Resolution CM/ ResDH (2008) 74 [1]

Execution of the judgment of the European Court of Human Rights

Osváth against Hungary

(Application No. 20723/02, judgment of 05/07/2005, final on 05/10/2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns lack of adversarial proceedings concerning extensions of the applicant ’ s detention on remand as he was never served in advance with copies of the prosecution ’ s applications to extend his detention (violation of Article 5§4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Hungary ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2008)74

Information about the measures taken to comply with the judgment in the case of Osváth against Hungary

Introductory case summary

The case concerns the non-adversarial nature of proceedings before the domestic courts in that between June and December 2001 the applicant ’ s pre-trial detention was repeatedly prolonged upon prosecution ’ s motions without him having been served in advance with copies of such motions (violation of Article 5§4).

The Court considered that, even if the applicant was able to appear in person or be represented at the court hearings concerning his detention that possibility was not sufficient to afford him a proper opportunity to comment on the prosecution ’ s motions. Moreover, the Court noted that the applicant could not appear in person or be represented before the Supreme Court, which ultimately decided in camera to prolong his detention on remand. The Court noted finally that the fact that the Supreme Court prolonged the applicant ’ s detention on remand on the ground of the risk of his absconding, which had not previously been referred to, and was consequently quite unexpected for the applicant, aggravated the absence of an adversarial procedure.

I. P ayment of just satisfaction and individual measures

a) Just satisfaction

The Court awarded no just satisfaction in the present case. It considered that the finding of a violation of Article 5§4 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant.

b) Individual measures

The applicant was released in March 2002.

II. General measures

1) Legislative measures : The old Code of Criminal P rocedure in force at the material time did not require that prosecution motions to extend detention during the investigation must be served on the defendant.

Law 2006/LI modified the provisions of the Code of Criminal P rocedure of 2003 concerning this issue.

According to the new provisions, a preliminary session shall be held in the presence of the parties to the investigation proceedings if the decision is to be made on placement in pre-trial detention. As far as prolongation of the pre-trial detention is concerned, the investigating judge examines such motions at a hearing attended by the defendant and his defence counsel if this is warranted by the availability of a new fact not mentioned in the preceding decisions on pre-trial detention. Before the hearing, the investigating judge transmits the prosecutor ’ s motion to the defendant and his defence counsel. The prosecutor may not bring such motions once the indictment has been filed.

If a public prosecutor ’ s motion to extend detention on remand invokes no new circumstance, the investigating judge may decide on the question without a hearing, on the basis of the files. In such cases the judge transmits the prosecutor ’ s motion, together with his decision, to the defendant and his defence counsel.

2) P ublication and dissemination: The judgment of the Court was published on the website of the Ministry of Justice and Law Enforcement ( www.irm.gov.hu ) and in the human rights quarterly Acta Humana . The Ministry of Justice and Law Enforcement has also sent a copy of the judgment to the National Judicial Council and the P rosecutor ’ s Office for dissemination to appropriate judges and prosecutors.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that Hungary has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 October 2008 at the 1035th meeting of the Ministers’ Deputies