SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27312/95
by Pál KOKAVECZ
against Hungary
The European Court of Human Rights (Second Section) sitting on 20 April 1999 as a Chamber composed of
MrC. Rozakis, President,
MrM. Fischbach,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrA.B. Baka,
MrE. Levits, Judges,
withMrE. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 December 1994 by Pál KOKAVECZ against Hungary and registered on 13 May 1995 under file no. 27312/95;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 12 May and 31 August 1998 and the observations in reply submitted by the applicant on 15 June 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Hungarian citizen born in 1959 and residing in Békéscsaba, Hungary. He is a businessman. He is represented by Mrs. G. Futaki, a lawyer practising in Békéscsaba, who was his defence counsel throughout the criminal proceedings outlined below.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.Particular circumstances of the case
On 31 March 1994 the applicant was arrested by the Békés County Police Department. Upon his arrest, the Police Department's decision was communicated to him, which he acknowledged by signing the document. According to the decision, there was a strong suspicion that the applicant had participated in the murder of Z. D., an offence under S. 166 § 1 of the Hungarian Criminal Code. The applicant was committed to the prison of the Békéscsaba Police Department.
On the same day, the Békés County Police Department searched the applicant's home and business premises and seized cash belonging to him, in the amount of 3,946,950 Hungarian forints (HUF), in pursuance of S. 101 § 1 of the Code of Criminal Procedure. His complaint was to no avail.
On 1 April 1994 the Police Department heard the applicant. On this occasion he was again informed that there was a strong suspicion that he had participated in the murder of Z. D., a businessman.
On 3 April 1994 the Békéscsaba District Court heard the applicant who denied the charge. The District Court ordered his detention on remand, holding that there was a strong suspicion that on 18 March 1994 the applicant and two further suspects had murdered Z. D. by means of multiple battery and shooting. This suspicion relied on, inter alia, witness evidence and preliminary forensic pathology expertise. The District Court found that, in the light of the serious charge against him and in accordance with S. 92 § 1 (a)-(b) of the Code of Criminal Procedure, there was a risk of the applicant's absconding or of collusion, if he had been left at large.
On 18 April 1994 the Békés County Regional Court dismissed the applicant's appeal against the detention order of 3 April 1994. The Regional Court found that the District Court had ordered the applicant's detention on remand on proper grounds.
On 25 April 1994 the Békéscsaba District Court prolonged the detention on remand until 3 July 1994, at the latest. The District Court observed that the applicant was suspected of murder. The Court considered that, had the applicant been left at large, there was a serious risk that he would hide from the authorities, abscond or obstruct the proceedings by co-operating with his accomplices. The prolongation was ordered in accordance with S. 95 § 1 and S. 379/A § 4 of the Code of Criminal Procedure. On 9 May 1994 the Regional Court dismissed the applicant's appeal.
On 13 May 1994 the Békés County Public Prosecutor's Office heard the applicant. On this occasion he said that he was satisfied with the conditions of his detention. Still on the same day he was transferred to the prison of the Szentes Police Department. On 31 May 1994 the competent Csongrád County Public Prosecutor's Office carried out a control of the prison premises, on which occasion the applicant brought no complaint about the conditions of his detention.
On 2 and 27 June 1994 the Békés County Public Prosecutor's Office repeatedly ordered the applicant to be barred from having any contact with his concubine, so as to secure the proper conduct of the investigations.
On 24 June 1994 a single judge of the Békés County Regional Court prolonged the detention on remand until 3 November 1994, at the latest. The Regional Court, referring to the state of the investigations, held that further acts of investigation of crucial importance should take place in the case and that, although the applicant denied the charge against him, a strong suspicion of his guilt prevailed. In its decision, the Regional Court referred to S. 92 § 1 (a)-(b), S. 95 § 1 and S. 379/A. § 4 of the Code of Criminal Procedure. On 19 July 1994 a panel of the Regional Court dismissed the applicant's appeal as well as his complaint about the lack of reasonable suspicion against him and about the alleged failure to inform him of the charges brought against him.
On 16 August 1994 the Békés County Police Department impounded, invoking S. 106 § 1 of the Code of Criminal Procedure, the applicant's seized money. His complaint in this respect was to no avail.
