional Court shall decide on the admissibility of a constitutional complaint sitting as a panel determined in its Rules of Procedure.
(2) The panel shall examine within its margin of discretion the content-related requirements for the admissibility of a constitutional complaint – in particular, that of being concerned [by the matter complained of], for the purposes of sections 26 to 27, that of exhaustion of legal remedies and the conditions specified in sections 29 to 31.
(3) In the event of inadmissibility, the panel shall give a decision containing a short statement of reasons specifying the ground for rejection.
(4) An admissible constitutional complaint shall be submitted by the rapporteur for examination on the merits to the standing panel, as specified by the Rules of Procedure of the Constitutional Court, which shall adjudicate on the case.”
3. Act no. XIX of 1998 on the Code of Criminal Procedure
23. Act no. XIX of 1998 on the Code of Criminal Procedure, as in force on 3 June 2013, provided as follows:
Section 285
“(3) The rejection of an application for evidence to be taken may not be appealed against, but may only be contested in an appeal against the eventual decision.”
Review procedure
Section 416
“(1) A review of a final and binding court decision on the merits of a case may take place if ...
(e) the Constitutional Court has ordered a review of criminal proceedings that have concluded with a final and binding decision, provided that the defendant has not been released from any detrimental consequences relating to his criminal record, or the sentence imposed or measure applied has not been executed ...;
(f) the determination of criminal liability, the imposition of the punishment or the application of a measure was based on a piece of criminal legislation which has been found by the Constitutional Court to be contrary to the Fundamental Law, but the defendant has already been released from any detrimental consequences relating to his criminal record, or the sentence imposed or measure applied has already been executed ...”
Procedure in the event of a constitutional complaint
Section 429/A
“[In the context of ongoing proceedings,] [t]he first-instance court shall forward the constitutional complaint without delay to the Constitutional Court.”
Section 429/B
“(1) The first-instance court may suspend or interrupt the enforcement of the final and binding decision on the matter until the Constitutional Court has concluded its proceedings.
(2) The first-instance court shall notify the Constitutional Court of the suspension or interruption of the enforcement of the final decision.”
Section 429/C
“The first-instance court shall suspend or interrupt the enforcement of the final and binding decision by order of the Constitutional Court and shall notify the Constitutional Court thereof. The order cannot be appealed against.”
COMPLAINTS
24. The applicant complained under Article 6 of the Convention that his right to a fair trial had been violated in the criminal proceedings against him and submitted in particular that the principle of equality of arms had not been observed and that the courts had not been impartial.
THE LAW
25. The applicant complained that he had been convicted following a trial which had not been in compliance with the requirements of Article 6 of the Convention.
26. Article 6 provides, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
1. The Government
27. The Government submitted that the applicant had had the possibility of lodging a constitutional complaint under section 26(1) or section 27 of the Constitutional Court Act, which could have provided an effective remedy in respect of his grievances. Moreover, as regards the applicant’s complaint concerning the lack of impartiality of the courts, the Government submitted that the applicant had failed to submit a challenge for bias against the judges dealing with his case. Therefore, the Government were of the opinion that the applicant had not exhausted the effective remedies available under Hungarian law as required by Article 35 § 1 of the Convention. In any event, in their view, the application was manifestly ill-founded.
2. The applicant
28. The applicant disagreed. As regards the possibility of lodging a constitutional complaint, he submitted that the Government had not referred to any decisions of the Constitutional Court showing that the remedy suggested would have been effective in the circumstances, as required by the Court’s case-law. He made reference to the case of Király and Dömötör v. Hungary (no. 10851/13, § 48, 17 January 2017). Moreover, it had not been possible for him to submit a challenge for bias in any meaningful way during the ongoing proceedings, because the decisions refusing some of his applications for evidence to be taken had been procedural decisions (pervezető végzés) devoid of reasoning, and he had learnt of the underlying reasons only from the final judgment, by which time the proceedings had been concluded and a challenge for bias would have been futile.
B. The Court’s assessment
29. The Court will first examine the Government’s objection that domestic remedies have not been exhausted because of the applicant’s failure to avail himself of a constitutional complaint.
30. The general principles surrounding the issue at hand are outlined in Mendrei v. Hungary ((dec.), no. 54927/15, §§ 23-26, 19 June 2018). The application of these principles in previous cases against Hungary concerning the effectiveness of a complaint before the Constitutional Court was described in paragraphs 27 to 31 of the same decision.
31. In Mendrei (cited above), the Court held that the application was inadmissible for non-exhaustion of domestic remedies, because a constitutional complaint against the impugned legislation under section 26(2) of the Constitutional Court Act could have been an effective remedy securing redress of an essentially preventive nature which had offered reasonable prospects of success. It noted that Mr Mendrei’s grievance directly flowed from the law in question, whose constitutionality could have been challenged in Constitutional Court proceedings. Had those proceedings been successful, the law giving rise to the grievance could have been repealed, which would have remedied the applicant’s situation.
32. By contrast, in the present application the Government relied on the procedures outlined in section 26(1) and section 27 of the Constitutional Court Act. The Court is therefore called upon to ascertain whether, having regard to the particular circumstances of the applicant and the nature of his complaint, the remedy indicated by the Government was accessible, effective and capable of offering sufficient redress.
