CASE OF X.Y. v. HUNGARY
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Release pending trial;Trial within a reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary and non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
5. The applicant was born in 1976 and lives in Budapest. 6. On 15 November 2007 the applicant was arrested on charges of a series of car thefts. In the prosecution’s ensuing motion to have him detained on remand, the dangers of absconding, collusion and repetition of crime were referred to. 7. The defence argued that there was no reasonable suspicion that the applicant had indeed committed an offence. Moreover, since he had a settled life in Hungary, the applicant – who was the father of a minor child and had regular income out of which he was supporting his parents and was paying a mortgage – was unlikely to abscond. In another criminal case conducted against him, he had attended all the hearings and had never attempted to frustrate the procedure. In the instant case, all evidence having already been seized, it was not plausible that he would interfere with the witnesses or repeat any crime. Against this background, his pre-trial detention was not justified and should be substituted, if necessary at all, by a less coercive measure. 8. On 17 November 2007 the Pest Central District Court ordered the applicant’s detention on remand, reiterating in essence the reasons in the prosecution’s motion. 9. On 29 November 2007 the Budapest Regional Court rejected the applicant’s appeal. This court was satisfied that there was reasonable suspicion against the applicant. It pointed out that no actual assessment of that evidence could be done in the remand proceedings because that would amount to usurping the powers of the trial court. The Regional Court moreover held that the fact that the applicant had made preparations to buy property abroad was sufficient to substantiate the danger of absconding. Moreover, since there was another prosecution under way, the court held that the applicant might have a criminal lifestyle, a predisposition to repetition of crime. The court went on to state that “in the present phase of the proceedings, the controversies referred to by the defence are not capable of fully eliminating the reasonable suspicion” of the applicant’s having committed a crime. 10. The applicant’s pre-trial detention was repeatedly prolonged at the statutory intervals. In these proceedings, the arguments of the defence remained largely the same, and so did the findings of the courts. The applicant’s requests for release, if necessary on bail, were to no avail. On 18 December 2007, 8 and 28 February and 28 March 2008 the applicant complained to the authorities that he had not been granted access to the evidence underlying his detention. These complaints were all rejected, although the courts did not specify that such an access had actually been granted. Meanwhile, on 8 February 2008 the applicant submitted to the authorities a psychiatric opinion, according to which he suffered from a personality disorder, including fear of crowds and of being locked up, which was susceptible to deterioration due to detention. A further expert opinion issued on 16 March 2008 specified that the applicant had suffered a sexual assault from fellow inmates while in detention, which had aggravated his psychological imbalance. 11. Meanwhile, a further prolongation order, valid until 17 February 2008, was issued on 14 February 2008. However, the applicant was not released on 17 February 2008, because the holding facility had received a mistyped notification ordering his detention until 17 May – rather than 17 February – 2008. On 18 February 2008 the first-instance court corrected its order of 14 February. On appeal, on 11 March 2008 the Regional Court reversed the latter decision, holding that, although there had obviously been a typing mistake, the first-instance court could not correct the operative part of its order and that this matter was subject to a reversal within the jurisdiction of the Regional Court. It further reiterated the consideration that no assessment of the evidence giving rise to the reasonable suspicion against the applicant could be done in the remand proceedings. On 3 April 2008 the applicant filed a request for release. This was rejected by the District Court. In his appeal, he stressed that his tolerance of detention had diminished on account of the psychological problems he had. On 14 May 2008 the Regional Court rejected the appeal, being satisfied that the applicant’s condition could be properly treated within the penitentiary health system. In his further complaints, the applicant’s lawyer emphasised that the applicant needed to be heavily medicated, because of which he could not be validly interrogated, and the resultant situation ran counter to both the applicant’s rights and the interests of the investigation. 12. The applicant’s pre-trial detention continued until 29 May 2008. The defence repeatedly made references to the absence of concrete elements underlying a reasonable suspicion against the applicant and to his personal circumstances not in the least warranting his continued detention. The applicant stated that the courts had rejected these arguments in rather stereotyped decisions. 13. On 29 May 2008 the Regional Court replaced the applicant’s detention with house arrest. It held that the danger of absconding had lessened to an extent that house arrest was then sufficient, especially in view of the indecent assault the applicant had suffered from fellow inmates. It also took into account the time that had elapsed, the applicant’s settled family and personal circumstances, and the fact that his health had seriously deteriorated. 14. On 26 June 2008 the applicant’s house arrest was lifted and replaced with a restriction on leaving Budapest (as of 21 January 2009, on leaving Pest County). On 15 November 2009 all restrictions on the applicant’s personal liberty were lifted. 15. The applicant submitted that an alleged accomplice, Mr Á., although he had previously absconded, had no legal income or employment and had no minor children, had been released on bail in October 2007 – in the applicant’s view simply due to the fact that, unlike him, Mr Á. had confessed to the crime with which he was charged. 16. A bill of indictment against the applicant and ten co-defendants was filed with the Buda Central District Court on 11 December 2009. The trial of the case is pending. 17. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows: “(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.” “(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.”