CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 septembre 2001

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Rozakis , President ,   Mr   A.B. Baka ,   Mr   G. Bonello ,   Mrs   V. Strážnická ,   Mr   P. Lorenzen ,   Mr   M. Fischbach ,   Mr   A. Kovler , judges , and   Mr   E.   Fribergh, Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 5 June 1998 and registered on 30   September 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, 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 The applicant, Mr Zoltán Lakatos, is a Hungarian national, born in 1958 and living in Budapest. At present he serves a prison sentence in Budapest Prison. Before the Court he is represented by Mr   I.   Horváth, a lawyer practising in Budapest. The respondent Government are represented by Mr   L.   Höltzl, Deputy State-Secretary, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 25 October 1995 the Budapest Public Prosecutor’s Office preferred a bill of indictment against the applicant. He was charged with having inflicted lethal injuries on his common-law wife. In these and the ensuing proceedings the applicant was assisted by a defence counsel. On 21 May 1997 the Budapest Regional Court convicted the applicant of lethal bodily assault and sentenced him to six and a half years’ imprisonment. The Regional Court relied on evidence given by numerous witnesses as well as the opinions of forensic pathologists and psychiatrists. The applicant appealed for a mitigation, whereas the public prosecutor appealed for an aggravation of the sentence. In its submissions to the appeal court, on 13 October 1997 the Attorney General’s Office maintained the public prosecution’s appeal and proposed that the sentence imposed on the applicant on account of the offence of lethal bodily assault be aggravated. On 10 March 1998 the Supreme Court, acting as second instance, held a hearing and, on the same occasion, dismissed the applicant’s appeal. Simultaneously, it recharacterised the applicant’s offence and convicted him of bodily assault and, separately, of murder, both offences committed with special cruelty. A cumulative sentence of thirteen years’ imprisonment was imposed on the applicant. In the reasoning, the Supreme Court completed the first-instance court’s findings of fact with data from the victim’s autopsy record and the forensic pathologist’s opinion. Relying on these elements, the Supreme Court found that the atrocities committed by the applicant had in fact constituted two separate offences which warranted the recharacterisation as well as the aggravation of the sentence. The applicant lodged a petition for review by the Supreme Court. He claimed that the second-instance court’s completion of the findings of fact in the case had been erroneous and that his first-instance conviction and sentence be restored. He argued that the recharacterisation of the offence had been unlawful, given that the public prosecution had not proposed such a departure from the first-instance judgment and he had had no opportunity to prepare his defence against the recharacterised charges. On 8 March 1999 the Supreme Court’s review bench held an oral hearing. Having studied the lower instances’ case-files and submissions by the applicant and the prosecution it upheld the second-instance judgment. As regards the applicant’s procedural arguments, the review bench pointed out that, while courts were bound by the facts as contained in the bill of indictment, this did not hold true for the legal characterisation thereof from which the courts were free to depart. As to the merits of the case, the Supreme Court noted that, in respect of one of the incriminated events, the applicant had inflicted numerous such injuries on the victim as to imply that he had had the eventual intention to murder her. It held therefore that his additional conviction of the offence of murder was lawful. B.     Relevant domestic law Act no. I of 1973 on the Code of Criminal Procedure (as in force in the relevant period) (a)     Miscellaneous rules Article 9 § 2 provides that proceedings before the criminal court may be initiated only upon lawful indictment. The court decides on the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment. Article 132 § 1 provides that where there is a strong suspicion, based on the available information, that a person has committed an offence, the authority must inform him of the substance of the suspicion against him and of the relevant laws. Article 146 § 2 provides that the bill of indictment must contain a brief description of the facts on account of which the defendant is being prosecuted. Article 203 § 1 requires that documents, the contents of which are regarded by the court as evidence, be read out at the hearing. According to Article 239 § 1, the second-instance court must, when passing its decision, rely on the findings of fact reached by the first-instance court, unless the first-instance judgment lacks factual support. Article 241 provides that a defendant acquitted at first instance may be convicted, or a convicted defendant’s sentence increased, only if an appeal has been lodged to his detriment. An appeal is to be regarded as being to the defendant’s detriment if aimed at having him convicted, or convicted of a more serious offence, or at increasing his sentence. According to Article 258 § 1 (a), where the proper establishment of the facts of the case can be achieved on the basis of the case-file, the second-instance court completes or rectifies the establishment of the facts and thereafter examines the first-instance judgment on this new factual basis. According to Article 260, where the first-instance court has applied the law erroneously but its judgment need not be quashed, the second-instance court amends the judgment and passes a decision in accordance with the law. (b)     Rules on review by the Supreme Court Article 284 § 1 provides that a final decision is subject to review if: (a) the defendant’s acquittal or conviction, or the discontinuation of the proceedings, has taken place in breach of the provisions of substantive criminal law; or (b) an unlawful punishment or measure has been imposed on the defendant as a consequence of an incorrect classification of the offence or of another breach of the rules of substantive criminal law. According to paragraph 2, in the latter case no review may take place, if