AS TO THE ADMISSIBILITY OF

Application No. 29082/95

by Zoltán DALLOS

against Hungary

The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 January 1995 by Zoltán DALLOS against Hungary and registered on 7 November 1995 under file No. 29082/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 30 October 1996 and the observations in reply submitted by the applicant on 20 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1949, is a Hungarian national residing in Vonyarcvashegy , Hungary. He is a manager. Before the Commission he is represented by Mr L. Noll , a lawyer practising in Nagykanizsa .

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

On 25 November 1992 the Zala County Public Prosecutor's Office ( Zala Megyei Főügyészség ) preferred a bill of indictment against the applicant, charging him with aggravated embezzlement ( különösen nagy értékre elkövetett sikkasztás bűntette ). The Prosecutor's Office held that between July 1990 and May 1991 the applicant, managing director of a Hungarian limited liability company (E. Kft ), was involved in a foreign trade contract of commission with a Dutch and a Hungarian business partner. According to the Prosecutor's Office, the applicant had failed to transfer, on behalf of the E. Kft , parts of the contracted amounts to the Hungarian partner and had spent them for the E. Kft's own purposes, thus causing damage of some 1.4 million Hungarian forints (HUF). The bill of indictment was served upon the applicant on 20 April 1993. In these and the following proceedings the applicant was represented by defence counsel.

On 30 June 1993 the Keszthely District Court ( Keszthelyi Városi Bíróság ) convicted the applicant of aggravated embezzlement ( jelentős értékre elkövetett sikkasztás bűntette ) and sentenced him to one year and four months' imprisonment and also imposed a fine.

The District Court found that, under a commission contract scheme valid between July 1990 and May 1991, the applicant, acting on behalf of the E. Kft , had failed to transfer parts of the contracted amounts, collected from the Dutch partner, to the Hungarian partner. In fact, he had spent them for the E. Kft's own purposes. The Court noted the applicant's defence according to which he had simply failed to pay the necessary attention to his contractual duty to transfer the amounts in question; that he had not been aware of the disposability of the amounts in question before April 1991; moreover, that the E. Kft's eventual failure to fulfil its contractual obligations had simply been due to its inability to recover some outstanding claims; and finally, that he had entered into a verbal agreement with the Hungarian partner about the usage of parts of the amounts in question. However, taking into consideration also the testimonies of Mr S. and of two further witnesses, the Court was convinced that the applicant had deliberately failed to transfer the amounts in question in order to finance the activities of the E. Kft .

On 12 November 1993, following an appeal by the applicant, the Zala County Regional Court ( Zala Megyei Bíróság ) upheld the conviction and the sentence, but re-qualified the applicant's offence as aggravated fraud ( jelentős értékre elkövetett csalás bűntette ).

The Regional Court held that the set of facts, as referred to by the Prosecutor's Office in the bill of indictment and established by the District Court, did not constitute the offence of embezzlement. However, the applicant's conduct, namely, that in the context of the transaction in question he had, on several occasions, falsely informed the Hungarian partner about the actual state of the payments made by the Dutch partner, in fact constituted the offence of aggravated fraud. In this respect the Regional Court relied on the contents of the case-file, as compiled at first instance, in particular, on the statements made by the applicant and the witness Mr S. during the first instance hearings and on investigation documents.

The applicant lodged a petition for review ( felülvizsgálati indítvány ) with the Supreme Court ( Legfelsőbb Bíróság ), complaining about his allegedly erroneous conviction and, in particular, that he had not originally been indicted of fraud, but of embezzlement.

On 28 June 1994 the Supreme Court upheld the first and second instance decisions. The Supreme Court recalled that, while it is true that courts are bound by the contents of the bill of indictment, this does not apply to the legal qualification of the indicted offences. It held that the factual elements, which - in the second instance proceedings - had warranted the re-qualification of the offence, had already been in substance contained in the bill of indictment. As regards the applicant's allegedly erroneous conviction, the Supreme Court found no reasons to support his view. The Supreme Court's decision was served upon the applicant on 18 August 1994.

B. Relevant domestic law

Section 9 (2) of the Code of Criminal Procedure (a büntető eljárásról szóló , többször módosított 1973. évi I. törvény ) provides that proceedings before the criminal court may be initiated only upon lawful indictment. The court shall decide about the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment.