On 6 September 1994 two officers of the Szentes Police Department carried out a control of the local prison premises, on which occasion the applicant requested that the time allowed for taking baths be extended. His request was admitted.
On 14 October 1994 the Criminal Expertise and Research Institute of the National Police Department presented the opinion of an expert serologist.
On 17 October 1994 the Békés County Public Prosecutor's Office informed the applicant's lawyer that the forensic experts' opinions which had been completed by then were accessible for her to consult. Furthermore, the Public Prosecutor's Office, in reply to the lawyer's complaint of 7 July 1994 about the prohibition of contacts between the applicant and his concubine, permitted that these contacts be resumed.
On 2 November 1994 a single judge of the Békés County Regional Court prolonged the detention on remand until 3 April 1995, at the latest, finding that the results of the investigation - including witness testimonies, expertise from a mobile phone company and fire-arm tests carried out by the Criminal Expertise and Research Institute - had confirmed the strong suspicion against the applicant. The judge, referring to the relevant provisions of the Code of Criminal Procedure, considered that the reasons, which had initially necessitated the applicant's detention on remand, persisted. On 17 November 1994 a panel of the Regional Court dismissed the applicant's appeal, finding that the single judge's reasoning was correct. In particular, the Regional Court held that the risk of the applicant's collusion was considerable in the light of an incident in June 1994, when it had been established by the police that he had attempted to persuade one of the co-accused to revoke a testimony.
On 14 November 1994 the applicant was again committed to the prison of the Békéscsaba Police Department. In mid-December 1994, the applicant unsuccessfully complained to the Head of Investigations about the fact that he had to share his cell with a “gipsy” person.
On 25 January 1995 the Supreme Court rejected the complaints of the applicant's lawyer about the lawfulness of the investigation. Also on 25 January 1995 the Szeged Public Prosecutor's Investigation Office forwarded the submissions of the applicant's lawyer, questioning the lawfulness of the investigation, to the Békés County Public Prosecutor's Office.
On 20 March 1995 the Attorney General's Office informed the applicant's lawyer that her complaint of 4 August 1994 - in which she had alleged that there had been no reasonable suspicion of the applicant's guilt, that the authorities had failed to properly inform the applicant of the charges and that his detention on remand had lasted unreasonably long - had been forwarded to the Békés County Public Prosecutor's Office for further action and that a hearing of the applicant in that respect had not been considered necessary.
On 23 March 1995 the Supreme Court prolonged the detention on remand until 3 October 1995, at the latest. The Supreme Court, referring to the relevant legal provisions, stated that the reasons for detaining the applicant on remand persisted.
On 22 May 1995 the Békéscsaba District Court dismissed the applicant's request for release. On 30 May 1995 the Békés County Regional Court dismissed the applicant's appeal.
On 11 July 1995 the Békés County Public Prosecutor's Office heard the applicant. On this occasion he said that he was satisfied with the conditions of his detention.
On 12 July 1995 the applicant was transferred to the Bács-Kiskun County Prison, Kecskemét.
On 31 July 1995 the applicant's lawyer wrote a letter to the Department of Penitentiary Supervision at the Ministry of Justice. Whilst admitting that the general conditions of the applicant's detention in the Bács-Kiskun County Prison were good, the lawyer requested that the applicant be granted access to the shower facilities more often than once a week. In its answer dated 8 September 1995 the Head of the Department explained that the relevant rules in force provided that inmates should have access to shower or bathing facilities at least once a week and no exceptional treatment could be granted to the applicant in this respect.
On 15 August 1995 the Békés County Public Prosecutor's Office preferred a bill of indictment against the applicant, charging him with instigation to premeditated murder and, moreover, with abuse of fire-arms and of ammunition, an offence under S. 263/A of the Criminal Code. The indictment involved three further defendants. The Public Prosecutor's Office was relying on the results of the investigation, which involved, inter alia, the following items: findings of the inspection of the murder premises; evidence given by some sixty witnesses; forensic pathology, chemistry, toxicology, psychiatry, serology and dactylography expertise; consultants' opinions concerning physical evidence, documents, fire-arms and other weapons; and minutes of confrontation.
On 8 September 1995 the applicant's lawyer requested the Békés County Regional Court to order the applicant's release. On 15 September 1995 the Regional Court decided that the applicant's detention on remand be prolonged until the first instance court decision would be taken. On 20 October 1995 the Supreme Court dismissed the applicant's appeal.
