FOURTH SECTION

DECISION

Application no. 61115/15 Ferenc BALOGH against Hungary

The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:

Branko Lubarda, President, Carlo Ranzoni, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 3 December 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ferenc Balogh, is a Hungarian national, who was born in 1967 and lives in Kótaj. He was represented before the Court by Mr A.K. Kádár, a lawyer practising in Budapest.

2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.

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

4. The applicant and his companions had a fight in a pub with other customers. When the police arrived, the officers also became involved in the melee and suffered injuries.

5. In the ensuing criminal proceedings conducted against the applicant, the public prosecutor, in the exclusive company of the two injured police officers, attempted to watch the pub ’ s video footage of the incident, but found that it was technically impossible, so decided to have it destroyed. Consequently, this piece of evidence became unavailable for the defence.

6. On 4 June 2015 the Nyíregyháza High Court finally sentenced the applicant to 2.5 years of prison, relying only on witness testimonies and a forensic medical opinion.

7 . The Fundamental Law of Hungary provides:

Article XXIV

“(1) Everyone shall have the right to have his or her affairs handled impartially, fairly and within a reasonable time by the authorities. This right includes the obligation of such authorities to give reasons for their decisions.

....”

Article XXVIII

(1) In the determination of his or her civil rights and obligations or of any criminal charge against him or her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

...

(7) Everyone shall have the right to seek remedy against judicial, administrative or other official decisions, which infringe upon his or her rights or legitimate interests.”

COMPLAINT

Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained of the unfairness of his conviction for violence against officials.

THE LAW

8. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention about the unfairness of the criminal proceedings against him.

9. Article 6 provides as relevant:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal. ...

...

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

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

10. The Government submitted that the applicant should have brought a constitutional complaint. The applicant disagreed.

11. The Court has already held that a constitutional complaint under section 26(1) and/or section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted f or the purposes of Article 35 § 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary (see Szalontay v. Hungary (dec.), no. 71327/13, §§ 29-41, 12 March 2019).

12. The present case pertains to the applicant ’ s grievance concerning fair trial – a right enshrined in Article 6 of the Convention and Articles XXIV and XXVIII of the Fundamental Law (see paragraph 7 above).

13. It follows that the constitutional complaint was an effective remedy to exhaust in the circumstances.

14. Since the applicant did not avail himself of this legal avenue, the application must be rejected for non ‑ exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 October 2019 .

Andrea Tamietti Branko Lubarda Deputy Registrar President