SECOND SECTION

Application no. 50135/12 Béla KOVÁCS and Erzs é bet Etelka KOVÁ CS against Hungary lodged on 31 July 2012

STATEMENT OF FACTS

The applicants, Mr Béla Kovács and Ms Erzsébet Etelka Kovács , are Hungarian nationals, who were born in 1954 and 1956 respectively and live in Budapest . They are represented before the Court by Mr A. Cech , a lawyer practising in Budapest .

A. The circumstances of the case

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

On 4 October 2007 criminal proceedings were initiated against the applicants on charges of copyright infringement. The investigation was terminated on 28 February 2011. A bill of indictment was preferred on 9 January 2012.

The court geographically competent to try the applicants was the Budapest High Court. However, on 17 January 2012 the President of this court proposed to the President of the National Judicial Office to appoint another court, because the workload of the Budapest High Court did not allow for a hearing within a reasonable time.

On 16 February 2012 the President of the National Judicial Office appointed, in application of section 62 (1) of Act no. CLXI on the Organisation and Administration of the Judiciary, the Balassagyarmat High Court to proceed with the case, as the latter had capacity to deal with it in due time. There was no remedy available to the applicants against this decision.

The trial is pending.

B. Relevant domestic law

Section 62 of Act no. CLXI on the Organisation and Administration of the Judiciary provides:

“(1) The President of the National Judicial Office may exceptionally appoint a court other than the geographically competent one (provided that the two have the same competence) to deal with a case, if the case – or a group of cases received by the [originally competent] court in a given period – cannot be heard within a reasonable time in any other way on account of the exceptional and disproportionate workload of the [originally competent] court, provided that such an appointment does not impose disproportionate burden on the assignee court.

(2) Such an assignment can be initiated by the president of the court of appeal or of the high court or by the Attorney General within 15 days from the receipt of the case.

(3) In the motion to initiate the assignment, the reasons for which the case ... cannot be heard within a reasonable time must be outlined, together with such information on staffing and case influx as proves the exceptional and disproportionate workload of the [originally competent] court.”

Section 20/A of the Code of Criminal Procedure contains a rule harmonising with the above.

COMPLAINTS

The applicants complain under Article 6 of the Convention, read alone and in conjunction with Article 14 that the transfer of their case to an assignee court amounts to the discriminative removal of their lawful judge, undermines the impartiality of the trial court and renders the procedure unfair as such. For want of any remedy against the assignment, they also invoke Article 13 read in conjunction with Article 6.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, given that the impugned proceedings are still pending?

2. Have the applicants had a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention (see DMD GROUP, a.s ., v. Slovakia , no. 19334/03 , §§ 62 to 72, 5 October 2010) ? In particular, can the assignee court which deals with their case be regarded as impartial and representing ‘ a tribunal established by law ’ , as required by Article 6 § 1 of the Convention?

3. What exactly are the legal, factual or organisational criteria for reassigning cases in application of section 62 (1) of Act no. CLXI on the Organisation and Administration of the Judiciary? How many and what kind of cases have so far been affected by this measure?