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SECOND
SECTION
CASE OF DARVAS v. HUNGARY
(Application
no. 19547/07)
JUDGMENT
STRASBOURG
11 January
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 Darvas v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
Kristina
Pardalos,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19547/07) 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 Milán Darvas
(“the applicant”), on 24 April 2007.
- The
applicant was represented by Mr A. Kádár, 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 alleged that his pre-trial detentions were unjustified. He
relied on Article 5 §§ 1 (c), 3 and 4 of the Convention.
- On
31 March 2010 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1985 and lives in Ajka.
- On
5 December 2004 the applicant was arrested on charges of drug abuse.
On 7 December 2004 the Veszprém District Court held a hearing
and ordered his house arrest. On appeal, on 15 December 2004 the
Veszprém County Regional Court changed this decision and
ordered the applicant's pre-trial detention for fear of collusion and
reoffending. However, on 13 April 2005 he was released.
- In
another case, on 20 May 2005 the applicant was arrested on charges of
aggravated drug trafficking, essentially because substantial amounts
of various drugs and packaging material had been found in a garage of
which he had been the tenant. On 22 May 2005 his pre-trial detention
was ordered at a court hearing, for fear of collusion with members of
the presumed drug network. His detention was subsequently prolonged
at the statutory intervals in decisions which included rather
stereotypical references to the risks of his absconding and collusion
without any detailed reasoning in regard to his individual
circumstances or the evidence obtained against him.
- On
9 February 2006 the applicant made a request for release on bail,
pledging a substantial sum of money as a security. On 16 February
2006 the request was rejected. His appeal was dismissed on 24
February 2006.
- On
12 June 2006 the investigation was terminated.
- On
19 July 2006 the Komárom-Esztergom County Regional Court
prolonged the applicant's detention until 22 August 2006. The court
rejected the arguments of the applicant's lawyer to the effect that
the results of the investigation did not support a reasonable
suspicion against the applicant. It was satisfied that his continued
detention was necessary for fear of his absconding and could not be
substituted by home arrest as suggested. It held that there was a
well-grounded suspicion that the applicant had participated in the
storage and dispatch of drugs which constituted an offence punishable
with very severe sanctions. On 27 July 2006 the Győr Court of
Appeal dismissed the applicant's appeal, holding that the potential
sanctions justified the fear of the applicant's absconding.
- On
10 August 2006 a bill of indictment was preferred concerning
twenty-one defendants, including the applicant. It combined the facts
of the two criminal proceedings outlined above. The applicant was
charged with complicity in aggravated drug trafficking.
- On
21 August 2006 the Győr-Moson-Sopron County Regional Court
prolonged the applicant's pre-trial detention. The court held that
the sanction which the applicant was potentially facing entailed the
danger of his absconding.
- The
applicant's lawyer appealed, arguing that no specific reasons, as
required by the Court's case-law, had been given for the applicant's
continued detention. In particular, he maintained that nothing in the
case file supported the applicant's involvement in selling drugs. In
the light of the jurisprudence of the courts, no such sanction was,
in his view, to be envisaged as automatically justifying detention
for fear of absconding. To refute this point, the lawyer submitted
that the applicant's personal circumstances were decent: he was being
supported by his family with which he had good relations and he had
been fulfilling his educational and professional duties diligently
before his arrest. The lawyer proposed that the applicant's detention
be replaced by house arrest.
- On
21 September 2006 the Court of Appeal dismissed the appeal, observing
that part of the offences with which the applicant was charged was
punishable with very severe sanctions including life imprisonment,
which justified the fear of absconding.
- On
22 November 2006 the applicant again requested his release on bail.
On 30 November 2006 he was released on bail and his house arrest
was ordered. This measure was lifted on 21 May 2007.
- On
29 April 2008 the applicant was found guilty of the charge relating
to the offence for which he had been arrested on 5 December 2004, and
acquitted in respect of the remainder of the charges.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that he had been detained on remand in breach of
Article 5 § 1 of the Convention, the relevant parts of which
read as follows:
“1. 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; ...”
- Not
disputing that the applicant's complaint as such may be examined
under Article 5 § 1, the Government contested that there had
been a breach of that provision.
A. Admissibility
- The
Court notes that this complaint 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
- The
Government submitted that the applicant's pre-trial detention had
been repeatedly prolonged for fear of absconding and collusion. After
the investigation had been concluded and the bill of indictment
preferred, the latter risk had diminished to some extent but the risk
of absconding had persisted and warranted the applicant's continued
pre-trial detention. The danger of absconding had only diminished by
the consignment of a significant sum of money as a surety for his
release on bail on 30 November 2006, when his release on bail had
been ordered accordingly.
- They
emphasised that the applicant's first request for release on bail had
been submitted on 9 February 2006, that is, before the conclusion of
the investigation, when the risk of collusion had still been
significant and therefore release on bail had not been an adequate
alternative to detention on remand. Subsequently, the prolongation of
his detention on remand had not been automatic but done with due
regard to the individual circumstances of his case.
- The
applicant submitted in particular that, as the investigation
progressed, the reasonable suspicion against him should have become
more substantiated – which, however, had not been the case. His
individual circumstances, rendering his absconding implausible, had
not been duly considered; and the prolongations of his detention had
taken place in a rather automatic manner. This was particularly
striking after the conclusion of the investigation and the
applicant's indictment, when the danger of collusion had virtually
lost relevance. Nevertheless, his arguments, presented with a view to
being placed under house arrest rather than in pre-trial detention,
had remained largely unanswered by the courts. Although between the
termination of the investigation and his actual release, nothing
changed in his circumstances in the context of the danger of his
absconding, he was only released on 30 November 2006 against the
consignment of a large sum of money as bail.
- The
Court observes that a person may be deprived of his liberty only for
the purposes specified in Article 5 § 1. A person may be
detained within the meaning of Article 5 § 1 (c) only in the
context of criminal proceedings, for the purpose of bringing him
before the competent legal authority on suspicion of his having
committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so
(cf. Ječius v. Lithuania, no. 34578/97, § 50, ECHR
2000 IX).
- It
reiterates that the formal “lawfulness” of detention
under domestic law is the primary but not always the decisive element
in assessing the justification of deprivation of liberty. It must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1,
which is to prevent persons from being deprived of their liberty in
an arbitrary fashion (see Khudoyorov v. Russia, no. 6847/02, §
137, ECHR 2005 X (extracts)), the notion of arbitrariness in the
context of Article 5 varying to a certain extent, depending on the
type of detention involved (Mooren v. Germany [GC], no.
11364/03, § 77 in fine, ECHR 2009 ...).
- Concerning
the first part of the applicant's second pre-trial detention, that
is, from 20 May 2005 until 10 August 2006 at the latest, the Court
observes that the applicant was detained on remand on charges of
aggravated drug trafficking, which constituted a reasonable suspicion
in the circumstances, for fear of absconding and collusion. It is
satisfied that this measure can be considered devoid of
arbitrariness, given in particular the risk that the applicant might
have interfered with the investigation before the activities of the
presumed drug trafficking network were unravelled. It therefore
considers that this measure was in principle justified for the
purposes of Article 5 § 1 (c) of the Convention. Having
regard to its findings below (see paragraphs 26 to 29), the Court
considers it unnecessary, in the circumstances of the present case,
to address the issues potentially raised by the rather stereotypical
reasoning of the orders confirming the applicant's detention in this
period (cf. Mansur v. Turkey,
8 June 1995, § 55,
Series A no. 319 B) together with
the alleged lack of consideration of his individual circumstances
(cf. Labita v. Italy
[GC], no. 26772/95, § 152, ECHR 2000 IV)
and of an in-depth analysis of the evidence against him (cf.
Stepuleac v. Moldova,
no. 8207/06, § 68, 6 November 2007).
- As
regards the second part of the applicant's second pre-trial detention
(i.e. subsequent to the termination of the investigation and in
particular to the indictment on 10 August 2006, and until 30 November
2006), the Court considers that the risk of collusion must be
regarded as significantly less relevant once the evidence has been
gathered, the investigation terminated and a bill of indictment
preferred (cf. mutatis mutandis, Szeloch v. Poland, no.
33079/96, § 93, 22 February 2001). The absence of the risk of
collusion was reflected in the domestic court decisions given during
this period, in which references were made only to the danger of the
applicant's absconding. In the latter respect, however, the Court is
not persuaded by the Government's arguments.
- The
Court notes in particular that the courts paid little attention to
the applicant's personal circumstances rendering his fleeing
implausible, such as his family background (cf. Neumeister v.
Austria, 27 June 1968, § 10, Series A no. 8). Instead,
they insisted on the danger of the applicant's absconding,
reiterating the sole consideration related to the potential
imposition of a very severe sanction (cf. Letellier v. France,
26 June 1991, § 43, Series A no. 207), without however
indicating in any manner how the results of the investigation had
substantiated this eventuality (cf. Stepuleac, loc. cit.). The
Court notes in this connection that the applicant was eventually
acquitted of those charges which would have potentially entailed life
imprisonment (see paragraph 14 above). Nor did the authorities give
any reason for not countering the risk of the applicant's absconding
by a measure less stringent than pre-trial detention, such as house
arrest, as proposed by the applicant's lawyer (cf. Ambruszkiewicz
v. Poland, no. 38797/03, §§ 32, 33, 4 May 2006).
While it is true that the applicant was eventually released on bail
on 30 November 2006, the Court considers that the domestic
authorities should already have embarked on a more thorough
examination of his situation, once the investigation had been
terminated on 12 June or at the latest after the indictment on 10
August 2006 and, moreover, should have shown a more proactive
attitude in balancing the arguments for and against his continued
detention, especially in view of the fact that bail had been offered
as early as on 9 February 2006 (see paragraph 8 above).
- The
Court is of the view that, in the particular circumstances of the
present case – that is, after bail had been offered, the
investigation terminated and, especially, the indictment preferred –
the justification for the applicant's continued detention may call
for a stricter scrutiny from the perspective of Article 5 § 1 of
the Convention. At this stage, the judge deciding on pre-trial
detention should have sufficient information so as to make reasonable
and reasoned decisions concerning the necessity of deprivation of
liberty. The reasoning of the decision
ordering detention is therefore a relevant factor in determining
whether a person's detention must be considered as arbitrary (see
Mooren,
cited above, § 79). The Court considers
that, in that rather advanced phase of the proceedings, the mere fact
that the authorities adopted formally valid decisions prolonging the
applicant's detention with reference to the danger of absconding did
not as such suffice to secure protection from arbitrariness, notably
because the underlying reasons were not supported by adequate factual
elements (see, mutatis
mutandis,
Smirnova
v. Russia,
nos.
46133/99 and 48183/99, § 71, ECHR 2003 IX (extracts)). The
Court would further reiterate that formally valid detention orders do
not necessarily fulfil the requirements of Article 5 § 1 if not
underpinned by sufficient reasons (see, mutatis
mutandis,
Gajcsi
v. Hungary,
no. 34503/03, §§ 18-21, 3 October 2006).
- For
the Court, the manner in which the question of prolongation of the
detention was dealt with by the courts – which had little or no
regard to the particular elements of the case and the personal
circumstances of the applicant, and did not consider less intrusive
means of intervention or provide convincing reasons for the
assumption that the applicant would abscond – effectively
deprived this period of the applicant's detention of the
justification required for the purposes of Article 5 § 1 (c) of
the Convention. It follows that there has been a violation of Article
5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- Concerning
the overall length of the applicant's second pre-trial detention, the
Court considers that this complaint falls within the ambit of Article
5 § 3 of the Convention which provides as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and 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
Court observes that this detention lasted from 20 May 2005 until 30
November 2006, that is, for one year, six months and eleven days.
Although in view of such lengthy a detention, this complaint should
also be declared admissible, the Court would note that its duration
cannot be considered unreasonable in itself in the circumstances,
given that the authorities' task was to unravel the activities of a
drug-trafficking network including numerous suspects. For the Court,
nothing indicates that the authorities did not exercise special
diligence in the handling of the case (cf. Toth v. Austria, 12
December 1991, § 77, Series A no. 224; Van der Tang v. Spain,
13 July 1995, § 75, Series A no. 321). In any event, given the
finding of a violation of Article 5 § 1 (c) (see paragraph 29
above), the Court considers that it is not necessary to examine this
complaint separately.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- As
regards the applicant's first pre-trial detention which ended on
13 April 2005, the Court observes that the application was
introduced only on 24 April 2007, i.e. more than six months later
than that date. It follows that this part of the application must be
rejected as out of time, pursuant to Article 35 §§ 1 and 4
of the Convention.
- The
applicant also invoked 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
Court notes that the applicant's second pre-trial detention was
ordered and prolonged by courts and reviewed at the statutory
intervals. In the absence of any appearance of procedural
arbitrariness, it is satisfied that this complaint is manifestly
ill-founded within the meaning of Article 35 § 3 and must
be rejected, pursuant to Article 35 § 4 of the Convention.
IV. 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 4,350 euros (EUR) in respect of pecuniary damage
and EUR 5,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have suffered some
non-pecuniary damage and considers it appropriate to award the full
sum claimed, i.e. EUR 5,000.
B. Costs and expenses
- The
applicant also claimed EUR 4,900 for the costs and expenses incurred
before the Court, which corresponds to 37 hours of work, charged at
an hourly rate of EUR 130, spent by his lawyer on the case, and EUR
90 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 were
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 3,500 covering costs
under all heads.
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 complaints under Article 5
§§ 1 and 3 concerning the applicant's second pre-trial
detention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that it is not necessary to examine the
applicant's complaint under 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, 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
3,500 (three 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
