No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1982 and lives in Kyiv.

On the evening of 29 December 2006 the applicant was arrested on a street in Kyiv and taken to the Shevchenkivskyy District Police Department of Kyiv (“the police department”), where he was asked to empty his pockets in the presence of two attesting witnesses. The attesting witnesses were two unemployed men. The applicant produced small bags containing cocaine.

According to the applicant, during his arrest on the street some police officers struck him down, handcuffed him and escorted him to their car, where they allegedly planted drugs (small bags of cocaine) on him and continued to beat him up. The assault was accompanied by threats of sexual abuse, and continued until he arrived at the police department.

At 10 p.m. on 29 December 2006 the police took the decision to arrest and detain the applicant under Article 263 of the Administrative Offences Code for violating drug circulation rules, an administrative offence pursuant to Article 44 of that Code.

The applicant was then interviewed. He wrote a confession admitting that he had unlawfully bought cocaine for personal use. According to him, he was forced to make the confession, which was dictated to him by one of the police officers.

After the confession he was placed in a police cell.

According to the applicant, during his stay in the police department he was not given enough food or water. He was held in bad sanitary and hygienic conditions. Allegedly, he was locked for one night in a toilet of the police department, which was dirty and stinking. He felt unwell and had acute lower back pain.

On 2 January 2007 the police received a specialist report stating that the substance seized from the applicant had contained 1.18 grams of cocaine.

That day the police investigator instituted criminal proceedings against him for illegally purchasing and storing narcotic drugs in large quantities, an offence pursuant to Article 309 § 2 of the Criminal Code.

At 5.25 p.m. the investigator, relying on Articles 106 and 115 of the Code of Criminal Procedure, took a decision to arrest and detain the applicant on suspicion of the above-mentioned offence. The decision authorised the applicant’s preliminary detention for another seventy-two hours.

The applicant was also questioned that day and gave details of the circumstances surrounding his purchase of the drugs. According to him, his lawyer, who had been hired by his parents, joined him when the interview had gone on for a considerable length of time. In the lawyer’s presence he complained of being in a poor state of health, and added that one of his acquaintances had instigated purchasing the drugs.

According to the Government, on 2 January 2007 the applicant was given a medical examination and diagnosed with intercostal neuralgia. His state of health was considered satisfactory.

On 5 January 2007 the prosecutor refused to approve the investigator’s application to have the applicant placed in pre-trial detention. The investigator then decided to release him on a written undertaking not to abscond.

On the afternoon of 5 January 2007, following his release, the applicant was examined by an ambulance team, who noted that he was suffering from acute pyelonephritis (a severe kidney infection) and lumbosacral radiculitis (sciatica).

On 6 and 8 January 2007 he was examined by ambulance teams again, who diagnosed him with acute radiculitis and possible acute pyelonephritis.

Between 9 and 19 January 2007 the applicant was provided with inpatient treatment at the neurological department of Kyiv Hospital no. 1. He was diagnosed with lumbar spinal osteochondrosis (остеохондроз поперекового відділу хребта), vertebrogenic lumbodynia (вертеброгенна ломбаргія) and pain and muscular tonic syndrome (больовий та м’язово-тонічний синдром).

On 16 January 2007 he was examined by a psychiatrist, who noted that he was showing signs of post-traumatic stress disorder.

On 22 January 2007 the Shevchenkivskyy District Court of Kyiv (“the District Court”) considered the applicant’s complaint concerning the unlawfulness of his arrest and detention under Article 106 of the Code of Criminal Procedure. It found that the investigator’s decision of 2 January 2007 to arrest and detain him as a criminal suspect had been unlawful in so far as the grounds for his arrest in such a capacity had existed as from 29 December 2006.

On 6 February 2007 the applicant, assisted by a lawyer, denied the charges and refused to answer any of the investigator’s questions.

On 9 February 2007 the Shevchenkivskyy District prosecutor’s office refused to institute criminal proceedings against the police officers in connection with the applicant’s allegations of a violation of his rights during his arrest and detention. According to the decision, the officers’ actions lacked the elements of an offence. It referred to explanations given by the police investigator in charge of the applicant’s criminal case and to the official custody records concerning his detention.

On 1 March 2007 the applicant’s father complained to the investigator that there had been numerous violations of his son’s rights, including an extraction of his confession through pressure and unlawful arrest and detention.

On 7 March 2007 the applicant, assisted by his lawyer, denied the charges and refused to answer any of the investigator’s questions.

