CASE OF SANDOR LAJOS KISS v. HUNGARY
Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1976 and lives in Vác. 6. In January 2002 the Pest Central District Court found the applicant, a recidivist offender, guilty of attempted blackmail and plunder and sentenced him to eight years’ imprisonment. On appeal, the Budapest Regional Court, on 15 May 2003, re-characterised his actions as offences of “taking the law into one’s own hands”, attempted aggravated assault and a violation of personal liberty, but reduced his sentence to five years’ imprisonment. 7. In February 2003 the applicant was charged with aggravated assault. In the ensuing proceedings the applicant was assisted by court-appointed defence counsel. 8. After holding three hearings, the Pest Central District Court found the applicant guilty as charged on 26 February 2004. The District Court took account of the protraction of the proceedings as a mitigating factor and sentenced him to four years’ imprisonment. The District Court relied on documentary evidence, the opinion of a forensic medical expert and the testimony of several witnesses as well as the applicant. 9. The applicant appealed, seeking acquittal on the ground that the judgment was ill-founded. The Budapest Regional Court notified the applicant’s lawyer that it would determine the appeal at deliberations in camera. In reply, the lawyer put forward his arguments in detail and requested the court to hold a public hearing. He asserted that the court should hear further witnesses in order to establish the facts fully. 10. On 1 February 2005 the Regional Court held deliberations in camera and upheld the applicant’s conviction. The applicant, his lawyer and the prosecution were not present. The Regional Court reviewed the entirety of the proceedings and upheld their lawfulness. Furthermore, it considered that the findings of fact by the first-instance court 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, pursuant to section 360(1) of the Code of Criminal Procedure, without the attendance of either the defence or the prosecution. 11. Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides, in so far as relevant, as follows: “... (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.” “(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.”