TANCZOS v. HUNGARY
Inadmissible
The applicant, Mr Gábor Tánczos, is a Hungarian national, who was born in 1979 and lives in Körmend, Hungary. He is currently serving a prison sentence in Budapest Prison. He is represented before the Court by Mr Z. Somos, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 April 1998 criminal proceedings were instituted against the applicant. He was charged with having murdered a 10-year-old girl by cutting her throat. In the ensuing proceedings he was assisted by a defence counsel of his choice. On 15 October 1998 the Vas County Public Prosecutor’s Office preferred a bill of indictment. On 12 March 1999 the Vas County Regional Court convicted the applicant of murder and sentenced him to 14 years’ imprisonment. The Regional Court relied on, inter alia, evidence given by the applicant at trial. On appeal, on 17 November 1999 the Supreme Court held a hearing. It held that the first-instance judgment was ill-founded within the meaning of subparagraphs (a), (b) and (c) of section 239(2) of the Code of Criminal Procedure; consequently, it had to be quashed under sections 261(1) and 262(1) of that Code and remitted to the first-instance court. It ordered the Regional Court to analyse the contradictions contained in the various statements made by the applicant during the investigations and at trial. In the resumed proceedings, on 14 February 2001 the Regional Court convicted the applicant of murder and sentenced him to 13 years’ imprisonment and barred him from participating in public affairs for 8 years. The Regional Court relied on the fact that, during the investigations, the applicant had admitted the murder, on the testimonies of some 110 witnesses, the opinion of some 25 experts, documentary evidence, the inspection of the crime scene and forensic analyses. The defendant did not wish to testify; instead, he maintained the statements he had made during the investigations along with those which he had made before the Regional Court during the first trial. His previous statements were read out in court. In the appeal proceedings, on 11 July 2001 the Supreme Court refused the request of the applicant’s lawyer to obtain copies of the video recordings made during the investigation. The Supreme Court pointed out that he was entitled to obtain copies of any written minutes prepared on the basis of the recordings. On 15 October 2001 the Supreme Court, pursuant to section 248(2) of the Code of Criminal Procedure and in response to the submission by the defence of the opinion of a private expert, instructed the expert chemist who had given an opinion during the first-instance trial to complete his report concerning the alleged mishandling of the material evidence in the case. The expert submitted his supplementary opinion on 30 October 2001. On 6 November 2001 the Supreme Court held a hearing. The court heard the expert chemist and both the defence and prosecution put questions to him. The court refused to appoint an additional expert in physics, as was proposed by the defence, and declared the taking of evidence closed. A further hearing took place on 13 November 2001. The Supreme Court rejected the defence’s further proposals to obtain the opinions of an expert physicist and an expert in graphological lie-detection, as well as to hear the applicant. At the hearing of 20 November 2001, the Supreme Court again refused to hear the applicant, despite insistence by the defence. It was pointed out that during the first-instance proceedings the defendant could have, at any time, pleaded his case, but he had deliberately chosen not to. At the appeal stage, the hearing of the applicant’s testimony would only be permitted if necessary to complete the findings of fact. In any event, he had the right to address the court last. At the hearings of 29 and 30 January 2002 the applicant addressed the court last. On 5 February 2002 the Supreme Court adjudicated on the applicant’s appeal. It made a preliminary review of the judgment which it found well-founded as a whole. It made several corrections to the text and then considered that it was of a sufficient standard to be considered on the merits rather than quashed (érdemi felülbírálatra alkalmas). In the light of the evidence which it had completed itself, it was able to make a rectification to the relevant part of the first-instance decision by way of an order (végzés) rather than a judgment. Thereafter it upheld the conviction and sentence. In particular, the Supreme Court noted that the Regional Court had respected its instructions on to how to repeat the first-instance proceedings. It observed that, since the applicant had refused to give evidence in the resumed proceedings before the Regional Court, all his utterances previously made in the case had been read out before the Regional Court and the applicant had been free to comment on them. Moreover, the video tapes available to the Regional Court were played at the hearings and all the persons involved in the case were heard. Furthermore, additional expert opinion was obtained. The Supreme Court emphasised that, the taking of evidence having been closed in the first-instance proceedings, the provisions of the Code of Criminal Procedure did not allow for a repetition of that evidence before the second-instance court, which was only called on to review, under section 236 (1), the disputed judgment and the earlier proceedings. Insofar as the opinion of the defence’s private expert was concerned, the Supreme Court specified that it was admitted to the file as documentary evidence, although largely irrelevant. Act no. 1 of 1973 on the [Old] Code of Criminal Procedure (as in force at the material time) provided as follows: “(1) Evidence is constituted in particular by ... the testimony given by the accused.” “(1) The authority is obliged to interrogate the accused in detail. ... (2) At the beginning of the interrogation, the accused shall be warned that he is under no obligation to give evidence, that at any time during the interrogation he is free to refuse to give evidence and that what he says may be used as evidence. ...” “(1) The court shall determine the case by a judgment (ítélet) if it convicts or acquits the defendant.” (1) Unless the law provides otherwise, the appellate court shall review the judgment, together with the entirety of the preceding court proceedings, irrespective of who has appealed and for what reason. The second-instance court shall ... uphold, modify or quash the first-instance court’s judgment, or dismiss the appeal. “(1) The appellate 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 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 court has drawn incorrect conclusions from the findings of fact in regard to a further fact.” “Evidence may be taken in order to remedy the ill-foundedness of the first instance judgment if the facts are deficient or have been partially unexplored. Evidence shall be taken at hearings.” “(2) Prior to the hearing, the appellate court may, at its preliminary deliberations in camera, order the taking of evidence, if necessary.” “(1) If the appellate court modifies the first instance judgment, it shall determine the case by a judgment (ítélet); otherwise, it shall do so by an order (végzés).” “(1) In the event of ill-foundedness (section 239(2)), the appellate court: a) shall complete or correct the facts if the facts can be established fully and properly from the documents, or through induction, or from the evidence taken; and shall review the first instance judgment on the basis of the facts thus established; b) may establish the facts differently from those established by the first instance court if, on the basis of the evidence taken, the defendant may be acquitted or the proceedings discontinued. (2) The appellate court’s assessment, under (1) above, of the evidence may be different from that of the first instance court only in respect of those facts in relation to which the appellate court has taken evidence.” “(1) The appellate court shall uphold the first-instance court’s judgment, if the appeal is ill-founded, the judgment need not be quashed or modified, or because it is not entitled to increase the penalty.” “If the first-instance court applied the law erroneously and its judgment need not be quashed, the second-instance court shall modify the judgment and decide according to the law.” (1) The second-instance court shall quash the first-instance judgment and remit the case to the first-instance court, if such a violation, other than those listed in section 250(II), of the procedural rules took place, so that the judgment was substantially affected... [in particular, if] the first-instance court did not meet the requirement of reasoning. “(1) The second-instance court shall quash the first-instance judgment and remit the case to the first-instance court, if the ill-foundedness, which would be impossible to remedy under section 258, substantially affected the finding of guilt or the imposition of the sentence.”