CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 1 septembre 2020

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HUNGARY (Application no. 61543/15)         JUDGMENT   STRASBOURG 1 September 2020         This judgment is final but it may be subject to editorial revision.   In the case of Farkas v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Branko Lubarda, President,   Carlo Ranzoni,   Péter Paczolay, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application (no.   61543/15) 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   Zoltán Farkas (“the applicant”), on 5 December 2015; the decision to give notice of the application to the Hungarian Government (“the Government”); the parties’ observations; Having deliberated in private on 30 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns respect for the principle of equality of arms between the applicant and the prosecution during the extension of his pre-trial detention, as neither he nor his lawyer had received the prosecutor’s application to extend the pre-trial detention in good time. THE FACTS 2.     The applicant was born in 1968 and lives in Miskolc. He was represented by Mr L. Kovács, a lawyer practising in Miskolc. 3.     The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 7 October 2015 the applicant was arrested on charges of trafficking stolen goods and other offences. 6.     On 9 October 2015 the Miskolc District Court placed the applicant in pre-trial detention until 9 November 2015, finding that there were grounds to believe that he would abscond, obstruct the investigations or commit further offences. The Miskolc High Court, acting as a court of second instance, upheld the decision on 26 October 2015. 7.     On 30 October 2015 the Miskolc Public Prosecutor’s Office applied to have the pre-trial detention extended for the same reasons as above. No documents pertaining to the investigation were attached to the application. 8.     The applicant received the prosecution’s application on 2 November 2015, and his defence counsel received it four days later. 9.     Meanwhile, on 2 November 2015 the investigating judge delivered his decision in purely written proceedings (since the prosecutor’s application did not refer to any new circumstances) and extended the applicant’s pre ‑ trial detention until 9 February 2016. 10.     Both the applicant and his defence counsel appealed. In the appeal, defence counsel referred in particular to the fact that the application to extend the detention had been served on him belatedly and without any supporting documents. 11.     On 19 November 2015 the Miskolc High Court, acting as a court of second instance, upheld the decision to extend the detention without addressing the procedural issues raised by the defence. RELEVANT LEGAL FRAMEWORK 12.     The relevant parts of Act no. XIX of 1998 on the Code of Criminal Procedure, as in force at the material time, provided as follows: Article 210 “1.     The investigating judge shall hold a hearing if an application pertains to the following subjects: ... (b)     extension of pre-trial detention or house arrest where, as compared to the previous decision, the reason for the extension is a new circumstance in the application, ... ... 3.     The investigating judge decides [exclusively] on the basis of written submissions [without a hearing]: (a)     in cases which are not listed in paragraph 1 above, ...” Article 211 § 1 “... If the subject matter of the application is the extension of pre-trial detention, the application shall be sent to the suspect or the accused and defence counsel even if the investigating judge is deciding [exclusively] on the basis of written submissions.” Article 211 § 1a “... If the subject matter of the application is the extension of the pre-trial detention, copies of the investigation documents – [that is to say, those] on which the application has been based and which have been generated since the last decision on the issue of pre-trial detention – shall be attached to the application to be sent to the suspect or the accused and defence counsel.” THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 13.     The applicant complained that the principle of equality of arms had not been respected in proceedings concerning the extension of his pre-trial detention. He relies on Article 5 § 4 of the Convention which reads 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.” Admissibility 14.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits 15.     The applicant submitted that neither he nor his defence counsel had received the prosecution’s application to extend the applicant’s pre-trial detention in good time. Moreover, no supporting documents had been provided. Because of this, they had not been able to effectively challenge the grounds for the extension of the detention. Moreover, the defence should have had the opportunity to examine any new documents in the case file so as to determine whether the evidence potentially contained in them was of importance for the defence. 16.     In their observations, the Government did not address the issue regarding the service of the application for the extension of the pre-trial detention. As regards the absence of supporting documents, they submitted that the obligation set out in the Code of Criminal Procedure pertained only to those documents which had been generated since the previous decision on pre-trial detention and which were relevant to the coercive measure. However, no such documents had existed in the applicant’s case. 17.     The Court reiterates 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. 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 to challenge effectively the lawfulness of his client’s detention (see Galambos v. Hungary , no. 13312/12, § 31, 21 July 2015, and Garcia Alva v.   Germany , no. 23541/94, §   39, 13 February 2001). 18.     The Court further reiterates that information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect’s lawyer (see Garcia Alva , cited above, § 42). In this context the duty of disclosure is not the same as under Article 6 of the Convention; however, the “essential” materials should be made available to the defence some time in advance, securing for the defence a real opportunity to produce counter ‑ arguments (see Khodorkovskiy v. Russia , no. 5829/04, § 226, 31 May 2011). 19.     Turning to the circumstances of the present case, the Court notes the applicant’s arguments that the prosecution’s application for the extension of his pre-trial detention had been made available to him on the same day the court had delivered its decision in a written procedure, whereas his defence counsel had only received it four days later. These submissions were not refuted by the Government. 20.     The Court therefore cannot but note that neither the applicant nor his lawyer had the chance to take cognisance of the contents of the application to extend the coercive measure in good time, that is to say, before the court gave its decision. Consequently, since the defence was not able to present any material arguments before the court in an informed manner in that situation, the Court considers that the applicant was not able to effectively exercise his defence rights in the written proceedings concerning the review of the lawfulness of his pre-trial detention. In view of this finding, the Court does not find it necessary to deal with the adequacy of the defence’s access to the missing copies of potentially relevant documents in the case file underlying the prosecution’s application (see Galambos , cited above, § 35). 21.     Accordingly, there has been a violation of Article 5 § 4 of the Convention on account of the failure to observe the principle of equality of arms. APPLICATION OF ARTICLE   41 OF THE CONVENTION 22.     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.” Damage 23.     The applicant claimed 1,500 euros (EUR) in respect of non ‑ pecuniary damage. 24.     The Government contested this claim. 25.     The Court considers that the applicant must have sustained non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation and awards the applicant the full sum claimed. Costs and expenses 26.     The applicant claimed EUR 300 in respect of costs and expenses, in particular for the lawyer’s fees incurred before the Court. 27.     The Government contested this claim. 28.     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 full sum claimed. Default interest 29.     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, Declares the application admissible; Holds that there has been a violation of Article 5 § 4 of the Convention; 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 300 (three 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.   Done in English, and notified in writing on 1 September 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Ilse Freiwirth   Branko Lubarda Deputy Registrar   President