SECOND SECTION

CASE OF A.B. v. HUNGARY

(Application no. 33292/09)

JUDGMENT

STRASBOURG

16 April 2013

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 A.B. v. Hungary,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Peer Lorenzen,
	Dragoljub Popović,
	András Sajó,
	Nebojša Vučinić,
	Paulo Pinto de Albuquerque,
	Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 26 March 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33292/09) 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 A.B. (“the applicant”), on 8 June 2009. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).
2.  The applicant was represented by Mr A. Kádár, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.
3.  The applicant alleged in particular that his detention had been of an unjustified length, in breach of Article 5 §§ 1 and 3. Furthermore, relying on Article 5 § 4 of the Convention, he complained that the principle of “equality of arms” had not been respected when he had been challenging his detention, since he had not had access to the relevant material of the investigation.
4.  On 13 October 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1975 and lives in Budapest.
6.  On 17 January 2007 criminal proceedings were instituted against the applicant, then employed as a security guard, and his alleged accomplices. They were charged with aggravated extortion, endorsement of and profiteering from prostitution and other offences. The applicant, when he learned that the police had been looking for him, presented himself at the police station on his own initiative.
7.  On 18 January 2007 the prosecution filed a motion for his pre-trial detention. The risks of absconding, repetition of crime and collusion were referred to.
8.  On 19 January 2007 the Pest Central District Court ordered the detention. Only the last-mentioned reason was retained, since the court held that – in the face of the applicant’s settled family life, legal income and the fact that he had no previous convictions – the impending severe sanction was insufficient reason for assuming that he might abscond and, moreover, that the continuous nature of the offence he was charged with did not necessarily entail the risk of repetition of crime.
9.  On 1 February 2007 the Budapest Regional Court upheld the measure, retaining all the reasons proposed by the prosecution. The Regional Court observed that the applicant had no legal income, his personal situation was unknown and one of his accomplices had absconded.
10.  The applicant’s detention was then repeatedly prolonged at the statutory intervals on the basis of the risk of collusion and intimidation of witnesses. In particular, it was pointed out by the courts that there were elements in the investigation file according to which the applicant and his associate had attempted to influence some witnesses and that a summons sent to a witness – who had subsequently withdrawn his testimony – had been seized by the police from one of the defendants in the case.
11.  On 4 May 2007 the defence proposed, to no avail, that the detention be substituted with a less stringent measure, since at this late stage of the proceedings the risk of collusion was no longer relevant. On 7 May 2007 the applicant’s lawyer complained that no evidence was accessible to him from the prosecution’s side underlying the risk of the applicant’s intimidating the witnesses. On 31 May 2007 the applicant filed another motion, again unsuccessfully, pointing out that the risk of collusion was not substantiated by any evidence known to him. A similar complaint was made in vain on 13 September 2007.
12.  Another prolongation order issued meanwhile, on 12 September 2007, was based afresh on the risk of repetition of crime, in addition to that of absconding. On appeal, the former reason was discarded but the latter retained, with the reasoning that although the investigation had been terminated, the organised nature of the crime with which the accused were charged and their attitude towards the witnesses necessitated the continued detention.
13.  On 17 October 2007 a bill of indictment was preferred.
14.  On 19 October 2007 the detention was prolonged because of the risk of absconding and collusion. The applicant appealed, arguing that nothing indicated that he would abscond in the face of his settled background, and that no elements communicated to him by the authorities would allude to any real risk of collusion.
On 28 November 2007 the appeal was rejected but the risk of collusion was not maintained.
15.  At the first court hearing, on 18 December 2007 one of the accomplices was released on bail. However, the same was refused in respect of the applicant. The court pointed out that the proposed bail did not secure the applicant’s availability for justice in view of the impending severe sanction.
16.  A further motion with a view to release on bail was decided on 19 February 2008. The applicant’s detention was maintained, because of the risk of absconding, given the seriousness of the charges. His appeal and further requests for release on bail or the application of less stringent coercion were to no avail. The trial court made repeated references to the risk of absconding in the face of the potential severe sanction.
17.  Finally, on 10 December 2008 the applicant was released but was prohibited from leaving his domicile.
II.  RELEVANT DOMESTIC LAW
18.  Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:
Section 211
“(3) At the session the party [that is, the prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence of the party having submitted the motion. If the notified party does not attend the session but had submitted his observations in writing, this document shall be presented by the investigating judge.”
Section 186
“(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken.
(2) The suspect, the counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but they may only inspect other documents if this does not injure the interests of the investigation.
(3) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect.
(4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority. No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
19.  The applicant complained that his pre-trial detention had been of unjustified duration. He relied on Article 5 §§ 1 and 3 in this connection.
The Government contested this view.
The Court considers that this complaints falls to be examined under Article 5 § 3 alone, which provides 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.”
A.  Admissibility
