FIRST SECTION

DECISION

Application no. 5692/13 Zsolt Béla CSÁSZY and Miklós Zoltán TÁTRAI against Hungary

The European Court of Human Rights (First Section), sitting on 29 March 2022 as a Committee composed of:

Erik Wennerström, President, Lorraine Schembri Orland, Ioannis Ktistakis, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 5692/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Mr Zsolt Béla Császy (on 17 December 2012) and Mr Miklós Zoltán Tátrai (on 6 July 2017), who were born in 1965 and 1975 respectively and live in Budapest (“the applicants”), and who were represented by Mr A. Cech, a lawyer practising in Budapest;

the decision to give notice of the complaints concerning Article 6 of the Convention to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns criminal proceedings conducted against the applicants between 7 April 2009 and 8 June 2017 on charges of misappropriation of public funds and other offences in connection with the sale of State-owned property through swap agreements with dubious price difference. The President of the National Judicial Office (“NJO”) designated, in application of section 62 (1) of Act no. CLXI of 2011 on the Organisation and Administration of the Judiciary, the Szolnok High Court to try the applicants, instead of the prima facie competent Budapest High Court.

2. The applicants appealed and lodged constitutional complaints against this decision but to no avail. Criminal proceedings ensued before the Szolnok High Court.

3. On 2 December 2013 the Constitutional Court adopted decision no. 36/2013. (XII.5.) AB (“the Constitutional Court Decision”) in the matter of reassignment, in pursuit of constitutional complaints originating in cases other than that of the applicants. It held that the regulations which entitled the President of the NJO to reassign cases among courts had been unconstitutional and in violation of Article 6 of the Convention.

4. On 18 December 2013, in light of the Constitutional Court Decision, the Szolnok High Court established its lack of competence.

5. On 23 April 2014 the Kúria – by relying on the principle of pre-emption ( megelőzés ) under section 17 (2) of Act No. XIX of 1998 on the Code of Criminal Procedure (“Code of Criminal Procedure”) – designated the Szolnok High Court as the competent court. For the Kúria , the basis for the application of the principle of pre-emption was the fact that (i) the circumstances defining competence were unclear; (ii) the Szolnok High Court – as the court previously designated by the President of the NJO – had already conducted part of the proceedings; and that (iii) the decision of the Constitutional Court was immaterial for the determination of competence under the Code of Criminal Procedure.

6. The Szolnok High Court resumed the proceedings. On 30 September 2015 it convicted the applicants and sentenced them to 4 and 3.5 years of imprisonment, respectively.

7. On 26 October 2016, on appeal, the Szeged Court of Appeal acquitted the applicants. In its judgment, the Szeged Court of Appeal, on the rejection of the applicants’ motions concerning the examination of witnesses, among others , noted that the applicants’ clearly and explicitly had waived their rights to examine certain witnesses.

8. On 8 June 2017, on further appeal, the Kúria – with acknowledgement of the excessive length of the proceedings as a mitigating factor – reversed the judgment of the Court of Appeal, convicted the applicants, and sentenced them to 3 and 2.5 years of imprisonment, respectively. In the reasoning, the Kúria indicated that the decisive factor was not the magnitude of the price difference (which was subject to expert determination) but the applicants’ awareness that a price difference existed between the properties that were the subject of the transfer under the swap agreement.

9. The applicants’ constitutional complaints were dismissed by the Constitutional Court on 10 July 2018.

10. Relying on Article 6 § 1 of the Convention the applicants submitted that owing to the decision of the Kúria on the establishment of competence, the criminal charges against them had not been determined by an “independent and impartial tribunal established by law”, since the decision was based on the misapplication of relevant domestic law. Moreover, they submitted that, following the Kúria ’s impugned decision, the Szolnok High Court had merely continued the proceedings instead of starting them afresh. The applicants also complained under Article 6 § 3 of the Convention that their conviction was based to a large extent on the opinion of an expert commissioned by the prosecution and on the testimonies of witnesses which could only be examined by the prosecution. They lastly complained of the protraction of the proceedings.

11. The relevant domestic law is set out in Miracle Europe Kft v. Hungary (no. 57774/13, §§ 16-21, 12 January 2016).

THE COURT’S ASSESSMENT

12. The Court notes from the outset that the Government’s objection that the second applicant failed to lodge his complaint with the Court within six months from the decision of the Kúria on the assignment of the case to the Szolnok High Court cannot be accepted. Fairness of criminal proceedings as such is normally examined with regard to the proceedings taken as a whole, including any appeal procedures (see, among many authorities, Kovács v. Hungary (dec.), no. 50135/12, § 33, 30 September 2014). The second applicant lodged the application on 6 July 2017, that is within six months of the final decision on the merits of the impugned proceedings.

13. The applicants claimed that the domestic courts had in their case misapplied the relevant domestic law, i.e. the rules of the Code on Criminal Procedure pertaining to the establishment of the domestic courts’ competence by designating the Szolnok High Court because of pre-emption.

14. The Government disputed the applicants’ allegations.

15. The Court observes that, in the instant case, it is not the lawful existence of a tribunal that is at issue but the lawfulness of the allocation of a case to a specific court.