On 16 March 2007 he complained to the prosecutor of failure on the part of the investigative authorities to carry out an appropriate examination of the circumstances in which he had been arrested and questioned in the initial period of the investigation.

On 4 April 2007 the prosecutor replied that the criminal case against the applicant had been referred to the District Court, and that he could raise the relevant issues during the trial.

On 15 June 2007 a linguistic specialist, in reply to a request by the applicant, issued a report stating that the confession of 29 December 2007 had been written by the applicant with the assistance of another person who had dictated the text.

During a court hearing on 18 June 2007 the applicant requested that the linguistic specialist report be admitted to the case file. He further requested that the statements he had made on 29 December 2006 and 2 January 2007 be excluded, as they had been obtained in breach of his rights. The court rejected his requests.

The applicant denied the charges throughout the trial. He insisted that the drugs had been planted on him, and that he had been psychologically pressured and physically ill-treated by the police officers. The court then questioned the officers and investigators concerned, who denied the applicant’s allegations. The court also questioned the two attesting witnesses who had been present when the applicant had taken the drugs from his pocket. They stated that when he had produced the little bags in their presence, he had told them they contained cocaine; they had not noticed any visible injuries on him at the time.

On 8 July 2008 the District Court found the applicant guilty of illegally purchasing and storing narcotic drugs in large quantities, and sentenced him to three years’ imprisonment. The sentence was suspended conditional upon two years’ probation. In reaching its conclusions, the court had regard to the witness statements and material, documentary and expert evidence. It considered that there was no indication that the applicant had been ill-treated or had suffered a violation of his procedural rights at the time of making his initial self-incriminating statements.

The applicant appealed, claiming that the key evidence had been obtained during his unlawful detention and ill-treatment, and that he had not been given access to a lawyer after the arrest.

On 7 November 2008 the Kyiv Court of Appeal upheld the judgment of the first-instance court. It noted that in the applicant’s confession of 29 December 2006 he had explained in detail how he had committed the crime. The Court of Appeal further noted that on 2 January 2007 the applicant had also admitted he was guilty.

On 22 May 2009 the Supreme Court, sitting in private, dismissed a cassation appeal by the applicant on the grounds that his guilt had been well established by the evidence in the case file, including the original self-incriminating statements he had made. On 2 June 2009 his lawyer received a copy of that decision.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1960 and lives in Jarmina.

On 14 November 2008 the applicant applied to the Vinkovci Municipal Court (Općinski sud u Vinkovcima) for enforcement of a final judgement by which D.C., the applicant’s former husband, was ordered to pay her alimony.

On 18 November 2008 the first-instance court issued a writ of execution ordering D.C. to pay the applicant amounts of 700 Croatian kunas (HRK) together with the statutory default interest for the period starting from 12 July 2007 until the payment, and also the amount of HRK 2,440 together with the statutory default interest starting from 10 June 2008 until the payment on account of costs and expenses.

The writ of execution was served on the Vukovar Regional Office of the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, Područna služba Vukovar) for enforcement.

On 29 December 2008 D.C. appealed against the writ of execution and on 20 January 2009 the applicant responded to his appeal.

On 12 February 2009 the first-instance court held a hearing at which both parties gave their statements.

On 24 February 2009 the first-instance court instructed D.C. to institute separate civil proceedings with a view to declaring the enforcement inadmissible.

On 9 March 2009 the applicant appealed against the decision of 24 February 2009.

On 24 April 2009 the case-file was forwarded to the Vukovar County Court (Županijski sud u Vukovaru) to decide upon the parties’ appeals.

On 19 August 2009 the Vukovar County Court dismissed the applicant’s appeal and returned the case-file to the first-instance court.

However, since the Vukovar County Court failed to decide upon the appeal lodged by D.C., the case file was again returned to it and on 7 January 2010 it dismissed D.C.’s appeal.

On 26 January 2010 the first-instance court informed the Vukovar Regional Office of the Croatian Pension Fund, that the writ of execution became final and that it should be executed.

On 19 February 2010 the first-instance court again asked the Vukovar Regional Office of the Croatian Pension Fund to execute the final writ of execution.

On 24 March 2010 the Vukovar Regional Office of the Croatian Pension Fund transferred HRK 15,600 to the applicant’s account; on 15 April 2010 it transferred the amount of HRK 1,200; and on 14 May 2010 the amount of HRK 881.50.