20.  The Court considers 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
21.  The applicant maintained that the decisions prolonging his detention had not been individualised or taken into account his personal circumstances, had not substantiated the risk of his absconding, collusion and re-offending or involved an assessment of the possibility of applying less stringent measures.
22.  The Government submitted in reply that the applicant’s personal circumstances had duly been considered, in an individualised way, and this in an increasing manner as time had passed. Likewise, the possibility of applying less stringent measures had not been overlooked by the courts, although it was true that release on bail had not been possible for fear of the applicant interfering with the investigation. The nature of the crimes the applicant had been charged with had made it plausible for the applicant to influence or intimidate witnesses.
23.  Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.
It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.
The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. 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).
24.  The Court observes that there is a dispute between the parties as to whether the grounds given by the judicial authorities for the applicant’s continued detention were “relevant” and “sufficient”, especially in the face of the requisite individualised assessment of the particular circumstances of the detainee and of the case (see, in the context of Article 5 § 1, 
Darvas v. Hungary, no. 19547/07, §§ 27 to 29, 11 January 2011).
25.  The applicant was held in pre-trial detention from 19 January 2007 until 10 December 2008, that is, for almost one year and eleven months. During this period, the courts made repeated references to the risk of his absconding in the face of the impending severe sanction and to that of his interfering with the investigation by influencing or intimidating the witnesses. While the Court accepts that these considerations were “relevant” to the applicant’s case, it finds that, as time elapsed, they were no longer “sufficient”. In particular, no reasons – other than the seriousness of the charges – were advanced at any stage of the proceedings for assuming that the applicant might abscond, which the Court finds troubling in view of the fact that the applicant had initially reported to the police of his own motion (see paragraph 6 above). For the Court, in this context it is immaterial that one of the accomplices did abscond (see paragraph 9 above), since this circumstance had no bearing on the applicant’s foreseeable conduct.
26.  Moreover, it appears that the courts attributed decisive importance to the risk of the applicant influencing the witnesses. However, their reasoning contained no particular elements of pointing to this danger, apart from stressing the organised character of the crimes with which the applicant and his accomplice were charged. It is true that a summons issued to one of the witnesses was found in the possession of one of the accused; however, it is unclear whether or not this person was the applicant himself (see paragraph 10 above) – a circumstance reducing the pertinence of this consideration in the Court’s eyes even if bearing in mind the importance of witness protection.
27.  For the Court, the rather general argument of charges of organised crime cannot explain the applicant’s detention for the protracted period of time in question, especially in its part subsequent to the indictment on 17 October 2007 (see paragraph 13 above and Szepesi, cited above, § 28).
28.  The above considerations, together with the fact that the authorities showed little interest in considering less stringent measures and repeatedly discarded the applicant’s requests for release on bail, enable the Court to find that the grounds for the applicant’s detention – in particular when it continued after indictment – were not “sufficient”.
Drawing attention to its case-law on the matter (see, among many other authorities, the above-cited Szepesi judgment), the Court emphasises that, in protracted criminal proceedings involving a deprivation of personal liberty, it is incumbent on the authorities to seek to reduce the duration of pre-trial detention to the minimum possible and to examine the possibilities of applying less stringent alternatives.
Having regard to the above considerations, the Court concludes that there has been a violation of Article 5 § 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
29.  The applicant complained that the principle of “equality of arms” had been infringed when he had been challenging his detention, since he had had no access to the relevant material of the investigation. 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.”
30.  The Government contested that argument.
A.  Admissibility
31.  The Government submitted that the applicant should have filed an action in compensation with the civil courts claiming that the judicial authorities denying his right to have access to the documents submitted by the prosecution had caused him damages. Having failed to do so, he had not exhausted domestic remedies. To support this argument, they submitted excerpts of domestic judgments in which damages had been awarded to plaintiffs complaining about delayed imposition of a cumulative sentence, overdue release from detention, unlawful composition of a court chamber and inadequate service of a summons.
32.  The applicant submitted that at the material time – that is, prior to Constitutional Court decision no. 166/2011. (XII.20.) which endorsed the principles enounced by the Court in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999‑II) – it was ambiguous under the domestic law whether or not a suspect in pre-trial detention had a right to access the documents serving as the basis for his detention. Therefore, any tort action based on the alleged breach of this right had little prospect of success. In any event, no tort liability could be established on the judicial authorities’ side unless an intentional breach of procedure could be proven. Given the cumbersome nature of bringing such an action, it could not be regarded as an effective remedy in the circumstances.
33.  The Court considers that it is not necessary to embark on a closer scrutiny of the parties arguments’ about the effectiveness of a civil action in the circumstances, since the Government have not produced any evidence to show that such an action has proved effective in cases sufficiently similar to the present one and would consequently constitute a remedy to be exhausted in the circumstances. It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies. Moreover, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
