CASE OF FOLDES AND FOLDESNE HAJLIK v. HUNGARY
Violation of P4-2-2 in respect of the first applicant;Remainder inadmissible;Non-pecuniary damage - financial award
András Baka;Antonella Mularoni;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa
4. The applicants were born in 1957 and 1958 respectively and live in Miskolc. 5. On 10 December 1992 a company, E. Ltd., laid charges of fraudulent bankruptcy and other offences against the applicants, then a married couple. Subsequently, the Borsod County Police Department instituted criminal proceedings against the first applicant. On 17 November 1993 he was questioned as a suspect. 6. On 27 December 1993 the Borsod County Police Department prohibited the alienation of the applicants’ real property and their cars. On 22 February 1994 the Miskolc Public Prosecutor’s Office upheld this measure, observing that it was justified because it pursued the aim of guaranteeing the satisfaction of claims brought by the potential civil parties. 7. Meanwhile, on 6 January 1994 the proceedings were extended to include the second applicant as a defendant. 8. On 17 January 1994 the Passport Office of the Ministry of the Interior withdrew the first applicant’s passport until the termination of the criminal proceedings, under sections 2 and 13 of the Foreign Travel Act (Law no. 28 of 1989), in order to secure his availability for trial. That decision was confirmed by the Minister of the Interior on 25 March 1994. 9. On 26 October 1994 the Miskolc Public Prosecutor’s Office preferred a bill of indictment against the applicants, charging them with fraudulent bankruptcy and other offences. 10. Meanwhile, the first applicant requested the Budapest Regional Court to review the administrative decision ordering the withdrawal of his passport. On 9 May 1995 the Regional Court upheld that decision, which in its view had been delivered in accordance with the law. 11. After sixteen hearings between 7 May 1996 and 4 February 2002, on 11 February 2002 the Miskolc District Court convicted the applicants and sentenced them to one year and eight months’ imprisonment and one year and six months’ imprisonment respectively, these sentences being suspended for three years. The court relied on the testimonies of witnesses, extensive documentary evidence and the opinion of three experts. In its reasoning, it appreciated, as a mitigating factor, the “very long time” which had elapsed since the commission of the offences, finding that this delay could not be imputed to the applicants. 12. On appeal, on 11 June 2002, the Borsod-Abaúj-Zemplén County Regional Court quashed the District Court’s judgment on account of a serious procedural shortcoming and remitted the case to the first-instance court. 13. In reply to a request by the applicants to have the case file photocopied, on 17 June 2002 the Regional Court invited them to specify which particular elements they wished to have copied. The court pointed out that the photocopying of the whole case file, which contained several thousand pages (and was in any event available for personal consultation in its entirety), was impossible and also unnecessary, given that many documents were of little relevance. 14. In the resumed proceedings, eighteen hearings were held between 21 October 2002 and 19 May 2005. 15. On 23 May 2005 the District Court convicted the applicants of the offences of breaching accountancy rules (punishable by up to two years’ imprisonment under Article 289 of the Criminal Code) and of fraudulent bankruptcy (punishable by up to five years’ imprisonment under Article 290 of the Criminal Code), and fined them each 270,000 Hungarian forints. 16. On 23 June 2005 the Borsod-Abaúj-Zemplén County Regional Court dismissed an appeal by the applicants. It ordered that the measures attaching the applicants’ assets be discontinued. 17. On 5 January 2006 the Supreme Court’s review bench quashed the second-instance judgment and remitted the case to the Regional Court. 18. In the resumed second-instance proceedings, on 8 June 2006 the Regional Court upheld in essence the applicants’ convictions and fines. It dismissed the civil party’s claims and lifted the prohibition on the alienation of the applicants’ assets. In its reasoning, it reiterated: “[I]n the process of imposing ‘legal detriments’ [joghátrány], the courts fully recognised the extraordinarily protracted nature of the proceedings as an important mitigating factor, and appreciated this circumstance when determining the punishments.” 19. In reply to a complaint in the applicants’ appeal concerning the non-attendance of the experts at the court hearings, the court observed that their opinions had been added to the case file, since they had been extensively presented at the hearing on 10 February 2005. Despite an invitation by the court to do so, the applicants did not comment in writing on those opinions in the ensuing proceedings. Given that the opinions had at all times been available to the defence, copies had been dispatched to the parties, and the opinions had been explained at a hearing, the court was satisfied that the principle of “direct and oral proceedings” had not been infringed. In any event, it was convinced that, given the complexity of the case and the extensiveness of the opinions (amounting to several volumes), any meritorious criticism thereof would only have been possible in writing and the experts – whose views were otherwise essentially convergent – could likewise have reacted to such criticism in writing. The judgment became final on the same day.