Meanwhile, on 7 December 2009 and 14 January 2010 the applicant lodged a request for the protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Supreme Court (Vrhovni sud Republike Hrvatske) complaining about the length of the above enforcement proceedings. In these proceedings the State was represented by the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske).

On 14 September 2010 the Supreme Court examined the case file of the Vinkovci Municipal Court and a submission of the Vukovar County Court, and found that the enforcement proceedings had started on 14 November 2008 and that they were still pending. It considered that the proceedings had not been excessively long and dismissed the applicant’s request.

On 6 September 2012 the applicant’s appeal was dismissed by a three-judge panel of the Supreme Court.

On 12 December 2012 the applicant’s subsequent constitutional complaint was declared inadmissible by the Constitutional Court (Ustavni sud Republike Hrvatske).


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants, Mr Béla Kovács and Mrs Béláné Kovács, are Hungarian nationals, who were born in 1954 and 1956 respectively and live in Budapest. They were represented before the Court by Mr A. Cech, a lawyer practising in Budapest.

The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

The applicants are a married couple.

On 4 October 2007 criminal proceedings were initiated against the applicants on charges of copyright infringement. The investigation was terminated on 28 February 2011. A bill of indictment was preferred on 9 January 2012.

The court geographically competent to try the applicants was the Budapest High Court. However, on 17 January 2012 the President of this court proposed to the President of the National Judicial Office (“the NJO”) to appoint another court, because the workload of the Budapest High Court did not allow for a hearing within a reasonable time.

The President of the Budapest High Court specified the facts underlining the complexity of the case, a high priority case in which very strict procedural time-limits were applicable for the court. He identified the obstacles to the timely adjudication of the case and gave detailed information on the workload of the criminal bench of the Budapest High Court. It was stated that the applicants’ case involved 28 defendants, 27 counsels, 28 witnesses, an interpreter and experts. The investigation file amounted to 84 file-boxes, and the bill of indictment consisted of 50 pages with an annex of 50 pages. The counts on charges of copyright infringement committed between 2002 and 2009 amounted to 418 in respect of some of the defendants, and the charges in respect of some of the defendants included money laundering and participation in a criminal organisation as well. According to information provided by the President of the Budapest High Court, his court had reached the limits of its administrative and infrastructural capacities, because of other on-going high-profile cases.

On 23 January 2012 the President of the NJO requested additional information from the President of the Budapest High Court in accordance with the guidelines for requesting reassignment, then under elaboration. (These guidelines were then sent to the presidents of the high courts, courts of appeals and the Kúria for consultation on 9 February 2012. As of 17 September 2012, they were included in decision no. 58/2012 of the National Judicial Council entitled “the guidelines to be observed in respect of case reassignment”.)

Accordingly, further extensive staff and case-load information was provided on 31 January 2012.

Meanwhile, the NJO identified six high courts which were in the best position as regards their workload statistics. The President of the NJO requested the opinions of the presidents of those courts on 7 February 2012. She also requested the opinion of the Attorney General, who proposed reassignment to the Kecskemét High Court.

The Balassagyarmat High Court, as well as two other courts, declared themselves ready to try the applicants’ case.

On 16 February 2012 the President of the NJO appointed, in application of section 62 (1) of Act no. CLXI of 2011 on the Organisation and Administration of Courts, the Balassagyarmat High Court to proceed with the case, as the latter had capacity to deal with it in due time (while another case was reassigned to the Kecskemét High Court). There was no remedy available to the applicants against this decision at the material time.

Between 12 November 2012 and 12 October 2013 the Balassagyarmat High Court held several hearings.

The trial is still pending at first instance.

Meanwhile, on 29 March 2012 the applicants filed a constitutional complaint about the reassignment and its legal background.

On 2 December 2013 the Constitutional Court adopted decision no. 36/2013. (XII.5.) AB in the matter. It held that the regulation which entitled the President of the NJO to reassign cases among courts (notably, sections 62 and 63 of Act no. CLXI of 2011 on the Organisation and Administration of Courts, as in force between 1 January and 16 July 2012, as well as section 20/A of Act no. XIX of 1998 on Criminal Procedure, as in force between 7 January 2011 and 31 July 2013, see paragraphs 19 and 20 below) had been unconstitutional and in violation of Article 6 of the Convention. According to the Constitutional Court, the right for one’s “natural” (lawful) judge flows from the right to be tried by a court “established by law” and requires that a case be heard by a judge belonging to the court with competence and jurisdiction and designated by the pre-established objective rules of case assignment of that court. In the Constitutional Court’s view, the impugned regulation, which had conferred responsibility for the reassignment of cases, at least in the material period, entirely on the President of the NJO, had been in breach of those principles. Moreover, it had violated the requirement of the appearance of impartiality.

