CASE OF CSIKOS v. HUNGARY
Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing;Article 6-3-c - Defence in person) (Article 6-3-c - Defence in person;Article 6 - Right to a fair trial)
5. The applicant was born in 1968 and lives in Budapest. 6. On 18 March 2003 the Eger District Public Prosecutor’s Office indicted the applicant and two other individuals for aggravated extortion. The applicant was assisted by defence counsel of his choice. After hearings held on 16 June and 8 October, on 13 October 2003 the District Court found the applicant guilty as charged and sentenced him to 3½ years’ imprisonment. The court relied on evidence given by the victim and several witnesses. 7. The prosecution appealed to have the sentence increased, while the applicant appealed to be acquitted or to have his sentence reduced. He also proposed that two further witnesses be heard. 8. At deliberations held in camera on 20 February 2004, the Heves County Regional Court upheld the applicant’s conviction, while increasing his sentence to 4 years’ imprisonment. Neither the applicant nor his lawyer was present. In its reasoning, the court did not deal with the proposal to hear two more witnesses. “(1) In the Republic of Hungary, everyone is equal before the law, and has the right to have any criminal charge against him or his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law. ... (3) Individuals subject to criminal proceedings are entitled to the right of defence at all stages of the proceedings. ...” “(3) The Constitutional Court shall order the review of such criminal proceedings as have been finally concluded under unconstitutional legal provisions if the convicted person has not yet been exempted from the legal effects of the conviction – provided that from the nullity of the provision applied in the procedure, the reduction or non-imposition of the punishment or measure, or the exemption from or reduction of [criminal] liability would follow.” “(1) Any person who claims to have suffered a violation of his rights enshrined in the Constitution on account of the application of an unconstitutional provision and has exhausted all other legal remedies or there are no such remedies available, may submit a constitutional complaint to the Constitutional Court. (2) A constitutional complaint may be filed in writing within 60 days of the service of the legally binding decision.” “(3) An appeal may concern questions of fact or law.” “(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 ... shall be scheduled.” “(1) Review proceedings may be instituted against a final decision on the merits if: ... e) the Constitutional Court has ordered (elrendelte) the review of criminal proceedings concluded by a final judgment, provided that the defendant has not yet been exempted from the legal consequences flowing from his conviction, or the execution of the imposed punishment ... has not yet been terminated ... or its enforceability has not yet ceased; f) the determination of criminal liability or the imposition of a sanction ... has been effected in application of a criminal law provision, whose unconstitutionality has already been established by the Constitutional Court, but the defendant has already been exempted from the legal consequences flowing from his conviction, or the execution of the punishment has already been terminated or its enforceability has ceased ...” “(1) The Constitutional Court finds that section 360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure is unconstitutional and therefore annuls it as of the date of delivery of this decision. ... (3) The Constitutional Court finds that Parliament has committed an unconstitutional omission by failing to regulate, in Act no. XIX of 1998 on the Code of Criminal Procedure and in accordance with the requirements of legal certainty and fair trial, the scope of those cases in which the appellate court may hold in camera deliberations. The Constitutional Court invites Parliament to comply with its legislative duties by 31 October 2005. (4) The Constitutional Court holds that section 360(1) of Act no. XIX of 1998 on the Code of Criminal Procedure was unconstitutional and therefore this provision cannot be applied in the following cases, concluded by a final judgment (jogerősen befejezett ügyeiben nem alkalmazható): ... nos. Bf.671/2003, 29.Bf.8790/2003, 22.Bf.9924/2003, 20.Bf.XI.8046/2004, 25.Bf.VIII.8647/2004, 3.Bf.328/2003, Bf.200/2004, 1.Bf.996/2004, 1.Bf.1905/2004 and 1.Bf.184/2004.”