Prof. Dr. Balázs Gellér referred a case concerning confiscation of assets to the Constitutional Court. The Central Investigating Prosecutor's Office submitted a simplified review motion to the Military Council of the Metropolitan Court for the subsequent application of confiscation of assets. It requested the court to order the confiscation of the property of the accused and his partner as interested parties (the petitioners), which had been seized in the main proceedings, on the basis of the case file, pursuant to Article 77/B(1)(b) and (2) of Act IV of 1978. The Military Council of the Metropolitan Court of Appeal ordered the confiscation of the property. Dr. Balázs Gellér as defence counsel subsequently filed the constitutional complaint on behalf of his client.

In the petition, the annulment of the the court's decision on the grounds of violation of Article II, Article XXVIII(1), (3), (6) and (7) of the Fundamental Law was requested. In their view, although the defendant admitted his guilt at the trial, he did not in fact admit that he had participated in a criminal organisation. They argued that, like the indictment, the judgment did not contain the elements of a criminal organisation, which violated their right to a fair trial.

The principle of ne bis in idem was also infringed, as the prosecution wanted to deprive the petitioners of their assets twice for the same criminal organisation.

According to the petition, the principle of criminal responsibility was also violated in the case, as the courts in the case were under the mistaken assumption that the bribery served the operation of catering and entertainment establishments in which the petitioner was interested.

According to the petition, the right to a fair trial under Article XXVIII(1) of the Fundamental Law, the right of defence under Article XXVIII(3) and the right to legal remedy under Article XXVIII(7) of the Fundamental Law are infringed by the fact that the court of appeal did not serve the appeal of the prosecution and the transcript of the appeal of the prosecutor general's office on the defence in the simplified procedure. Therefore, they were not able to react to the appeal and the transcript, which were served at the same time as the order of confiscation of the assets of the court of second instance. The court of appeal also failed to inform the petitioners that it would hear the case in a deliberation session. The petition referred to the fact that the court of second instance had decided on the appeal in a deliberation session, the content of which was not known to the petitioners. The court of appeal thus made it impossible for the rights of the defence and the right to a remedy to be exercised and, since there is no place for a third instance procedure in the simplified review procedure, their right to an effective remedy was also infringed in this respect.

On 30 May 2023, the Constitutional Court decided that the constitutional complaint was admissible. 

The Constitutional Court ruled that "by failing to serve the appeal (and the prosecution transcript), the court of appeal deprived the accused (and the person interested in the property) and the defence of the right to express their views in opposition to the prosecution's motions" (para 86). Furthermore, "by failing to state the grounds of appeal and to serve the transcript of the prosecution in the present case, the court of appeal in fact deprived the accused of the opportunity to present his evidence, even though the burden of proof (that he had to prove the legal origin of the property) was undoubtedly on him" [para 89].

Finally, it held that "In the present case, therefore, Article XXVIII(1) and (3) of the Fundamental Law was infringed by the failure of the court of appeal, which had been seized of the appeal by the prosecutor in the simplified review procedure, to serve the appeal of the prosecutor on the seized person, the interested party and the defence counsel. The court of second instance prevented the seized person, the person with an interest in property and the defence counsel from exercising their procedural rights, such as the right to submit a request for evidence or to comment on the prosecution's appeal. The interpretation of the law chosen by the court of appeal is not only of significance in the light of the provisions of the Be. cited, but is also directly connected with Article XXVIII(1) and (3) of the Fundamental Law. The guarantee of access to the appeal follows from Article XXVIII(1) and (3) of the Fundamental Law, and therefore the infringement of the guarantee rules on the service of the appeal restricts the right to a fair trial and the rights of the defence and is therefore unconstitutional. [para 99]  

On 9 January 2024, in its Decision No IV/133/2023, the Constitutional Court ruled that the constitutional complaint was well-founded, that the order of the Military Council of the Metropolitan Court of Appeal No 6.SZTKbkf.12/2022/3 was unconstitutional, and therefore annulled it. 

The full decision is available here:

https://media.alkotmanybirosag.hu/2024/01/sz_iv_133_2023.pdf

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