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SECOND
SECTION
CASE OF FERENCNÉ KOVÁCS v. HUNGARY
(Application
no. 19325/09)
JUDGMENT
STRASBOURG
20
December 2011
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 Ferencné
Kovács v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 29 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19325/09) 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, Ms Ferencné Kovács
(“the applicant”), on 14 April 2009.
- The
applicant was represented by Mr T. Fazekas, a lawyer practising in
Budapest. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
- The
applicant complained under Article 5 § 1
(c) of the Convention that her pre-trial detention had not been
ordered lawfully.
- On
5 July 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
- The
applicant was born in 1925 and lives in Budapest.
- 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.
- 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.
- On
17 March 2009 the applicant was apprehended. On 17 April 2009 her
detention was terminated.
II. RELEVANT DOMESTIC LAW
- 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.”
- 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.”
- 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.
- 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that her pre-trial detention had had no legal
basis in the domestic law, in breach of Article 5 § 1 of the
Convention, which reads as follows:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application 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
- The
Government argued that the impugned measure had been necessitated by
the applicant’s unavailability for the proceedings. Moreover,
they submitted that section 281(6) only concerned pre-trial detention
ordered at a hearing, whereas the measure imposed on the applicant
was ordered at a session.
- The
applicant submitted that it was unclear whether the impugned measure
had been applied at a hearing or a session. In any case, the
Constitutional Court ruling gave clear guidance to the effect that
the imposition – whether at a hearing or a session – of
pre-trial detention in the circumstances, merely on account of the
accused’s non-attendance, amounted to a deprivation of the
constitutional right to be heard by a court before incarceration.
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. While it is
normally in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, it is otherwise in
relation to cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention.
In such cases the Court can and should exercise a certain power to
review whether national law has been observed (Baranowski v.
Poland, no. 28358/95, § 50, ECHR 2000-III). Moreover, any
deprivation of liberty must not only have been effected in conformity
with the substantive and procedural rules of national law but must
equally be in keeping with the very purpose of Article 5, namely
to protect the individual from arbitrariness (see, among many other
authorities, Chahal v. the United Kingdom, 15 November 1996, §
118, Reports of Judgments and Decisions 1996 V).
- In
the present case, the Court notes that the applicant’s
pre-trial detention was ordered because she had made herself
unavailable for the proceedings, despite bench warrants in place. It
is true that such a measure had been allowed under the original
wording of section 281(6). However, the Constitutional Court removed
the phrase “pre-trial detention ordered” from that
provision (see paragraph 10 above) as of 7 March 2007, that is,
well before the relevant events. For the Court, it is immaterial
whether the impugned measure was applied at a ‘hearing’
or a ‘session’, since it is evident from the reasoning of
the Constitutional Court decision that the possibility of imposing
pre-trial detention on an absent accused was removed with regard to
the constitutional requirement of securing an oral hearing before
such a stringent measure is applied. The Court would also note that,
notwithstanding this change, the authorities had at their disposal
the power to issue an arrest warrant so as to consider properly the
necessity of pre-trial detention and the personal circumstances of
the accused (including those underlying her having missed the
previous hearings), once the latter is apprehended and a hearing can
be put in place.
- The
foregoing considerations are sufficient to enable the Court to
conclude that section 281(6) of the Code of Criminal Procedure, as in
force at the material time, did not provide a legal basis for the
ordering of the applicant’s pre-trial detention in absentia.
There
has accordingly been a violation of Article 5 § 1 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 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage and awards the full sum claimed.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 for the costs and expenses incurred
before the Court. This sum corresponds to the fee billable by her
lawyer in respect of twelve hours of legal work charged at an hourly
rate of EUR 125.
- The
Government contested this claim.
- 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.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 1 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, the following
amounts, to be converted into Hungarian forints 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
1,500 (one 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.
Done in English, and notified in writing on 20 December 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
