HUNVALD v. HUNGARY - 68435/10 - Chamber Judgment [2013] ECHR 1264 (10 December 2013)

In the case of Hunvald v. Hungary,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

     Guido Raimondi, President,
     Işıl Karakaş,
     Peer Lorenzen,
     András Sajó,
     Nebojša Vučinić,
     Paulo Pinto de Albuquerque,
     Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 19 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 68435/10) 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 Gy. Hunvald, on 15 October 2010.

2. The applicant was represented by Mr P. Sebes, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

3. The applicant alleged, relying on Article 5 §§ 1 (c), 3 and 4 of the Convention, that - while in detention on remand - his motions of evidence had been neglected or not dealt with in due time, therefore his detention had been unduly protracted. He also complained that his right to a fair trial had not been respected, in breach of Article 6 § 1, since he was not informed promptly and in adequate time about the reasons for the prosecution against him. Moreover, relying on Article 8, he complained of a restriction on maintaining contact with his family members. Furthermore, relying on Article 13, he submitted that there had been a violation of his right to an effective remedy since his appeal against the decision of 23 July 2010 had been rejected before he had introduced his detailed written appeal. Lastly, relying on Article 3 of Protocol No. 1, the applicant challenged the denial of his right to vote in municipal elections.

4. 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

5. The applicant was born in 1965 and lives in Budapest.

6. On 10 February 2009 the applicant, former Mayor of the Budapest 7th District Municipality, was arrested on charges of aggravated fraud and other crimes. Previously, criminal proceedings had been initiated against some of the close colleagues and acquaintances of the applicant in the same context.

7. In the prosecution’s ensuing motion to have the applicant detained on remand, the dangers of absconding, collusion and recidivism were referred to.

8. The defence argued that the applicant, as soon as he had become aware that the police wanted him, had voluntarily reported to the police and also indicated to the authorities his willingness to cooperate, without having any intention to abscond.

9. The defence moreover submitted that the applicant’s pre-trial detention was not justified and should be substituted with a less coercive measure if any was needed at all.

10. On 12 February 2009 the Pest Central District Court ordered the applicant’s detention on remand, despite the defence’s request to have the applicant released, or that, if a coercive measure was inevitable, house arrest be considered instead. The court held that an element had occurred in the investigation according to which the applicant intended to influence the investigative authority, namely the prosecutor’s office, with the help of his rather wide circle of acquaintances; however, this element was not specified. The court also noted that several further steps of investigation were still outstanding, and therefore the risk of collusion or interference was real. It moreover held that the risk of repetition of crime would also be a real one if the applicant were released. After the announcement of the decision, the applicant’s lawyer immediately appealed, again proposing the application of less stringent measures if any were needed.

11. On 20 February 2009 the Budapest Regional Court upheld the first-instance decision but expanded the reasoning to include the risk of absconding. It noted the applicant’s settled family circumstances, but held that the detention was necessary, “for other reasons” (más okból), to pre-empt his absconding, without specifying the underlying reasons.

12. The defence’s ensuing request lodged with the Central Investigation Prosecutor’s Office to have further evidence gathered, namely expert opinions (in particular, a real estate valuer), was rejected.

13. On 10 and 12 February 2009 the Central Investigation Prosecutor’s Office restricted, for fear of collusion, the applicant’s personal contacts, that is, correspondence and contacts in person with his family members were allowed only under the supervision of the Public Prosecutor’s Office. He was authorised to maintain phone contacts only with his lawyer.

In the context of the death of his father, the applicant was granted two meetings with relatives in May and June 2009.

14. 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, supplemented by the fact that some concerns had emerged as to the applicant’s health condition. In reply to the applicant’s respective appeals, the second-instance court was satisfied that the lower court had assessed, in an individualised manner, the applicant’s personal circumstances as such.

The defence raised the argument that the applicant, an influential former politician, had never attempted to conceal evidence or connive with witnesses, so that any fears of collusion were unfounded. However, the courts were not persuaded by this submission.

15. The applicant’s further requests for release or for a less coercive measure were to no avail. The defence repeatedly stressed the absence of concrete elements underlying the detention and the disregard for the applicant’s personal circumstances, most importantly his health problems. The courts rejected these submissions, mainly arguing that the risks of collusion or interference as well as that of repetition of crime were real and, moreover, a severe sentence was impending, rendering likely the applicant’s absconding.

