GALAMBOS v. HUNGARY - 13312/12 - Chamber Judgment [2015] ECHR 729 (21 July 2015)

In the case of Galambos v. Hungary,

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

          Işıl Karakaş, President,
          András Sajó,
          Nebojša Vučinić,
          Paul Lemmens,
          Egidijus Kūris,
          Robert Spano,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 30 June 2015,

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

PROCEDURE

1. The case originated in an application (no. 13312/12) against 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 Lajos Galambos (“the applicant”), on 27 February 2012.

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

3. The applicant alleged, in particular, that his pre-trial detention and house arrest was unjustified and the proceedings on his release applications were not in compliance with the principle of “equality of arms”. He relied on Article 5 of the Convention.

4. On 28 August 2014 these complaints were communicated to the Government. The applicant’s further complaints under Articles 6, 8 and 14 were declared inadmissible.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Budapest.

6. On 28 June 2011 the applicant, a retired army general, was apprehended on charges of spying.

On 1 July 2011 the court placed him under house arrest. Upon the prosecution’s appeal, his pre-trial detention was ordered on 14 July 2011 for fear of absconding. He was detained at Budapest Penitentiary’s Maglódi Facility. He submitted that while he had been in detention, the prison staff had very often switched on the light in his cell disturbing his night rest.

The applicant’s requests for release were to no avail, although he demonstrated that he could have absconded during the house arrest but had not. In the face of his arguments that he had no criminal history, was nearly 60 years old with a settled background and family situation, the court insisted on the argument that, because of his connections abroad, there was a risk that he might nevertheless abscond.

7. On 30 September 2011 the investigation was terminated and the case file presented to the applicant and his lawyer.

8. On 11 November 2011 the Military Bench of the Budapest Court of Appeal quashed a previous detention order of the Military Bench of the Budapest High Court and remitted the case to it. In the applicant’s view, this was procedurally incorrect, since the Court of Appeal should have decided on the merits, rather than remitting the case.

9. The applicant was in pre-trial detention until 6 April 2012. After that date, he was under house arrest again until 13 March 2013. Subsequently, he was released but restricted to the village of Szada.

10. The applicant unsuccessfully filed requests for release on 27 July and 30 September 2011. Moreover, on 14 November 2011, 9 January and 7 November 2012 and 1 March 2013 he unsuccessfully appealed against the court decisions prolonging the pre-trial detention or house arrest.

11. According to the applicant - a submission uncontested by the Government - the orders prolonging the coercive measures reiterated, in a rather stereotypical manner, the risk of his absconding, although without specifying any particular risk other than his foreign connections. Moreover, whenever prolongation motions or requests for release were decided on in oral proceedings, the prosecution’s motions were communicated to the defence only at the hearing, not before. Whenever the decisions prolonging the coercive measure were adopted without a court session, that is, in written proceedings, the prosecutorial motions had not been served to the defence at all.

12. On 5 July 2013 the applicant was convicted of spying and sentenced to two years and 10 months’ imprisonment. The procedure appears to be still pending.

THE LAW

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

13. The applicant complained that his prolonged pre-trial detention and house arrest had been unjustified. He relied on Article 5 § 1 of the Convention.

The Court considers that this issue falls to be examined under Article 5 § 3 of the Convention, which 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.”

14. The Government contested that argument.

A. Admissibility

15. 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

16. The applicant maintained that the length of his pre-trial detention and house arrest had been in breach of the “reasonable time” requirement of Article 5 § 3 and that the decisions prolonging his detention had not been individualised or contained sufficient reasoning. The applicant reiterated that the domestic court had not taken into account his personal circumstances and the risk of his absconding had not been properly substantiated, because no particular risk other than his foreign connections had been referred to. He submitted that the facts of the case were not complicated and all the factual data had been available to the authorities at the very beginning of the criminal proceedings, thus the excessive length of the investigation and of the coercive measures had been unjustified.

17. The Government submitted that the applicant’s personal circumstances had been duly considered, in an individualised manner. They reiterated that espionage was a serious criminal offence. The type and the severity of this crime justified that the applicant had been detained on remand and that this measure had then been prolonged repeatedly. However, the courts had referred to and taken into account further aspects in addition to the severity of the offence. Moreover, the possibility of applying less stringent measures had not been overlooked, since the courts had ordered house arrest on 1 July 2011 and again on 6 April 2012.

18. The Court notes that the applicant was under house arrest from 1 July 2011 and then, upon the prosecution’s appeal, he was detained on remand on 14 July 2011. His pre-trial detention was transformed into house arrest again on 6 April 2012. He was released from house arrest and restricted to the village of Szada on 13 March 2013.

19. The Court has already held that house arrest constitutes deprivation of liberty within the meaning of Article 5 (see Mancini v. Italy, no. 44955/98, § 17, ECHR 2001-IX; Vachev v. Bulgaria, no. 42987/98, §§ 64, 70, ECHR 2004-VIII (extracts); Nikolova v. Bulgaria (no. 2), no. 40896/98, §§ 60, 74, 30 September 2004). The Court notes that both the house arrest and the pre-trial detention were detentions with the purpose of bringing the applicant before the competent court and fall within Article 5 § 1 (c). Therefore, it follows from Article 5 § 3 that the applicant was entitled to a trial within a reasonable time or to be released pending trial. The total period to be examined, involving house arrest and detention on remand, is thus one year, eight months and thirteen days.

20. Under the Court’s case-law, the issue of whether a period of detention or house arrest is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention or under house arrest 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.

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention or the house arrest 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.

The persistence of reasonable suspicion that the person deprived of his liberty 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. Where such grounds were “relevant” and “sufficient”, 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, and Idalov v. Russia [GC], no. 5826/03, § 139-141, 22 May 2012).

21. In the present case, the Court sees no reason to doubt that the applicant’s pre-trial detention and subsequent house arrest were based on a reasonable suspicion of his having committed a criminal offence: the applicant was deprived of his liberty on the basis of a suspicion that he had committed espionage. His continued deprivation of liberty took two different forms, namely pre-trial detention between 14 July 2011 and 6 April 2012, and house arrest between 1 and 14 July 2011 and between 6 April 2012 and 13 March 2013.

22. The Court notes that there is a dispute between the parties as to whether the grounds given by the judicial authorities for these coercive measures were “relevant” and “sufficient”, especially in the face of the requisite individualised assessment of the particular circumstances of the applicant and of the case (see, in the context of Article 5 § 1, Darvas v. Hungary, no. 19547/07, §§ 27 to 29, 11 January 2011).

23. With regard to the pre-trial detention, the Court notes that it lasted from 14 July 2011 until 6 April 2012, that is, for almost nine months. During this period, the courts made repeated references to the risk of the applicant’s absconding. While the Court accepts that this consideration was “relevant” to the applicant’s case, it finds that, as time elapsed, it was gradually less and less “sufficient”. In particular, no reasons - other than the applicant’s foreign connections - were advanced at any stage of the proceedings for assuming that he might abscond. Considering the fact that before the pre-trial detention the applicant had been under house arrest for fourteen days and during this period he could have absconded but did not, and moreover no attempt on his part to reach his foreign connections was demonstrated by the authorities, the Court does not find the repeated references to the risk of his absconding satisfactory.

24. Moreover, it has to be ascertained whether the reasons relied on by the authorities for keeping the applicant in custody applied with unaltered relevance throughout his ensuing house arrest, which lasted a considerable amount of time, twelve months. In this connection, the Court notes that during this period, the courts again made repeated references to the risk of his absconding. However, his foreign connections apart, no concrete elements were held against the applicant during this period either - and this in the face of his age and settled personal circumstances and the absence of criminal record. Indeed, the courts’ reasoning for prolonging the applicant’s detention was rather stereotyped on most occasions and devoid of the requisite elements substantiating any specific risks.

Since the reasons relied on by the authorities were not “sufficient” for the above reasons - and because of the authorities’ apparent failure duly to consider alternative, less stringent measures for ensuring appearance at trial (see Aleksandr Dmitriyev v. Russia, no. 12993/05, §§ 53 to 59, 7 May 2015; Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000) - it is not necessary to examine whether the proceedings were conducted with “special diligence” by those authorities (see paragraph 20 above).

25. Having regard to the foregoing considerations, the Court finds that the authorities failed to justify the applicant’s continued deprivation of liberty. There has accordingly been a violation of Article 5 § 3 of the Convention.

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

26. The applicant also complained about the non-respect of the principle of “equality of arms” in the proceedings concerning his requests for release. He relied on Articles 5 § 4 and 13 of the Convention.

The Court considers that this issue falls to be examined under Article 5 § 4 alone, this provision being lex specialis in relation to the more general requirements of Article 13 (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009).

Article 5 § 4 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.”

27. The Government contested that argument.

A. Admissibility

28. 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

29. The applicant maintained that neither he nor his defence counsel had received the prosecution’s motions on the prolongations and on the requests for release prior to the court sessions, thus they had had no chance to learn the content of these motions in good time. Because of this, they had not been able to present any material arguments before the court, especially on those occasions when the prolongations took place in a purely written procedure: for want of a hearing, the failure to serve the motions beforehand then resulted in a situation in which the defence remained completely unaware of the prosecution’s arguments.

30. The Government submitted that - since the prosecutorial motions for the applicant’s pre-trial detention contained classified information - there had not been any legal ground for serving those motions on the applicant or his defence counsel either by fax or by post. This was so because, pursuant to section 70/C (3) a) of the Code of Criminal Procedure, any document containing classified information may exclusively be served at the court, at the prosecutor’s office or on the premises of the investigating authority. The applicant and his defence counsel had been served with the prosecutorial motions at the court, during the sessions or during the breaks between sessions, thus they had had an opportunity to express their position on the motions every time when there was a hearing.

31. The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to the investigation file in so far as it is essential in order effectively to challenge the lawfulness of his client’s detention (see Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001).

32. The Court reiterates that in Lamy v. Belgium the Court found a violation of Article 5 § 4 because the defence had had no access to documents which would have enabled the applicant to challenge his detention (judgment of 30 March 1989, § 29, Series A, no. 151). In Garcia Alva (cited above, § 42), the Court held that “information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect’s lawyer”. In this context the duty of disclosure is not the same as under Article 6 of the Convention; however, the “essential” materials should be made available to the defence some time in advance (see Khodorkovskiy v. Russia, no. 5829/04, § 226, 31 May 2011), securing for the defence a real opportunity to produce counter-arguments.

33. The Court also notes the Government’s argument (see paragraph 30 above) that, since the prosecutorial motions contained classified information, there was no legal ground for serving those motions on the applicant and his defence counsel either by fax or by post. However, the legislation does not appear to prevent, as such, the authorities from serving the motions in advance on the suspect or his lawyer, whilst complying with the applicable laws on protection of classified information; and it is incumbent on those authorities to find appropriate ways to enable the defence to have the requisite access. In the Court’s view, the efficient management of classified information during criminal proceedings, albeit a legitimate goal, cannot be pursued at the expense of substantial restrictions of the rights of the defence of the applicant (see A. and Others, cited above, §§ 202 et seq. and the references quoted therein).

34. The Court observes in particular that the applicant filed requests for release on 27 July and 30 September 2011. Moreover, on 14 November 2011, 9 January and 7 November 2012 and 1 March 2013 he appealed against the court decisions prolonging the pre-trial detention or house arrest. According to the applicant’s submissions, unrefuted by the Government, in none of these proceedings was the defence provided with the motions of the prosecution in due time, as it was done only during the court sessions. Moreover, when the delivery of the decisions prolonging the coercive measure or dismissing the request for release took place without a court session, the defence was not provided with the prosecutorial motions at all (see paragraphs 10 and 11 above).

35. In the light of the above, the Court notes that - at least on such occasions when the decisions in question were adopted in purely written proceedings - the applicant and his lawyer did not have the chance to take cognisance of the content of the motions for prolonging the coercive measures and proposing to dismiss the requests for release before the decision of the court. Consequently, since the defence was not able to present any material arguments before the court in an informed manner in those situations, the Court considers that the applicant could not effectively exercise his defence rights in the written proceedings concerning the review of the lawfulness of his pre-trial detention. In view of this finding, the Court does not find it necessary to deal with the adequacy of the defence’s access to the prosecutorial motions on occasions of oral proceedings, if any.

36. Accordingly, there has been a violation of Article 5 § 4 of the Convention regarding the non-respect of the principle of “equality of arms”.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

37. The applicant also complained that while he had been in pre-trial detention, the prison staff had regularly disturbed his night rest by switching on the light in his cell. He relied on Article 3 in this respect.

The Court notes that this complaint has not been substantiated in any manner by the applicant. In any case, even assuming that the conduct complained of reaches the minimum threshold of severity for the purposes of Article 3 of the Convention, the applicant has not demonstrated that he pursued any complaint procedure or other remedy before the domestic authorities.

38. The Court thus considers that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. 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

40. The applicant claimed 132,000 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damage.

41. The Government contested these claims.

42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on the basis of equity, it awards the applicant EUR 6,500 under this head.

B. Costs and expenses

43. The applicant also claimed EUR 7,800 for the costs and expenses incurred before the Court. This sum corresponds to 52 hours of legal work billable by his lawyer at an hourly rate of EUR 150.

44. The Government contested this claim.

45. 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 considers it reasonable to award the sum of EUR 3,000 covering costs under all heads.

C. Default interest

46. 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 complaints under Article 5 §§ 3 and 4 admissible and the remainder of the application inadmissible;

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 the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand 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 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
Registrar President

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