AUPEK v. HUNGARY
Inadmissible
The applicant, Mr Gábor Aupek, is a Hungarian national who was born in 1966 and lives in Ercsi. He was represented before the Court by Mr I. Tóth, a lawyer practising in Budapest. On 26 October 1998 the applicant, a truck driver, was interrogated as a suspect for having negligently caused, in a multiple road accident, the death of six people and the serious injury of five others, three of whom became permanently disabled. In the ensuing proceedings, the applicant was assisted by defence counsel of his choice. On 2 March 1999 a bill of indictment was preferred. After several hearings at which numerous witnesses testified and the opinions of two medical and four technical experts were obtained, on 9 April 2002 the Miskolc District Court acquitted the applicant. On 6 November 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed this judgment as unfounded; the bench included Dr K., Dr M. and Dr D. In the resumed proceedings (megismételt eljárás), the District Court held four hearings. On 6 May 2004 it found the applicant guilty as charged. It held that, apart from the responsibility of another driver who had died in the multiple collisions, the accident had essentially been caused by the applicant’s failure to maintain the brakes of his truck and his grossly negligent driving. The applicant’s offence was punishable with two to eight years’ imprisonment. The District Court took account of the protraction of the proceedings as an important mitigating factor (nyomatékos enyhítő körülmény) and sentenced him to three and a half years’ imprisonment and a four-year prohibition on driving. The applicant appealed, seeking an acquittal, pleading that the judgment was ill-founded. On 13 October 2004 the Regional Court, again with the participation of Drs M. and D., upheld the applicant’s conviction but reduced his sentence to two and a half years’ imprisonment and a three-year prohibition on driving. The court reviewed the entirety of the proceedings and the first-instance judgment, and held that the first-instance proceedings had been lawful. Furthermore, it considered that the findings of fact 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, in application of section 360(1) of the Code of Criminal Procedure, without the attendance of either the defence or the prosecution. The applicant states that this judgment was served on his lawyer only on 17 November 2004. However, on 27 October 2004 he had already been called upon to start serving his sentence on 22 November 2004. His request to have the commencement of his sentence postponed on the grounds of his impaired health, as a consequence of the injuries he himself had suffered in the accident, was to no avail. Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides insofar as relevant as follows: “(3) c) In first or second-instance proceedings which must be repeated because of having been quashed, any judges shall be ineligible (kizárt) who participated in the adoption of the decision to quash or in the adoption of the decision which has been quashed because of ill-foundedness.” “(3) An appeal may concern questions of fact or law.” “(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.” “(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.” “(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). ...” “(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 ...” “(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. ...” “(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.” “(II) b) [The second instance court] ... shall quash the judgment of the first instance court and order that court to repeat the proceedings if ... a statutorily ineligible (kizárt) judge ... has participated in its adoption ...” “(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.”