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SECOND
SECTION
CASE OF
BÁRKÁNYI v. HUNGARY
(Application
no. 37214/05)
JUDGMENT
STRASBOURG
30
June 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bárkányi v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 37214/05) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr Pál Bárkányi
(“the applicant”), on 6 October 2005.
- The
applicant was represented by Mr T. Szabó, a lawyer practising
in Szeged. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Justice and
Law Enforcement.
- The
applicant alleged that his deprivation of liberty had been
excessively long, in breach of Article 5 § 3 of the Convention.
- On
29 April 2008 the application was declared inadmissible.
Subsequently, it turned out from a fax by the applicant's lawyer
dated 24 June 2008 that relevant documents had been misfiled and
thus not been taken into account when the decision was drafted.
Therefore, the application was restored to the case list. On 3
September 2008 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of
the Convention, it decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1965 and lives in Szeged.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
30 June 2005 the applicant and an accomplice were arrested on a
charge of theft of a car and two motorcycles. In the ensuing
proceedings he was assisted by defence counsel
of his choice.
- On
1 July 2005 the Szeged District Court ordered the applicant's
pre-trial detention until 1 August 2005. The District Court
considered that – given that the applicant had previous
convictions and that another accomplice had absconded – there
was a risk that he would endanger the investigation.
- The
applicant appealed and requested his release. He argued that the
stolen goods had been found and the third accomplice had been
arrested, so that the reasons given by the first-instance court had
ceased to exist. He also pointed out that his agricultural activity –
which was his main source of income – was seriously hindered by
his detention. Lastly, he stated that his mother was seriously ill
and he had to take care of her.
- On
7 July 2005 the Csongrád County Regional Court upheld the
first-instance decision. It considered that, given the seriousness of
the charges against him and that his presence in the investigation
could not be secured otherwise, the applicant's pre-trial detention
was necessary.
- The
applicant was in the meantime charged with other minor offences. On
29 July 2005 the District Court prolonged his pre-trial detention
until 1 October 2005. It considered that, in view of his record,
there was a serious risk that he would abscond, reoffend or endanger
the investigation, in particular by destroying evidence. It also
established that the applicant's request for release, which was based
on identical reasons to those set out in his appeal, was
insufficiently founded to justify ending his detention. The applicant
appealed, asking to be released or to be placed under house arrest in
lieu of detention.
- On
1 September 2005 the Regional Court upheld the first-instance
decision but deleted from the list of reasons the risk of destruction
of evidence.
- On
28 September 2005 the District Court again prolonged the applicant's
pre-trial detention until 1 January 2006 for the same reasons it had
given previously. The applicant appealed and drew attention to the
fact, inter alia, that the investigation was practically
closed, as all the necessary investigative acts had already been
carried out. He also stated that the seriousness of the charges
against him could not serve as the sole basis for his detention. On
12 October 2005 the Regional Court upheld the first-instance
decision.
- On
28 December 2005 the District Court prolonged the applicant's
detention until the delivery of the first-instance judgment on the
merits. It considered that the seriousness of the charges against him
meant that there was a serious risk that he would abscond or
jeopardise the procedure by conspiring with his missing accomplice.
The applicant appealed and repeated his previous arguments.
- On
6 February 2006 the Regional Court upheld the first-instance decision
but changed the ground for detention to the risk of the applicant's
reoffending. It also established that the investigation had ended, so
that the applicant could no longer jeopardise it.
- On
21 August 2006 the District Court prolonged the applicant's detention
until the delivery of the first-instance judgment on the merits on
the same grounds as before.
- On
5 September 2006 the District Court terminated the applicant's
detention and ordered his house arrest. It considered that he was no
longer in a position to endanger the goals of the proceedings and,
based on the information in its possession, there was no risk that he
would abscond.
- On
25 September 2007 the Szeged District Court found the applicant
guilty of trafficking in stolen goods (orgazdaság) and
sentenced him to one year's suspended imprisonment.