the actual punishment has been imposed within the limits provided for by the provisions corresponding to the classification which is correct in law. According to Article 284/A § 1 (I), a petition for review in favour of the defendant may be filed, inter alios , by the defendant, the public prosecutor or the defence counsel. Paragraph 2 provides a further ground for review where certain serious breaches of procedural criminal law have affected the passing of the decision in question. Under Article 288 § 1, if a petition for review is not rejected on formal grounds, it must be sent to the Attorney General’s Office for comments. Article 288/A § 1 grants the petitioner the right to submit comments in reply. According to Article 289/A § 1, the Supreme Court examines, as a general rule, the petition for review at a session. The attendance of the defence counsel and the public prosecutor is required; the defendant must be notified of the session and, if detained, must be committed thereto. Article 290 provides that, at the session, one of the judges sitting in the case must orally present the petition, the decision challenged and relevant details of the case-file. After this introduction, the public prosecutor, the defence counsel and the defendant, inter alios, address the court. As a result of the review, the Supreme Court may, under Article 291 § 1, quash the decision reviewed and instruct the lower-instance court to resume its proceedings. Under Article 291 § 3, where the second-instance decision has been taken in breach of the provisions of substantive criminal law within the meaning of Article 284 § 1, the Supreme Court may itself deliver a rectified decision, if, as a result, the defendant may be acquitted, the proceedings discontinued or a less severe punishment imposed. Paragraph 7 provides that if the Supreme Court dismisses the petition, it must uphold the decision challenged. COMPLAINT The applicant complains under Article 6 § 3 of the Convention that he had no possibility to prepare his defence against the recharacterised charges of which he was eventually convicted in second instance. THE LAW The applicant complains that he was prevented from properly preparing his defence against the charges recharacterised at second instance – a situation rendering unfair the criminal proceedings against him. Article 35 § 1 of the Convention provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” Article 6 of the Convention in its relevant parts provides: “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 applicant failed to comply with the requirement to exhaust domestic remedies in that he did not avail himself of the constitutional complaint procedure by which he could have challenged the provisions of the Code of Criminal Procedure that allowed for his conviction of the recharacterised charges. The applicant argues that a complaint to the Constitutional Court cannot be regarded as an effective remedy whose exhaustion could be expected in the circumstances. The Court considers that a decision on the parties’ arguments concerning the question of exhaustion of domestic remedies is not necessary, since the application is in any event inadmissible for the following reasons. The Court recalls that the fairness of proceedings must be assessed with regard to the proceedings as a whole (see, for example, the Miailhe v. France judgment (no. 2) of 26 September 1996, Reports 1996-IV, p. 1338, §   43, and the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no.   275, pp. 13-14, § 38). The provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (Kamasinski v. Austria judgment of 19   December 1989, Series A no. 168, pp. 36-37, § 79). Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. That information should be detailed ( Pélissier and Sassi v. France [GC], no. 25444/94, §   51, ECHR 1999-II). The scope of the above provision must be assessed in the light of the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair. In this respect it is to be observed that Article 6 § 3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him. The Court further recalls that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence ( Pélissier and Sassi v. France , op. cit ., §§ 52-54). In the present case, the Court observes that the applicant was not aware that the second-instance bench of the Supreme Court might reclassify his offence as murder. This circumstance impaired his then chance to defend himself in respect of the charge he was eventually convicted of. However, the Court attributes in this respect decisive importance to the subsequent proceedings before the review bench of the Supreme Court. It is to be noted that the Supreme Court entirely reviewed the applicant’s case, both from a procedural and a substantive-law point of view. In addition to having studied the lower courts’ case-file and submissions by the applicant and the prosecution, the review bench held an oral hearing. Moreover, the Supreme Court itself could have replaced the applicant’s conviction, under Article 291 § 3 of the Code of Criminal Procedure with a less severe judgment. The Court observes that the review bench rejected the applicant’s defence seeking acquittal from the offence of murder. It held that the number and nature of the injuries inflicted by the applicant on the victim substantiated his eventual intention to commit murder. The presence of the constitutive elements of the offence of murder with eventual intention satisfied the Supreme Court when upholding the applicant’s conviction. The Court therefore considers that the applicant had the opportunity to advance before the Supreme Court his defence in respect of the reformulated charge. Assessing the fairness of the proceedings as a whole – and in view of the nature of the examination of the case before the Supreme Court – the Court considers that any defects in the second-instance proceedings were cured before the review bench of the Supreme Court (see Dallos v. Hungary , no.   29082/95, §§ 42 to 53, to be published in ECHR 2001-…). The Court is therefore satisfied that the applicant’s rights to be informed in detail of the nature and cause of the accusation against him and to have adequate time and facilities for the preparation of his defence were not infringed. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.     Erik Fribergh   Christos Rozakis   Registrar   President