SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15482/05 by Gábor AUPEK against Hungary

The European Court of Human Rights (Second Section), sitting on 15 May 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr V. Zagrebelsky , Mrs A. Mularoni , Ms D. Jočienė , Mr D. Popović, judges and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 20 April 2005,

Having deliberated, decides as follows:

THE FACTS

The ap plicant, Mr Gábor Aupek, is a Hungarian national who was born in 1966 and lives in Ercsi. He was represented before the Court by Mr I. Tóth, a lawyer practising in Budapest .

A. The circumstances of the case

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

On 26 October 1998 the applicant, a truck driver, was interrogated as a suspect for having negligently caused, in a multiple road accident, the death of six people and the serious injury of five others, three of whom became permanently disabled. In the ensuing proceedings, the applicant was assisted by defence counsel of his choice. On 2 March 1999 a bill of indictment was preferred.

After several hearings at which numerous witnesses testified and the opinions of two medical and four technical experts were obtained, on 9 April 2002 the Miskolc District Court acquitted the applicant. On 6 November 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed this judgment as unfounded; the bench included Dr K., Dr M. and Dr D.

In the resumed proceedings ( megismételt eljárás ), the District Court held four hearings. On 6 May 2004 it found the applicant guilty as charged. It held that, apart from the responsibility of another driver who had died in the multiple collisions, the accident had essentially been caused by the applicant ’ s failure to maintain the brakes of his truck and his grossly negligent driving. The applicant ’ s offence was punishable with two to eight years ’ imprisonment. The District Court took account of the protraction of the proceedings as an important mitigating factor ( nyomatékos enyhítő körülmény ) and sentenced him to three and a half years ’ imprisonment and a four-year prohibition on driving.

The applicant appealed, seeking an acquittal, pleading that the judgment was ill-founded.

On 13 October 2004 the Regional Court, again with the participation of Drs M. and D., upheld the applicant ’ s conviction but reduced his sentence to two and a half years ’ imprisonment and a three-year prohibition on driving. The court reviewed the entirety of the proceedings and the first-instance judgment, and held that the first-instance proceedings had been lawful. Furthermore, it considered that the findings of fact 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 , in application of section 360 (1) of the Code of Criminal Procedure , without the attendance of either the defence or the prosecution.

The applicant states that this judgment was served on his lawyer only on 17 November 2004. However, on 27 October 2004 he had already been called upon to start serving his sentence on 22 November 2004. His request to have the commencement of his sentence postponed on the grounds of his impaired health, as a consequence of the injuries he himself had suffered in the accident, was to no avail.

B. Relevant domestic law

Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides insofar as relevant as follows:

Section 21

“(3) c) In first or second - instance proceedings which must be repeated because of having been quashed, any judges shall be ineligible ( kizárt ) who participated in the adoption of the decision to quash or in the adoption of the decision which has been quashed because of ill-foundedness.”

Section 346

“(3) An appeal may concern questions of fact or law.”

Section 351

“(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.”

Section 353

“(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.”

Section 360 (as in force until 26 May 2005 [1] )

“(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 ). ...”

Section 361

“(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 ...”

Section 362

“(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. ...”

Section 363

“(2) In order to take evidence, a hearing ( tárgyalás ) ... shall be scheduled.”

Section 373(1)

“(II) b) [The second instance court] ... shall quash the judgment of the first instance court and order that court to repeat the proceedings if ... a statutorily ineligible ( kizárt ) judge ... has participated in its adoption ...”

Section 405

“(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.”

COMPLAINTS

Relying on Articles 6 §§ 1 and 3 and 13 of the Convention, the applicant complained that his conviction was wrong and the procedure unfair, in particular because his conviction was upheld by the Regional Court sitting in camera . Furthermore, the Regional Court on appeal was not, in his view, impartial, because Dr D. and Dr M participated in adopting the decisions of both 6 November 2002 and 13 October 2004. Moreover, under Article 6 § 1, he complained of the length of the proceedings. Lastly, under Article 5 §§ 1 and 5, he submitted that he was unlawfully detained – with no prospects of compensation – because, in his view, the final judgment was not properly pronounced.

