CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 octobre 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD6845F38 { font-family:Arial; color:#0072bc } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s20FC8552 { font-family:Arial; font-size:11.5pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s68D1564D { width:34.89pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   FIRST SECTION DECISION Application no. 57714/17 Ábel János SOMOGYI against Hungary   The European Court of Human Rights (First Section), sitting on 18   October 2022 as a Committee composed of:   Alena Poláčková , President,   Péter Paczolay ,   Raffaele Sabato , judges, and Liv Tigerstedt, Deputy Section Registrar , Having regard to: the application (no.   57714/17) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 July 2017 by a Hungarian national, Mr Ábel János Somogyi (“the applicant”), who was born in 1987 and lives in Budapest and who was represented by Mr A. Grád , a lawyer practising in Budapest; the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, from the Ministry of Justice; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns criminal proceedings against the applicant in which, following a Constitutional Court decision upholding the applicant’s complaint, the Kúria found the applicant guilty of certain criminal offences. 2.     In 2013 the Budapest High Court found the applicant guilty on two counts of preparation of the criminal offence of homicide, one count of the criminal offence of bodily injury, and one count of the minor offence of disorderly conduct. It sentenced him to two years and six months in prison and banned him from public office for three years. The court acquitted the applicant of the charge of twenty counts of preparation of the criminal offence of homicide. 3.     In 2014 the Budapest Court of Appeal varied the Budapest High Court’s judgment and convicted the applicant of the minor offence of threatening public order and sentenced him to fifty days of community work. 4 .     The Attorney General’s Office lodged a petition for review with the Kúria (an extraordinary remedy). On 23 June 2015 the Kúria reversed the Budapest Court of Appeal’s judgment, characterising the acts in the same way as the first-instance court and passing the same sentence. The Kúria ’s panel adopting this decision included Judge A.A., who had acted as the president of the judicial panel which had decided on the prolongation of the applicant’s pre-trial detention prior to his indictment. 5 .     The applicant lodged a constitutional complaint, which was partly upheld by the Constitutional Court. On 28 November 2016 it quashed the Kúria ’s judgment, finding that Judge A.A. should not have taken part in it. 6 .     Subsequently, a panel of the Kúria that did not include Judge A.A. re-examined the case. However, the panel did include Judge B.B., who had acted as the president of the judicial panel which had heard the applicant’s appeal against his pre-trial detention, after the indictment, and terminated it. 7.     On 7 February 2017 the Kúria convicted the applicant on the same grounds as those set out in its judgment of 23 June 2015. It also examined the legal grounds allowing it to carry out the review proceedings following the Constitutional Court’s intervention. The Kúria found that the legal consequences of the Constitutional Court’s quashing of a decision were to be established pursuant to the legislation regulating proceedings before that court (section 43(2) of the Act on the Constitutional Court). Pursuant to section 406(2) of the former Code of Criminal Procedure (as applicable at the time), after the Constitutional Court had quashed its decision, the proceedings before the third-instance court (an ordinary remedy before the Kúria ) were governed by the provisions contained in Chapter XV of the former Code of Criminal Procedure regulating third-instance proceedings. Under section   419(1) of the former Code of Criminal Procedure, the rules applicable to third-instance proceedings were applicable to review proceedings with the derogations set out in the chapter regulating review proceedings. Relying on these provisions, the Kúria held that it had jurisdiction to re-examine the case after its previous judgment had been quashed by the Constitutional Court. 8 .     The applicant challenged the Kúria ’s second judgment before the Constitutional Court. He complained, inter alia , that the Kúria should not have held the second set of review proceedings and that Judge B.B. should not have participated in them. The Constitutional Court on 5 December 2017 dismissed his complaint. It held that the principle of ne bis in idem prevented a second prosecution and/or the conviction of persons who had been finally acquitted or convicted. It endorsed the Kúria ’s reasoning and noted that its previous judgment did not constitute a final resolution of the case as the Attorney General’s petition for review had remained unexamined. The applicant’s case could therefore not be regarded as having been finally determined. The Constitutional Court further found that Judge B.B. had been involved in the case only following the indictment, when the reasonable suspicion that the applicant had committed the alleged offences was already established and did not fall to be assessed by the adjudicating judge as in the case of pre-indictment detention decisions. Additionally, the judge deciding on the prolongation of pre-trial detention following indictment could not access any evidence beyond what was in the case file before the trial judge. The Kúria ’s impartiality was therefore not compromised. 9.     