CASE OF FERENCNE KOVACS v. HUNGARY
Violation of Art. 5-1
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicant was born in 1925 and lives in Budapest. 6. The applicant was prosecuted for having assaulted an official on 8 March 2001. Between 21 March 2003 and 20 October 2008 she failed to attend, without a due excuse, seven hearings scheduled in the case. Several bench warrants were consequently issued, but in vain. 7. Eventually, on 5 March 2009 the Tatabánya District Court ordered her pre-trial detention in her absence, implicitly relying on section 281(6) of the Code of Criminal Procedure. It is not clear whether this act took place at a hearing (tárgyalás) or a session (ülés). The applicant’s appeal against her detention to the Komárom-Esztergom County Regional Court was to no avail. 8. On 17 March 2009 the applicant was apprehended. On 17 April 2009 her detention was terminated. 9. Section 281(6) of the Code of Criminal Procedure (Chapter 13: The first-instance court hearing), as in force until 7 March 2007, provided as relevant: “If a bench warrant has been issued in the procedure due to the non-attendance of the accused, an arrest warrant shall be issued or pre-trial detention ordered, provided that the offence in question is punishable with imprisonment.” 10. By decision no. 10/2007. (III.7.) AB, the Constitutional Court deleted the phrase “pre-trial detention ordered” from the above provision. The Constitutional Court reasoned in essence that the impugned provision, in its original form, constituted a basis for a disproportionate measure: the accused’s mere non-attendance after the issuance of a bench warrant, caused by any reason, led to the assumption of wrongful omission on his/her side, entailing, without any further examination, the ordering of pre-trial detention. The Constitutional Court went on to conclude as follows: “[T]he Constitution ... prescribes as a statutory guarantee in the procedure with a view to deciding [on pre-trial detention] that the accused must be heard. To hear the accused is part of the [constitutional] requirement of due process which is relevant in every stage of the proceedings. There is no such constitutional interest or aim which would allow a limitation on the accused’s [constitutional] right to be heard by a court, without a breach of the latter’s right to a due process.” 11. In reply to further arguments challenging the constitutionality of the remainder of section 281(6), the Constitutional Court nevertheless upheld the provision in its part allowing for an arrest warrant to be issued, holding that such a measure was still within the boundaries of proportionality, as opposed to the ordering of pre-trial detention which is the most stringent coercive measure in this field. It argued that once the absconding or unavailable accused was arrested, the court would be in a position to examine the merits of those circumstances which might require the imposition of pre-trial detention. 12. Consequently, from 7 March 2007 and at the material time, section 281(6) read as follows: “If a bench warrant has been issued in the procedure due to the non-attendance of the accused, an arrest warrant shall be issued, provided that the offence in question is punishable with imprisonment.”