CASE OF TALABER 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 1953 and lives in Budapest. 6. In November 2003 the Budapest I/XII District Public Prosecutor charged the applicant with disorderly conduct and vandalism, punishable by three years of imprisonment. 7. The Budapest Central District Court held hearings on 22 January, 28 March and 28 April 2004. On the latter date it found the applicant guilty of vandalism and fined him 90,000 Hungarian forints (HUF) (approximately 337 euros (EUR)). The District Court relied on documentary evidence, the opinion of an expert, and the testimony of witnesses and the applicant. 8. The applicant appealed, seeking acquittal on the ground that the judgment was ill-founded, and requested the court to hold a public hearing. The Budapest Chief prosecutor also appealed, and requested the court to quash the first-instance judgment and remit the case to the District Court because of shortcomings in the finding of facts. 9. The Budapest Regional Court notified the applicant’s lawyer that it would determine the appeal sitting in camera. In reply, the lawyer put forward supplementary arguments and again requested the court to hold a public hearing. 10. On 7 April 2005 the Regional Court held a session in camera and upheld the applicant’s conviction. The applicant, his lawyer and the prosecutor were absent. 11. The Regional Court reviewed the entirety of the proceedings and established 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 an appellate review without taking further evidence. 12. However, the Regional Court, relying on the existing case file, modified the findings of fact as established by the first-instance court. When delivering its judgement, it relied on the modified facts. 13. 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.”