Section 132 (1) provides that in case there is a strong suspicion, based on the available information, that a person has committed an offence, the authority shall inform him of the substance of the suspicion against him and of the relevant laws.

Section 146 (2) provides that the bill of indictment shall contain a brief description of the facts on account of which the defendant is prosecuted.

Section 203 (1) requires that documents, the contents of which are regarded by the court as evidence, shall be read out at the hearing.

According to S. 239 (1), the second instance court shall, when passing its decision, rely on the establishment by the first instance court of the facts, unless the first instance judgment lacks factual support.

Section 241 provides that a defendant acquitted at first instance may be convicted, or a defendant's sentence can be increased, only if an appeal has been lodged to his detriment. An appeal shall be regarded as being to the defendant's detriment, if it is aimed at his conviction, or to a more severe qualification of his offence, or to the aggravation of his sentence.

According to S. 258 (1a), in case the proper establishment of the facts of the case can be achieved on the basis of the case-file, the second instance court shall complete or rectify the establishment of the facts and shall thereupon examine the first instance judgment on this factual basis.

According to S. 260, in case the first instance court has applied the law erroneously and its judgment need not be quashed, the second instance court amends the judgment and passes a decision in accordance with the law.

According to S. 317 (1) of the Criminal Code (a Büntető Törvénykönyvről szóló , többször módosított 1978. évi IV. törvény ), a person who appropriates unlawfully to himself an asset in his charge, or disposes of such an asset as it were his own, commits the offence of embezzlement. Subsection (5a) provides that embezzlement committed with regard to assets of a substantial value shall be punishable with one to five years' imprisonment.

According to S. 318 (1), a person who deceives someone, or maintains someone's deception, in order to make unlawful gains, commits the offence of fraud, provided that actual damage has occurred as a result of his conduct. Subsection (5a) provides that fraud committed in respect of a substantial sum shall be punishable with one to five years' imprisonment.

COMPLAINTS

The applicant complains about his conviction and the alleged unfairness of the criminal proceedings against him.  He considers that, in the bill of indictment, he had been charged with embezzlement - rather than with fraud - and he had, therefore, not been able properly to prepare his defence against the charge of fraud. He relies on Article 6 paras . 1 and 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 January 1995 and registered on 7 November 1995.

On 4 September 1996 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para . 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 30 October 1996.

On 20 January 1997 the applicant's representative submitted observations in reply to the respondent Government's observations.

THE LAW

The applicant complains about his conviction and the alleged unfairness of the criminal proceedings against him.  He relies on Article 6 paras . 1 and 3 of the Convention.

Article 6 of the Convention, so far as relevant, provides as follows:

"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence ; ..."

The Government submit that the requirements of Article 6 para . 3 were fully respected as regards both the stage of the investigation, the indictment and the first instance trial and the appeal proceedings. Concerning these latter, they maintain that the procedure of the appeal court was in compliance with the relevant rules of the Code of Criminal Procedure and the guarantees enshrined under Article 6 para . 1 of the Convention. All the factual elements, upon which the appeal court based its judgment, had been known to the applicant and his lawyer and had already been made part of the case-file in the course of the first instance trial. As regards the re-qualification of the applicant's offence by the second instance court, the Government emphasise that all the factual elements which the second instance court found to constitute the offence of fraud were without an exception contained in the bill of indictment. In other words, the applicant's conviction of fraud by the second instance court concerned exactly the same facts on account of which he had been prosecuted and then convicted at first instance; however, the appeal court was required, in pursuance of S. 260 of the Code of Criminal Procedure, to rectify the erroneous legal qualification by the first instance court of the applicant's offence. In any event, the offence of aggravated embezzlement and the offence of aggravated fraud are punishable by the same sentence; the applicant's sentence remained unchanged by the second instance court.

The applicant maintains that the Regional Court convicted him of an offence constituted by facts not contained in the bill of indictment. In these circumstances, he cannot be regarded as having been properly informed of the nature of the charges against him, an infringement of his rights under Article 6 para . 3. As a consequence, he could not exercise his defence rights in regard to the offence of which he was held guilty in the course of the second instance proceedings. Since the Supreme Court's ruling on his petition for review did not remedy these shortcomings of the proceedings, he maintains that his trial was not fair within the meaning of Article 6 para . 1 of the Convention.

The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para . 2 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary             President

          to the First Chamber                 of the First Chamber