The Constitutional Court also held that the lack of a remedy against the decision of the President of the NJO had violated the Fundamental Law, as well as Article 13 of the Convention.

Considering that its finding of unconstitutionality excluded, by the force of law, the application of the impugned regulation in the cases which had been at the origin of its proceedings (that is, the applicants’ case and another one), the Constitutional Court did not specify the legal consequences of its finding in the operative part of the decision. However, it dismissed the applicants’ request for the examination of the reassignment decision itself (as adopted by the President of the NJO), considering that the Constitutional Court did not have competence to inspect such decisions of a managerial nature, which did not affect the outcome of the judicial proceedings.

The day after the Constitutional Court’s decision, the President of the NJO expressed her opinion in a press release, saying that the decision concerned “some rules no longer in force [and] does not affect the validity of the case reassignment decision of the President of the NJO. [It] therefore does not have direct influence on cases still pending before assignee courts”.

Pursuant to the Constitutional Court’s decision, the Balassagyarmat High Court transferred the applicants’ case back to the Budapest High Court on 10 December 2013.

This latter court declared, on 7 January 2014, that it had no jurisdiction in the case and transferred the case file to the Budapest Court of Appeal so that it should assign the competent court.

The Court of Appeal remitted the case to the Balassagyarmat High Court on 24 April 2014.

The Balassagyarmat High Court refused jurisdiction on 14 May 2014.

On 23 July 2014 the Court of Appeal finally appointed the Balassagyarmat High Court to try the applicants. No remedy lay against this decision.

As appears from a similar case (see paragraph 24 below), which both the originally competent and the assignee court refused to hear and – unlike the present case – had already been referred to the Kúria for the designation of a court for the trial, the Kúria considered that the declaration of unconstitutionality of the impugned – and already repealed – legislation did not affect the validity of the case reassignment decision of the President of the NJO itself, given that the Constitutional Court did not specify any legal consequence for its finding outlined above and because ordinary courts are not entitled to substitute the Constitutional Court’s decision in this respect.

In another case (see paragraph 25 below), the Kúria came to a similar conclusion, albeit with a slightly different reasoning: it held that the decision of the Constitutional Court was immaterial in the circumstances and designated the assignee court with reference to the principle of pre-emption.

The Act on the Transitional Provisions of the Fundamental Law provided as follows:

“(3) In order to guarantee the right to trial within a reasonable timeframe, as provided in Article XXVIII(1) of the Fundamental Law, the President of the National Judicial Office may assign any case to a court at an equal level but outside the normal court’s jurisdiction, if the caseload across courts is not balanced.

(4) In order to guarantee the right to trial within a reasonable timeframe, as provided in Article XXVIII(1) of the Fundamental Law, the Public Prosecutor, as the leader and manager of the Office of the Prosecutor based on Article 29 of the Fundamental Law, may assign any case to a court at an equal level but outside the normal court’s jurisdiction, if the caseload across courts is not balanced. This does not impact the right of the President of the National Judicial Office as granted in paragraph (3) and the right of the prosecution to assign a case to any court within their jurisdiction.”

The Fundamental Law, as in force between 1 April and 1 October 2013, provided as follows:

“(4) In the interest of the enforcement of the fundamental right to a court decision within a reasonable time and a balanced distribution of caseload between the courts, the President of the National Judicial Office may designate a court, for cases defined in a cardinal Act and in a manner defined also in a cardinal Act, other than the court of general competence but with the same jurisdiction to adjudicate the case.”

Act no. CLXI of 2011 on the Organisation and Administration of Courts provides as follows:

“(1) No one may be deprived of his lawfully appointed judge.

(2) A lawfully appointed judge is the judge assigned to a specific case under the work schedule of the court having competence and jurisdiction in the case.”

“(1) A case may exceptionally be reassigned by the President of the National Judicial Office (Országos Bírósági Hivatal, “NJO”) to another court having the same competence as the competent court if the adjudication of the case or a specific group of cases filed with the court in a given period of time cannot otherwise be ensured within a reasonable length of time due to the court’s extraordinary and disproportionate caseload, provided that such reassignment does not impose a disproportionate burden on the court to which the case is reassigned.”