16. As of 3 December 2009 the Central Investigation Prosecutor’s Office charged the prison detaining the applicant (Fővárosi BV. Intézet) with the responsibility to determine the length and frequency of family contacts. It instructed the penitentiary to grant, in particular, a family visit also in December.

From 4 December 2009 onwards no specific restrictions were applied to the applicant, by virtue of a complaint accepted by the Attorney General’s Office. He could receive visits, maintain phone contacts and correspond with his family according to the general, statutory rules.

17. The defence’s requests for the applicant’s release on bail were rejected with the reasoning that bail was excluded by law in cases where reasons other than only the risk of absconding existed for the pre-trial detention.

18. According to the courts’ reasoning given on 22 November 2010, when a preliminary session was held to prepare the trial, the applicant’s pre-trial detention was upheld only upon the risk of absconding, and the risk of collusion no longer existed. However, after this date, no request for release on bail was introduced afresh.

19. In the meantime, on 23 July 2010 a court session was held, at which the detention was again prolonged. Both the applicant and his lawyer appealed, orally, immediately after the pronouncement of the decision.

Moreover, the applicant’s lawyer lodged a written elaboration of the appeal. This submission reached the court on 28 July 2010.

The written version of the applicant’s own appeal was also dated 28 July (but was introduced to the court only on 30 July 2010).

In the possession solely of the lawyer’s appeal, the second-instance court adopted a decision endorsing the prolongation on 28 July 2010.

20. On 3 October 2010 municipal elections were held but the applicant was not allowed to participate, on account of his status as a detainee.

21. The file relating to the proceedings conducted against the applicant contained a 121-page indictment and investigatory files of some ten thousand pages. The case against altogether twenty-five defendants was lodged with the Budapest County Court on 9 November 2010.

22. Meanwhile, the applicant underwent medical examinations by specialists at the Central Prison Hospital but no acute medical intervention was proposed. He expressly refused, in case of necessity, not only any surgical intervention within the institution but also any after-treatment of any potential surgery.

23. On 23 February 2011 the lawyer submitted medical documentation about the applicant’s state of health and requested the courts to terminate the pre-trial detention and order house arrest instead.

24. On 11 March 2011 the court rejected the request, referring to the fact that the applicant had refused any medical treatment. It noted that the surgery in question could be carried out at the Central Prison Hospital or, if necessary, at a civilian hospital.

25. On 13 May 2011 the applicant was released by an order of the first-instance court and placed under house arrest. However, on the prosecution’s appeal, he was detained again as of 17 June 2011.

The applicant’s detention was finally terminated on 29 October 2011.

After a first-instance partial conviction, on 10 October 2013 the Szeged Court of Appeal gave a second-instance judgment. The applicant’s appeal is pending before the Kúria.

II. RELEVANT DOMESTIC LAW

26. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:

Section 43(3)

“A detainee shall be entitled to ...

b) have contact with his relative or ... any other person [by telephone] or in person under supervision, or in writing under control. Contact with a relative may be restricted or banned exclusively in the interest of the success of the criminal proceedings.”

Section 129

“(2) Pre-trial detention of a defendant may take place in a procedure related to a criminal offence punishable by imprisonment, and only under the following conditions: ...

b) if, owing to the risk of escaping or absconding, or for other reasons, there is reasonable cause to believe that the presence of the defendant in procedural actions cannot be otherwise ensured,

c) if there is reasonable cause to believe that if left at liberty, the defendant would frustrate, obstruct or jeopardise the taking of evidence, especially by means of influencing or intimidating witnesses, or by the destruction, falsification or secretion of physical evidence or documents, ...

d) if there is reasonable cause to believe that if left at liberty, the defendant would accomplish the attempted or planned criminal offence or commit another criminal offence punishable by imprisonment.”

Section 131

“(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention. Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.”

Section 186

“(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken.

(2) The suspect, counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but may only inspect other documents if this does not injure the interests of the investigation.

(3) The suspect and 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.”

Section 195

“(1) Anyone affected directly by the dispositions contained in the prosecutor’s or investigating authority’s decision on the rejection of a complaint [...about] coercive measures ... may file a complaint within eight days following communication of the decision.

