FOURTH SECTION

CASE OF SOMOGYI v. HUNGARY

(Application no. 43411/12)

JUDGMENT

STRASBOURG

17 October 2017

This judgment is final but it may be subject to editorial revision.

In the case of Somogyi v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Faris Vehabović, President,
	Carlo Ranzoni,
	Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 43411/12) against 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 József Somogyi (“the applicant”), on 5 July 2012.
2.  The applicant was represented by Mr T. Fekete S., a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Agent, Ministry of Justice.
3.  On 18 May 2016 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1974 and lives in Százhalombatta.
5.  On 11 April 2009, quoting the relevant sections of the Code of Criminal Procedure, the Pest Central District Court ordered the applicant’s pre-trial detention on charges of terrorist acts and other related offences involving abuse of firearms and explosives on the grounds that he might abscond for fear of a severe punishment, might frustrate the on-going investigation by colluding with accomplices still at large, or might execute the planned offences or re-offend.
6.  The detention measure was extended on 8 May and again on 7 August 2009. The court reiterated its earlier reasons, adding that the risk of collusion was serious, since certain other suspects had not yet been apprehended.
7.  A further extension was ordered on 9 November 2009. The court stated that the applicant was being prosecuted for terrorist acts committed as an associate of an organised criminal group whose plans entailed a real risk of loss of life. It was of note that the group had existed for quite some time and had been committed to carrying out terrorist acts. Moreover, the volume of evidence supporting a reasonable suspicion, as weighed individually against the applicant, was increasing.
8.  On 9 February 2010 the applicant’s detention was again extended, the court noting that, in view of the grounds for his detention, not even his clean criminal record, family ties and settled background could provide adequate justification for a less strict measure.
9.  On 7 April 2010 the measure was renewed, with special reference to the fact that the case was concerned with a series of crimes committed over a long period of time by a criminal organisation.
10.  On 9 June 2010 the Budapest Regional Court ordered that the applicant be held under house arrest, holding that the danger of his re-offending was not of a degree that justified his continued detention, noting also that the investigation was about to be wrapped up and that, in any case, some accomplices in the case had already been released pending trial.
The applicant was released from detention the next day. During the ensuing period he complied with the rules of house arrest.
11.  On 7 July 2010 the Budapest Court of Appeal again ordered the applicant’s detention. It held that the charges of several very serious offences committed over a long time in an organised group were of such gravity that they could not be addressed merely by house arrest.
12.  The measure was extended on 4 August 2010. In addition to the previously cited reasons, the court considered that there was no reason to assume that the applicant’s political motivation behind the incriminated acts had subsided, which meant that the risk of re-offending was real.
13.  On 24 November 2010 the Budapest Court of Appeal ordered the applicant’s house arrest, observing that the applicant had abided by the previous house arrest (see paragraph 10 above) and holding that the risk of re-offending was slight.
14.  On 20 September 2012 the applicant’s house arrest was replaced by a restraining order, which was eventually lifted on 6 July 2014.
15.  On 22 April 2015 the applicant was again detained on remand for the purposes of prosecution for a new offence allegedly committed during the on-going proceedings. He was accused of having threatened and harassed a relative of one of the witnesses in the main case. For want of evidence, this new investigation was discontinued on 30 October 2015.
16.  On 18 December 2015 the applicant was released from detention and put under house arrest, which lasted until 27 July 2016.
17.  On 30 August 2016 the applicant and his accomplices were convicted. He was sentenced to 12 years in a strict-regime prison.
18.  Both the defendants and the prosecution appealed. The outcome of the ensuing proceedings is unknown.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
19.  The applicant complained that his detention was lacking in any legal basis, but without substantiating or developing this assertion.
He relied on Article 5 § 1 of the Convention which provides in its relevant parts:
“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;
...
3.  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.
4.  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. ...”
20.  The Court observes that, in invoking Article 5 § 1, the applicant confined himself to asserting that his detention had been devoid of legal basis in Hungarian law, without however explaining why and thus without substantiating this complaint. The Court, for its part, notes that he was detained on remand on reasonable suspicion that he had committed terrorist acts as member of a criminal group. It is therefore satisfied that this measure, devoid of any appearance of unlawfulness or arbitrariness, was one of those envisaged by Article 5 § 1 of the Convention, in its subparagraph (c).
21.  It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
22.  The applicant also complained that the measure had been in place for an unacceptably long time and that the reasoning offered by the courts had been predictably stereotypical. He relied on Articles 3, 5 §§ 3 and 4 as well as Article 13 of the Convention.
The Government contested these arguments.
23.  The Court, master of the characterisation to be given in law to the facts of the case (see, amongst many authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998–I), considers that this complaint falls to be examined under Article 5 § 3 alone.
Section 3.01	A.  Admissibility
24.  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.
Section 3.02	B.  Merits
25.  The applicant submitted that his detention on remand and house arrest had been excessively long, that the authorities had failed to provide relevant reasons for it, that their decisions had not been sufficiently individualised, and that due consideration had not been given to any less coercive measures.
26.  The Government argued that the reasons put forward by the authorities had been relevant and sufficient to justify the detention complained of.
27.  The Court observes that the applicant was held in detention on remand from 11 April 2009 to 10 June 2010 (see paragraphs 5 and 10 above), under house arrest from 11 June to 7 July 2010 (see paragraphs 10‑11 above), in detention again from 8 July to 23 November 2010 (see paragraphs 11 and 13 above) and, eventually, under house arrest once more from 24 November 2010 until 20 September 2012 (see paragraphs 13-14 above). A further detention occurred between 22 April and 18 December 2015, followed by house arrest until 27 July 2016 (see paragraphs 15-16 above).
28.  Since house arrest constitutes deprivation of liberty within the meaning of Article 5, which shall also be taken into consideration when assessing the length of pre-trial detention (see Süveges v. Hungary, no. 50255/12, § 77, 5 January 2016 and the authorities cited therein), the measure lasted altogether more than four years and eight months.
29.  The Court has recently summarised the general principles relevant in such cases in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84‑102, ECHR 2016). It would add that when detention pending trial is extended beyond the period generally accepted under the Court’s case-law – in the present case amounting to a very long time indeed – particularly strong reasons are required to justify it (see Süveges, cited above, § 98).
30.  In the present case, however, the Court is unable to identify such strong reasons. Noting the authorities’ justifiable concern about the applicant’s potentially fleeing a severe punishment and/or colluding with accomplices who had not yet been apprehended, the Court nevertheless considers that no individualised assessment of the applicant as a flight risk seems to have been undertaken, especially after his compliance with house arrest when first released from custody (see paragraph 10 above). As regards the risk of collusion, the Court considers that this was not a compelling reason once the investigation had been terminated. Nevertheless, the coercive measures continued for more than two more years. Furthermore – although quite rightly somewhat concerned with and inclined to apply less coercive alternatives – the authorities seem to have been preoccupied with the risk of reoffending. For them, however, this risk emanated chiefly from the allegation that the applicant belonged to a criminal group, and they failed to perform an individualised assessment of the danger of committing new offences against the background of the specific circumstances of the case.
31.  Moreover, the Court finds it troubling that, after a fresh detention order had been issued in relation to a new charge brought in 2015, the applicant’s deprivation of liberty remained in place for another nine months (see paragraphs 15-16 above), although the underlying investigation was dropped on 30 October 2015.
32.  Lastly, the Court cannot but note that it took the authorities over seven years (from 11 April 2009 until 30 August 2016 – see paragraphs 5‑17 above) to proceed from the applicant’s arrest to the first-instance judgment, which falls far short of the “special diligence” required in such cases (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000‑IV).
33.  The foregoing elements are sufficient for the Court to conclude that the reasons for the applicant’s deprivation of liberty, even though relevant, were not sufficient to justify the lengthy periods involved (see, mutatis mutandis and for pre-trial detentions of a similar length, Calleja v. Malta, no. 75274/01, §§ 96-112, 7 April 2005, and Maglódi v. Hungary, no. 30103/02, §§ 32-40, 9 November 2004). It follows that there has been a violation of Article 5 § 3 of the Convention.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
34.  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.”
Section 4.01	A.  Damage
35.  The applicant claimed 14,373 euros (EUR) in respect of pecuniary damage, that sum corresponding to his loss of income during the impugned measures. Moreover, he claimed EUR 52,735 in respect of non-pecuniary damage.
36.  The Government contested these claims as excessive.
37.  The Court considers, on the one hand, that the applicant has not shown the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered some non-pecuniary damage and awards him, on an equitable basis, EUR 4,800 under this head.
Section 4.02	B.  Costs and expenses
38.  The applicant also claimed EUR 955 for the costs and expenses incurred before the Court, as per his lawyer’s retainer agreement.
39.  The Government contested this claim.
40.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the full sum claimed.
Section 4.03	C.  Default interest
41.  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 Article 5 § 3 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 955 (nine hundred fifty-five 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 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Andrea Tamietti	Faris Vehabović
	Deputy Registrar	President