16. The general principles concerning the right to an independent and impartial tribunal established by law are summarised in Guðmundur Andri Ástráðsson v. Iceland [GC] (no. 26374/18, §§ 211-16, and 234, 1 December 2020), and Miracle Europe Kft (cited above, §§ 45-56). The Court further reiterates that its power to review compliance with domestic law is limited (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018). 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 (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I).

17. The Court notes the applicants’ allegation that the designation of the Szolnok High Court by the Kúria was erroneous from a domestic law perspective . However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court may not question their interpretation unless there has been a flagrant violation of domestic law (see Guðmundur Andri Ástráðsson , cited above, § 216). The Court recalls that in Miracle Europe Kft, it was the discretionary nature of the unconstitutional reassignment by the President of the NJO that led to the finding of a violation of Article 6 § 1 (see Miracle Europe Kft , cited above, §§ 63-68). By contrast, in the present case, the first instance court was not designated by the President of the NJO. Rather, the designation was made by the Kúria under the applicable rules of the Code of Criminal Procedure. The premise that these rules are transparent, pre-determined, objective, and non-discretionary is not in dispute by the parties. For the Court, the mere fact that the designated domestic court was the same as the one designated by the previous reassignment of the President of the NJO – which was ultimately found to be unconstitutional – does not create as such any appearance of lack of independence and impartiality (see a contrario, Miracle Europe Kft , cited above, § 63). On the contrary, in the present case the Court is satisfied that the criminal charges against the applicants were determined by domestic courts with competence based on a non-discretionary application of the relevant rules of criminal procedure. A flagrant violation of domestic law cannot therefore be identified in the application. Likewise, the applicants’ complaint on the continuation (rather than restarting) of the proceedings in itself – without relying on any specific argument as to why this course of action prejudiced their defence rights – does not cast doubt on the fairness of the proceedings. Moreover, the Court cannot overlook that the second instance court, which has full reformatory powers in domestic law, reviewed the first conviction, was in a position to address any procedural flaws – and indeed acquitted the applicants. The applicants’ final conviction was then given by the Kúria , which, irrespectively of the impugned designation of the first instance court, was to act as the final instance in all circumstances.

18. The applicants further complained that their conviction was based to a large extent on the opinion of an expert commissioned by the prosecution and on the testimonies of witnesses which could only be examined by the prosecution.

19. The Court reiterates that the appointment of experts is relevant in assessing whether the principle of equality of arms has been complied with. However, the mere fact that the experts in question are employed by one of the parties does not suffice to render the proceedings unfair. Although this fact may give rise to apprehension as to the neutrality of the experts, such apprehension, while having a certain importance, is not decisive (see Poletan and Azirovik v. the former Yugoslav Republic of Macedonia , nos. 26711/07 and 2 others, § 94, 12 May 2016). In the instant case, the Court notes that there is nothing in the case file that would suggest that the admission of the expert opinion violated the principle of the equality of arms: the expert opinion does not appear to have been decisive for the conviction and the applicants did not claim otherwise during the domestic proceedings. Furthermore, the applicants submitted their own expert opinions before the first instance court and were able to contest the expert opinion through their submissions and other evidence throughout the proceedings. The fact that the domestic courts still found them guilty does not render the proceedings unfair. Moreover, the domestic courts gave sufficient reasoning for their findings.

20. As to the witnesses, the Court observes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving – of his or her own free will, either expressly or tacitly – his or her entitlement to the guarantees of a fair trial. However, if this right was waived, the Court must examine whether the circumstances surrounding the waiver were compatible with the requirements of the Convention. Among other things, the waiver must be attended by minimum safeguards commensurate with the waiver’s importance (see Al Alo v. Slovakia , no. 32084/19, § 59, 10 February 2022). In the instant case, the Court observes that there is nothing to suggest that the applicants’ waiver was not attended by minimum safeguards commensurate to its importance: the applicants have not submitted anything to the contrary and through their legal representatives they expressly and unequivocally waived their right to examine certain witnesses. As to the witnesses not covered by the waiver, the Court has examined the second-instance court’s detailed reasoning concerning the applicants’ complaints in this regard and considers that there is no appearance of a violation of the applicants’ rights under Article 6 §§ 1 and 3 of the Convention, considering the fairness of the proceedings taken as a whole. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

21. Lastly, the applicants complained about the protraction of the proceedings. The applicable legal principles are set out, inter alia, in Chiarello v. Germany (no. 497/17, § 54-55, 20 June 2019). The Court notes that the Kúria expressly acknowledged the protraction of the proceedings and took this into account as an important mitigating factor, thereby providing adequate redress. The applicants can therefore no longer claim to be victims within the meaning of Article 34 of the Convention of a violation of their right to a hearing within a reasonable time for the purposes of Article 6 § 1. Accordingly, this complaint is incompatible ratione personae with provisions of the Convention and must be rejected, in application of Article 35 §§ 3 (a) and 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 April 2022.

Liv Tigerstedt Erik Wennerström Deputy Registrar President