33. The Court observes that the Constitutional Court may examine constitutional complaints, under section 26(1) and section 27 of the Constitutional Court Act, if the grievance – in the case of section 26(1) – has occurred as a result of the application of a piece of legislation allegedly contrary to the Fundamental Law in court proceedings or – in the case of section 27 – if the grievance has occurred as a result of court rulings allegedly contrary to the Fundamental Law (see paragraph 22 above). It notes that the applicant’s case may fall into both categories: his grievances concerned (i) the application of a provision of the Code of Criminal Procedure barring him from submitting a challenge for bias in an effective manner; and (ii) his conviction and sentence resulting from the first- and second-instance judgments that demonstrated a lack of impartiality on the part of the courts and a failure to observe the principle of equality of arms. In the Court’s view, the first of these issues may relate to the constitutionality of the relevant provision (that is to say, to section 26(1)), whereas the second one may relate to the constitutionality of the application of the law by the courts (that is to say, to section 27). It is to be noted at this juncture that the absence of any other domestic remedies is a precondition of both procedures and that none of the parties argued that there were any other remedies to be exhausted.
34. The Court considers that the applicant’s complaints fall entirely within the ambit of the right to a fair trial, which is enshrined in the Fundamental Law (see paragraph 21 above). This is an important difference from the case of Király and Dömötör relied on by the applicant, where the Court did not require the applicants to have applied to the Constitutional Court, for the reason that “the Government have failed to prove that there is a constitutional right or a domestic judicial practice allowing an individual to seek, with any prospect of success, the intervention of the police for the protection of private life” (see Király and Dömötör, cited above, § 49). In the instant case, however, Article XXVIII of the Fundamental Law is dedicated to the right to a fair trial in terms very similar to those of Article 6 of the Convention; therefore, the Court is satisfied that a relevant constitutional right exists.
35. Sections 41 and 43 of the Constitutional Court Act contemplate, respectively, the striking down of a legal provision or the quashing of a court decision if they are in breach of the Fundamental Law; nevertheless, these rules provide for no possibility of compensation (see paragraph 22 above). However, in the Court’s view, this does not preclude the effectiveness of the remedies at issue in the instant case. This is because the eventual striking down of the impugned legal provision pursuant to section 26(1) of the Constitutional Court Act, coupled with the quashing of the court judgments pursuant to section 27, would have resulted in new proceedings before the competent criminal courts in accordance with section 41 of the same Act. Moreover, a constitutional complaint lodged solely under section 27 could also have resulted in the quashing of the judgments and in new proceedings in the applicant’s case. Therefore, the Court is satisfied that a successful constitutional complaint, relying either on a combination of sections 26(1) and 27 of the Constitutional Court Act or on section 27 alone, would have been capable of putting an end to the grievance by prohibiting the application of the impugned rule and ordering new proceedings regarding the applicant’s case. Had the applicant availed himself of a constitutional complaint after the final and binding second-instance judgment, a positive outcome might have secured him redress in the form of the resumption of the criminal case, this time devoid of the procedural irregularities complained of. The statutory sixty-day time-limit starting from the day when the applicant became aware of the final judgment provided an adequate opportunity for him to lodge a constitutional complaint.
36. The remedy suggested by the Government is therefore one which may afford the highest national court the opportunity to examine the violations alleged in the present case (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004–III), given that the present application was lodged well after 1 January 2012, the date of enactment of the Constitutional Court Act (see paragraph 22 above).
37. As regards the question whether a constitutional complaint under section 26(1) coupled with a constitutional complaint under section 27 or a constitutional complaint solely under section 27 of the Constitutional Court Act would have offered, in practice, a reasonable prospect of success, the Court observes that the Government have not provided examples of cases where the Constitutional Court has dealt with issues similar to the ones arising in the present application. However, being aware of its supervisory role subject to the principle of subsidiarity, the Court considers that it cannot substitute its own view of the issues at hand for that of the Constitutional Court, which, for its part, has not been afforded the opportunity to examine the issues arising in the applicant’s case (see Mendrei, cited above, § 38).
38. A threshold requirement under section 29 of the Constitutional Court Act for the admissibility of a constitutional complaint is that a conflict with the Fundamental Law must have significantly affected the judicial decision in question (see paragraph 22 above). In the Court’s view, this could have been an arguable claim on the applicant’s part, given the nature of the allegations he made in the present application. These revolve in essence around the assertion that the non-observance of the principle of equality of arms and the lack of impartiality on the part of the courts resulted in his wrongful conviction in an unfair trial.
39. In the light of the above considerations, the Court concludes that in the applicant’s case either a constitutional complaint under section 26(1) coupled with a complaint under section 27 against the impugned legislation (that is to say, section 285 of Act no. XIX of 1998 on the Code of Criminal Procedure), or a constitutional complaint solely under section 27 against the judgments given in allegedly unfair proceedings, were accessible remedies offering reasonable prospects of success. The Court sees no circumstances exempting the applicant from having to lodge such complaints in the present case. The Court also points out that it is ready to change its approach as to the potential effectiveness of the remedies in question should the practice of the domestic authorities indicate the contrary (see, mutatis mutandis, Domján v. Hungary (dec.), no. 5433/17, § 38, 14 November 2017).
40. It follows that the applicant has not exhausted domestic remedies as required by Article 35 § 1 and that the application must be rejected, pursuant to Article 35 § 4 of the Convention.
41. This conclusion allows the Court to dispense with examining the Government’s remaining arguments of inadmissibility.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 April 2019.
Marialena TsirliJon Fridrik Kjølbro
RegistrarPresident
Full & Egal Universal Law Academy