CEDH · CASELAW;CLIN;ENG — 12 mars 2019

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Hungary (dec.) - 71327/13 Decision 12.3.2019 [Section IV] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Effectiveness of constitutional complaint to challenge either application of legislation in court proceedings or court rulings, both allegedly contrary to the Fundamental Law: inadmissible Facts – The applicant, the managing director of a company, complained that his right to a fair trial had been violated in criminal proceedings against him. In particular, he argued that the principle of equality of arms had not been observed and that the courts had not been impartial. Law – Article 35 §   1: The Court was called upon to ascertain whether, having regard to the particular circumstances of the applicant and the nature of his complaint, the remedy indicated by the Government, namely the procedures outlined in section 26(1) and section   27 of the Constitutional Court Act, had been accessible, effective and capable of offering sufficient redress. Under section 26(1) and section   27 of the Constitutional Court Act, the Constitutional Court could examine constitutional complaints if the grievance – in the case of section 26(1) – had occurred as a result of the application of a piece of legislation allegedly contrary to the Fundamental Law in court proceedings or – in the case of section   27 – if the grievance had occurred as a result of court rulings allegedly contrary to the Fundamental Law. The applicant’s case could fall into both categories. His grievances concerned both the application of a provision of the Code of Criminal Procedure barring him from submitting a challenge for bias in an effective manner; and his conviction and sentence resulting from judgments that demonstrated a lack of impartiality on the part of the courts and a failure to observe the principle of equality of arms. The first of those issues could relate to the constitutionality of the relevant provision, whereas the second one could relate to the constitutionality of the application of the law by the courts. The applicant’s complaints fell entirely within the ambit of the right to a fair trial, which was enshrined in the Fundamental Law (see, conversely, Király et Dömötör c.   Hongrie ). Sections   41 and 43 of the Constitutional Court Act contemplated, respectively, the striking down of a legal provision or the quashing of a court decision if they were in breach of the Fundamental Law; nevertheless, those rules did not provide for the possibility of compensation. However, that did not preclude the effectiveness of the remedies in issue in the instant case. That was because the eventual striking down of the impugned legal provision pursuant to section 26(1) of the Constitutional Court Act, coupled with the quashing of the court judgments pursuant to section   27, would have resulted in new proceedings before the competent criminal courts in accordance with section   41 of the same Act. Moreover, a constitutional complaint lodged solely under section   27 could also have resulted in the quashing of the judgments and in new proceedings in the applicant’s case. Therefore, a successful constitutional complaint, relying either on a combination of sections   26(1) and 27 of the Constitutional Court Act or on section   27 alone, would have been capable of putting an end to the grievance by prohibiting the application of the impugned rule and ordering new proceedings. Had the applicant availed himself of a constitutional complaint after the final and binding second-instance judgment, a positive outcome might have secured him redress in the form of the resumption of the criminal case, this time devoid of the procedural irregularities complained of. The statutory sixty-day time-limit starting from the day when the applicant had become aware of the final judgment had provided an adequate opportunity for him to lodge a constitutional complaint. The remedy suggested by the Government was therefore one which could afford the highest national court the opportunity to examine the violations alleged in the present case. As regards the question whether a constitutional complaint in this instance would, in practice, have offered a reasonable prospect of success, the Government had not provided examples of cases where the Constitutional Court had dealt with issues similar to the ones arising in the present application. However, being aware of its supervisory role subject to the principle of subsidiarity, the Court could not substitute its own view of the issues at hand for that of the Constitutional Court, which, for its part, had not been afforded the opportunity to examine the issues arising in the applicant’s case. A threshold requirement under section   29 of the Constitutional Court Act for the admissibility of a constitutional complaint was that a conflict with the Fundamental Law had to have significantly affected the judicial decision in question. In the Court’s view, that could have been an arguable claim on the applicant’s part, given the nature of the allegations he had made. Those revolved in essence around the assertion that the non-observance of the principle of equality of arms and the lack of impartiality on the part of the courts had resulted in his wrongful conviction in an unfair trial. In the applicant’s case either a constitutional complaint under section 26(1) coupled with a complaint under section   27 against the impugned legislation, or a constitutional complaint solely under section   27 against the judgments given in allegedly unfair proceedings, were accessible remedies offering reasonable prospects of success. There were no circumstances exempting the applicant from having to lodge such complaints. Conclusion : inadmissible (failure to exhaust domestic remedies). (See Mendrei v. Hungary (dec.), 54927/15, 19 June 2018, Information Note 220 ; and compare Király and Dömötör v. Hungary , 10851/13, 17 January 2017, Information Note   203 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes