GABOR NAGY v. HUNGARY (No. 2) - 73999/14 (Judgment : No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) Violation of Article ...) [2017] ECHR 350 (11 April 2017)

In the case of Gábor Nagy v. Hungary (no. 2),

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

          Vincent A. De Gaetano, President,
          András Sajó,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 21 March 2017,

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

PROCEDURE

1. The case originated in an application (no. 73999/14) 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 Gábor Nagy (“the applicant”), on 17 November 2014.

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

3. The applicant complained under Article 5 §§ 1, 3 and 4 of the Convention that his detention had been unjustified and unduly protracted and that the proceedings concerning his applications for release had been unfair.

4. On 21 May 2015 the complaints concerning Article 5 §§ 3 and 4 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. On 4 May 2016 the Court decided to inform the parties that it was considering the suitability of applying a pilot judgment procedure in the case (see Broniowski v. Poland [GC], 31443/96, §§ 189-94 and the operative part, ECHR 2004-V, and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-39 and the operative part, ECHR 2006-VIII) and requested the parties’ observations on the matter. The parties submitted comments in that respect.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

7. On 22 March 2013 the police started investigating a case of armed home invasion in Budapest committed by three men wearing balaclavas. The crime was initially considered to constitute aggravated armed robbery committed by unknown perpetrators.

8. Close to the crime scene, the police spotted and halted a car for checking. After a short chase, they apprehended the driver, K.I., but the other passenger fled.

9. In the car and in K.I.’s clothing, the police found and seized some of the valuables taken in the robbery as well as the applicant’s identity card and mobile telephone.

10. On the same day the police searched the applicant’s house but did not find anything relating to the robbery.

11. In his testimony K.I., a man with numerous past convictions, said that the person who had been with him in the car and run away was not the applicant. None of the police officers involved could positively identify the fugitive.

12. On 25 March 2013 the police issued a warrant for the applicant’s arrest.

13. The applicant turned himself in on 3 April 2013, after learning of the arrest warrant. He was arrested on suspicion of armed robbery.

14. A public defender appointed for him failed to attend his questioning held on the same day. The applicant denied any involvement in the robbery and contested the accusations. A related complaint by him was dismissed by the Budapest Chief Public Prosecutor’s Office, who found that the reasonable suspicion against him was supported by the police report, the seized items and witness statements.

15. On 6 April 2013 the applicant’s pre-trial detention was ordered on charges of armed robbery under Article 129 § 2 (a) to (d) of the Code of Criminal Procedure by the Pest Central District Court. Referring to police reports, an on-site examination, witness testimonies, decisions on seizure and examinations of various exhibits, the court agreed with the prosecution concerning the reasonable suspicion. It held that pre-trial detention was necessary because the applicant had fled from the police and then turned himself in, but only to avoid criminal liability. Indeed, there was a considerable risk of his absconding. Furthermore, there was evidence that he had tried to influence witnesses to procure an alibi, since the witnesses he had suggested had given false statements about his whereabouts during the robbery. Considering that there was another criminal investigation ongoing against the applicant on a charge of abduction of vehicle and the fact that he had no regular income or employment, there was also a risk of his reoffending. However, the authorities had not disclosed any evidence supporting the applicant’s actual involvement in the robbery.

16. The public defender failed to attend the hearing.

17. On 15 April 2013 the Budapest High Court dismissed an appeal brought by the applicant, without hearing him in person. It reiterated the reasoning of the first-instance court.

18. Subsequently, the prosecution applied to have the applicant’s detention extended. The application was served on the applicant on 3 May 2013; and on the same day the court extended his detention until 6 August 2013. Consequently, he did not have any opportunity to make any comments on the application. The court maintained its previous reasons justifying the need for his detention and emphasised that the investigation regarding a third suspect was still ongoing, so that if released the applicant might jeopardise the procedure. The court took into account that an arrest warrant had had to be issued for the applicant, who was otherwise unemployed, had no apparent source of income and who was also the subject of another criminal investigation. The court held that there was a risk of his absconding (owing to the severity of the possible punishment), reoffending (owing to his unsettled personal circumstances) and interfering with the investigation (if he were to collude with the third suspect). The court added that there was indication that the applicant had tried to secure an alibi while on the run from the police.

19. On 5 June 2013 the Budapest High Court dismissed an appeal brought by the applicant, agreeing with the first-instance decision.

20. On 23 July 2013 a lawyer appointed by the applicant applied for his release, arguing that the authorities had not disclosed any evidence that might serve as the basis for the court’s order. He challenged the existence of any reasonable suspicion, emphasising that the applicant had voluntarily gone to the police and submitting documents showing that the applicant’s mother was willing to pay for his living expenses.

21. On 30 July 2013 the prosecution applied to extend the applicant’s detention. The application was served on the applicant’s lawyer on 31 July 2013, the day before the court extended the applicant’s detention until 6 October 2013. The court simultaneously refused the application for release, without hearing the applicant in person. It considered that the reason for which he had surrendered to the police was only to escape punishment. The court considered that his mother’s undertakings would not eliminate the risk of his absconding or reoffending. It reiterated that the extension was justified because the applicant had previously fled from the police and might influence witnesses, given his previous attempt to secure an alibi. It also referred to the impending severe punishment and the risk of his reoffending.

22. On 15 August 2013 the Budapest High Court dismissed an appeal brought by the applicant, without hearing him in person.

23. On 3 October 2013 the Buda Central District Court extended the applicant’s detention until 6 January 2014 under Article 129 § 2 (b) to (d) of the Code of Criminal Procedure. Referring to police reports, the on-site examination, witness testimony and various exhibits, the court found it established that, contrary to the applicant’s argument, there was a reasonable suspicion that he had committed the crime. As regards the specific grounds of his pre-trial detention, the court no longer referred to the fact that he had fled, since he had then voluntarily appeared before the police. It did however repeat the other reasons. To show that there was a risk of his reoffending, the court noted that prior to the opening of the investigations, the applicant had only been employed for a short period of five months, that he had not been living with his parents but probably with some friends, that on 3 May 2013 he had already been sentenced for the offence of larceny, and that currently he was under investigation in yet another criminal case on a charge of abduction of vehicle. The court held that the applicant had not managed to demonstrate to its satisfaction that his personal circumstances were stable. As regards collusion, the court reiterated that the third suspect’s identity had not been established and that some of the stolen goods were still missing.

24. Both the applicant and his lawyer were present at the hearing.

25. On 11 October 2013 the Budapest High Court upheld this decision. It also stated that less restrictive measures such as house detention or house arrest were not applicable in the applicant’s case, since they would not eliminate the risk of his colluding, reoffending and absconding.

26. On 3 January 2014 the Buda Central District Court extended the applicant’s detention until 6 April 2014 under Article 129 § 2 (b) to (d) of the Code of Criminal Procedure. As regards the applicant’s argument that he had not been provided with evidence of a reasonable suspicion against him, the court held that suspects could inspect documents if it was not contrary to the interests of the investigation. As regards the specific grounds of his pre-trial detention, the court repeated its previous reasons. It held that given the risk of his absconding, no less restrictive measure would suffice in his case.

27. Both the applicant and his lawyer were present at the hearing.

28. On 9 January 2014 the Budapest High Court upheld this decision.

29. On 30 January 2014, relying on, inter alia, Article 6 § 1 of the Convention, the applicant applied for disclosure of the evidence serving as the basis for his pre-trial detention. The Budapest Chief Public Prosecutor’s Office dismissed his application, pointing out that the investigation was still pending.

30. On 26 March 2014 the applicant applied for release. In his application he complained that he had still not been provided with any evidence justifying his pre-trial detention. The expert opinions obtained by the authorities and forwarded to him did not contain anything supporting his involvement in the crime. He also attached documents proving that his mother, who was willing to pay for his living expenses, had a sufficient income.

31. On 3 April 2014 the Budapest High Court dismissed the applicant’s application for release and extended his detention until 6 June 2014. While referring to the Court’s case-law, the court maintained that the detention was still necessary because of the risk of his reoffending (Article 129 § 2 (d) of the Code of Criminal Procedure). It considered that the applicant’s absconding for two weeks and failed attempt to secure a false alibi, which both occurred at the beginning of the proceedings, could not be held against him when assessing the future risks if he was released. It also noted that the investigation was almost at an end and, in view of the nature of the investigatory steps yet to be carried out, it found it implausible that the applicant could interfere with its outcome. The High Court therefore held that neither the risk of the applicant’s absconding nor his interfering with the investigation was real. However, noting the other pending case conducted against the applicant and his failed attempt to have secured a false alibi and, moreover, considering the “professional” nature of the crime and his unsettled personal circumstances, the court held that the most severe coercive measure should continue to be applied on account of the risk of his reoffending.

32. On 18 April 2014 the Budapest Court of Appeal upheld the decision to extend his detention on the basis that there was a risk of his reoffending, absconding and jeopardising the investigation by influencing witnesses (Article 129 § 2 (b) to (d) of the Code of Criminal Procedure). The court held that the impending severe punishment in itself showed that there was a risk of his absconding. Furthermore, the fact that his attempt to influence witnesses dated back to a year before did not remove the risk of collusion, especially since the third alleged perpetrator was still at large and remained unidentified.

33. On 29 May 2014 the applicant applied for release again, pointing out that there was no evidence that might support his involvement in the robbery. He argued that because the investigation had already been terminated, the risk of his jeopardising it was obsolete. He also argued that the impending severe punishment could not, in itself, justify his detention. He submitted a statement saying that a company intended to employ him after release.

34. On 5 June 2014 the Budapest High Court extended the applicant’s detention until 6 August 2014 under Article 129 § 2 (d) of the Code of Criminal Procedure (risk of reoffending), pointing out the “professional” manner in which the crime had been committed. It found that the other grounds of detention were not established in the case.

35. The applicant and his lawyer were present at the hearing. The applicant’s lawyer pointed out again that neither him, nor the applicant had access to the investigation file and thus could not have knowledge of the evidence substantiating the reasonable suspicion of him having committed a crime. He argued that access to such evidence was more relevant in the investigation phase than following the submission of the bill of indictment.

36. The applicant appealed, emphasising that the “professional” manner had not even been mentioned in the public prosecutor’s request to have his detention extended.

37. On 19 June 2014 the Budapest Court of Appeal upheld the lower court’s decision under Article 129 § 2 (b) to (d) of the Code of Criminal Procedure (risk of absconding, jeopardising the investigation and reoffending).

38. On 8 July 2014 the Budapest Chief Public Prosecutor’s Office preferred a bill of indictment, as the investigation had been terminated.

39. On 21 July 2014 the Budapest High Court extended the applicant’s detention until the date of the first-instance court’s judgment, under Article 129 § 2 (b) and (d) of the Code of Criminal Procedure (risk of absconding and reoffending). Without hearing from the applicant, the court pointed out that the severity of a potential punishment was not in itself sufficient to establish a risk of a person absconding; however, the applicant’s personal circumstances, such as him being unreachable even to his family members, showed that such a risk existed. Furthermore, the professional manner in which the crime had been committed, in particular its organised nature and the number of people involved, supported the conclusion that there was a risk of his reoffending. Since the investigations had been closed, the court did not find a risk of collusion established.

40. On 1 August 2014 the applicant appealed, arguing that none of the evidence made available to him supported the claim that he was the person who had escaped police arrest, and none of the involved police officers could identify him. He also argued that, in respect of the other criminal investigation against him, no actual prosecution had taken place, so those proceedings could not be taken into account when evaluating the risk of his reoffending.

41. On 10 September 2014 the Budapest Court of Appeal dismissed the applicant’s appeal, adding that a risk of collusion had also been established in his case.

42. On 13 November 2014 a third suspect was apprehended.

43. On 15 January 2015, six months after the indictment, the Budapest High Court reviewed the applicant’s pre-trial detention under Article 132 § 1 (a) of the Code of Criminal Procedure and extended it until the delivery of the first-instance judgment. Giving the same reasons as previously, the court again stated that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged, a risk that he might abscond and obstruct the proceedings (Article 129 § 2 (b) of the Code of Criminal Procedure) and a risk that he would reoffend (Article 129 § 2 (d)). The court added that two additional suspects were likely to be indicted and, given the applicant’s previous attempt to influence a witness, the risk of collusion (Article 129 § 2 (c) of the Code of Criminal Procedure) was also there.

