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SECOND
SECTION
CASE OF SZEPESI v. HUNGARY
(Application
no. 7983/06)
JUDGMENT
STRASBOURG
21
December 2010
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 Szepesi v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi,
judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7983/06) 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 and German dual national, Mr Tibor
Szepesi (“the applicant”), on 21 February 2006.
- The
applicant was represented by Mr U. Sommer, a lawyer practising in
Köln. The respondent Government were represented by Mr L.
Höltzl, Agent, Ministry of Public Administration and Justice.
- The
applicant complained about the length of his pre-trial detention. He
relied on Articles 5 § 3 and 6 § 2 of the Convention.
- On
22 October 2008 the President of the Second Section decided to give
notice of the application 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 German
Government did not exercise their right under Article 36 § 1 of
the Convention and Rule 44 of the Rules of Court to intervene in the
proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Budapest.
- On
31 March 2003 the applicant was arrested on charges of drug
trafficking. The case involved eight further suspects including a
foreigner and concerned a criminal organisation suspected of
trafficking in drugs on an important scale.
- On
3 April 2003 the Buda Central District Court ordered the applicant's
pre-trial detention. Observing his dual nationality, the court held
that there was a risk of absconding. This decision was reviewed and
upheld on appeal by the Budapest Regional Court. On 29 April 2003 the
District Court prolonged the pre-trial detention as the underlying
grounds continued to exist. On 26 June 2003 the Regional Court
extended the pre-trial detention of all suspects. On appeal, on 25
July 2003 the Budapest Court of Appeal upheld the suspects' pre-trial
detention until 1 October 2003, holding that there was a danger of
absconding, in view of the severity of the charges, and of collusion.
- On
25 September 2003 the District Court released the applicant on bail.
However, on 2 October 2003 the Regional Court reversed the decision
and upheld his detention with the following reasoning:
“... Tibor Szepesi [is] prosecuted for very
serious offences and the proceedings are still pending. The foreign
source of drug supply and the presumed accomplices in Hungary are
still to be identified; the circle of domestic buyers and the scope
of drug distribution are still to be revealed. Having regard to the
nature of the offence and the fact that the suspects' accomplices are
still unknown, the risk that the suspects would obstruct or
jeopardise the taking of evidence by influencing the witnesses or by
destroying or hiding physical evidence continues to exist.”
- On
22 December 2003 the District Court prolonged the pre-trial detention
by referring to the continued existence of the underlying grounds. On
7 January 2004 the Regional Court upheld this decision with the
following reasoning:
“[I]n respect of Tibor Szepesi ... a well-founded
suspicion of cross border crime has arisen. The investigation
authority is carrying on with procedural acts whose success would, if
[Mr Szepesi is] left at liberty, be frustrated by the suspects
through collusion or otherwise.”
- On
30 March 2004 the Regional Court prolonged the applicant's pre-trial
detention by referring to the continued existence of the underlying
grounds.
- On
26 May 2004 the Regional Court maintained the detention on remand on
the following ground:
“[... I]t can be established that the general
condition for employing the strictest coercive measure is fully met
and that in the present stage of the proceedings, a well-founded risk
of absconding exists in respect of all suspects, in view of the
extremely severe punishment imposable for the offence. This risk is
especially significant in respect of [... Mr Szepesi], who has dual
nationality.”
- On
5 July 2004 the Budapest Public Prosecutor's Office preferred a bill
of indictment against the applicant and the other suspects. They were
charged with aggravated drug trafficking committed in the framework
of a criminal organisation.
- On
15 July 2004 the Regional Court upheld the applicant's pre-trial
detention, holding that, in view of the weight of the offences at
hand, there was a risk of his absconding. On 30 July 2004 the Court
of Appeal upheld this decision, endorsing its reasons.
- On
19 January 2005 the Regional Court extended the applicant's pre-trial
detention, making reference to the risk of his absconding. On 28
February 2005 it dismissed the applicant's request for release.
- The
trial began on 9 May 2005. On 2 June and 12 July 2005 the Budapest
Regional Court held hearings.
On 26
July 2005 the applicant's pre-trial detention was reviewed and upheld
by the Court of Appeal. It held that because he was facing a very
severe sentence, had dual nationality and a domicile in Germany,
there was a risk that the applicant might abscond. On 2 September
2005 the Supreme Court upheld the order of the Court of Appeal,
observing that the applicant was charged with a very serious felony
which was punishable with up to life imprisonment in the
circumstances.
- On
8, 10 and 15 November 2005, 10 and 12 January and 16 March 2006
further hearings took place. The applicant's pre-trial detention was
meanwhile reviewed and upheld by the Court of Appeal on 28 February
2006. It observed that the suspects were prosecuted for a very
serious felony to the detriment of public health, and that the
severity of the sanction they were risking posed the threat of their
absconding.
- On
31 March 2006 the Budapest Regional Court terminated the applicant's
pre-trial detention and ordered his house arrest, because the
detention had exceeded the statutory maximum of three years. On 31
May 2006 the Court of Appeal terminated the house arrest and ordered
the applicant not to leave town. This latter measure was terminated
on 10 April 2008.
- After
several further hearings, on 4 September 2008 the Regional Court
found the applicant guilty as charged and sentenced him to six years
of strict-regime imprisonment, and banned him from participating in
public affairs for seven years. In imposing the punishment, the
Regional Court took into account the period spent in pre-trial
detention and in house arrest. It appears that the appeal proceedings
are still pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
Court notes that the applicant complained about the duration of his
detention on remand rather than his subsequent house arrest and will
therefore limit its scrutiny to that period. It considers that the
application falls to be examined under Article 5 § 3 alone which
provides as relevant:
“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 submitted that the applicant's detention had been based on
the reasonable suspicion that he had committed a serious crime and
justified because of the danger of his absconding or collusion. The
applicant contested this view.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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 (see, among other authorities, W. v.
Switzerland, 26 January 1993, § 30, Series A no. 254-A).
- 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 (see Labita v. Italy
[GC], no. 26772/95, § 152, ECHR 2000 IV).
- 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 Contrada v. Italy, 24 August
1998, Reports of Judgments and Decisions 1998-V, § 54;
I.A. v. France, 23 September 1998, Reports
1998-VII, § 102; Toth v. Austria, 12 December 1991, §
67, Series A no. 224; B. v. Austria, 28 March 1990, § 42,
Series A no. 175).
- In
the present case, the Court observes that the applicant was kept in
detention on remand for three years. Charged with a serious
drug-related offence, he was considered by the domestic courts to
pose a potential risk of absconding. This element, which was repeated
by all court instances prolonging his detention, was corroborated in
the eyes of the authorities by his dual nationality. Moreover, in the
initial phase of the proceedings, his continued detention was also
regarded as justified by the risk of collusion, given that the
authorities were conducting an investigation into the activities of a
gang of drug dealers operating across borders.
- The
Court considers however that it is not necessary to examine to what
extent these reasons were relevant or sufficient for the applicant's
prolonged detention, since the case in any event reveals an
infringement of his rights under Article 5 § 3 for the following
reasons.
- The
Court notes that the investigation was terminated and a bill of
indictment preferred on 5 July 2004 (see paragraph 12 above).
However, the applicant's trial began only on 9 May 2005 (see
paragraph 15 above) while his detention continued throughout. For the
Court, this ten-month period of inactivity is irreconcilable with the
requisite “special diligence” in such cases (cf. Toth
v. Austria, op.cit., §§ 74 to 78), especially in view
of the fact that the applicant's detention had already exceeded one
year and three months when the bill of indictment was preferred. This
grievance could not be remedied by the diligence which the
authorities displayed afterwards, during the trial period. It follows
that the applicant's pre-trial detention exceeded a reasonable time.
There
has accordingly been a violation of Article 5 § 3 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage and awards him EUR 4,800 under this head.
B. Costs and expenses
- The
applicant made no costs claim.
C. Default interest
- The
Court considers it appropriate that the default interest 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 § 3 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, EUR 4,800 (four
thousand eight hundred euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into Hungarian
forints at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