B. Relevant domestic law
Act no. 9 of 1998 on the Code of Criminal Procedure, as in force
at the relevant time
Section 129
“...(2) The pre-trial detention of the accused may
take place in the course of proceedings concerning a crime punishable
with deprivation of liberty and if
a) the accused escaped, tried to escape or absconded
from the court, the prosecution or investigation authority, or if
during the proceedings other criminal proceedings were instituted
against him for a crime punishable with deprivation of liberty,
b) given the risk of escape or absconding, or because of
other grounds, it can be reasonably assumed that his presence for the
investigation could not be secured otherwise,
c) it can be reasonably assumed that, if allowed to be
at large, he would – in particular by influencing or
intimidating witnesses, or by destroying, falsifying or hiding
documentary and material evidence –, frustrate, render it more
difficult or endanger the taking of evidence,
d) it can be reasonably assumed that, if allowed be at
large, he would finish the attempted or prepared crime or commit
another crime punishable with deprivation of liberty.”
Section 131
“(1) 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 by the investigation judge, for
three month periods on each occasion up to a maximum of one year.
Thereafter, detention on remand can be prolonged by a single judge of
the Regional Court, ... on each occasion for two months.
(4) Detention on remand, when ordered or upheld after
the preferment of the indictment, may last until the delivery of the
first-instance judgment, ....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 § 3 of the Convention about
the length of his deprivation of liberty.
Article
5 § 3 reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant stressed that his deprivation of liberty had lasted an
unreasonably long time.
- The
Government maintained that the applicant's detention had not exceeded
the period that had been necessary in the circumstances for the
authorities to unravel responsibility for the offence he was charged
with. When prolonging his detention, the domestic courts had relied
on relevant and sufficient grounds and taken into account all the
aspects of the case and not just the seriousness of the charges
against the applicant.
- The
Court reiterates that the question of whether or not a period of
detention is reasonable cannot be assessed in the abstract. Whether
it is reasonable for an accused to remain in detention must be
assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Labita v. Italy
[GC], no. 26772/95, §§ 152 et seq., ECHR
2000-IV).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must,
paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of the
above-mentioned requirement of public interest justifying a departure
from the rule in Article 5, and must set them out in their decisions
on the applications for release. It is essentially on the basis of
the reasons given in these decisions and of the well-documented facts
stated 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 (see Muller v. France, 17 March 1997, § 35, Reports
of Judgments and Decisions 1997-II).
- The
persistence of a reasonable suspicion that the detainee has committed
an offence is a condition sine qua non for the lawfulness of
continued custody, but after a certain lapse of time it no longer
suffices. The Court must then 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 be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings (see Muller, loc. cit.).
- The
Court observes that the applicant was deprived of his liberty from 1
July 2005 until 25 September 2007, i.e. for almost two years and
three months. This period involved fourteen months of pre-trial
detention and thirteen months of house arrest which also falls within
the scope of Article 5 (see, inter alia, Pekov v. Bulgaria,
no. 50358/99, § 60). It notes that, initially, the principal
reason for the applicant's detention on remand was the danger of his
absconding and, to a lesser extent, that of collusion and
reoffending. It is satisfied that, during this phase of the
investigation, the suspicion that the applicant had committed the
crimes in question justified his detention with a view to securing
his attendance at court.
- However,
once the investigation was closed on, at the latest, 6 February
2006, the risk of collusion was no longer arguable, but the
applicant's deprivation of liberty nevertheless lasted another
nineteen months. The remaining reason for the continued measure was
the risk of his absconding and reoffending. In the Court's view, the
domestic courts should have assessed these risks in the light of all
the aspects of the case and considered imposing a less strict
measure. Instead, they limited themselves to reiterating mechanically
that, given the seriousness of the charges against him, there was a
risk that the applicant would abscond or reoffend. The Court finds
this implausible in the circumstances, especially in view of the
District Court's decision of 5 September 2006 terminating the
applicant's pre-trial detention and ordering his house arrest. Having
regard to its overall duration, the Court is not persuaded that the
applicant's deprivation of liberty, in particular after 6 February
2006, was justified.
- There
has, therefore, been a violation of Article 5 § 3 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed altogether 1,2000,000 Hungarian forints
(approximately 4,000 euros (EUR)) as just satisfaction.
- The
Government considered the applicant's claim excessive.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage. Accordingly, on the basis of equity, it awards
the applicant EUR 2,000.
B. Costs and expenses
- The
applicant did not put forward any claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of
Article 5 § 3 of the Convention;
- 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, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, to be converted
into Hungarian forints at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 30 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