(1) [By relying on the principles determined by the National Judicial Council (Országos Bírói Tanács)] the President of the NJO shall, within 8 days from receipt of the motion, examine whether in light of the case flow, the personnel and other data and of the specific features of the case affected by the reassignment, the motion is well-founded and shall examine to which court the case may be reassigned. The President of the NJO shall consult the court to which the case is reassigned – in criminal cases the Chief Public Prosecutor, if the motion has been filed not by the Chief Public Prosecutor – and may request data or opinion from any court; such requests shall be complied with immediately.

(2) The President of the NJO shall, within 8 days from receipt of the opinions and data referred to in subsection (1) decide on the reassignment by refusing the motion in case it is ill-founded or by reassigning the case to another court in case the motion is well-founded. In the decision, the President of the NJO shall explain how the principles determined by the NJO were applied.

(3) A party affected by the reassignment may file an appeal against the decision on the reassignment within 8 days from the publication of the decision on the courts’ official website and on the central website. ...

(4) ... The appeal shall be adjudicated by the Kúria in non-litigious proceedings within 8 days. ...

(5) ... If the decision on the reassignment is not in conformity with those rules of this Act which govern the reassignment of cases, the Kúria shall quash the decision. A decision on the reassignment of a case may not be modified by the Kúria.”

Act no. XIX of 1998 on Criminal Procedure provides as follows:

“(1) A case may, exceptionally, be reassigned by the President of the National Judicial Office (“NJO”) to another court having the same competence as the competent court if the adjudication of the case cannot otherwise be ensured within a reasonable length of time due to the court’s extraordinary caseload, provided that such reassignment does not impose a disproportionate burden on the court to which the case is reassigned.”

“(1) No one may act as a judge ...

e) if he or she cannot be expected to form an unbiased opinion for other reasons.”

“(1) The judge affected by a ground for exclusion and the presiding judge gaining knowledge of the existence of a ground for exclusion against a member of the court committee shall immediately notify the President of the court thereof.

(2) The ground for exclusion may also be reported by ... the defendant, or the counsel for the defence ....

(3) Following the commencement of the trial the persons specified in subsection (2) may only invoke the ground for exclusion regulated in section 21 (1) e), if they substantiate that they gained knowledge of the fact underlying the notification only after the commencement of the trial and reported it immediately.”

“(1) Unless an exception is made under this Act, the second instance court shall review the judgment challenged in the appeal and the entire court proceedings having led to the judgment.”

“(1) The second instance court ...

II. shall quash the judgment challenged in the appeal and remit the case to the first instance, if

a) the court was not lawfully formed,

b) a judge excluded under the law took part in adopting the judgment ...”

Constitutional Court decision no. 36/2013. (XII.5.) AB of 2 December 2013 (adopted by seven votes to seven with the casting vote of the President) contains the following passages:

“[32] According to Article XXVIII (1) of the Fundamental Law and Article 6 § 1 of the Convention, everyone is entitled to a hearing by a tribunal established by law. The requirement of a tribunal “established by law” incorporates the right to a lawful judge, ... [who is] the judge belonging to the court with competence and jurisdiction and designated by the pre-established objective rules of case-assignment of that court. ...

[34] ... The designation of a court for the trial – and this entirely at the discretion of the President of the NJO – resulted in the violation of the right to a lawful judge, flowing from Article XXVIII (1) of the Fundamental Law that enshrines the requirement of a fair trial ...

[38] ‘... The requirement of timeliness is only one of the elements of a fair trial and its enforcement cannot be taken to the extreme; it cannot prevail over other elements of fair trial and, most importantly, cannot be applied to the detriment of other fundamental rights’ [Constitutional Court decision no. 20/2005. (V.26.) AB]. ...

[41] In its decision no. 166/2011. (XII.20.) AB concerning, among other issues, the principle of nullum iudicium sine lege, the Constitutional Court emphasised (having regard to the case-law of the [European] Court [of Human Rights] that ‘the reassignment of a particular group of cases from a court proceeding under the general jurisdiction rules to the jurisdiction of another court may only be compatible with the Convention if the substantive and procedural rules and preconditions of such a reassignment are laid down by the lawmaker in transparent, pre-determined, clear and objective parameters leaving no (or minimal) room for discretion and ensuring that the actual decision is taken by the own institutions of the independent, impartial court system.’ ...

[43] Therefore, the Constitutional Court held that the [impugned provisions] were also incompatible with Article 6 § 1 of the Convention.

