In the case of X.Y. 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 19 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43888/08) 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 X.Y. (“the applicant”),
on 2 September 2008. 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).
The applicant was represented by Mr A. Kádár, a
lawyer practising in Budapest. The Hungarian Government (“the Government”) were
represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and
Justice.
The applicant complained in particular under
Article 5 § 1 of the Convention that between 18 February and 11 March 2008 his
detention had been unlawful. Moreover, in his view, his detention altogether had
lasted an unreasonably long time, in breach of Article 5 § 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.
On 10 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
The applicant was born in 1976 and lives in Budapest.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
II. RELEVANT DOMESTIC LAW
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 § 1 OF THE CONVENTION IN RESPECT OF THE PERIOD BETWEEN
18 February and 11 March 2008
The applicant complained that his detention
between the above dates had been unlawful, in breach of Article 5 § 1 of the
Convention, which reads as relevant:
“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;”
A. Admissibility
The Government argued that the applicant should
have filed an official liability action under section 349 of the Civil Code
against the authorities which had ordered his detention with a formal mistake
in respect of the impugned period. This could have been done at any time after
the occurrence of the unlawful conduct and within the period of prescription,
and the civil court could have established the fact that the applicant had been
unlawfully detained; the termination of the criminal case would have been the
precondition only of a pecuniary award. Having failed to do so, the applicant
had not exhausted domestic remedies.
As an alternative argument, they submitted that since
the criminal proceedings were still pending, it could not be determined with
certainty whether or not the applicant could be regarded as a victim, for the
purposes of Article 34 of the Convention, or whether he had suffered any
significant disadvantage, within the meaning of Article 35 § 3 (b). In
particular, if he was eventually convicted and sentenced to a prison term, the
impugned period would be credited against his sentence, redress thus being
provided for the grievance. Otherwise, he was likely to receive pecuniary
compensation in the official liability action referred to above. In the latter
context, the Government submitted extracts of domestic judgments in which
persons having been subjected to unlawful detention of various, unspecified
lengths had been awarded pecuniary compensation in amounts ranging between 700
and 1,400 euros.
The applicant submitted that any tort liability
emanating from the authorities’ allegedly wrongful action would be
statute-barred after five years, to be counted from the occurrence, that is,
from 11 March 2008 at the latest. However, according to the domestic
jurisprudence, such a claim could not be successfully pursued before the
completion of the criminal case. Should the criminal case exceed the five-year prescription
period (very likely in the circumstances), any tort action would become
obsolete. Therefore, this avenue could not be regarded as an effective remedy
to be exhausted in the circumstances. As regards the Government’s argument
about the absence of victim status, the applicant argued that the fact that the
proceedings were still pending had no impact on his having suffered an unlawful
deprivation of liberty.
The Court recalls that the purpose of the rule of
exhaustion of domestic remedies is to afford the Contracting States the
opportunity of preventing or putting right - usually through the courts - the
violations alleged against them before those allegations are submitted to the
Court. That rule must be applied “with some degree of flexibility and without
excessive formalism”; it is sufficient that the complaints intended to be made
subsequently in Strasbourg should have been raised, “at least in substance and
in compliance with the formal requirements and time-limits laid down in
domestic law”, before the national authorities (see Fressoz and Roire v.
France [GC], no. 29183/95, § 37, ECHR 1999-I). It reiterates that the
only remedies which Article 35 of the Convention requires to be exhausted are
those that relate to the breaches alleged and at the same time are available
and sufficient. The existence of such remedies must be sufficiently certain not
only in theory but also in practice, failing which they will lack the requisite
accessibility and effectiveness; it falls to the respondent State to establish
that these various conditions are satisfied (see, among other authorities, Dalia
v. France, 19 February 1998, § 38, Reports of Judgments and Decisions
1998-I).
In the present case, the Court notes the
Government’s suggestion about the possibility of filing an official liability
action.
However, it observes that the parties’ agree (see paragraphs 20
and 21 above) that such an action could be submitted with a reasonable prospect
of success only after the termination of the criminal proceedings conducted
against the applicant - which, for their part, are still pending before the
trial court.
Moreover, it is not convinced that such an action would be
capable of determining the formal unlawfulness of the applicant’s detention in
the impugned period - which has not been done, either, by the courts examining
the procedure leading to the applicant’s continued detention.
Lastly, the Court also notes the Government’s submission
according to which such an action could, depending on the outcome of the
criminal proceedings, result either in the irregular period being credited against
the applicant’s potential prison term (which, in the Court’s view, in no way
reflects the fact that this period was unlawful, such a crediting being normally
a corollary of any period of pre-trial detention, rather than that of unlawful deprivation
of liberty) or in pecuniary compensation being awarded for the authorities’
unlawful conduct.
In the latter respect the Court recalls that the fact that the
pursuit of a domestic claim results in awards of amounts that are lower than
those fixed by the Court in similar cases does not render that remedy in itself
ineffective (see Cocchiarella v. Italy
[GC], no. 64886/01, § 80, ECHR 2006-V).
However, in the present case, the Court is not in a position to
assess the compatibility with its relevant case-law on Article 41 (see in
particular Ferencné Kovács v. Hungary, no. 19325/09, § 24, 20 December 2011; Somogyi
v. Hungary, no. 5770/05,
§ 37, 11 January 2011; and Gajcsi v. Hungary, no.
34503/03, § 30, 3 October 2006) of the award obtainable in the procedure
referred to by the Government, the exact periods - to which the various amounts
of compensation awarded in the sample cases adduced by the Government corresponded
- not being ascertainable from the information provided.
For the Court, the combined effect of the above
considerations is that the remedy proposed by the Government cannot be regarded
as “available and sufficient”, especially in view of the fact that it is
dependent on the outcome of the criminal proceedings, pending before the trial
court since 2009, which in the Court’s eyes causes this legal avenue to
represent no more than a remote possibility whose assessment can only be
speculative.
It follows that this complaint cannot be rejected for
non-exhaustion of domestic remedies.
Moreover, as regards the Government’s
alternative pleading about the complaint being premature, the Court considers
that, once the official liability action has been found not to constitute a
remedy to be exhausted in the circumstances, the fact that the criminal
proceedings conducted against the applicant are still pending becomes
immaterial, since this circumstance would have played a role only in assessing
the prospects of success of such an action. It follows that the complaint
cannot be rejected on this ground for the absence of victim status or the
absence of “significant disadvantage” suffered by the applicant.
Furthermore, the Court is satisfied 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
The applicant complained that his detention
between 18 February and 11 March 2008 had been formally unlawful. The
Government did not contest this view.
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 (see 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 1996-V).
In the present case, the Court notes that on 11
March 2008 the Regional Court pointed out (see paragraph 11 above) that the
District Court had acted exceeding its competence when prolonging the applicant’s
detention on 18 February 2008. Therefore, it cannot but conclude that the
applicant’s detention between these dates was devoid of a legal basis in the
national law.
The foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of Article 5 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3
OF THE CONVENTION
The applicant complained that his pre-trial
detention had been of unjustified duration, in breach of Article 5 § 3, 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.”
The Government contested this view.
A. Admissibility
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
The applicant argued that the “reasonable
suspicion” of his having committed a crime, a general condition for pre-trial
detention, had been regarded as controversial by the second-instance court
ordering his detention (see paragraph 9 above). Therefore, his detention was as
such unjustified.
The Government argued that the Regional Court had not found that the evidence against the applicant had been controversial.
In any case, no certainty in this regard was possible or required at this early
stage of the investigation.
Moreover, 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. The arguments of the defence
(see paragraph 7 above) had largely remained unanswered.
The Government submitted in reply that the
applicant’s personal circumstances had duly been considered, in an
individualised way, and this in an ever-increasing manner as time had been
passing; indeed, it had been these considerations that had led to the applicant’s
eventual release (see paragraph 13 above). Likewise, the possibility of
applying less stringent measures had not been overlooked by the courts,
although it is true that release on bail had not been possible for fear of the
applicant interfering with the investigation.
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).
Turning to the circumstances of the present
case, the Court notes the parties’ diverging positions as to the existence of a
“reasonable suspicion”. For its part, the Court finds nothing in the case file
demonstrating that the domestic authorities acted arbitrarily when they
established that there was a reasonable suspicion that the applicant had been
implicated in a series of car thefts. In this connection, the Court shares the
Government’s view according to which in this early stage of the proceedings the
notion of “reasonable suspicion” cannot be equated with that of certainty,
subsequently required for a conviction.
The Court further observes that there has been 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).
. The
Court considers that, even assuming that those reasons were as such “relevant”,
they cannot be regarded as “sufficient” for the following reasons.
The Court would point out 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, as the Court has held in the context
of Article 3 of the Convention, those courts are in general not obliged to
release him on health grounds or to place him in a civil hospital to enable him
to receive a particular kind of medical treatment.
On the other hand, the Court observes that under Article 5 § 3
the authorities, when deciding whether a person should be released or detained,
are obliged to consider alternative measures of ensuring his appearance at
trial. Indeed, that Article lays down not only the right to “trial within a
reasonable time or release pending trial” but also provides that “release may
be conditioned by guarantees to appear for trial”. That provision does not give
the judicial authorities a choice between either bringing the accused to trial
within a reasonable time or granting him provisional release - even subject to
guarantees. Until conviction he must be presumed innocent, and the purpose of
Article 5 § 3 is essentially to require his provisional release once his
continuing detention ceases to be reasonable (see Jablonski v. Poland,
no. 33492/96, §§ 82-83, 21 December 2000).
In the present case, the Court notes that over
the period of six months and eleven days which the applicant spent in pre-trial
detention, no genuine consideration appears to have been given to the
possibility of imposing on him other, less stringent measures, such as bail or
house arrest. The Court finds this particularly troubling in view of the fact
that the authorities became aware of the applicant’s psychological problems at
the latest on 8 February 2008 when an expert opinion to that effect was
submitted to them. However, the applicant’s detention continued for almost
another four months, irrespective of the circumstance that he had meanwhile
been the victim of a sexual assault which had aggravated his mental condition
(see paragraphs 10 to 13 above).
For the Court, it is regrettable that the domestic authorities
paid no heed to the fact that with the passage of time and given the applicant’s
deteriorating health, it became more and more acutely obvious that keeping him
in detention no longer served the purpose of bringing him to “trial within a
reasonable time” (see Jablonski, cited above, § 84). In the
circumstances, 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.
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 therefore been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION
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.”
The Government contested that argument.
A. Admissibility
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.
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 of access to 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.
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 similar cases
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
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 and based his decision on the same elements. 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 45
above), the Government were unable to take position as to whether the access
actually granted in the instant case had satisfied those requirements.
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 10 above).
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).
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 47 above) that the
non-introduction of the civil action suggested by the Government must be seen
as immaterial in the circumstances.
Furthermore, the Court observes that the applicant has been
consistently asserting, both before the domestic authorities and the Court,
that he had been granted no access to the relevant elements of the file and
that the domestic courts rejected his related complaints without refuting the
allegation about the denial of access (see paragraph 10 above). It also notes
(see paragraph 17 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)).
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.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained that, quite apart
from the issue concerning the period between 18 February and 11 March 2008, his
entire detention on remand had been unjustified.
The Court observes that the applicant has been prosecuted for
several counts of car theft 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, although with a more serious background, had been released on bail
unlike him 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 crime 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.
V. 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 10,344 euros (EUR) in
respect of pecuniary damage. This amount corresponds to income lost during his
detention. Moreover, he claims EUR 20,000 in respect of non-pecuniary damage.
The Government contested these claims.
The Court considers it appropriate to award, on
an equitable basis, EUR 18,000 to the applicant under all heads.
B. Costs and expenses
The applicant also claimed EUR 5,800 for the
costs and expenses incurred before the Court. This sum corresponds to 43 hours
of legal work billable by his lawyer at an hourly rate of EUR 131, plus EUR 167
of clerical costs.
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 sum of EUR 4,500 covering costs under all heads.
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
1. Declares the complaints concerning Article 5
§ 1 (in regard to the period of 18 February to 11 March 2008), Article 5 § 3
and Article 5 § 4 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention in regard to the period of 18 February to 11
March 2008;
3. Holds that there has been a violation of
Article 5 § 3 of the Convention;
4. Holds that there has been a violation of
Article 5 § 4 of the Convention;
5. 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 18,000 (eighteen thousand euros), plus any
tax that may be chargeable, in respect of pecuniary and 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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi Registrar President
