SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30103/02 by Csaba MAGLÓDI against Hungary

The European Court of Human Rights (Second Section), sitting on 25 November 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze, judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 29 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Csaba Maglódi, is a Hungarian national, who was born in 1970 and lives in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Preliminary investigations

On 10 June 1999 the applicant was arrested and interrogated on a charge of murder. He was charged with having murdered a man in 1997. The man's corpse had been found in the garden of a co-accused. The victim's identity was not yet known. On the next day the Budapest Regional Public Prosecutor's Office dismissed the applicant's complaint in respect of his arrest. In the ensuing proceedings he was assisted by a defence counsel of his choice.

On 10 and 24 June, 9 September, 3 November 1999 and 2 May 2000 the applicant was interrogated, but he refused to answers the questions put to him. His co-accused was interrogated on 21 and 23 June, 8 September 1999 and 3 May 2000. Witnesses were heard on 10 and 23 June, 10 and 16 July, 2, 3, 6 and 9 August, 10 and 29 September, 3 November 1999, 17 February, 1 and 13 March 2000 and 10 July 2001.

Meanwhile, on 12 June 1999 the Pest Central District Court, as confirmed by the Budapest Regional Court on 18 June 1999, ordered the applicant's detention on remand until 12 July 1999. The District Court considered that – given the seriousness of the charges against him – there was a risk of the applicant's absconding or collusion.

On 14 June 1999 a forensic pathologist was appointed. He submitted his final opinion on 19 October 1999.

On 8 July 1999 the Buda Central District Court, as confirmed by the Regional Court on 26 July 1999, prolonged the applicant's detention until 12 September 1999 for the same reasons given by the Pest Central District Court.

On 7 September and 2 December 1999 the Regional Court, as confirmed by an appeal panel of the same court on 23 September and 22 December 1999, prolonged, for the same reasons, the applicant's detention until 12 December 1999 and 12 April 2000, respectively.

On 10 April, 4 July and 6 October 2000 the Supreme Court prolonged the applicant's detention until 12 July, 12 October 2000 and 20 January 2001, respectively. It referred to the danger of the applicant's absconding, noting that a DNA-analysis was being carried out with a view to confirming the victim's identity. An expert in haemogenetics, who had been appointed to this end on 16 August 1999, submitted his final opinion on 17 October 2001.

On 6 November 2000 the Regional Court, as confirmed by an appeal panel of the same court on 15 December 2000, dismissed the applicant's request for release.

On 17 January 2001 the Supreme Court prolonged the applicant's detention until 20 April 2001 and dismissed his request for release. It invoked the danger that the applicant would abscond if released.

On 6 March 2001 the Regional Court dismissed the applicant's request for release.

On 19 April 2001 the Supreme Court prolonged the applicant's detention until 20 July 2001 on the ground that he might abscond.

On 2 May 2001 the investigation was closed and the case-file was made available to the defendants. On 22 May 2001 the Public Prosecutor's Office reopened the investigation with a view to completion of the case against the defendants. These proceedings ended on 20 June 2001.

Meanwhile, on 5 June 2001 the Regional Court, as confirmed by an appeal panel of the same court on 27 June 2001, dismissed the applicant's request for release.

On 13 July 2001 the Public Prosecutor's Office preferred a bill of indictment, accusing the applicant and two co-accused of murder. The indictment listed several witnesses and two forensic medical experts.

2. First instance court proceedings

On 17 July 2001 and 29 April 2002 the Regional Court, as confirmed by the Supreme Court on 16 August 2001 and 11 June 2002 respectively, upheld the applicant's detention on remand until the delivery of the first-instance judgment. The courts invoked the danger of the applicant's absconding.

On 8 July 2002 the applicant filed a request for release in which he referred to domestic jurisprudence and the Court's case-law concerning pre-trial detention. He argued, inter alia , that his absconding was unlikely in view of his close ties with his sick mother and paralysed father, his siblings and his 11-year old son, and of the fact that he had been living with his common-law wife for five years and that they had carried out a major renovation of their flat.

On 23 July 2002 the presiding judge refused, under section 95 § 4 of the Code of Criminal Procedure, to take a formal decision ( a határozat hozatalának mellőzése ) on the applicant's renewed request for release on the ground that it referred to no new circumstances. On 10 and 15 October 2002 the Regional Court held hearings. On 25 October 2002 a forensic psychiatrist was appointed to examine the defendants. He submitted his opinion on 17 January 2003.

On 8 January 2003 the Regional Court held a hearing and refused to release the applicant. On 3 February 2003 the Supreme Court dismissed his appeal, relying on the danger of absconding.

On 4 and 20 March 2003 the Regional Court held hearings and refused to release the applicant.

Further hearings took place on 16 April, 12 May, 3 and 11 June 2003. On the latter date the Regional Court delivered a judgment. In its 34-page judgment the Regional Court convicted the applicant of murder and imposed a life sentence.

3. Further developments

On 7 August 2003 the applicant appealed.

The proceedings are pending before the Budapest Court of Appeal.

B. Relevant domestic law

Section 95 of the Code of Criminal Procedure, as in force in the relevant period, reads as follows:

(1) Detention on remand, when ordered prior to the indictment, may last until the decision of the court in the preliminary proceedings before trial, up to a maximum of one month. Detention on remand can be prolonged by the District Court on one occasion, for two months at the most. After three months, detention on remand can be prolonged by a single judge of the Regional Court, on up to two occasions, but may not continue beyond one year after the remand order. Thereafter, the duration of detention on remand can only be extended by the Supreme Court.

(2) Detention on remand, when ordered or upheld by the first-instance court after the indictment, may last until the first-instance judgment is pronounced [...].

(3) When the length of the detention on remand ordered or upheld after the indictment

a) exceeds six months and the first-instance court has not delivered a judgment, the first-instance court,

b) exceeds one year, the Supreme Court

shall review the reasonableness of the detention on remand.

(4) The court [...] may dispense with delivering a [formal] decision if [...] a repeated request for release from pre-trial detention refers to no new circumstances.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that his detention on remand lasted an unreasonably long time.

2. The applicant also complains that he had no effective remedy with which to challenge his pre-trial detention. He submits in particular that on 23 July 2002 the presiding judge refused to decide on his renewed request for release. He invokes Articles 5 § 4 and 13 of the Convention.

3. Lastly, the applicant complains that the criminal proceedings against him have lasted an unreasonably long time, in breach of Article 6 § 1 of the Convention.

THE LAW

1. The applicant submits that the length of his pre-trial detention was excessive, in breach of Article 5 § 3 of the Convention, which in its relevant part, provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of [Article 5] 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 maintain that the applicant's detention on remand was reviewed by the domestic courts on several occasions and found justified because of the danger of, initially, his collusion and absconding. The case was rather complicated since it concerned a serious crime that had been committed almost two years before its discovery. The evidence could only be gathered with great difficulty as the victim's corpse was already in an advanced stage of decomposition when found and no pure tissue samples could be obtained from it for the purposes of a DNA-analysis. This impeded the experts' work. The Government nevertheless concede that delays occurred in obtaining the expert opinions and between the filing of the indictment and the first trial hearing.

The applicant contests these views. He stresses that three years and four months elapsed between his arrest and the first trial hearing. Following the conduct of the autopsy of the victim on 16 July 1999, the results of the DNA-analysis were only submitted on 17 October 2001, a delay of two years and three months. Moreover, there were no particular circumstances which could explain the further delay of more than one year and three months between the conclusion of the investigation on 20 June 2001 and the first trial hearing on 10 October 2002.

In the light of the parties' submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant maintains that there was no effective national remedy in respect of his pre-trial detention. He invokes Articles 5 § 4 and 13 of the Convention.

The Court considers that this complaint falls to be examined from the angle of the lex specialis of Article 5 § 4 rather than under the less strict requirements of Article 13 of the Convention (see De Jong, Baljet and Van Den Brink v. the Netherlands , judgment of 22 May 1984, Series A no. 77, p. 27, § 60 in fine ).

Article 5 § 4 of the Convention provides:

“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 note that the domestic courts gave more than twenty decisions on the prolongation of the applicant's pre-trial detention including on his appeals and requests for release. As regards the refusal of 23 July 2002 to take a formal decision on the applicant's renewed request for release, they stress that the latter request was introduced on 8 July 2002, very shortly after the Supreme Court's decision of 11 June 2002 upholding the Regional Court's decision of 29 April 2002 to prolong the applicant's detention. The applicant's main argument was based on the lapse of time since the date of the last refusal of his request for release, namely 11 June 2002. However, the judge who examined the applicant's fresh request considered that the time which had passed was not so substantial as to constitute a relevant new circumstance. Therefore, section 95 § 4 of the Code of Criminal Procedure – the ratio legis of which is to prevent abuse of the right to request release – was applied in order to dispose of the applicant's renewed request. The Government observed that the applicant's request was eventually decided on the merits on 8 January and 3 February 2003.

The applicant maintains that he had no effective remedy in respect of his pre-trial detention. He points out in particular that 85 days elapsed between the decision of 29 April 2002 and the refusal to decide on his renewed request on 23 July 2002. This lapse of time warranted a formal decision subject to appeal, given that by that stage he had been detained for more than three years and one month. In any event, his request was based on detailed arguments relating to his personal circumstances rather than on simply the lapse of time which had occurred.

The Court observes that no substantive argument has been advanced by the applicant which would call into question either the compatibility as such with the State's obligations under Article 5 § 4 of the Convention of the procedural rules in application of which his detention was repeatedly upheld, or the domestic courts' compliance with those rules. It sees no reason to examine those questions of its own motion, given the obvious and undisputed presence of adequate procedural provisions in Hungarian law.

It remains therefore to be determined whether the decision of 23 July 2002 not to take a formal decision on the applicant's renewed request for release amounted to a breach of his right to have the lawfulness of his detention reviewed.

The Court observes that on 29 April 2002 the Regional Court prolonged the applicant's detention on remand on the ground that there was a danger that he might abscond. This decision was confirmed by the Supreme Court on 11 June 2002. On 8 July 2002 the applicant filed a request for release enumerating various personal circumstances intended to show that he would not abscond if released. On 23 July 2002 the judge dealing with the request refused to take a formal decision on it, finding that it referred to no new circumstances. However, at the hearing on 8 January 2003, the Regional Court again dealt with the matter of the applicant's detention and dismissed his request for release. On 3 February 2003 the Supreme Court dismissed his appeal.

It is true that the examination of the applicant's motion of 8 July 2002 was limited to determining whether it contained any new circumstances. However, the Court considers that the issues concerning the lawfulness of the applicant's detention were, in effect, determined by the Regional Court in its decision of 8 January and by the Supreme Court on 3 February 2003. It is therefore of the view that these decisions can be seen as having addressed the arguments made by the applicant in his motion of 8 July 2002 (see, mutatis mutandis , Baranowski v. Poland , no. 28358/95, § 75, ECHR 2000-III).

In these circumstances, the Court is satisfied that the absence of a formal decision on the applicant's motion of 8 July 2002 did not prejudice his right to have the lawfulness of his detention reviewed.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

3. Lastly, the applicant complains that the length of the criminal proceedings – and, in particular, the time taken to complete the forensic medical examinations – has been excessive, in breach of Article 6 § 1 of the Convention, which provides in its relevant part:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court recalls that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court (see, for example, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 22, § 42), such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted, or the date when preliminary investigations were opened (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, pp. 26-27, § 19; Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 41, § 18; and Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 45, § 110). “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see the Deweer judgment cited above, p. 24, § 46).

In the present case, the Court observes that the applicant was arrested on a charge of murder on 10 June 1999. No arguments have been advanced to show that there had been any acts or decisions given beforehand which had a negative effect on his situation. Accordingly, the period relevant for the assessment of the length of the proceedings began to run on that date.

The proceedings are still pending before the Budapest Court of Appeal. The period under examination is thus so far some four years and five months for one level of jurisdiction.

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities, which in this instance call for an overall assessment (see, among many other authorities, Cesarini v. Italy, judgment of 12 October 1992, Series A no. 245-B, p. 26, § 17).

The Court considers that the subject matter of the case, namely, a murder which took place some two years prior to its discovery, was relatively complex. The forensic experts apparently encountered serious difficulties in identifying the victim by means of sophisticated tests.

It does not appear to the Court that the applicant has contributed to the protraction of the proceedings, although it notes that, on the five occasions when questioned between 10 June 1999 and 2 May 2000, he refused to give testimony. However, he did so in the exercise of his right to remain silent.

As regards the conduct of the authorities, the Court observes that the preliminary investigations in the case lasted somewhat more than three years, from 10 June 1999 (when the applicant was arrested) until 20 June 2002 (when the investigation was concluded). For the Court, there is nothing to suggest – apart from the belated completion of the DNA-analysis – that the authorities did not proceed with the requisite diligence or that there was any significant period of inactivity on their part.

While it is true that more than a year elapsed between the indictment and the date of the first trial hearing, the Court is satisfied that no unreasonable delays occurred thereafter during the first-instance trial: the Regional Court held nine hearings between 10 October 2002 and 11 June 2003 which, in the Court's view, indicates due diligence.

In these circumstances, the Court considers that the overall length of the proceedings has not exceeded a “reasonable time”, within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court

Declares, unanimously, admissible, without prejudging the merits, the applicant's complaint that his pre-trial detention was excessively long;

Declares, by a majority, inadmissible the remainder of the application.

T.L. Early J.-P. Costa              Deputy Registrar President