(4) ... The complaint against the decision of the prosecutor shall be adjudged by the superior prosecutor, while the complaint against the decision of the investigating authority shall be judged by the prosecutor, within fifteen days of receipt...

(5) [A] the decision admitting or rejecting the complaint is not subject to any further remedy.”

Section 211

“(3) At the [court] session, 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 ... . If a notified party does not attend the session but submitted observations in writing, this document shall be presented by the investigating judge.”

Section 215

“(1) A decision of the investigating judge may be appealed by all those parties who have been notified thereof. Any appeal against a decision notified by way of oral pronouncement shall be lodged [orally] immediately after the pronouncement.

(5) Regardless of an appeal, the order for a coercive measure entailing the restriction on deprivation of personal freedom may be executed [at once].”

27. Law-Decree no. 11 of 1979 on the Execution of Punishments and Measures provides as follows:

Section 118

“(1) A pre-trial detainee ...

d) may have correspondence with his relatives and - with the approval of the public prosecutor, or after the filing of the bill of indictment, with the approval of the court - with other persons; he may receive one visitor and one parcel at least once a month.

(2) The pre-trial detainee’s right of correspondence and right to receive visitors and parcels may - except for contact with his defence counsel - be limited in the interests of the successful completion of the criminal proceedings.”

28. Decree no. 6 of 1996 (VII.12.) of the Minister of Justice on the Rules of Enforcement of Imprisonment and Detention on Remand provides as follows:

Section 6

“(1) ... In matters related to his detention, the inmate may ... request the head of the organisational unit concerned or the prison governor to hear him in person, or may address them in writing.

(2) The inmate may file a complaint to the prison governor against a ruling (measure, decision) taken or omitted under subsection (1). Where the decision has been taken by the prison governor ... the complaint shall be adjudged by the National Commander of the Prison Administration.”

Section 7

“In matters related to his detention, the inmate may, in addition to the remedies provided under section 6, turn directly to:

a) the penitentiary supervisory public prosecutor, requesting him to hear him in person; ...

b) the Ombudsman, in regard to any alleged violation of human rights sustained during the incarceration; ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

29. The applicant complained that his detention and its prolongations had been unjustified since the courts had failed to produce any concrete elements underlying the necessity of this measure. He relied on Article 5 § 1 of the Convention.

The Court considers that this complaint falls to be examined under Article 5 § 3, which 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.”

30. The Government contested the applicant’s argument.

A. Admissibility

31. The Court notes 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

1. The parties’ submissions

32. The applicant complained that the decisions prolonging his detention had not been individualised or taken into account his health condition, nor had they substantiated the risk of his absconding, collusion or re-offending. Moreover, they had not involved an assessment of the possibility of applying less stringent measures. The arguments of the defence (see paragraphs 10 and 11 above) had largely remained unanswered.

33. The Government submitted that the applicant’s pre-trial detention had been based on specific facts related to his case in accordance with section 129(2) b), c) and d) of the Code of Criminal Procedure. Pre-trial detention could be ordered if there was a risk of collusion or repetition of crime or a danger of the defendant’s absconding or for other reasons if it could be assumed that the defendant’s presence at the procedural acts could not be secured otherwise.

34. The Government went on to argue that, as a precondition for detention on remand, the existence of reasonable suspicion against the applicant had been examined by the judicial authorities ordering detention. A reasonable suspicion of a crime indeed persisted throughout his pre-trial detention. Throughout the initial stages of the investigation, the charges against the applicant had gradually developed; the facts and the characterisation of the offences had been modified as the investigation had progressed. The judicial authorities had been satisfied that all the charges were supported by solid evidence, corroborating the reasonable suspicion against the applicant

When, in consecutive decisions, identical reasoning had been applied in regard to the detention, this had been justified by the courts’ finding that there had been no change in the relevant circumstances since the previous decision.

35. As to the particular grounds of detention on remand, the Government asserted that the danger of collusion had been supported by information obtained through secret surveillance to the effect that the applicant had intended to influence the investigation authorities via his political connections.

The risk of reoffending had been found to be supported by the fact that the offences which the applicant was suspected of had been committed during a long period of time and in an organised manner.

As regards the risk of absconding, the judicial authorities had been aware of the applicant’s settled family circumstances; nonetheless, “for other reasons”, the courts had assumed that the applicant’s availability for justice could not be secured otherwise.

This “other reason” had related to the complex personal and material correlations, the organised commission of the applicant’s alleged offences involving large sums of money, and the fact that the unravelling of the network in question had been against the interests of criminal organisations.

36. Likewise, the possibility of applying less stringent measures had also been examined by the courts. The restriction on the applicant’s contacts with others had been of paramount importance in order to prevent collusion. House arrest had not been adequate because it would not have prevented those contacts. Release on bail, when requested, had been excluded by law; and when this was no longer the case, it had not been requested again.

2. The Court’s assessment

37. The Court reiterates that under its 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 (see, among other authorities, W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A).

38. 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 Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV).

39. In the present case, the Court observes that the applicant was kept in detention on remand for over thirty-one months. He was considered by the domestic courts to pose a potential risk of absconding and collusion; moreover, it was also considered that he might potentially re-offend.

The risk of absconding was corroborated in the eyes of the authorities, as was repeated by almost all court instances prolonging the detention, in essence by the gravity of the charges and the related severity of the impending sentence, as well as by a certain ‘element’ of evidence (see paragraph 11 above) pointing to the applicant’s intention to abscond, which however was never specified or revealed to the defence.

Moreover, those authorities held that the organised character of the alleged crime and the magnitude of the sums involved amounted to establishing the risks of collusion and reoffending - and this without embarking on any particular analysis as to the manner in which those findings and assumptions interrelated.

40. Assuming that the suspicion that the applicant had committed a serious offence initially justified his detention, the Court considers that the gravity of the charges, although “relevant”, could not itself constitute a “sufficient” ground for his being held in custody for the entire period. Moreover, as to the remaining two grounds, the Court observes that the findings of the courts prolonging the applicant’s detention under those heads were reproduced in rather stereotyped decisions, whereby the applicant’s substantive arguments were not duly considered.

41. The Court notes that the defence’s arguments also included health issues. In this respect the Court finds that Article 5 § 3 cannot be read as obliging the national authorities to release a detainee on account of his state of health. The question of whether or not the condition of the person in custody is compatible with his continued detention should primarily be determined by the national courts and they are in general not obliged to release the detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (see
Kudła v. Poland [GC], no. 30210/96, § 93, ECHR 2000-XI). In the present case, the Court does not attach much weight to this issue, observing that the requisite treatment was available to the applicant while in detention (see paragraph 22 above), and it was the applicant who expressly refused those options.

42. Moreover, the Court notes that over the period of thirty-one months in pre-trial detention, no genuine consideration appears to have been given to the possibility of imposing on the applicant other, less stringent measures, such as prohibition on leaving his residence or house arrest.

43. In sum, the Court is of the opinion that the applicant’s prolonged detention could not be considered “necessary” from the point of view of ensuring the due course of the proceedings.

44. The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in custody for the period in question.

There has accordingly been a violation of Article 5 § 3 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45. The applicant complained that his health condition had not been duly considered by the authorities and his request for external medical examination and treatment was rejected, which decision indirectly endangered his life in breach of Article 2 of the Convention.

The Court observes that there is no indication whatsoever that the applicant’s ailment could not be treated within the penitentiary health care. The applicant was examined within the penitentiary institution and no acute medical intervention was proposed. Moreover, it is to be noted that it was the applicant who refused to accept any further therapy to be provided by the penitentiary health service (see paragraph 22 above). His submissions do not disclose any appearance of a violation of his rights under Article 2 or 3 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

46. Relying on the Article 6 § 1, the applicant also stated that in spite of his various submissions and complaints - which were repeatedly rejected - the authorities did not dismiss outright the charges against him, which resulted in a significant delay in respect of the whole procedure. Ignoring his arguments, the Public Prosecutor’s Office did not re-characterise some of the crimes he had been charged with as an attempt, rather than an accomplished offence.

In so far as this complaint may be understood to relate to the fairness of the proceedings, the Court observes that the trial is still pending, a fact rendering this complaint premature.

Inasmuch these submissions concern the length of the proceedings, the case has been pending for some four years and nine months so far. During this period, two court instances have dealt with the case, which is rather complicated. The Court considers that, in the face of the complexity of the case and the number of suspects, the overall length of the proceedings has not yet exceeded a reasonable time, and no particular delay or inactivity imputable to the authorities can be observed throughout the proceedings.

This complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

47. The applicant further complained that the restrictions on visits, correspondence and phone calls from his family from the beginning of his detention until December 2009 amounted to a breach of his right to respect for family life, enshrined in Article 8 of the Convention.

The Government argued that the applicant should have complained about this to the competent prosecution authority under section 195 of the Code of Criminal Procedure, a remedy potentially capable of redressing the impugned situation. The applicant submitted that he had done so, but in vain.

The Court considers that it is not necessary to decide on the efficiency and exhaustion of the remedy referred to by the Government, since this complaint is in any event inadmissible for the following reasons. The Court observes that from his arrest until December 2009, that is, for some ten months, the applicant’s correspondence and visits were subject to supervision by the prosecution authorities and that he could maintain phone contacts only with his lawyer. These measures were justified domestically by the risk of collusion.

The Court considers that the impugned restrictions, whose lawfulness has not been in dispute, pursued the legitimate aim of prevention of crime, and were necessary in democratic society in order to secure, in an uncorrupted form, outstanding evidence potentially incriminating the applicant. At that time, the investigation into this serious fraud case was still underway, the bill of indictment not having been preferred yet. The Court is satisfied that the measures were not disproportionate, since the applicant was allowed to receive visits and letters from his family, albeit under prosecutorial supervision. This complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

48. The applicant also complained that he had not had an effective remedy, as required by Article 13 of the Convention, concerning his detention - in that, on 28 July 2010, the competent second-instance court had decided on the prolongation before the written version of his own appeal reached the bench.

The Government submitted that, when deciding on the prolongation, the court had had at its disposal the written appeal of the applicant’s lawyer which had enabled it to adopt a well-founded decision, having regard to the expedited character of these proceedings.

The Court observes that any appeal against a decision about the pre-trial detention communicated by way of a pronouncement shall be lodged immediately after the pronouncement (see section 215 (1) of the Code of Criminal Procedure, quoted in paragraph 26 above), that is, in oral proceedings. In the particular case, both the applicant and his lawyer made an oral appeal in application of this rule. Moreover, the written version of the lawyer’s appeal reached the competent second-instance court on the day when it adopted its decision (see paragraph 19 above) and was available to it. In these circumstances, the Court finds it immaterial that the written version of the applicant’s own appeal was received by that court only belatedly - and this without taking a position on the appropriateness of the requirement to appeal immediately after the decision in question.

The Court is satisfied that the elements of this procedure do not disclose any appearance of violation of Article 5 § 4 of the Convention, this provision being lex specialis in this field. Therefore, this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

49. Moreover, the applicant complained that there had been a violation of Article 3 of Protocol No. 1 to the Convention when the penitentiary institution rejected his request for participation in the municipal elections.

The Court finds that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), since Article 3 of Protocol No. 1 to the Convention only covers legislative, rather than municipal, elections.

50. Lastly, the applicant complained, in rather general terms, that the investigative authorities had continuously communicated particulars of his case to the public in an unlawful manner, this being discriminatory in breach of Protocol No. 12 of the Convention.

The Court observes that this complaint is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), since Hungary has not ratified Protocol No. 12 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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

52. The applicant claimed 22,105,103 Hungarian forints (HUF) (approximately 81,000 euros (EUR)) in respect of pecuniary damage and HUF 10,000,000 in respect of non-pecuniary damage. This amount also corresponds to income lost during his detention.

53. The Government contested these claims.

54. The Court finds no causal relation between the pecuniary damage claimed and the violation found; therefore it rejects this claim. On the other hand, it considers that the applicant must have suffered some non-pecuniary damage, and awards him, on the basis of equity, EUR 2,700 under this head.

B. Costs and expenses

55. The applicant also claimed HUF 1,000,000 Hungarian forints (approximately EUR 3,400) for the costs and expenses incurred before the Court. This amount would correspond to the legal work billable by his lawyer. To support his claim, he submitted an invoice of HUF 600,000 (approximately EUR 2,000), dated 28 April 2009.

56. 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 2,000 covering costs under all heads.

C. Default interest

57. 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 complaint concerning the length of the applicant’s pre-trial detention 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

(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 2,700 (two thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

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