[61] Since in the present case the lawmaker did not allow appeal against a decision which affected the fundamental rights of the persons concerned (in particular, their rights to a fair trial, as explained above), the Constitutional Court held that the provision was unconstitutional and also violated an international treaty, in that it was neither compatible with Article XXVIII (7) of the Fundamental Law nor with Article 13 of the Convention.

[62] As a matter of principle, a declaration of unconstitutionality results, by the force of law, in the non-applicability of [the impugned provisions] in the cases which were at the origin of the Constitutional Court’s proceedings. For this reason, the Constitutional Court did not have to rule on this question separately.”

On 17 September 2012 the National Judicial Council decided (resolution no. 58/2012. (IX.17.) OBT) that only those courts were entitled to request reassignment whose workload exceeded the national average from three perspectives conjointly (number of cases per judge, the proportion of cases pending over two years and the proportion of high-profile/priority cases).

The Government submitted three cases, in which the Kúria decided on appeals against reassignments.

Decision no. Kpkf.37.584/2012/2 contains the following passages:

“... [The law] specifies reassignment as an exceptional institution which may only affect courts having the same competence in respect of cases making the effective and timely adjudication of court proceedings pending before a court difficult, due to their complexity.

In the decision affected by the remedy, the President of the NJO may, and did, take into account only courts having the same competence and fitting the forum system. ... Thus the decision ... did not create a so-called separate court for the adjudication of the individual case which might have resulted in a fundamental breach of the right to a lawfully appointed court.

... Based on numbers and statistical data it can be established that the “high-priority” caseload of judges of the Budapest Regional Court is several times higher than at other tribunals.

Since the challenged decision was taken prior to the assignment of the case to the judge actually adjudicating the case, ... the defendant’s right to his “natural” judge could obviously not be limited by the decision of the President of the NJO. Following the reassignment, the assignment of the case to the judge proceeding in the case took place according to the pre-arranged work schedule accessible to clients.”

The summary of case no. Bkk.I.519/2014., published by the Kúria on 16 May 2014, contains the following passages:

“... [A]bove all, the question to decide was whether the ordinary court, whose jurisdiction is based on an already repealed provision that had been found, by the Constitutional Court, unconstitutional and in breach of [the Convention], can itself conclude that the unconstitutional provision had not been applicable in the ongoing proceedings, even if neither the Constitutional Court nor the lawmaker specified a consequence of that kind. ... Annulation of a law [by the Constitutional Court] ... does not prejudice legal relationships and ensuing rights and obligations established before or on the day of the decision’s publication – except when the Constitutional Court explicitly orders the review of the criminal ... proceedings. ... In the absence of any specific Constitutional Court instructions in this respect, the declaration of unconstitutionality of the (already repealed) provisions that made possible for the President of the NJO to designate the competent court does not affect the validity of the decisions adopted on the basis of those provisions.”

Decision no. Bkk.III.494/2014/4. of the Kúria, adopted on 23 April 2014, contains the following passages:

“[The Kúria shall decide on the question of jurisdiction] if two courts both refuse to hear the case for want of jurisdiction, but they do not consider the other court competent reciprocally and it is only one of them who deems the other one competent. ... According to section 20 (3) of the Code of Criminal Procedure, a court shall be designated by the Kúria to hear/try the case if the circumstances defining the jurisdiction are unclear. ... In that case, jurisdiction will be based on the decision of the Kúria. ... In the present case, the Kúria adopted its decision [assigning the case to the court designated previously by the President of the NJO] with regard to [the principle of pre-emption]. The former assignment decision of the President of the NJO and the decision of the Constitutional Court are both immaterial in this procedural situation. ... The existence of a procedural act may only be set aside ... if the invalidation was explicitly directed on it. ... Thus, the fact that the [court designated by the President of the NJO] already conducted a part of the proceedings cannot be ignored; it forms the basis for the application of the principle of pre-emption.”

Document CDL-AD(2012)001 contains the following passages:

“The Commission fully acknowledges the need to establish an efficient and operational administration of justice. However, the Commission has serious doubts about the reform model chosen, which concentrates these very large competences in the hand of one individual person, the President of the newly established National Judicial Office (NJO).

States enjoy a wide margin of appreciation when establishing a system for the administration of justice and a variety of models exist in Europe. However, in none of the member states of the Council of Europe have such important powers been vested in a single person, lacking sufficient democratic accountability. In countries where the Minister for Justice appoints judges, the Minister is directly accountable to Parliament, has a shorter mandate and tends to be personally involved only in the most important cases.

Even if most of the competences of the President of the NJO do not relate to decision-making in individual cases, many of the powers listed above are closely related to the position of the judge who makes these decisions. The President of the NJO is not only a strong court “administrator”, he or she also intervenes very closely in judicial decision making through the right of transferring cases to another court, his or her influence on individual judges and on the internal structure of the judiciary.

In contrast, the President of the NJO has abundant competences and, hence, is the main actor in judicial administration. However, the mere fact that only judges are eligible as President of the NJO, does not make the latter an organ of judicial self-government. Instead, this would imply that the judges have a decisive vote in his/her election. Since the President of the NJO is elected by Parliament, i.e. an external actor from the viewpoint of the judiciary, it cannot be regarded as an organ of judicial self-government.

Allocation of cases

The allocation of cases is one of the elements of crucial importance for the impartiality of the courts. With respect to the allocation of cases, the Venice Commission - in line with Council of Europe standards - holds that “the allocation of cases to individual judges should be based on objective and transparent criteria established in advance by the law. According to the ECtHR’s case-law, the object of the term “established by law” in Article 6 ECHR is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament”. Nor, in countries where the law is codified, can the organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret the relevant national legislation. Together with the express words of Article 6 ECHR, according to which “the medium” through which access to justice under fair hearing should be ensured must not only be a tribunal established by law, but also one which is both “independent” and “impartial” in general and specific terms [...], this implies that the judges or judicial panels entrusted with specific cases should not be selected ad hoc and/or ad personam, but according to objective and transparent criteria.

The order in which the individual judge (or panel of judges) within a court is determined in advance, meaning that it is based on general objective principles, is essential. It is desirable to indicate clearly where the ultimate responsibility for proper case allocation is being placed. In national legislation, it is sometimes provided that the court Presidents should have the power to assign cases among the individual judges. However, this power involves an element of discretion, which could be misused as a means of putting pressure on judges by overburdening them with cases or by assigning them only low-profile cases. It is also possible to direct politically sensitive cases to certain judges and to avoid allocating them to others. This can be a very effective way of influencing the outcome of the process.

Furthermore, Section 76.4.b AOAC enables the President of the NJO to designate another court based on the vague criterion of “adjudicating cases within a reasonable period of time”. This relates to Articles 11.3 and 11.4 of the Act on Transitional Provisions of 30 December 2011, which were adopted on the constitutional level in order to overcome the annulment of a similar provision on the legislative level by Constitutional Court judgment no. 166/2011 of 20 December 2011. The Constitutional Court had found that provision contrary to the European Convention on Human Rights. The fact, that some courts in Hungary are so small that the designation of such a court would effectively amount to the designation of a single judge or a special chamber, further adds to this. Even though the reasonable time requirement is part of both Article XXVIII Fundamental Law and Article 6.1 ECHR, it is not absolute, but forms a field of tension with the often conflicting right to a fair trial with respect to the fact that having and exercising more procedural rights necessarily goes hand in hand with a longer duration of the proceedings. Taking into account the importance of the right to a lawful judge for a fair trial, the state has to resort to other less intrusive means, in particular to provide for a sufficient number of judges and court staff. Solutions by means of arbitrary designation of another court cannot be justified at all.

In order to prevent the risk of an abuse of the power to allocate and to bring the provisions in line with Article 6 ECHR, the Venice Commission recommends that the Hungarian authorities use other mechanisms for the distribution of cases, especially those outlined by the Venice Commission as follows: “In order to enhance impartiality and independence of the judiciary it is highly recommended that the order in which judges deal with the cases be determined on the basis of general criteria. This can be done for example on the basis of alphabetical order, on the basis of a computerised system or on the basis of objective criteria such as categories of cases. The general rules (including exceptions) should be formulated by the law or by special regulations on the basis of the law, e.g. in court regulations laid down by the presidium or President. It may not always be possible to establish a fully comprehensive abstract system that operates for all cases, leaving no room to decisions regarding allocation in individual cases.

There may be circumstances requiring a need to take into account the workload or the specialisation of judges. ... The criteria for making such decisions by the court President or presidium should, however, be defined in advance on the basis of objective criteria. Workload statistics provide objective statistical data, but they are not sufficient as a basis for the decision on transferral, since they do not contain criteria for the selection of certain cases for transferral or for the selection of the individual receiving court. In order to prevent any risk of abuse, court Presidents and the President of the NJO should not have the discretion to decide which cases should be transferred or to select the ‘sending’ or ‘receiving’ courts. In addition, any such case allocation should be subject to review in order to take into account possible harsh situations where persons without the means to come to a court that is far away from their home town.

There may therefore be a basis for an objective system (even though it seems that in the present case, the nine cases were not assigned to one of the least burdened courts). The real problem lies in the selection of some cases, which are transferred, and in the lack of any justification, why it was just these cases that were selected. The Commission delegation was indeed informed that one of the cases transferred was a highly sensitive one of alleged political corruption.”

Document no. CDL(2009)055 contains the following passage:

“68. Many European constitutions contain a subjective right to a lawful judge. As a rule, the guarantee is worded in a negative way, such as in the Constitution of Belgium: “No one can be separated, unwillingly, from the judge that the law has assigned to him.” (Article 13) or Italy: “No one may be removed from the normal judge predetermined by law”. Other constitutions state the “right to the lawful judge” in a positive way such as the Constitution of Slovenia: “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1950 and lives in Kyiv.

On 22 July 2006 the applicant’s son – a young man who was born in 1982 – left home and never returned.

On that day a young man was found severely injured and unconscious, lying in a street in Kyiv. An ambulance and the police attended the scene of the incident. According to the report of a police officer of the Podilskyy District Police Department of Kyiv (“the Police Department”), a doctor explained to him that the man had fallen from a building with a height of approximately five metres; the doctor also specified the man’s surname, which was the same as that of the applicant’s son.

The injured man was taken to hospital, where his surname was noted down slightly differently. On 29 July 2006 he died in hospital. According to the post-mortem examination, the man died from a serious craniocerebral injury; the injuries identified on the body (including the one which was fatal) could have been sustained as a result of his fall.

On 31 July 2006 the applicant – who had no information concerning the whereabouts of her son – reported his disappearance to the Police Department.

On 18 September 2006 the unclaimed body of the man found in the street was buried in a municipal cemetery.

In March 2007 the applicant was invited by the police to look at a picture of the man found in the street. The applicant found that the man very closely resembled her son.

Following the exhumation of the body of the man found in the street, forensic medical experts conducted two DNA examinations. On 14 July 2008 they concluded with 98.73% certainty that it was the body of the applicant’s son.

On 16 October 2006 the Podilsky District Prosecutor’s Office of Kyiv (“the Prosecutor’s Office”), having conducted pre-investigation enquiries, refused to open a criminal investigation into the disappearance of the applicant’s son. The Prosecutor’s Office had regard to the unsuccessful searches carried out by the police and the statements of G., K., D. and L., who had been acquaintances of the applicant’s son but could not give any information as to his whereabouts.

On 24 May 2007 the Prosecutor’s Office refused to open a criminal investigation into the incident regarding the man who had been found injured and unconscious in the street. According to that decision, the identity of the man had not been established. The Prosecutor’s Office had regard to the statements of G., K., L. and other people, who had submitted that they had known the man and that he had often talked about suicide.

On 12 September 2007 the Podilskyy District Court of Kyiv quashed the decision of 16 October 2006 as unsubstantiated, and ordered further pre-investigation enquiries.

On 25 March 2008 the Kyiv Prosecutor’s Office quashed the decision of 24 May 2007 as unsubstantiated, and ordered additional enquiries to establish the circumstances of the incident and the identity of the deceased.

In addition to the above decisions refusing to open investigations, on more than ten occasions between 2007 and 2012 the Police Department and the Prosecutor’s Office (following the pre-investigation enquiries) refused to open criminal investigations into the disappearance and death of the applicant’s son. Those decisions were quashed as unsubstantiated by the supervising courts or prosecutors, and further pre-investigation enquiries were ordered. In particular, on 3 August 2011 the Podilskyy District Court of Kyiv ordered further pre-investigation enquiries, stating that it was necessary to carry out an inspection of the scene of the incident with a forensic medical expert. Among other things, the court also stated that detailed drawings and photographs of the site had to be prepared; the expert had to be questioned in order to establish whether the applicant’s son could have fallen from the building and, if so, whether he could have sustained the injuries found on his body; and additional steps had to be taken to identify potential witnesses.

In the last decision of 9 August 2012, the Podilskyy District Prosecutor’s Office of Kyiv refused to open criminal proceedings in relation to the death of the applicant’s son. According to that decision, the man found in the street had been identified, with a high degree of certainty, as the applicant’s son. He could have sustained fatal injuries as a result of his fall; there had been no evidence of violence and the incident did not appear to have had any criminal element.