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SECOND
SECTION
CASE OF BLOCK v. HUNGARY
(Application
no. 56282/09)
JUDGMENT
STRASBOURG
25 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Block v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56282/09) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a German national, Mr Alexander Block (“the
applicant”), on 19 October 2009.
- The
applicant was represented by Mr I. Szikinger, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
- The
applicant alleged that the criminal proceedings conducted against him
were not fair, in particular on account of the re-characterisation of
the charges against him.
- On 26 January 2010 the President of the Second Section
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). The
German
Government did not exercise their right under Article 36 § 1 of
the Convention and Rule 44 of the Rules of Court to intervene in the
proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Bad Brückenau, Germany.
- The
Budapest Public Prosecutor's Office indicted the applicant for
preparation to counterfeit money (section 304 of the Criminal Code).
- On
30 November 2006 the Budapest Regional Court found the applicant
guilty as charged and sentenced him to a fine.
- On
appeal, the Budapest Court of Appeal held a public session and
completed the findings of fact as established by the Regional Court.
It observed that the defendant's act could be re-characterised as
attempted aggravated fraud (section 318 of the Criminal Code) and
enquired as to whether he wished to have an adjournment on that
account. The applicant replied in the negative.
- On
10 October 2007 the Budapest Court of Appeal reversed the
first-instance judgment and re-characterised the applicant's offence
as forgery of public documents (section 274 of the Criminal Code).
The applicant submitted that there had been no taking of evidence in
this regard before the Court of Appeal. His sentence remained
unchanged; nevertheless, he filed a petition for review.
- On
30 April 2009 the Supreme Court held a public session and upheld the
applicant's conviction without taking evidence. In the reasoning of
that decision, it was observed that the judgment of the Court of
Appeal amounted to a violation of the substantive provisions of the
Criminal Code in that although the applicant, a national of Germany,
had committed the crime in question abroad, the lower courts had not
explored whether his act was punishable under German law or obtained
the Attorney General's requisite endorsement of the indictment.
However, the Supreme Court held that the applicant's deed in fact
constituted the offences of complicity in attempted aggravated fraud
(section 318 of the Criminal Code) and in forgery of private
documents (section 276 of the Criminal Code). It did not change the
sanction imposed on the applicant. This decision was served on 18
June 2009.
II. RELEVANT DOMESTIC LAW
- Section
274(1) of the Criminal Code provides that a person who prepares a
forged official document or falsifies the contents of an official
document, uses a fake or forged official document or an official
document issued under the name of another person, or co-operates in
the inclusion of untrue data, facts or declarations in an official
document regarding the existence, change or termination of a right or
obligation, commits the felony of forgery of official documents.
- According
to section 276 of the Criminal Code, a person who uses a fake or
forged private document or a private document with untrue contents
for providing evidence for the existence, change or termination of a
right or obligation, commits the offence of forgery of private
documents.
- Under
section 304(1) of the Criminal Code, a person who copies or forges
money with the purpose of distribution, obtains counterfeit or forged
money with the purpose of distribution, exports or imports such money
or transports it through the territory of the country, or distributes
counterfeit or forged money commits the felony of counterfeiting
money.
- According
to section 318(1) of the Criminal Code, a person who deceives
someone, or maintains someone's deception, in order to make unlawful
gains, commits the offence of fraud, provided that actual damage has
occurred as a result of his conduct.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (a)
and (b) OF THE CONVENTION
- The
applicant complained that the double re-characterisation of his
offence amounted to a breach of his defence rights as provided in
Article 6 §§ 1 and 3 of the Convention. Article 6 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 contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government submitted that as regards the re-characterisation of the
applicant's offence by the Court of Appeal, the applicant had been
informed of this possibility and offered an adjournment, which he had
not availed himself of. Concerning the review proceedings, the
Supreme Court had not effectively re-characterised; rather, it had
held that the applicant should have been found guilty of another,
more serious offence. Therefore, it had established that although the
characterisation of the offence by the Court of Appeal had been
unlawful, the finding of guilt had not. Nevertheless, it had not
established the defendant's guilt anew, nor had it imposed a new
sentence.
- The
applicant argued that the Court of Appeal had informed him of the
possibility of re-characterising his offence as fraud but convicted
him of forgery of public documents. Subsequently, the Supreme Court
held that he had in fact been guilty of attempted fraud and forgery
of private documents, without previously warning him about this
eventuality. This double re-characterisation of his guilt had
prejudiced his defence rights.
- The
Court recalls at the outset that the fairness of proceedings is
assessed with regard to the proceedings as a whole (cf. Miailhe
(no. 2) v. France, 26 September 1996, § 43, Reports of
Judgments and Decisions 1996-IV; Imbrioscia v. Switzerland,
24 November 1993, § 38, Series A no. 275). 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,
19 December 1989, § 79, Series A no. 168). 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, 25 March 1999, § 51, Reports
1999-II). The scope of the above provision must in particular 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, cited above, §§ 52-54).
- The
Court notes at the outset that the applicant was indicted for
preparation to counterfeit money and that the Regional Court found
him guilty as charged. Subsequently, the Court of Appeal warned him
that his offence could be re-characterised as attempted aggravated
fraud but then returned an alternative judgment of forgery of public
documents. Finally, the Supreme Court concluded that he had been
guilty of attempted fraud and forgery of private documents, and this
without prior notice.
- The
Court cannot speculate as to the merits of the defence the applicant
could have relied on had he had an opportunity to make targeted
submissions on the charges which he was eventually found guilty of.
However, given the evident differences between the definitions under
Hungarian law of the offences involved (see paragraphs 11 to 14
above), the Court takes it for granted that the defence would have
been different from the defence to the initial charges.
- Since,
in the light of the foregoing, fraud or forgery of documents, private
or official, did not constitute an element intrinsic to the
accusation, the Court considers that in using the right which they
unquestionably had to re-characterise facts over which they properly
had jurisdiction, the Court of Appeal and subsequently the Supreme
Court should have afforded the applicant the possibility of adjusting
his defence in a practical and effective manner and, in particular,
in good time. It is noteworthy in this connection that although
before the Court of Appeal the applicant was warned of the
possibility of the re-characterisation his offence as fraud, he was
then found guilty of forgery of public documents, and that the
Supreme Court's confirmation of his conviction on account of
attempted fraud and forgery of private documents occurred without
prior notice.
- In
sum, the Court concludes that the applicant's right to be informed in
detail of the nature and cause of the accusation against him and his
right to have adequate time and facilities for the preparation of his
defence were infringed. It follows that there has been a violation of
paragraph 3 (a) and (b) of Article 6 of the Convention, taken
together with paragraph 1 of that Article, which provides for a fair
trial.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant the full sum claimed. It further notes
that where an individual, as in the instant case, has been convicted
by a court in proceedings which did not meet the Convention
requirement of fairness, a retrial, a reopening or a review of the
case, if requested, represents in principle an appropriate way of
redressing the violation (see, mutatis mutandis, Öcalan
v. Turkey [GC], no. 46221/99, §§ 207-210, ECHR
2005-IV).
B. Costs and expenses
- The
applicant also claimed EUR 600 for the costs and expenses incurred
before the Court which corresponds to the fee of his lawyer.
- The
Government did not comment on this claim.
- 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 have been actually and necessarily incurred and were
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
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of
paragraph 3 (a) and (b) of Article 6 of the Convention, taken
together with paragraph 1 of that Article;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
600 (six 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.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