34.  The Government submitted that under the domestic law access to the case-file in the investigation phase was not absolute in so far as it was limited to access to those elements of evidence which were relevant to the ordering or maintaining of pre-trial detention. The selection of these pieces of evidence was in the public prosecutor’s discretion. It was important to emphasise in this connection that the judge deciding on detention received exactly the same elements and based his decision on them. In reaction to a proposed amendment to the Code of Criminal Procedure, the Constitutional Court held (in decision no. 166/2011. (XII.20.)), in line with the Court’s judgment in the above-mentioned Nikolova case, that the existing rules satisfied the requirements of the principle of “equality of arms”. Since the applicant had never brought the civil action referred to above (see paragraph 31 above), the Government were unable to take a position as to whether the access actually granted in the instant case had satisfied those requirements.
35.  The applicant submitted that in his particular case no sufficient access to the evidence underlying his detention had been secured. Had such an access been granted, this would have been recorded in the case file. However, the Government had not demonstrated that this was the case. Moreover, had he been able to exercise the right of access, it would have been superfluous on his part to complain about this. However, he had repeatedly made such complaints, but in vain (see paragraph 11 above).
36.  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. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention”.
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. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see, among many other authorities, Nikolova, cited above, § 58). The disclosure of evidence must take place in good time, giving access to the relevant elements of the file prior to the applicant’s first appearance before the judicial authorities (see Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151).
37.  In the present case, the Court notes the Government’s submission according to which – in the absence of a subsequent civil action, in which the disputed issues could be clarified – they were not in a position to form a view on the adequacy of the information provided to the applicant concerning his continued detention. In this connection, the Court would refer to its above finding (see paragraph 33 above) that the non-introduction of the civil action suggested by the Government must be seen as immaterial in the circumstances.
38.  Furthermore, the Court observes that the applicant has consistently asserted, both before the domestic authorities and the Court, that he was granted no access to the relevant elements of the file and that the domestic courts did not refute the allegations about the denial of access (see paragraph 11 above). It also notes (see paragraph 18 above) that such an access is guaranteed by the Code of Criminal Procedure, unless it interferes with the interests of the investigation.
However, there is no element in the case file or the parties’ submissions indicating that the applicant could indeed exercise this right (cf. Lamy v. Belgium, loc. cit.; Lietzow v. Germany, no. 24479/94, § 47, ECHR 2001‑I; Svipsta v. Latvia, no. 66820/01, § 138, ECHR 2006‑III (extracts)).
39.  In these circumstances, the Court cannot but conclude that the Government have failed to provide evidence that the requisite access was indeed made available to the applicant, the burden of proof being incumbent on the Government in this connection.
It follows that the principle of “equality of arms” cannot be considered to have been respected in the instant case.
Consequently, there has been a violation of Article 5 § 4 of the Convention.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
40.  The applicant also complained that his detention on remand had been unjustified as such, in breach of Article 5 § 1.
The Court observes that the applicant has been prosecuted for aggravated extortion, endorsement of and profiteering from prostitution and other offences (see paragraph 6 above) and that his pre-trial detention was ordered on the reasonable suspicion emerging in this respect. It follows that the measure can be seen as justified for the purposes of Article 5 § 1 (c).
Lastly, the applicant complained that the fact that his alleged accomplice had been released on bail unlike him (see paragraph 15 above) showed that he had been discriminated against, in breach of Article 14 read in conjunction with Article 5, on account of the fact that he had not confessed to the crimes with which he was charged.
The Court considers that this complaint is unsubstantiated.
It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
41.  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
42.  The applicant claimed 3,864 euros (EUR) in respect of pecuniary damage. This amount corresponds to income lost during his detention in its part subsequent to 17 October 2007. Moreover, he claims EUR 19,000 in respect of non-pecuniary damage.
43.  The Government contested these claims.
44.  The Court finds no causal link between the pecuniary damage alleged and the violations found, especially in view of the fact that the applicant could not have pursued his employment as a security guard even if the less stringent measure in question, that is, house arrest would have been applied earlier. It therefore rejects this claim. However, it considers that the applicant must have suffered some non-pecuniary damage, and awards him, on the basis of equity, EUR 6,000 under this head.
B.  Costs and expenses
45.  The applicant also claimed EUR 5,650 for the costs and expenses incurred before the Court. This sum corresponds to 42 hours of legal work billable by his lawyer at an hourly rate of EUR 131, plus EUR 148 of clerical costs.
46.  The Government contested this claim.
47.  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 4,500 covering costs under all heads.
C.  Default interest
48.  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 concerning 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 4,500 (four thousand five 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 16 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President