KISS MENCZEL v. HUNGARY - 61675/14 (Judgment : Right to a fair trial : Fourth Section Committee) [2020] ECHR 416 (09 June 2020)

JUDGMENT STRASBOURG 9 June 2020 This judgment is final but it may be subject to editorial revision. In the case of Kiss Menczel v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Branko Lubarda, President, Carlo Ranzoni, Péter Paczolay, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Tímea Kiss Menczel (“the applicant”), on 5 September 2014; the decision to give notice to the Hungarian Government (“the Government”) of the complaints concerning Article 6 §§ 1 and 3 (d) of the Convention; the parties’ observations; Having deliberated in private on 5 May 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION This case concerns the applicant’s conviction in a trial where a witness whose deposition was decisive for the outcome of the case, failed to appear for examination by the defence. THE FACTS 1. The applicant was born in 1973 and lives in Budapest. The applicant was represented by Ms É. Asztalos, a lawyer practising in Érd. 2. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Between 2006 and January 2009, Z. S. was the applicant’s partner. From time to time he would stay in a house owned by the applicant which otherwise remained uninhabited. 5. On 24 March 2009 Z. S. made a deposition to the police, reporting that the applicant and an accomplice were cultivating marijuana inside that property. 6. On 25 March 2009 criminal proceedings were initiated against the applicant and the accomplice, J. B. 7. On 26 March 2009 Z. S. was heard by the police as a witness; however, no face-to-face confrontation was arranged between him and the applicant or J. B. 8. Thereafter, Z. S. became unavailable to attend any court hearings. 9. On 2 March 2010 a bill of indictment was preferred against the applicant and J. B. 10. On 5 July 2013 the Ráckeve District Court convicted the applicant and J. B. of possession of drugs and theft of electricity. It relied in essence on the deposition and the witness testimony of Z. S. made to the police (see, paragraphs 5 and 7 above), in addition to material and expert evidence. In establishing the applicant’s active participation in the offence, the court relied on the deposition and testimony made by Z. S. to the police, as well as on circumstantial evidence, on perceived contradictions in the applicant’s own testimonies and on the fact that she was the owner of the premises where the crime had taken place. The court noted that Z. S., who was wanted as a fugitive, was not available to testify as a witness; his earlier deposition and testimony were therefore read out in court. 11. The applicant appealed, pleading innocent. She argued in particular that the evidence given by Z. S. should be excluded, since he stood to gain from framing her for his own criminal activities which he might have wanted to cover up - yet he was entirely unavailable for examination by the defence. 12. On appeal, on 27 February 2014 the Budapest Surroundings High Court upheld the conviction while lowering the sentence. In the reasoning the High Court established that the District Court had unlawfully included Z. S.’s earlier witness testimony (see paragraph 7 above) as part of the evidence in that it had ignored the fact that the applicant and he had been a couple for part of the relevant period of time. It excluded that testimony from the case on the grounds that it was improperly obtained evidence, noting that, in the light of the other available material and expert evidence (see paragraph 10 above), the discovery of the procedural irregularity did not warrant the quashing of the judgment. The High Court nevertheless accepted Z. S.’s deposition made to the police on 24 March 2009 (see paragraph 5 above) as evidence. 13. Upon a petition for review by the applicant, on 5 December 2014 the Kúria found that the offence of stealing electricity was in fact statute-barred but upheld the judgment in respect of the offence of possession of drugs. The Kúria held in particular as follows: “... If a court ... included in its judgment exclusively the assessment of such evidence that was later excluded ... by the second-instance court, this would amount to a violation of the obligation to give reasons, which would entail the mandatory quashing of the [judgment]. ... In contrast [to the above-mentioned situation], in addition to Z. S.’s witness testimony given during the investigations, the first-instance court also assessed several other pieces of evidence and reached the conclusion, as duly explained in detail in the statement of facts, that the [applicant] not only knew about the cultivation of narcotic [plants] but also participated in [it]. Moreover, in its reasoning, the second-instance court also explained why the exclusion of Z. S.’s witness testimony did not render the established findings of fact ill-founded ... and on what grounds the facts established in relation to the [applicant’s] participation in the [cultivation] could be maintained ... Therefore, no deficiency in the reasoning can be found in respect of the facts such as to entail unsuitability for review.” 14. Meanwhile, the applicant had filed a constitutional complaint alleging a violation of her right to a fair trial. On 4 November 2014 the Constitutional Court found no breach of the constitutional right to a fair trial. It pointed out that the principle of equality of arms had been respected. It also held that the impugned judgments had not been exclusively based on the testimonies of Z. S.; rather, the courts had had ample other evidence at their disposal, whose free assessment had resulted in the courts being firmly convinced of the applicant’s guilt. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 15. The applicant complained that the proceedings against her had not been fair and the rights of the defence had been frustrated, in breach of Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. Submissions by the parties 16. The Government submitted that the procedure as a whole had not been unfair, notably because the courts had established the applicant’s guilt on ample evidence, irrespective of Z. S.’s contribution. 17. The applicant submitted that the key - indeed, the only material - witness in respect of her allegedly active participation in cultivating marijuana had been Z. S., who had not been available for examination by the defence. This circumstance had been prejudicial to her procedural rights and had rendered the trial unfair. B. Admissibility 18. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. C. Merits 19. The Court reiterates that as the guarantees of Article 6 § 3 (d) are specific aspects of the right to a fair trial set forth in the first paragraph of that Article, the complaint must be examined under the two provisions taken together (see, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10 , § 100, ECHR 2015). 20. The relevant principles which apply when a prosecution witness did not attend the trial and statements previously made by him were admitted as evidence have been set out in Al-Khawaja and Tahery (cited above, §§ 119‑147) and further clarified in Schatschaschwili (cited above, §§ 111‑131; for a summary of the case-law, see also Seton v. the United Kingdom , no. 55287/10 , §§ 57-59, 31 March 2016). 21. In the instant case, the Court must thus establish whether there were good reasons for Z. S.’s absence, whether the deposition made to the police contributed to the applicant’s conviction in a decisive manner or carried significant weight and, if so, whether there were sufficient counterbalancing factors to compensate for the handicaps caused to the defence as a result of the admission of the untested evidence, so as to ensure that the trial, judged as a whole, was fair (see Schatschaschwili, cited above, §§ 107 and 116). 22. The Court notes that Z. S., who was wanted as a fugitive, could not be called at the trial while he remained untraceable and considers that there was a good reason for his absence at the trial. The trial court in the case at hand based the applicant’s conviction on the deposition and testimony of Z. S. made to the police along with material, expert and circumstantial evidence. It appears from the circumstances of the case that the crux of the matter was whether the applicant had actively or knowingly participated in the cultivation of marijuana in the house she owned, albeit not inhabited by her, and that the only material witness on this point who was available to the police was Z. S. Furthermore, although the appellate court later excluded his testimony as evidence, it retained his deposition made to the police. Indeed, it does not appear that any other person would have had first-hand knowledge of the alleged cultivation at the applicant’s property. 23. Moreover, at the earlier stage of the prosecution, when Z. S. had appeared before the police, neither the applicant nor her lawyer had been involved. Thus an important safeguard countering the handicap resulting from the admission of Z. S.’s untested evidence at trial, namely the opportunity for the defence to question the witness during the investigation stage was missing (see Schatschaschwili , cited above, § 130). 24. As a result, Z. S., who to all appearances was the key witness for the prosecution in so far as the applicant’s commission of the crime was concerned, never testified before a court in the presence of the applicant, nor was he at all available for examination by the defence, yet the statement he had made to the police implicating the applicant as one of the perpetrators of the crime remained part of the case against her at all three levels of criminal jurisdiction. 25. Notwithstanding the Government’s arguments reflecting the Kúria ’s and the Constitutional Court’s position to the effect that the courts had had ample evidence against the applicant, even with Z. S.’s evidence excluded, the Court is not satisfied that the applicant was given an adequate and proper opportunity to contest the statements which were decisive for her conviction. It considers that this state of affairs was irreconcilable with her rights enshrined under Article 6 §§ 1 and 3 (d) of the Convention. The Court therefore concludes that there has been a violation of those provisions. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 26. Relying on Article 6 § 1, the applicant also complained that the length of the proceedings had been unreasonable. 27. The Court observes that the proceedings began on 25 March 2009 and concluded on 5 December 2014 with the Kúria ’s decision. They thus lasted slightly longer than five years and eight months, and involved three levels of ordinary courts and a constitutional complaint. The Court is satisfied that the case did not exceed a reasonable time for the purposes of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. In respect of pecuniary damage, the applicant claimed 2,870 euros (EUR) paid as costs in the criminal proceedings, EUR 13,200 in lost income and EUR 5,500 for the value of parcels sent to her while in custody. In respect of non-pecuniary damage, she claimed EUR 50,000. 30. The Government contested these claims as excessive. 31. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 7,800 in respect of non‑pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 32. The applicant also claimed EUR 3,300 for the costs and expenses incurred before the Court, corresponding to twenty-two hours of legal work billed at EUR 150 per hour. 33. The Government contested this claim. 34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed. C. Default interest 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning the fairness of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Branko Lubarda Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII