CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 6 février 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .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 } .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 } .s24AFA639 { margin-top:0pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s46DB5BA6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC986E16F { font-family:Arial; color:#ffffff } .s8E0918A8 { width:37.55pt; display:inline-block } .s908C35FA { width:156.77pt; display:inline-block } .sA3D40E95 { width:52.56pt; display:inline-block } .sA8847899 { width:93.07pt; display:inline-block }     FIRST SECTION DECISION Application no. 46622/21 Ádám NÉMETH against Hungary   The European Court of Human Rights (First Section), sitting on 6   February 2024 as a Committee composed of:   Gilberto Felici , President ,   Péter Paczolay,   Raffaele Sabato , judges , and Attila Teplán, Acting Deputy Section Registrar, Having regard to: the application (no.   46622/21) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 September 2021 by a Hungarian national, Mr Ádám Németh (“the applicant”), who was born in   1989, lives in Torony and was represented by Mr D.A. Karsai, a lawyer practising in Budapest; the decision to give notice of certain complaints concerning Article 6 § 1 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 the impartiality of three High Court judges who gave judgment convicting the applicant. It raises issues under Article   6 §   1 of the Convention. 2.     On 18 May 2016 an investigation was launched into abuse of a new psychoactive substance. The applicant was interrogated on 20 and arrested on 23   June 2016. 3.     On 21 August 2017 the applicant and twelve others were indicted. The bill of indictment referred to two appeal decisions on the prolongation of pre ‑ trial detention of two defendants other than the applicant. In these decisions, judges T., J. and B. upheld the first-instance detention decisions, using a summary formula. Because of this involvement, the bill of indictment contained reference to section   21   (3) of Act no. XIX of 1998 (“the old Code of Criminal Procedure”) requiring the exclusion of these three judges from further proceedings in the case. 4.     On 14 June 2018 the Békéscsaba District Court convicted the applicant and his accomplices of abuse of a new psychoactive substance. The applicant was ordered to remain in detention pending the appeal. 5.   On 1 July 2018, Act no. XC of 2017 (“the new Code of Criminal Procedure”) entered into force. Under section 869 (1), the rule on exclusions such as the one concerning judges T., J. and B. applied only in cases that had started after 30 November 2016. 6.     In the appeal proceedings, Bench 12.Bf. of the Gyula High Court – comprising judges T., J. and B. – was the trial formation. On 13 December 2018 they upheld, in a periodic review, the lawfulness of the applicant’s detention pending appeal. On 20 December 2018 the applicant’s defence lawyer appealed this decision alleging the unlawful participation of judges T., J. and B.. She argued that Bench 12.Bf. had decided on the extension of the detention contrary to the requirements set out in decision no. 21/2016. (XI.30.) and reiterated in no. 25/2017. (X.17.) of the Constitutional Court, pertaining to the exclusion rule in question. 7.     On 10 January 2019 the applicant’s lawyer repeated the same concerns, this time in regard to the fairness of the ongoing appeal trial itself. 8.     On 14 February 2019, Bench 12.Bf. reversed the first-instance judgment and reduced the sentence imposed on the applicant. The final judgment acknowledged that judges T., J. and B. had been involved in the case at earlier stages. Nevertheless, the exception in section 869 (1) of the new Code of Criminal Procedure applied; and Bench 12.Bf. concluded that their trial participation was lawful. 9.     On 26 March 2019 the Court of Appeal decided that as the High Court had already adopted a final judgment, the appeal against the decision of 13   December 2018 (see paragraph 6 above) became devoid of purpose. 10.     On 22 May 2019 the applicant’s legal representative lodged a constitutional complaint against the final judgment. She primarily argued that the fact the Bench 12.Bf. had decided on the applicant’s detention on 13   December 2018 (see paragraph 6 above) should have entailed their exclusion from the trial. 11.     By decision no. 3114/2021. (IV.14.), the Constitutional Court rejected the complaint on the merits. It found that the constitutional requirements on disqualification of judges did not apply to decisions adopted in the same stage of the proceedings, such as the decision of 13 December 2018 and the final judgment, both given in the appeal phase. The Constitutional Court did not extend the reasoning to the issue of the same three judges having also been involved previously in the investigation stage (see paragraph 3 above). 12.     The applicant complained under Article 6 § 1 of the Convention that the appellate court in the criminal proceedings had not been impartial, on account of Bench 12.Bf.’s previous involvements. THE COURT’S ASSESSMENT 13.   Relying on Article 6 § 1, the applicant complained of the lack of impartiality of members of Bench 12.Bf. (judges T., J. and B.). 14.     The Government submitted that the procedure had been in compliance with the domestic law as explained by the Constitutional Court. The applicant had suffered no prejudice in terms of a fair hearing because the trial judges had never taken any position on his guilt when dealing with questions of pre ‑ trial detention beforehand. The applicant disagreed. 15.     The general principles on the impartiality of a tribunal are summarised in Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2   others, §§ 144-150, 6 November 2018). The exercise of different judicial functions as a situation giving rise to questions of impartiality was examined by the Court, inter alia, in Hauschildt v. Denmark (24 May 1989, §§ 43-53, Series A no. 154), Jasiński v. Poland (no. 30865/96, §§ 54-58, 20 December 2005) and Romenskiy v. Russia (no. 22875/02, §§ 28-30, 13 June 2013). 16.     The Court notes that the applicant did not contest the subjective impartiality of members of Bench 12.Bf. It finds that nothing in the present case pointed to any prejudice or bias on their part. 17.     As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, Micallef v. Malta [GC], no. 17056/06, § 96, ECHR 2009). The mere fact that the trial judge has already taken pre-trial decisions in the case, including decisions relating detention, cannot in itself justify fears as to his impartiality; only special circumstances may warrant a different conclusion (see Hauschildt , § 51, and Jasiński , § 56, both cited above). 18.     In the present case, the applicant’s fear of a lack of impartiality was based on the fact that the judges in question, although excluded in the bill of indictment from the further course of the procedure (see paragraph 3 above), did sit on the trial bench hearing the appeal. The applicant and his defence lawyer raised objections to this (see paragraphs 6-7 above), but in vain. It is however to be noted that the two appeal decisions on detention (see paragraph   3 above) which had been produced by judges V., T. and J., did not concern the applicant personally. Nevertheless, he argued that their participation should objectively justify his fears in light of the unlimited access of those judges – acting as investigating judges – to the case file, which contained references to his position as a suspected accomplice to the offence. 19.     The Court observes that the procedure in the applicant’s case was ultimately in conformity with the domestic law (see paragraphs 5-6 above) notably because of the evolution of the relevant rules. Nevertheless, even in such a situation there can be a violation of Article 6 § 1, if the final conviction is ordered by the same judges who already made an assessment of the evidence and may have a preconceived idea as to the defendant’s guilt (see, mutatis mutandis , Borg v. Malta , no. 37537/13, §§ 88-91, 12 January 2016). 20.   In the present case, however, there is no indication of any special circumstances which would objectively justify the applicant’s fear of lack of impartiality on the part of judges V., T. and J.. He was not personally concerned by the impugned appeal decisions given in the investigation phase, and it does not appear that these summary decisions contained any references that could appear to imply a preconceived idea of his guilt (see, a contrario , Chesne v. France , no. 29808/06, §§ 37-39, 22 April 2010, and Dāvidsons and Savins v. Latvia , nos. 17574/07 and 25235/07, §§ 54-55, 7 January 2016). Even assuming that judges V., T. and J. had access to the entirety of the case file including elements concerning the applicant, the Court is satisfied that they did not make any findings in the pre-trial phase as to the existence of a reasonable suspicion of a crime committed by the applicant (see, a contrario , Ekeberg and Others v. Norway , nos. 11106/04 and 4 others, §§ 34-44, 31   July 2007). 21.     Likewise, it does not appear that the judges in question – subsequently acting as trial judges sitting on appeal as Bench 12.Bf. – went beyond, in their decision of 13 December 2018, what should be regarded as an objective and reasonable evaluation of the need to maintain, pending the appeal procedure, the applicant’s detention – who had already been found guilty by the first-instance court. For the Court, this decision on its own does not disclose any appearance of a pre-conceived idea as to the applicant’s guilt, either. 22.     In sum, the Court discerns nothing to justify the applicant’s fears as to the lack of objective impartiality on the part of Bench 12.Bf. Consequently, there is no indication of a violation of his rights under Article 6 § 1 of the Convention. 23.   It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 7 March 2024.     Attila Teplán   Gilberto Felici   Acting Deputy Registrar   President