THE LAW

1. The applicant complained that he was wrongfully convicted in unfair and lengthy proceedings, in breach of Articles 6 §§ 1 and 3 and 13 of the Convention.

The Court considers that this complaint falls to be examined solely under Article 6 § 1, which provides as relevant as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ... by [a] ... tribunal...”

The applicant submitted, in particular, that the second-instance court upheld his conviction sitting in chambers and that two of the same appeal judges dealing with his case were also sitting on the bench in the repeated proceedings.

a. In so far as th e applicant ’ s complaint s may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I).

As to the Regional Court ’ s session held in camera , the Court recalls that, even where an appellate court has full jurisdiction to review the case on questions both of fact and law, Article 6 § 1 does not always entail rights to a public hearing or to be present in person at second-instance . Regard must be had in assessing this question to, inter alia , the special features of the proceedings involved and the manner in which the defence ’ s interests we re presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see, e.g., Belziuk v. Poland , judgment of 25 March 1998, Reports of Judgments and Decisions 1998 ‑ II, p. 570, § 37).

The present case does not give rise to any “equality of arms” issue, since neither the prosecutor nor the defendant could attend the appellate hearing. Moreover, although the Regional Court was in principle empowered to consider questions of both fact and law, it did not, in the instant case, take any evidence, re-assess the applicant ’ s guilt, or increase his sentence – unlike in the otherwise similar case of Csikós v. Hungary (no. 37251/04, ECHR 2006 ‑ ... (extracts) ) . Rather, the Regional Court reviewed the entirety of the proceedings and the first-instance judgment , held that the findings of fact were correct and the proceedings lawful , and reduced the sanctions imposed . In this connection, the Court notes that the applicant was afforded the full guarantees of Article 6 § 1 at first-instance, including a public hearing.

In these circumstances, the Court is satisfied that the determination of the applicant ’ s appeal by way of deliberations in camera did not impair his defence rights or render the proceedings unfair.

b. Concerning the participation of Dr M. and Dr D. in the adoption of the final judgment, the Court observes that the latter was susceptible to a Supreme Court review under sections 21(3c), 373(1(II)b) and 405 (1c) of the New Code of Criminal Procedure , a remedy of which the applicant did not avail himself. This aspect of the complaint must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

In conclusion, having examined the proceedings as a whole, insofar as it has competence to do so, the Court discerns nothing in the case file indicating that the y were unfair or arbitrary , or that the applicant, assisted by defence counsel of his choice, could not properly exercise his defence rights. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.

c. Concerning the length of the proceedings, the Court note s that the domestic courts expressly acknowledged the protraction of the proceedings and granted the applicant s ubstantial mitigation of his sentence in compensation; thus, he can not claim , under Article 34 of the Convention, to be a victim of a violation of Article 6 § 1 . It follows that this c omplaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicant also complained that he was not deprived of his liberty in accordance with a procedure prescribed by law, since the final judgment was not, in his view, pronounced properly. Moreover, no compensation was available for this illegality. He relies on Article 5 §§ 1 and 5 of the Convention which provides as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Concerning the justification for the applicant ’ s detention, the Court finds that he was convicted by a competent domestic court and, therefore, his deprivation of liberty complied with Article 5 § 1 (a) of the Convention. The Court finds nothing in the inept manner in which the appeal judgment was notified to the applicant which could taint the lawfulness of the sentence of imprisonment which was imposed on him. Moreover, t he right to compensation under Article 5 § 5 presupposes that a violation of another paragraph of Article 5 has been established, either by a domestic authority or by the Court ( N.C. v. Italy [GC], no. 24952/94, § 49 , ECHR 2002 ‑ X ). However, this is not the case in the present application.

It follows that these complaint s are manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

S . Dollé F . Tulkens Registrar President

[1] On that date the Constitutional Court annulled this provision as unconstitutional.