SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 15482/05
by Gábor AUPEK
against Hungary
The European Court of Human Rights (Second Section), sitting on 29 April 2008 as a Chamber composed of:
 
and Françoise Elens-Passos, Deputy Section Registrar.
Having regard to the above application lodged on 20 April 2005,
Having regard to the decision on admissibility of 15 May 2007,
Having regard to the applicant's submissions of 12 February and 20 September 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Gábor Aupek, is a Hungarian national who was born in 1966 and lives in Ercsi. He is represented before the Court by Mr I. Tóth, a lawyer practising in Budapest.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 October 1998 the applicant, a truck driver, was interrogated as a suspect for having negligently caused, in a multiple road accident, the death of six people and the serious injury of five others, three of whom became permanently disabled. In the ensuing proceedings, the applicant was assisted by defence counsel of his choice. On 2 March 1999 a bill of indictment was preferred.
After several hearings at which numerous witnesses testified and the opinions of two medical and four technical experts were obtained, on 9 April 2002 the Miskolc District Court acquitted the applicant.
On 6 November 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed this judgment as unfounded; the bench included Dr K., Dr M. and Dr D.
In the resumed proceedings (megismételt eljárás), the District Court held four hearings. On 6 May 2004 it found the applicant guilty as charged. It held that, apart from the responsibility of another driver who had died in the multiple collisions, the accident had essentially been caused by the applicant's failure to maintain the brakes of his truck and his grossly negligent driving. The applicant's offence was punishable with two to eight years' imprisonment. The District Court took account of the protraction of the proceedings as an important mitigating factor (nyomatékos enyhítő körülmény) and sentenced him to three and a half years' imprisonment and a four-year prohibition on driving.
The applicant appealed, seeking an acquittal, pleading that the judgment was ill-founded.
On 13 October 2004 the Regional Court, again with the participation of Drs M. and D., upheld the applicant's conviction but reduced his sentence to two and a half years' imprisonment and a three-year prohibition on driving. The court the entirety of the proceedings and the first-instance judgment, and held that the first-instance proceedings had been lawful. Furthermore, it considered that findings of fact were not ill-founded, within the meaning of section 351(2) of the New Code of Criminal Procedure, and were thus suitable for appellate review without taking further evidence. This consideration enabled the court to hold deliberations in camera, in application of section 360(1) of the Code of Criminal Procedure, without the attendance of either the defence or the prosecution.
The applicant states that this judgment was served on his lawyer only on 17 November 2004. However, on 27 October 2004 he had already been called upon to start serving his sentence from 22 November 2004 onwards. His request to have the commencement of his sentence postponed on the grounds of his impaired health, as a consequence of the injuries he himself had suffered in the accident, was to no avail. In fact, he started to serve his sentence on 28 February 2005; however, his prison term was interrupted on 7 July 2005.
On 3 October 2005 the Supreme Court quashed the Regional Court's decision for procedural reasons and remitted the case to it.
In the resumed second-instance proceedings, on 27 November 2006 the Regional Court acquitted the applicant.
On 21 June 2007 the Debrecen Court of Appeal upheld this judgment.
B.  Relevant domestic law
Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides insofar as relevant as follows:
Section 21
“(3) c) In first or second-instance proceedings which must be repeated because of having been quashed, any judges shall be ineligible (kizárt) who participated in the adoption of the decision to quash or in the adoption of the decision which has been quashed because of ill-foundedness.”
Section 346
“... (3) An appeal may concern questions of fact or law.”
Section 351
“(1) The second-instance court shall base its decision on the facts as established by the first-instance court unless the first-instance judgment is ill-founded....
(2) The first-instance judgment is ill-founded if:
a) the facts have not been explored;
b) the first-instance court has failed to establish the facts or the findings of fact are deficient;
c) the findings of fact are in contradiction with the contents of the documents;
d) the first-instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact.”
Section 353
“(2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.”
Section 360 (as in force until 26 May 2005)
“(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations  (), a public session ( ) or a hearing (). ...”
Section 361
“(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence.
(2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...”
Section 362
“(1) The second-instance court shall notify the public prosecutor and – if they are not summoned – ... the defendant and his lawyer of the public session. ...”
Section 363
“(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.”
Section 373(1)
“(II) b) [The second instance court] ... shall quash the judgment of the first instance court and order that court to repeat the proceedings if ... a statutorily ineligible (kizárt) judge ... has participated in its adoption ...”
Section 405
“(1) The court's final decision on the merits is susceptible to a [Supreme Court] review (felülvizsgálat) if ...
c) the decision has been adopted amidst procedural irregularities within the meaning of section 373(1) subparagraphs II to IV.”
COMPLAINTS
Relying on Articles 6 §§ 1 and 3 and 13 of the Convention, the applicant complained that his conviction was wrong and the procedure unfair, in particular because his conviction was upheld by the Regional Court sitting in camera in 2004. Furthermore, the Regional Court was not, in his view, impartial, because Dr D. and Dr M participated in adopting the decisions of both 6 November 2002 and 13 October 2004. Moreover, under Article 6 § 1, he complained of the length of the proceedings. Lastly, under Article 5 §§ 1 and 5, he submitted that he was unlawfully detained – with no prospects of compensation – because, in his view, the judgment of 13 October 2004 was not properly pronounced.
PROCEDURE
On 15 May 2007 the Court declared the application inadmissible. However, on 20 September 2007 the applicant's lawyer submitted that it was evident from the wording of the decision that an earlier submission of the applicant, dated 12 February 2007, had not reached the Registry.
The Court observes that the submissions of 12 February 2007 had been misfiled and were not available to the Chamber when it decided on the admissibility of the case on 15 May 2007. Since these submissions contain relevant new information, the Court considers that the application should be restored to the list of cases and its examination continued.
THE LAW
1.  The applicant originally complained that he was wrongfully convicted in unfair and lengthy proceedings, in breach of Articles 6 §§ 1 and 3 and 13 of the Convention.
The Court considers that this complaint falls to be examined solely under Article 6 § 1, which provides as relevant as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ... by [a] ... tribunal...”
a.  Insofar as the applicant complains about the fairness of the proceedings, the Court observes that he was eventually acquitted. T, he cannot claim, under Article 34 of the Convention, to be a victim of a violation of Article 6 § 1 in this connection. It follows that this complaint is incompatible ratione personaewith the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.
b.  Concerning the length of the case, the Court notes that the proceedings started on 26 October 1998 and ended on 21 June 2007. The period to be taken into account was thus almost eight years and eight months for three levels of jurisdiction.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2.  The applicant also complained that he was not deprived of his liberty in accordance with a procedure prescribed by law, since the judgment of 13 October 2004 not, in his view, pronounced properly. Moreover, no compensation was available for this illegality. He relied on Article 5 §§ 1 and 5 of the Convention which provides as relevant:
“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)  the lawful detention of a person after conviction by a competent court; ...
5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Concerning the justification for the applicant's detention, the Court finds that he was convicted by a competent domestic court and, therefore, his deprivation of liberty complied with Article 5 § 1 (a) of the Convention. The Court finds nothing in the inept manner in which the appeal judgment of 13 October 2004 notified to the applicant which could taint the lawfulness of the sentence of imprisonment which was imposed on him. Moreover, the right to compensation under 5 § 5 presupposes that a violation of another paragraph ofArticle 5 has been established, either by a domestic authority or by the Court (N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002‑X). However, this is not the case in the present application.
It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to restore the application to its list of cases;
Decides to adjourn the examination of the applicant's length complaint;

Declares the remainder of the application inadmissible.
	Françoise Elens-Passos	Françoise Tulkens
	   Deputy Registrar	President