44. The public prosecutor’s application was served on the applicant some days after the detention decision had already been taken.

45. The first-instance decision was upheld by the Budapest Court of Appeal on 17 February 2015.

46. On 20 April 2015 the third suspect and yet another person were also indicted by the Budapest Chief Public Prosecutor’s Office.

47. On 29 July 2015 the Budapest Appeal Court carried out the yearly review of the applicant’s pre-trial detention. Giving the same grounds as previously, the court extended the measure until the delivery of the first-instance judgment.

48. Meanwhile, the case against the applicant and K.I. was brought to trial. The first hearing before the trial court took place on 19 September 2014. The Budapest High Court held further hearings on 13 November 2014, 15 January, 7 April, 19 June, 15 September, 7 October, 3 November, 1 and 21 December 2015, 9 February and 23 March 2016. Apparently from the indictment of 20 April 2015 onwards, the trial involved the other two suspects as well.

49. On 23 March 2016 the Budapest High Court gave judgment, whose reasoning consisted of 63 pages. It concerned the applicant, K.I. and the two other suspects. The applicant was convicted of robbery and illegally entering a private property and sentenced to nine years’ imprisonment. On the same day the High Court extended his custody until the closure of the second-instance proceedings. This decision was upheld by the Budapest Court of Appeal on 14 June 2016.

50. The second-instance trial is still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

51. The relevant parts of the Code of Criminal Procedure (Act no. XIX of 1998) provide as follows:

Article 129

“(2) Pre-trial detention of a defendant may take place in proceedings related to a criminal offence punishable by imprisonment, provided that:

(a) the defendant has escaped, or has attempted to escape, or absconded from the court, the prosecutor or the investigating authority, or other proceedings have been initiated against the defendant for committing an intentional criminal offence also punishable by imprisonment,

(b) if, owing to the risk of escaping or absconding, or for other reasons, there is reasonable cause to believe that the defendant’s presence 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 concealment 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.”

Article 130

“(2) Instead of pre-trial detention, the court may impose an obligation not to leave a certain territory, house arrest or a restraining order.”

Article 131

“(1) Pre-trial detention ordered prior to the indictment being lodged may continue until the decision of the court of first instance during the preparations for trial, but may never exceed one month. Pre-trial detention may be extended by the investigating judge by a maximum of three months 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 a maximum of two months on each occasion, in compliance with the procedural rules pertaining to investigating judges.”

Article 133

“(1) The court shall examine the application to terminate the pre-trial detention on the merits, and deliver a reasoned decision thereon. Repeated applications may be rejected by the court without substantial justification, unless the defendant or defence counsel relies on new circumstances.”

Article 136

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

Article 186

“(2) The suspect, defence counsel or victim may inspect any expert opinion prepared during the investigation, but may only inspect other documents if it would not be contrary to the interests of the investigation.”

Article 193

“(1) After the conclusion of an investigation, the prosecutor or (unless the prosecutor provides otherwise) the investigating authority shall hand over the investigation file to the suspect and defence counsel in a room designated for that purpose. The suspect and defence counsel shall be permitted to inspect all the documents - with the exception of those treated as confidential - that may serve as the basis for pressing charges.”

Article 210

“(1) The investigating judge shall hold a hearing if the application relates to the following:

(a) the [first] ordering of a coercive measure involving the restriction or deprivation of a person’s liberty ...

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

Article 211 (as in force since 1 July 2015)

“(1a) If the application concerns the ordering of pre-trial detention, the copies of all investigation documents that are relied on in the application shall be attached to the applicant sent to the suspect and his/her defence counsel. If the application concerns the prolongation of pre-trial detention, the copies of all investigation documents that have been produced since the last decision on pre-trial detention shall be attached to the application sent to the suspect and his/her defence counsel.

...

(3) At the [court] hearing the [prosecution], having submitted the application [for ordering or extending pre-trial detention] shall present the evidence substantiating the application in writing or orally. Those present shall be given the opportunity to examine - within the limits set out in Article 186 - the evidence ... If a notified party does not attend the hearing 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 application have been met, whether there are any obstacles to the criminal proceedings and whether the application is substantiated beyond reasonable doubt. In the cases specified in Article 210 § 1 (a) to (d) this examination shall also extend to the personal circumstances of the suspect.”

Article 214

“(1) Unless provided otherwise in this Act, the investigating judge shall deliver a ruling with the explanation of the reasons within three days of submission of the application, in which he accepts or rejects the application either wholly or in part. The explanation shall include the substance of the application, a brief description and classification of the criminal offence underlying the procedure and state whether the statutory requirements related to the application have or have not been met. If the investigating judge rejects the application, it may not be repeated on identical grounds.”

Article 215

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

...

(5) Regardless of an appeal, an order for a coercive measure involving the restriction or deprivation of a person’s liberty may be executed [immediately].”

52. On 4 May 2011 the Head of the Criminal Division of the Supreme Court issued Opinion No. BKv. 93 on the interpretation and application of the relevant provision of the Code of Criminal Procedure governing access to investigation files in habeas corpus proceedings.

53. It was pointed out in particular that the public prosecutor had discretion to decide which of the documents obtained up to that time he regarded as substantiating the application; it was therefore for him to decide what evidence he regarded as sufficient for a judicial decision favourable to the application. Such evidence supporting the application, and hence to be submitted at the hearing in writing or orally, included the evidence which served as a basis for ordering the investigation and notifying the reasonable suspicion to the suspect, as well as the facts which proved or showed that a particular ground for pre-trial detention existed.

54. In the Opinion it was further explained that the hearing before the investigating judge was an adversarial judicial step in the proceedings where the suspect and his or her counsel could get acquainted with the evidence submitted by the public prosecutor and could, within the framework of the hearing, submit their defence against that evidence. At hearings concerning applications for pre-trial detention the investigating judge’s access to documents was also restricted to the documents attached to the application or submitted at the hearing by the prosecutor. Thus, following from the adversarial nature of the court proceedings, it was neither for the hearing nor the investigating judge to restrict, in the interest of the success of the investigations, the right of access of those who attended the hearing. It was for the public prosecutor to decide what evidence he considered sufficient for a judicial decision granting his application, while he could restrict access to the rest of the documents of the investigations in the interests of their success.

THE LAW

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

55. The applicant complained that his pre-trial detention had exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention, which reads:

“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.”

A. Admissibility

56. 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

1. Submissions of the parties

57. The applicant contended that his pre-trial detention had not been based on relevant and sufficient reasons. He stressed that when ordering and extending his detention throughout the period at issue, the domestic courts had failed to give any compelling reasons to justify the deprivation of his liberty. There had been no well-founded suspicion, supported by convincing and substantial evidence, that he had committed a crime. Moreover, the domestic authorities had merely reiterated the grounds for his detention without making the necessary assessment of the particular factual circumstances of the case.

58. As regards the specific reasons for his pre-trial detention, he submitted that there had been no circumstances justifying the fear that he would reoffend, since he had had a job prior to his arrest and his mother had agreed to provide for him if he had been released. In addition, in the parallel criminal case referred to by the domestic courts to show that there had been a risk of his reoffending, no actual indictment had ever taken place.

59. Concerning the risk of his obstructing the criminal proceedings, he pointed out that he had appeared voluntarily before the police and there had been no evidence in support of the finding that he had tried to influence the witnesses. In any case, that risk had certainly ceased to exist when the investigations had ended.

60. Lastly, the applicant argued that the domestic courts had failed to consider applying less stringent measures.

61. The Government submitted that the applicant’s pre-trial detention had been in full compliance with the requirements of the relevant domestic law and had been based on relevant and sufficient reasons. In particular, the pre-trial detention had lasted only as long as had been absolutely necessary.

62. In their view, throughout the entire period, a reasonable suspicion had continually existed that he had committed the offence in question. Moreover, the domestic authorities had paid due attention to the particular circumstances of the case and the applicant’s personal situation.

63. The Government maintained that the domestic authorities had had grounds for holding the applicant in custody, given that he had no income and was likely to reoffend, given that he had already been sentenced once and was under investigation in another case. They also noted that his pre-trial detention had been justified by the risk that he would obstruct the proceedings and influence witnesses. On this last point, the Government stressed that a less restrictive measure would have been insufficient to ensure the proper conduct of the proceedings.

64. Lastly, the Government submitted that the authorities had displayed due diligence in handling the applicant’s case and there had been no periods of inaction attributable to them.

2. The Court’s assessment

(a) General principles

65. The general principles as regards Article 5 § 3 of the Convention have been recently summarised in the case Buzajdi v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-102, ECHR 2016).

(b) Application of these principles to the present case

66. The Court observes that the applicant was remanded in custody on 23 April 2013 and was convicted at the first level of jurisdiction on 23 March 2016. He thus remained in pre-trial detention within the meaning of Article 5 § 1 (c) of the Convention for almost three years. The Court does not consider this period short in absolute terms (see and compare with Doronin v. Ukraine, no. 16505/02, § 61, 19 February 2009).

67. The Court notes that the reasonable suspicion on which the domestic courts based their decisions arose as a result of extensive material gathered during the investigation. It also accepts that the suspicion against the applicant of having committed robbery may have persisted throughout the period of his pre-trial detention, but reiterates that the existence of reasonable suspicion cannot on its own justify pre-trial detention and must be supported by additional grounds (see Buzajdi, cited above, § 95). Thus, it will examine whether the other grounds given by the judicial authorities justified the applicant’s deprivation of liberty.

68. The Court observes that in their detention decisions in the proceedings against the applicant, the authorities, in addition to the reasonable suspicion against him, continually gave three principal grounds, namely (i) the risk of his absconding, given the serious nature of the offences with which he had been charged, the severity of the penalty to which he was liable and his hiding from the police (ii) the risk of collusion, shown by the fact that he had tried to influence a witness prior to his arrest and (iii) the risk of his reoffending, taking into account his financial circumstances and given that he had committed the offence while under investigation in a separate criminal case, and after a previous sentencing.

69. It must therefore be ascertained whether the domestic authorities established and convincingly demonstrated that specific facts existed in support of their conclusions that the applicant might abscond, obstruct justice in some other way or reoffend. The Court reiterates in this respect that it is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see, amongst many other authorities, Yevgeniy Gusev v. Russia, no. 28020/05, § 83, 5 December 2013). Moreover, it should not be incumbent on the detained person to demonstrate that there are reasons warranting his release (see Bykov v. Russia [GC], no. 4378/02, § 64, 10 March 2009).

70. As regards the risk of absconding, the Court reiterates that it should be assessed with reference to various factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8, and Yegorychev v. Russia, no. 8026/04, § 54, 17 May 2016). Although the seriousness of the charges or severity of the sentence faced is relevant in the assessment of the risk of an accused absconding or reoffending, it cannot by itself serve to justify long periods of pre-trial detention (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001).

71. Aside from noting the seriousness of the charges and the severity of the impending punishment, the domestic courts referred to the applicant escaping from the police and being arrested under a warrant, and the fact that he was unreachable even for his family members. These are undoubtedly circumstances which suggest a danger of flight, and the evidence in the file tends to show their relevance in the instant case.

72. As regards the risk of pressure being exerted by the applicant on witnesses, the Court notes that the domestic courts observed in particular that the applicant had attempted to secure a false alibi at the time of his arrest. However, the plausibility of the alibi had been immediately verified and it had no further bearing on the proceedings; thus this incident cannot be relied on directly to justify the extension of the applicant’s detention. The Court acknowledges however that a third and subsequently a fourth suspect remained unidentified during a considerable part of the investigations (see paragraphs 18, 23, and 31 above).

73. It is true that, in the long term, the requirements of the investigation do not suffice to justify the detention of a suspect, as, in the normal course of events, the risks alleged diminish over time as inquiries are completed, statements are taken and verifications are carried out (see also Clooth v. Belgium, 12 December 1991, § 43, Series A no. 225). On the other hand, in cases involving several accused, the process of gathering and hearing evidence is often a difficult task. The Court acknowledges that attempts to obstruct the proceedings by other members of a criminal group might have constituted well-founded grounds for the authorities to increase their vigilance when examining the grounds for the applicant’s continuous detention (see Mierzejewski v. Poland, no. 15612/13, § 43, 24 February 2015).

74. With regard to the risk of reoffending, the Court notes that the domestic courts pointed to the fact that the applicant, already sentenced once, had committed the robbery while being prosecuted in a separate case, to the circumstances and professional nature of the crime and to his unsettled personal circumstances including the absence of income or work (see paragraphs 23, 31 and 39 above). Although it cannot be concluded from a lack of employment or a family that a person is inclined to commit new offences (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005), the Court accepts that, in the special circumstances of the case, a risk of reoffending as demonstrated by the elements relied on by the domestic courts actually existed.

75. The Court further notes that the domestic courts considered whether other preventive measures than pre-trial detention would be sufficient to ensure the proper conduct of the proceedings. In all their decisions, the domestic courts answered this question in the negative, finding that a non-custodial measure would have been insufficient, even taking into account the guarantees put forward by the applicant and his mother (see paragraphs 23, 26 and 31).

76. Altogether, the approach of the domestic courts indicates, contrary to the applicant’s assertion, that there was no blind or automatic application of Article 129 of the Code of Criminal Code and that a thorough review of the circumstances in favour of and militating against the applicant’s detention was carried out. Having regard to the above, the Court cannot agree with the applicant’s assertion that the domestic courts’ decisions were limited to reiterating the reasons for detention provided in the Code of Criminal Procedure, without explaining how they applied to the facts of his case (compare and contrast Castravet v. Moldova, no. 23393/05, § 34, 13 March 2007).

77. Thus the grounds given for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period. The assessment of the “relevant and sufficient” reasons, however, cannot be detached from the actual length of pre-trial detention. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings.

78. The applicant was held in pre-trial detention for almost three years. The length of this period raises a concern in itself. However, there is no appearance of any significant period of inactivity on the part of the prosecution or the courts (see, Sergey Denisov v. Russia, no. 21566/13, § 81, 8 October 2015, and the cases cited therein). The investigation appears to have been of a certain complexity, also given the fact that the identities of the further suspects remained unknown for an extended period. Indeed, the third suspect was apprehended only as late as in November 2014.

79. Following the original indictment of 8 July 2014, the Budapest High Court held numerous hearings at short intervals (see paragraph 48 above). The case was later extended to include the indictment of 20 April 2015 concerning two more persons; and the trial continued expeditiously. The court eventually convicted the applicant after a year and six months of trial period (see paragraph 49. above). In such circumstances, the domestic authorities can be said to have demonstrated the requisite special diligence in handling the applicant’s case.

80. Having regard to all these circumstances, there has been no violation of Article 5 § 3 of the Convention.

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

81. The applicant complained of various defects in the proceedings concerning his detention, arguing in particular that the detention order of 29 January 2015 had been issued in breach of his procedural rights. He claimed that the principle of “equality of arms” had not been respected and that he had not had access to the case file. He relied on Article 5 § 4 of the Convention, which 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.”

A. Admissibility

82. 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

1. Submissions of the parties

83. The applicant submitted that the detention hearings in his case had not complied with the minimum procedural requirements. More specifically, as regards the decision of the Budapest High Court of 29 January 2015, upheld by the Budapest Court of Appeal, the applicant asserted that he had only received the prosecution’s application to have the coercive measure extended after the court had already issued its decision. Thus, he had had no opportunity to familiarise himself with the content of the application or present any material arguments before the court. Moreover, although he had applied for disclosure of the evidence serving as the basis for his pre-trial detention, the Budapest Chief Public Prosecutor’s Office had denied him access on the grounds that the investigation had still been pending. The lack of access to the criminal file and failure to serve the prosecution’s submissions beforehand had resulted in a situation in which the defence had remained unaware of the prosecution’s arguments.

84. Pointing to Opinion No. BKv. 93 of 4 May 2011, the Government argued in essence that during the investigation stage a suspect’s right of access to documents was restricted, and only documents whose disclosure was not contrary to the interests of the investigation could be examined. They also argued that the applicant and his counsel had been served with the prosecution’s application for pre-trial detention on 5 April 2013 and had thus had an opportunity to express their position. Moreover, the prosecutor’s application of 30 April 2013 to have the detention extended had been sent to the applicant and his counsel that very day and had been received on 6 May 2013. Furthermore, the prosecutor’s applications dated 30 June 2013, 27 September 2013, 20 December 2013 and 31 March 2014 were sent simultaneously to the courts, the applicant and his counsel on 31 June (sic), 30 September, 21 December 2013 and 1 April 2014 respectively. The application dated 28 May 2014 had also been dispatched simultaneously to all parties. The applications had been received by the applicant on 2 August, 2 October, 30 December 2013, 2 April and 30 May 2014 respectively, on all occasions days before the expiry of the coercive measures, hence he had had an opportunity to study the documents and express his opinion.

2. The Court’s assessment

The Court reiterates that proceedings conducted under Article 5 § 4 of the Convention before a court examining an appeal against detention 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 the applicant, or his counsel, is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his detention (see, among other authorities, Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009).

86. The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice (see Lietzow v. Germany, no. 24479/94, § 47, ECHR 2001-I, see also in the context of Article 6, A.T. v. Luxembourg, no. 30460/13, § 79, 9 April 2015). However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. Therefore, 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 (see Garcia Alva v. Germany, no. 23541/94, §§ 42, 13 February 2001). As the Court has previously held, it is difficult for a lawyer to defend his client’s interests when the former has only a vague idea of what could be in the material relied on by the prosecution and submitted to the court (see Khodorkovskiy, cited above, § 228). Thus, any restrictions on the right of the detainee or his representative to have access to documents in the case file forming the basis of the prosecution case against him must be strictly necessary in the light of a strong countervailing public interest. Where full disclosure is not possible, Article 5 § 4 requires that the difficulties this causes are counterbalanced in such a way that the individual still has a possibility effectively to challenge the allegations against him (see Piechowicz v. Poland, no. 20071/07, § 203, 17 April 2012, with further reference to A. and Others v. the United Kingdom [GC], no. 3455/05, § 205, ECHR 2009).

87. According to the applicant’s submissions, which were unrefuted by the Government, on at least one occasion it was undisputed that the defence had not been provided with the prosecution’s application until after the decision on his detention had already been taken (see paragraph 44 above). Furthermore, it is not disputed that neither the applicant nor his counsel was given access to the criminal file, despite the counsel’s request, on the grounds that the investigation was still ongoing (see paragraph 35 above).

88. In the Court’s opinion, it is not really possible for a suspect to properly challenge the reliability of the version of the facts provided by the prosecution without knowing on which evidence it is based. This requires that the suspect be given a sufficient opportunity to take cognisance of statements and other pieces of evidence underlying them, such as the results of ongoing investigations (see Lietzow, cited above, § 46).

89. Since the applicant was denied access to documents relating to the circumstances justifying his detention without any consideration being given to measures (see paragraph 35 above) which could have counterbalanced the lack of disclosure, and since he could not take cognisance of the content of the prosecution’s application (see paragraph 44 above), he was unable to present any material arguments before the court in an informed manner. The Court thus considers that the applicant could not effectively exercise his rights in the proceedings concerning his remand in custody and the review of the lawfulness of his pre-trial detention.

90. In conclusion, the Court finds that the procedure whereby the applicant sought to challenge the lawfulness of his pre-trial detention was in breach of Article 5 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

91. 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

92. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

93. The Government contested that claim.

94. The Court considers that the applicant must have suffered some non-pecuniary damage on account of the violations found and awards him, on the basis of equity, EUR 5,000 under that head.

B. Costs and expenses

95. The applicant also claimed EUR 1,900 for costs and expenses incurred before the Court. This corresponds to nineteen hours of legal work by his lawyer charged at an hourly rate of EUR 100.

96. The Government contested the claim.

97. 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 full sum claimed, that is, EUR 1,900.

C. Default interest

98. 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 no 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,900 (one thousand nine 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 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Vincent A. De Gaetano
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> GABOR NAGY v. HUNGARY (No. 2) - 73999/14 (Judgment : No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) Violation of Article ...) [2017] ECHR 350 (11 April 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/350.html Cite as: ECLI:CE:ECHR:2017:0411JUD007399914, [2017] ECHR 350, CE:ECHR:2017:0411JUD007399914