On 12 December 1995 the applicant again requested the Békés County Regional Court to order his release.
On 8 January 1996 the applicant was transferred to the Gyula Prison.
On 11 January 1996 the Békés County Regional Court ordered the applicant's release.
On 31 January 1996, upon appeal by the Attorney General's Office, the Supreme Court quashed this decision and ordered the applicant's detention on remand from 5 February 1996.
On 21 February 1996 the applicant was finally released.
After having held eighteen court sessions between 1 November 1995 and 22 February 1996, on 29 February 1996 the Békés County Regional Court acquitted the applicant of the charge of instigation to murder and convicted the three further defendants of premeditated murder. The Regional Court established the facts relying upon, inter alia, statements made by the four co-accused as well as upon testimonies made by more than seventy witnesses and some twenty experts. Having examined the entirety of the evidence at its disposal, the Regional Court held that the applicant had not been involved in the murder. At the same time, the Regional Court convicted him of abuse of fire-arms and of ammunition and sentenced him to a fine of HUF 200,000. The Regional Court declared that the fine in question was to be regarded settled, having regard to the applicant's detention on remand between 31 March and 17 October 1994. The Regional Court also ordered that the money, which had been seized from the applicant and had subsequently been impounded, be returned to him.
On 29 January 1997 the Supreme Court, upon the applicant's appeal, re-qualified his offence as abuse of ammunition only and reduced his sentence to a fine of HUF 100,000. As to the grounds of his acquittal of the charge of instigation to murder, the Supreme Court amended the Regional Court's ruling, holding that the applicant's guilt had not been proven beyond doubt.
On 27 July 1997 the applicant brought, under Ss. 383-385/A. of the Code of Criminal Procedure, a claim for indemnification for his detention on remand. The claim is pending before the Békés County Regional Court.
B.Relevant domestic law
1. Arrest and detention on remand
According to S. 91 § 1 (b) of the Code of Criminal Procedure, a defendant may be arrested if his or her detention on remand is warranted.
Detention on remand is governed by Ss. 92 to 97 and Ss. 379/A to 380 of the Code of Criminal Procedure.
S. 92 § 1 provides as follows:
"Detention on remand of a person charged with a criminal offence can take place for crimes punishable with imprisonment, if
a.the person absconded, hid from the authorities, or, because of the severity of the crime or for other reasons there is a risk of his or her absconding;
b.there is a serious risk that the person would obstruct or render more difficult or endanger the proceedings if released;
c.the person committed a further crime, also punishable with imprisonment, during the proceedings, or there is a serious risk that he or she might complete the crime which he or she prepared or attempted to commit or that the person would commit another crime."
According to S. 93 § 1, detention on remand shall be ordered by a court. As regards the competence of the different levels of courts to decide on the prolongation of detention on remand, S. 95 provides that detention on remand, when ordered prior to the indictment, may last until the decision of the court in the preliminary proceedings before trial, up to a maximum of one month. Detention on remand can be prolonged once by the District Court for two months at the most. After three months, detention on remand can be prolonged twice by a single judge of the Regional Court, but it may not continue beyond one year after the remand order. Thereafter, detention on remand can only be extended by the Supreme Court.
S. 96 § 1 provides that the authorities must aim at keeping the length of detention on remand as short as possible. If the person charged with a criminal offence is detained on remand, the proceedings have priority. According to S. 96 § 2, detention on remand must immediately be terminated, if its reasons are no longer valid or its period expires without an extension.
S. 379/A provides that the court orders detention on remand upon the request of the public prosecutor. The latter brings the suspect before the court and notifies the defence counsel. The court then holds a hearing, where the public prosecutor presents the relevant evidence. The suspect and the defence counsel may make oral statements. The hearing can take place in the absence of the defence counsel. The public prosecutor may make a motion to the court for the extension of the detention on remand five days before the expiry of the deadline of a pending detention order. A suspect's motion for release is sent to the court via the prosecutor. The court holds a hearing when there are new circumstances necessitating it; otherwise it decides without a hearing.
S. 379/B § 1 states that the general rules on appeals against court decisions apply to appeals against court decisions ordering coercive measures unless provided otherwise in paragraphs 2 to 6. According to paragraph 2, the public prosecutor, the suspect and the defence counsel may appeal against the decision of the court. If the defence counsel was not present at the hearing, he may appeal within three days from the hearing. If the decision was taken in camera, there is a time-limit of three days from the service of the decision concerned. Furthermore, S. 379/B § 6 provides that the decision upon the appeal shall be taken, within a period of five days, by a single judge at the Regional Court, if a District Court decision is concerned, and by a chamber of the Regional Court, if a decision taken by a single judge of the Regional Court is at issue.
According to S. 380 § 2, if the Supreme Court has jurisdiction pursuant to S. 95 § 1 to decide on the prolongation of the detention on remand ordered prior to the indictment, the Prosecutor General applies for the prolongation. Paragraph 2 provides that if the period of detention on remand, as fixed by the Supreme Court, has expired without an indictment having been filed, the Prosecutor General lodges a further application for the prolongation of the detention on remand.
At all stages of the proceedings, the accused is entitled to lodge any requests and comments, moreover, to request information from the authorities about his rights and obligations under criminal procedural law, and to ask questions from any person heard at a court session, in accordance with S. 44 § 5.
2.Information of the reasons for arrest and of the charges
According to S. 132 of the Code of Criminal Procedure, if strong suspicion occurs that a person has committed an offence, the authority shall inform him or her of the substance thereof, referring to the relevant legal provisions. Minutes shall be taken of the communication of the strong suspicion to the defendant, subsequent to which he or she shall be heard (within twenty-four hours if detained).
3. Seizure and impounding of property
According to S. 101 § 1 of the Code of Criminal Procedure, the authority can seize any item, which constitutes material evidence, which can be confiscated under the law, or the possession of which is unlawful. S. 102 § 1 provides that the seizure must be terminated immediately if it is no longer necessary in the interest of the proceedings. Paragraph 5 provides that the object which should otherwise be returned to the person charged with a criminal offence can be retained as security.
S. 106 § 1 provides that, in criminal proceedings occasioned by an offence in the context of which a defendant's property may eventually be confiscated, the authority shall have the right to decide to impound the defendant's property or part of it.
4.Law-Decree no. 11 of 1979
S. 118 § 1 (d) of Law-Decree no. 11 of 1979 on the Enforcement of Punishments and Measures, as in force at the material time, provides that a person in detention on remand is entitled to correspond with his relatives and - upon approval by the public prosecutor or, after the bill of indictment has been preferred, by the trial court - with other persons and, moreover, to receive a visitor and to receive a parcel at least once a month.
According to paragraph 2, these rights - save the detainee's right to maintain contacts with his defence counsel - may be restricted [by the public prosecutor or by the trial court, whichever appropriate] in order to secure the proper conduct of the proceedings.
5.Indemnification for detention on remand
According to Ss. 383-385/A. of the Code of Criminal Procedure, a defendant who has been acquitted by the court shall be entitled to indemnification for his or her detention on remand. Such indemnification is payable by the State. The means and amount of such indemnification shall be determined according to the Civil Code rules on extra-contractual damages.
6.Official liability action
According to S. 349 §§ 1 and 3 of the Civil Code, official liability [of the State administration] may be established only if the relevant ordinary remedies have been exhausted or have not been fit to prevent damages. Unless otherwise regulated, this applies, as appropriate, to the liability for damages caused by courts or prosecution authorities.
COMPLAINTS
1.The applicant complains under Article 5 § 1 of the Convention that his detention on remand was unjustified and, under Article 5 § 3, that it lasted unreasonably long.
2.The applicant complains under Article 5 § 2 of the Convention that, upon his arrest, he was not sufficiently informed about the exact nature of the charges against him.
3.The applicant also complains under Article 6 § 2 of the Convention that the proceedings against him were not in compliance with the principle of presumption of innocence and, under Article 6 § 3, that he was not properly informed about the nature of the accusations against him and, as a consequence, could not properly exercise his defence rights. Furthermore, he complains that his acquittal of the charge of instigation to murder was based on the lack of proof and that he was erroneously convicted of abuse of ammunition.
4.The applicant further complains under Article 3 of the Convention about the conditions of his detention on remand.
5.Moreover, the applicant submits under Article 8 § 1 that, between 2 June and 17 October 1994, he was prevented from maintaining contacts with his concubine.
6.The applicant also complains, under Article 1 of Protocol No. 1, about the seizure and impounding of his money.
7.Lastly, the applicant complains that when arrested, he was not allowed by the authorities to secure his belongings. In this respect he invokes Article 5 § 5 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION AND THE COURT
The application was lodged with the European Commission of Human Rights on 15 December 1994 and registered on 13 May 1995.
On 4 March 1998 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 § 2 (b) of its Rules of Procedure.
The Government's written observations were submitted on 12 May 1998.
On 15 June 1998 the applicant submitted observations in reply to the respondent Government's observations.
On 31 August 1998 the Government submitted supplementary observations.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the European Court of Human Rights in accordance with the provisions of that Protocol.
THE LAW
1.The applicant complains under Article 5 § 1 of the Convention that his detention on remand was unjustified and, under Article 5 § 3, that it lasted unreasonably long.
Article 5 §§ 1 and 3, so far as relevant, provide:
“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: ...
c.the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
Article 34, so far as relevant, provides:
“The Court may receive applications from any person ... claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. ...”
Article 35 § 1 of the Convention provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Government submit that, in respect of his complaints under Article 5 §§ 1 and 3, the applicant has not exhausted the domestic remedies in that he has not brought an official liability action under S. 349 of the Civil Code, and the proceedings concerning his claim for indemnification under Ss. 383-385/A of the Code of Criminal Procedure are still pending. While aware of the Strasbourg institutions' case-law according to which in respect of applicants still in detention only those remedies can be considered effective which are aimed at terminating the impugned deprivation of liberty, the Government consider that, in the present case, indemnification awarded in the proceedings pending at present (or, eventually, compensation granted pursuant to an official liability action) would constitute appropriate satisfaction for the applicant, now being acquitted and at large. To duplicate these domestic proceedings with proceedings before the Court would not be compatible with the subsidiary character of the machinery of protection established by the Convention; this subsidiary character being all the more pronounced in the case of States which have incorporated the Convention into their domestic legal order and which treat the rules of the Convention as directly applicable, which is the case in Hungary. In sum, the Government are of the view that this part of the application should be rejected for non-exhaustion of domestic remedies.
Should the Court not accept their above objection, the Government submit that the complaints under Article 5 §§ 1 and 3 are manifestly ill-founded.
The applicant explains that he has not availed himself of the possibility of bringing an official liability action under S. 349 of the Civil Code, since in such proceedings the burden of proof would be his which would offer him only weak prospects of success. As to his indemnification claim brought under Ss. 383-385/A of the Code of Criminal Procedure, he submits that it would be adjudicated no sooner than in two years which renders this remedy ineffective in his case. Moreover, the participation in these proceedings of the prosecution authorities concerned prejudices the impartiality of the Regional Court.
Furthermore, he maintains that the evidence given by various witnesses during the investigations could not be regarded as having established any serious suspicion against him. His detention was, therefore, in breach of Article 5 § 1. As to paragraph 3 of that Article, the applicant submits that the investigation lasted unreasonably long and included periods of total inactivity, sometimes simply on account of holidays taken by the police officer in charge.
The Court recalls that the opportunity of preventing or putting right the violations alleged against them is in principle intended to be afforded to Contracting States by the rule of exhaustion of domestic remedies (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 19, § 36). When the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention, to duplicate the domestic process with proceedings before the Strasbourg institutions would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, pp. 30-31, § 66).
The Court considers that to be effective for the purposes of Article 35 § 1, a remedy challenging the grounds for, and the length of, protracted detention on remand must offer the perspective of termination of the impugned deprivation of liberty. However, after the termination of the pre-trial detention complained of, domestic remedies with a view to obtaining pecuniary compensation become available and are, therefore, to be exhausted in order to comply with Article 35 § 1 of the Convention.
The Court observes that at the time when the application was introduced, no issue arose as to the exhaustion of the domestic remedies which were then at the applicant's disposal with a view to the termination of his detention on remand. However, having been acquitted, the remedies designed to seek pecuniary redress for the pre-trial detention of a person subsequently acquitted became available to him, namely an official liability action and an indemnification claim to be brought pursuant to Ss. 383-385/A of the Code of Criminal Procedure. It is primarily for the individual to select which legal remedy to pursue (see, mutatis mutandis, the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 12, § 23). The parties have submitted that the applicant has availed himself of the latter possibility and that these proceedings are still pending before the Békés County Regional Court. Since these proceedings may result in compensation being awarded to the applicant for undue detention on remand, the Court finds that in the circumstances the applicant can no longer claim to be a victim for the purposes of Article 34 of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicant complains under Article 5 § 2 of the Convention that, upon his arrest, he was not sufficiently informed about the exact nature of the charges against him.
Article 5 § 2 of the Convention provides:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
The Court recalls that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed "promptly", it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 19, § 40). It is clear from the case-law of the Convention institutions that such information can be given orally or in writing (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, p. 17, § 31). Moreover, Article 5 § 2 does not require that the necessary information consists of a complete list of the charges held against the arrested person (No. 8098/77, Dec. 13.12.78, D. R. 16, p. 111).
The Court notes that on 31 March 1994 the applicant was arrested by the Békés County Police Department. On this occasion he was informed that there was a strong suspicion that he had participated in the murder of Z. D. which constituted an offence under S. 166 of the Criminal Code. Moreover, on 3 April 1994 the Békéscsaba District Court, after having heard the applicant, ordered his detention on remand, holding that there was a strong suspicion that on 18 March 1994 the applicant and two further suspects had murdered Z. D. by means of multiple battery and shooting.
In these circumstances, the Court finds that the applicant was promptly and sufficiently informed of the reasons for his arrest and of the charge against him in accordance with Article 5 § 2 of the Convention.
It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
3.The applicant also complains under Article 6 § 2 of the Convention that the proceedings against him were not in compliance with the principle of presumption of innocence and, under Article 6 § 3, that he was not properly informed about the nature of the accusations against him and, as a consequence, could not properly exercise his defence rights. Furthermore, he complains that his acquittal of the charge of instigation to murder was based on the lack of proof and that he was erroneously convicted of abuse of ammunition.
Article 6 of the Convention, so far as relevant, provides as follows:
"1.In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...
2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.Everyone charged with a criminal offence has the following minimum rights:
a.to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b.to have adequate time and facilities for the preparation of his defence;
c.to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d.to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ..."
The Court observes that on 29 February 1996 the Békés County Regional Court acquitted him of this charge, holding that he had not been involved in the murder at issue. On 29 January 1997 the Supreme Court confirmed the applicant's acquittal. As to the reasons, the Supreme Court held that the applicant's guilt had not been proven beyond doubt.
In these circumstances, the Court considers that, as regards the charge of instigation to murder, the applicant can no longer claim to be a victim of a violation of his rights under the Convention, within the meaning of Article 34 of the Convention. There is no indication that his acquittal, while being eventually based on a lack of proof, left behind any suspicion as to his innocence or entailed any adverse consequences for him (see the Sekanina v. Austria judgment of 25 August 1993, Series A no. 266-A, pp. 15-16, § 30).
As regards the applicant's complaint concerning his conviction of abuse of ammunition, the Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the engagements undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf. the García Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court's official reports).
The Court notes that on 29 February 1996 the Békés County Regional Court convicted the applicant of abuse of fire-arms and of ammunition and sentenced him to a fine of HUF 200,000. On 29 January 1997 the Supreme Court, upon the applicant's appeal, re-qualified his offence as abuse of ammunition only and reduced his sentence.
The Court considers that the applicant's submissions in this respect do not disclose any appearance of a violation of his rights under the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
4.The applicant further complains about the conditions of his pre-trial detention.
He invokes Article 3 of the Convention which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The Government submit that the applicant could have pursued complaint proceedings before the competent police or prison services, the prison governors or the competent public prosecutors charged with the supervision of the execution of penalties, in default of which he failed to exhaust the relevant domestic remedies. As to the merits of this complaint, the Government maintain that the conditions complained of did not attain the minimum level of severity so that they might be qualified as a violation of Article 3.
As regards the conditions at the prison of the Szentes Police Department, the applicant submits that his cell, accommodating two persons, was of a ground surface of 11.5 square metres and had no window. Moreover, he alleges that in the prison of the Békéscsaba Police Department he had to share his two-person cell sometimes with another three inmates. In this and the Gyula Prison he could not watch television in the absence of electricity in the cell and had access to the shower facilities only once a week.
