CASE OF GÁBOR NAGY v. HUNGARY

SECOND SECTION

CASE OF GÁBOR NAGY v. HUNGARY

(Application no. 33529/11)

JUDGMENT

STRASBOURG

11 February 2014

FINAL

11/05/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gábor Nagy v. Hungary,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Guido Raimondi, President,
Işıl Karakaş,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 14 January 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 33529/11) 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 Hungarian national, Mr Gábor Nagy (“the applicant”), on 27 May 2011.

2. The applicant was represented by Mr T. Varga, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3. The applicant complained in particular that his detention on remand had been unjustified and lasted an unreasonably long time. He relied on Article 5 § 1 and Article 6 §§ 1 and 3 (b) and (c) of the Convention. Furthermore, he complained under Article 5 § 4 that the principle of “equality of arms” had not been respected when he had been challenging his detention.

4. On 21 November 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1990 and lives in Budapest.

6. On 4 December 2010 the applicant and his alleged accomplice were apprehended by the police.

On 6 December 2010 the applicant’s pre-trial detention was ordered by the Pest Central District Court on charges of multiple thefts by breaking into three cars and attempting to break in a fourth (all committed in one day, in the approximate value of altogether 400 euros), for fear of repetition of crime under section 129 (2) of the Criminal Procedure Code. In its reasoning the court noted that the applicant did not have a job or any other income and that the criminal acts allegedly committed were of serial nature.

The applicant was present at this hearing without his public defender attending.

On 14 December 2010 the Budapest Regional Court, acting as a second-instance court, dismissed his appeal, reiterating that the applicant was unemployed without income and adding that no less restrictive measure could be applied.

7. On 20 December 2010 the applicant applied for release, arguing that the courts had not specified any facts supporting the perceived risk of repetition of crime. He submitted documents showing that he was about to be employed and that his mother was willing to pay for his living expenses until his salary became available. He also referred to the fact that he had no criminal record.

8. On 12 January 2011 the Pest Central District Court refused the release application, without hearing the applicant or refuting the applicant’s arguments for his release. It repeated, in a rather stereotyped manner, that the serial nature of the crimes allegedly committed by the applicant and his financial circumstances gave rise to the risk of repetition of crime.

On 22 February 2011 the Regional Court dismissed the applicant’s appeal, without holding a hearing.

All these proceedings took place entirely in writing.

9. Meanwhile the prosecution requested the prolongation of the applicant’s detention but did not inform his lawyer of this motion. On 28 December 2010 the prolongation was ordered until 6 March 2011, without hearing the applicant. In these proceedings the findings of the court remained the same, namely that the applicant not having either an employment or any income would reoffend, that is, continue with the serial crime he was accused of. Simultaneously, a further application for release submitted by the applicant’s alleged accomplice was dismissed.

10. On 19 January 2011 the Regional Court dismissed the applicant’s appeal against the prolongation order, without the applicant attending; the court was satisfied that the applicant’s unemployment and the serial nature of the alleged criminal acts justified his continued detention on remand.

11. A further prolongation request was processed by the District Court on 3 March 2011. Although this time the defence had been notified, the court did not await its observations on prolongation, and maintained the applicant’s detention, in essence relying on the grounds previously quoted.

However, the applicant successfully appealed and was released on 13 April 2011. The Regional Court noted that the applicant’s financial situation was secured, pointed out that the mere fact that a suspect was unemployed did not establish the risk of repetition of crime, especially since he had no previous criminal record, and, moreover, that several counts of larceny committed in one day did not qualify as serial crime.

II. RELEVANT DOMESTIC LAW

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

Section 129

“(2) Pre-trial detention of a defendant may take place in a procedure related to a criminal offence punishable by imprisonment, and only under the following conditions: ...

b) if, owing to the risk of escaping or absconding, or for other reasons, there is reasonable cause to believe that the presence of the defendant in procedural actions cannot be otherwise ensured,

c) if there is reasonable cause to believe that if left at liberty, the defendant would frustrate, obstruct or jeopardise the taking of evidence, especially by means of influencing or intimidating witnesses, or by the destruction, falsification or secretion of physical evidence or documents, ...

d) if there is reasonable cause to believe that if left at liberty, the defendant would accomplish the attempted or planned criminal offence or commit another criminal offence punishable by imprisonment.”

Section 130

“(2) Instead of pre-trial detention, the court may impose a home detention, house arrest or restriction order.”

Section 131

“(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention. Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.”

Section 133

“(1) The court shall examine the motion to terminate the pre-trial detention in its merit, and deliver a reasoned decision thereon. Repeated motions may be rejected by the court without substantial justification, unless the defendant or the counsel for the defendant invokes new circumstances.”

Section 136

“(1) The court, the prosecutor and the investigating authority shall take all necessary steps to reduce the term of the pre-trial detention as much as possible. If the defendant is held in pre-trial detention, an extraordinary procedure shall be conducted.”

Section 210

“(1) The investigating judge shall hold a session if the motion pertains to the following subjects:

a) the [first] ordering of a coercive measure entailing the restriction or deprival of personal freedom ...,

b) the extension of pre-trial detention or house arrest, if a new circumstance [as opposed to the previous decisions] has been proposed [by the prosecution] to justify the prolongation of the measure ...”

Section 211

“(3) At the [court] session, the [prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence ... If a notified party does not attend the session but submitted observations in writing, this document shall be presented by the investigating judge.

(4) The investigating judge shall examine whether the statutory requirements related to the motion have been met, whether there are any obstacles to the criminal proceedings and whether the motion is substantiated beyond reasonable doubt. In the cases specified in Sections 210 (1) a) to d) this examination shall also extend to the personal circumstances of the suspect.”

Section 214

“(1) Unless provided otherwise in this Act, the investigating judge shall deliver a ruling with the explanation of the reasons within three days following the submission of the motion, in which he consents – either wholly or partially – to the motion or rejects the motion. The explanation shall include the substance of the motion, the brief description and classification of the criminal offence underlying the procedure and state whether the statutory requirements related to the motion exist or are absent. If the investigating judge rejects the motion, the motion may not be repeated on identical grounds.”

Section 215

“(1) A decision of the investigating judge may be appealed by all those parties who have been notified thereof. Any appeal against a decision notified by way of oral pronouncement shall be lodged [orally] immediately after the pronouncement. ...

(5) Regardless of an appeal, the order for a coercive measure entailing the restriction on deprivation of personal freedom may be executed [at once].”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

13. The applicant complained that his detention had been unjustified and its prolongations undue, since the courts had failed to produce any concrete elements underlying the necessity of this measure – and this without the attendance of his public defender at the first hearing concerning his detention on remand. He relied on Article 5 § 1 and Article 6 §§ 1 and 3 (b) and (c) of the Convention.

14. The Court considers that these complaints fall to be examined under Article 5 § 3 of the Convention, together with the applicant’s complaint about the length of his pre-trial detention.

Article 5 § 3 reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

15. The Government contested that argument.

A. Admissibility

16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

17. The applicant complained that the decisions prolonging his detention had not been individualised. He submitted that there had been no circumstances justifying the fear that he would reoffend. He pointed out that the domestic courts had failed to assess the possibility of applying less stringent measures. Moreover, the arguments of the defence had largely remained unanswered.

18. The Government submitted that the applicant’s pre-trial detention had been based on specific facts related to his case in accordance with section 129(2) b), c) and d) of the Code of Criminal Procedure. His personal circumstances had duly been considered in an ever-increasing manner as time had been passing. Likewise, the possibility of applying less stringent measures had not been overlooked by the courts; indeed, it had been this consideration that led to the applicant’s eventual release.

19. The Court reiterates that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual, and as such its importance is paramount (see Castravet v. Moldova, no. 23393/05, § 29, 13 March 2007). Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see Lukanov v. Bulgaria, 20 March 1997, § 41, Reports of Judgments and Decisions 1997‑II; Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II, § 46; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004‑VII).

20. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see Yağcı and Sargın v. Turkey, 8 June 1995, § 52, Series A no. 319‑A).

21. The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI).

22. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Assenov and Others v. Bulgaria, 28 October 1998, § 154, Reports 1998‑VIII).

23. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see Contrada v. Italy, 24 August 1998, § 54, Reports 1998‑V; Toth v. Austria, 12 December 1991, § 67, Series A no. 224). Moreover, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among many authorities, Szepesi v. Hungary, no. 7983/06, §§ 23 to 25, 21 December 2010).

24. Turning to the circumstances of the present case, the Court notes that the applicant was arrested on 4 December 2010 and was released 13 April 2011. The period to be examined is therefore four months and nine days.

25. The Court is mindful of the fact that the majority of length-of-detention cases decided in its judgments concern longer periods of deprivation of liberty and that, against that background, four months and nine days may be regarded as a relatively short period in detention. Article 5 § 3 of the Convention, however, cannot be seen as authorising pre-trial detention unconditionally provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Belchev v. Bulgaria, no. 39270/98, § 82, 8 April 2004).

26. The Court observes that, in the present case, there has been a dispute between the parties as to whether the grounds given by the judicial authorities for the applicant’s continued detention were “relevant” and “sufficient”, especially in the face of the requisite individualised assessment of the particular circumstances of the detainee and of the case (see, in the context of Article 5 § 1, Darvas v. Hungary, no. 19547/07, §§ 27 to 29, 11 January 2011).

27. The Court notes that, after the applicant had been arrested on 4 December 2010 on suspicion of theft by breaking-in three cars and attempting to break in a fourth on the same day, he was brought before the investigative judge of the Pest Central District Court who ordered his one-month detention on the ground of the risk that he would reoffend – and this without a public defender being present.

28. In its reasoning, the District Court relied on the repetitive nature of the criminal acts and the fact that the applicant was unemployed without regular income. The same approach was taken by the Budapest Regional Court which, acting as a second-instance court upon the applicant’s appeal, endorsed the District Court’s reasoning, adding, although without further explanation, that no less restrictive measure could have been applied against the applicant.

29. In the subsequent detention orders and the decisions dismissing the applicant’s motion for release, the domestic courts cited the likelihood that the applicant would reoffend as a ground justifying his continued detention (see paragraphs 8, 9, 10 and 11 above). In this connection, the Court observes that the judicial authorities, in assessing whether there was a risk that the applicant would reoffend, gave no consideration to the applicant’s submissions concerning his future employment and his mother’s willingness to support him financially until then.

30. In the Court’s view, the judicial orders on the applicant’s pre-trial detention were based on a standard formula that the detention was justified, since the applicant had no employment and might commit new offences. No more elaborate reasons were put forward to justify the need for the continued detention, especially in the face of the fact that the applicant had no previous criminal record.

The Court further notes the reasoning of the decision of the Budapest Regional Court on the termination of the applicant’s pre-trial detention, stating that the applicant’s financial situation was secured, and that it could not be deduced from the mere lack of employment that a person, with no previous criminal record, was inclined to commit new offences (see paragraph 11 above).

31. The Court further finds that during the entire period which the applicant spent in pre-trial detention, no genuine consideration appears to have been given to the possibility of imposing on him other, less stringent measures, such as bail or house arrest, expressly provided for by Hungarian law.

32. In sum, the Court concludes that the domestic authorities’ decisions were not based on an analysis of all the pertinent facts. They took no notice of the arguments in favour of the applicant’s release pending trial.

33. Having regard to the above, the Court considers that by failing to refer to concrete relevant facts or consider alternative, less stringent measures, the authorities extended the applicant’s detention on grounds which, if “relevant”, cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of four months and nine days.

34. The Court therefore finds that there has been a violation of the applicant’s right under Article 5 § 3 of the Convention to trial within a reasonable time or to release pending trial.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

35. The applicant also complained that the proceedings by which he sought to challenge his detention had not been in conformity with the guarantees provided under Article 5 § 4 of the Convention.

36. Article 5 § 4 of the Convention provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

37. The Government contested that argument.

A. Admissibility

38. The Government submitted that the applicant should have filed an action in compensation with the civil courts claiming that the judicial authorities frustrating his right to the “equality of arms” caused him damages. Having failed to do so, he had not exhausted domestic remedies.

39. In reply the applicant stressed that a tort action would have not remedied the flows in the proceedings concerning his release from detention. In any case, he had appealed against the decisions of the investigative judge, which in his view was sufficient to exhaust domestic remedies.

40. The Court considers that it is not necessary to embark on a closer scrutiny of the parties arguments’ about the adequacy of a civil action in the circumstances, since the Government have not produced any evidence to show that such an action has proved effective in similar cases and would consequently constitute a remedy to be exhausted in the circumstances.

41. It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies. Moreover, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

42. The applicant argued that he had no opportunity to participate in the proceedings conducted with a view to prolonging his detention or adjudging his request for release. Moreover, he alleged that the prosecution’s motion resulting in the prolongation of 28 December 2010 was not served on his representative and the one dating 25 February 2011 was served only belatedly.

43. The Government submitted that since the applicant had not brought an official liability action against the authorities allegedly responsible for the impugned shortcomings of the detention proceedings, the facts of the case could not be established on the domestic level. Consequently, they were not in a position to dispute the applicant’s allegations on the merits.

44. The Court recalls that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1 of his or her deprivation of liberty (see Brogan and Others v. the United Kingdom, 29 November 1988, § 65, Series A no. 145‑B). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237‑A), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see Nikolova v. Bulgaria (no. 2), no. 40896/98, § 58, 30 September 2004; Sanchez-Reisse v. Switzerland, 21 October 1986, § 51, Series A no. 107; and Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318‑B).

45. Given the specific nature of the procedure under Article 5 § 4 of the Convention, involving the authorities’ obligation to conduct a speedy review of the lawfulness of a person’s continued detention, the Court reiterates that a requirement of a hearing in the examination of each objection to a detention order might entail some paralysis of the criminal proceedings. Consequently, the procedural requirements inherent in this provision do not oblige the authorities to hold a hearing every time such an objection is lodged, unless there are special circumstances requiring a hearing (see Çatal v. Turkey, no. 26808/08, § 40, 17 April 2012). The right to be heard by the judge on the applications against detention must be exercised at reasonable intervals (see Ceviz v. Turkey, no. 8140/08, § 45, 17 July 2012).

46. Turning to the facts of the present case, the Court observes the applicant’s submissions according to which during the entire period of his detention, that is, for over four months, he was heard once only as to the justification of the deprivation of liberty. The periodic reviews of his detention as well as his request for release were adjudicated in written procedure.

47. The Court further notes the Government’s submissions (see paragraph 43 above) in reply. They adduced no evidence to the effect that a detention hearing took place in reasonable time before or after the introduction of the applicant’s motion for release, which could have exculpated the authorities from not having decided this motion in oral proceedings (compare and contrast Çatal, cited above, § 41).

48. In the present case, the Court is not persuaded that the applicant was heard as to the justification of his detention at reasonable intervals, all the more so since his request for release was adjudged in solely written procedure. In particular, the period of some four months cannot be regarded as a reasonable interval (see Erişen and Others v. Turkey, no. 7067/06, § 51, 3 April 2012). In reaching this finding, the Court also takes into consideration the fact that the applicant’s pre-trial detention was initially ordered without a public defender being present (see paragraph 6 above) – and this in the face of the seriousness of the charges – and, moreover, that the domestic courts paid no heed to the applicant’s arguments submitted to support his release (see paragraph 8 above). Furthermore, it is of relevance that the applicant’s lawyer was not informed in due time of a prolongation motion (see paragraph 9 above) and that, on another occasion, the court did not await the defence’s observations on prolongation (see paragraph 11 above).

For the Court, the combined effect of these anomalies resulted in a situation where it cannot be maintained that the applicant’s rights enshrined under Article 5 § 4 in respect of the “proceedings by which the lawfulness of his detention” were decided were respected.

Consequently, there has been a violation of that provision.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicant claimed 3,500 euros (EUR) in respect of pecuniary damage. This amount corresponds to income lost during his detention. Moreover, he claimed EUR 3,000 in respect of non-pecuniary damage.

51. The Government contested these claims.

52. 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 the full amount in respect of non-pecuniary damage.

B. Costs and expenses

53. The applicant also claimed altogether EUR 2,000 in respect of the costs sustained in the domestic proceedings and before the Court. Of this sum, EUR 1,100 plus VAT correspond to the costs and expenses incurred before the Court, being the equivalent of 11 hours of legal work billable by his lawyer at an hourly rate of EUR 100 plus VAT.

54. The Government contested this claim.

55. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court dismisses the costs claim relating to the domestic proceedings; and considers it reasonable to award the full sum claimed in respect of the application before it, that is, EUR 1,100.

C. Default interest

56. 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 application admissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4. 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 3,000 (three thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,100 (one thousand one 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

 

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