The applicant complained that the second set of review proceedings before the Kúria had constituted a procedure not provided for by law, and had been unforeseeable and unnecessary and as such in violation of Article 6 of the Convention and Article 4 of Protocol No. 7 to the Convention. In the applicant’s view, his case had been closed by the final judgment of the Budapest Court of Appeal, which had remained in effect after the Constitutional Court’s decision. The prosecution had had only one chance to lodge a petition for review, which had to be within six months after the delivery of a final judgment. The Kúria had interpreted the former Code of Criminal Procedure by analogy, which was strictly forbidden in criminal law. He also complained under Article 6 that the Kúria had disregarded his arguments and had been biased, inter alia on account of Judge B.B.’s involvement in the repeated review proceedings. THE COURT’S ASSESSMENT Article 4 of Protocol No. 7 to the Convention 10.     The Court reiterates that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a “final” decision (see A and B v. Norway   [GC], nos.   24130/11   and   29758/11, §   109, ECHR 2016). In accordance with its well-established case-law, the Court must examine whether in the proceedings under consideration there was a “final” decision (see   Nikitin v. Russia , no.   50178/99, §§   36-37, 20 July 2004). It notes in this connection that in the first set of review proceedings, the Kúria reversed the Budapest Court of Appeal’s judgment (see paragraph   4 above). The Constitutional Court then quashed the Kúria ’s judgment but did not decide on the applicant’s guilt or to discontinue the criminal proceedings against him (see paragraph 5 above). It did not take cognisance of the facts, circumstances or evidence relating to the alleged acts, evaluate them or rule that the applicant must be acquitted. As such, the Constitutional Court’s decision was neither a “conviction” nor an “acquittal” for the purposes of Article   4 of Protocol No. 7 to the Convention, nor was it “final” (see Mihalache   v.   Romania   [GC], no.   54012/10, §§ 88 and 96-97, 8 July 2019, and Smoković v. Croatia (dec.), no. 57849/12, § 44, 12 November 2019). It is true that the quashing, by the Constitutional Court, of the Kúria ’s decision of 23 June 2015 apparently allowed the Budapest Court of Appeal’s 2014 judgment to subsist as a “final” decision, in relation to which the conviction in 2017 seems to have amounted to a repetition of the proceedings. However, the Court notes the Constitutional Court’s position (see paragraph 8 above) to the effect that, in the circumstances, the Attorney General’s petition for review had ultimately remained unexamined – which fact precluded the existence of a “final” ruling in the case. The Court sees no reason to depart from that conclusion (see Anđelković v. Serbia , no. 1401/08, § 24, 9   April 2013). It follows that the applicant’s case was terminated by a “final” judgment only once, in 2017. 11.     The Court concludes that this complaint is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Articles 35 § 3 (a) and 35 § 4 of the Convention. Article 6 § 1 of the Convention 12.     The applicant complained under Article 6 § 1 that the Kúria had conducted the repeated set of review proceedings without any legal basis and thus in an arbitrary manner. He further complained about Judge B.B.’s involvement in the proceedings. The Court observes that a domestic judicial decision cannot be characterised as arbitrary to the point of prejudicing the fairness of proceedings unless no reasons are provided for it or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice” (see Moreira Ferreira v. Portugal (no.   2) [GC], no. 19867/12, § 85, 11 July 2017). Moreover, the Court will not question the interpretation of domestic law by the national courts save in the event of evident arbitrariness, that is, when the domestic courts have applied the law manifestly erroneously or in such a way as to reach arbitrary conclusions and/or to deny justice (see Anđelković , cited above, § 24). In the context of the requirement for a tribunal to be “established by law”, the “law” comprises not only legislation providing for the establishment of judicial bodies, but also, inter alia , their jurisdiction. In such cases, the Court has likewise established that it cannot question the interpretation of provisions of domestic law given by judicial bodies unless there has been a flagrant violation of domestic law (see Guðmundur Andri Ástráðsson v. Iceland [GC], no.   26374/18, §§ 211-13 and 216, 1 December 2020). 13.     Having regard to the foregoing principles and the explanation given by the Kúria and the Constitutional Court (see paragraphs 6 and 8 above), which does not appear unreasonable or arbitrary, the Court considers that the Kúria , by conducting the second set of review proceedings, did not apply the procedural rules manifestly erroneously and that there has been no flagrant violation of domestic law. It follows that this complaint under Article 6 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§   3 (a) and 4 of the Convention. 14.     Regarding Judge B.B.’s involvement in the second set of review proceedings, the Court reiterates that the mere fact that a judge in a criminal court has also made pre-trial decisions in the case, including decisions concerning detention on remand, cannot be taken in itself as justifying fears as to his lack of impartiality (see Nortier v. the Netherlands , 24 August 1993, §   33, Series A no. 267, and Jasiński v. Poland , no. 30865/96, §§   54-58, 20   December 2005). Having considered the reasons given by the Constitutional Court (see paragraph 8 above), the Court finds this complaint to be manifestly ill-founded. It must therefore be rejected in accordance with Article   35 §§ 3 (a) and 4 of the Convention. 15.     As concerns the applicant’s remaining complaints under Article 6 (see paragraph 9 above), the Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article   35 §   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 17 November 2022.     Liv Tigerstedt   Alena Poláčková   Deputy Registrar   President