The Court notes that in September 1994 the applicant successfully requested that the time allowed for taking baths in the prison of the Szentes Police Department be extended. Moreover, on 13 May 1994 and 11 July 1995 the Békés County Public Prosecutor's Office heard the applicant who made no complaint about the conditions of his detention, either on these occasions or on 31 May 1994 when those conditions were controlled by the Csongrád County Public Prosecutor's Office.
The Court finds that the applicant has failed to show that in this respect he exhausted the remedies available to him under Hungarian law, notably, the complaint proceedings before either the police and prison or the prosecution authorities. It follows that this part of the application must be rejected under Article 35 § 4 of the Convention for non-exhaustion of domestic remedies.
Furthermore, as regards the applicant's unsuccessful complaints of December 1994 that he had to share his cell with a “gipsy” person and of July 1995 about more frequent access to shower facilities, the Court finds no appearance of violation of Article 3 of the Convention. These complaints are therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
5.The applicant submits under Article 8 § 1 that, between 2 June and 17 October 1994, he was prevented from maintaining contacts with his concubine.
Article 8 of the Convention, so far as relevant, provides as follows:
"1.Everyone has the right to respect for his private and family life ... .
2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of ... crime ... ."
The Court notes that on 2 and 27 June 1994 the County Public Prosecutor's Office ordered, so as to secure the proper conduct of the investigations, that the applicant could not have any contact with his concubine. On 17 October 1994, the County Public Prosecutor's Office, in reply to the lawyer's complaint of 7 July 1994, permitted that these contacts be resumed. The applicant was thus prevented from receiving visits by his concubine for some four and a half months.
The Court considers that this prohibition was an interference with the applicant's right to respect for his private life, as enshrined in Article 8 § 1 of the Convention. Such an interference can be justified under paragraph 2, if it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.
The Court observes that S. 118 of Law-Decree no. 11 of 1979 provided a legal basis for the impugned restriction, which was consequently prescribed by law. Moreover, the County Public Prosecutor's Office pointed out that the prohibition aimed at ensuring the proper conduct of the criminal investigations. In these circumstances, the Court is satisfied that the interference had as its aim "the prevention of disorder or crime". In accordance with the Court's case-law, the pursuit of this objective may justify wider measures of interference in the case of a convicted prisoner than in that of a person at liberty and the same reasoning may be applied to a person being held on remand and against whom inquiries with a view to bringing criminal charges are being made since in such a case there is often a risk of collusion (see the Schönenberger and Durmaz v. Switzerland judgment of 20 June 1988, Series A no. 137, p. 13, § 25).
As regards the question of necessity, the Court notes that the prohibition was applied at a rather early stage of the investigations and, given the seriousness of the charges brought against the applicant, the domestic authorities might have had legitimate concerns about possible collusion in the case. Furthermore, in the light of the length and complexity of the investigations, the duration of the prohibition cannot be considered disproportionate with the legitimate aim pursued.
In these circumstances, the Court considers that the interference with the applicant's rights can reasonably be regarded as justified under Article 8 § 2 of the Convention.
It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
6.The applicant further complains about the seizure and impounding of his money. He invokes Article 1 of Protocol No. 1. which, so far as relevant, provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”
The Court notes that on 31 March 1994 the Békés County Police Department seized cash belonging to the applicant in the amount of HUF 3,946,950 in pursuance of S. 101 § 1 of the Code of Criminal Procedure. On 16 August 1994 the Békés County Police Department, invoking S. 106 § 1 of the Code of Criminal Procedure, impounded the seized amount of money. By virtue of the judgment of 29 February 1996, the applicant recovered the sum of money concerned.
In these circumstances, the Court finds that the seizure and impounding of the applicant's money was ordered in compliance with the Hungarian law and that these measures constituted justified control of the applicant's property by serving the public interest in the proper administration of justice. Moreover, the seizure was subsequently lifted and the money was returned to the applicant.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
7.The applicant finally complains that he, when arrested, was not allowed by the authorities to secure his belongings. He invokes Article 5 § 5 of the Convention.
The Court considers that the applicant's submissions in this respect lack any substantiation. It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy