Communicated on 21 May 2015

SECOND SECTION

Application no. 73999/14 Gábor NAGY against Hungary lodged on 17 November 2014

STATEMENT OF FACTS

The applicant, Mr Gábor Nagy, is a Hungarian national who was born in 1990 and lives in Budapest. He is represented before the Court by Mr T amás Varga T., a lawyer practising in Budapest.

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

On 22 March 2013 the police initiated a criminal investigation in respect of three unknown perpetrators of an armed robbery of a substantial value committed in Budapest. Close to the crime scene the police stopped the car of Mr K.I. for an identity check. The two passengers in the car tried to run away. K.I. was apprehended by the police but his unknown companion fled . Police officers could not give an exact description of the other suspect; however, they reported that he was approximately 180 cm tall (whereas the applicant is around 160 cm) . I n K.I. ’ s car , t he police found – and seized – some objects related to the robbery , a s well as the applicant ’ s identity card.

On the same day the police searched the applicant ’ s house but did not find anything relating to the robbery.

In his testimony K.I. emphasised that the person who had travelled with him in the car and run away was not the applicant. None of the police officers involved could identify the fugitive .

On 25 March 2013 the police issued an arrest warrant for the applicant.

The applicant – having learn ed about the arrest warrant – turned himself in on 3 April 2013. He was arrested on susp i c ion of armed robbery. Although the applicant had been granted free legal aid, the S tate-financed lawyer failed to appear for the questioning of the applicant held on the same day. The applicant denied any involvement in the robbery and contested the accusations . His related complaint was dismissed by the Budapest Chief Prosecutor ’ s Office , who found that the reasonable suspicion against the applicant was supported by the police report, the s eiz ed objects and witness statements.

On 6 April 2013 the applicant ’ s pre-trial detention was ordered on charges of armed robbery under s ection 129 a), b), c) and d) of the Code of Criminal Procedure. The court agreed with the prosecution concerning the reasonable suspicion. It held that pre-trial detention was necessary because the applicant had fled and then turned himself in only to avoid criminal liability. Moreover, there was a considerable risk of absconding and of influencing witnesses . C onsidering that there was another criminal investigation going on against the applicant , there was also a risk of repetition of crime. However, the authorities did not disclose any evidence supporting the applicant ’ s actual involvement in the robbery. The S tate- financed lawyer failed to appear at the hearing. On 15 April 2013 the Budapest High Court dismissed the applicant ’ s appeal without hearing him.

Subsequently, the prosecution requested the prolongation of the applicant ’ s detention. The request was served on the applicant on 3 May 2013, that is, on the same day the court delivered its decision on prolongation of the detention until 6 August 2013. Consequently, the applicant did not have any opportunity to make any comments on the request. The court maintained its previous reasons on the necessity of the detention and emphasised that the investigation regarding a third perpetrator was still ongoing, so that if released the applicant might jeopardise the procedure. The court took into account that an arrest warrant had had to be issued for the applicant , who otherwise was not employed and had no apparent source of income, and was also the subject o f another criminal investigation. The court found that there was a risk of absconding (due to the magnitude of the possible punishment), reoffending (due to the applicant ’ s unsettled personal circumstances) or interference with the investigation (collusion with the third offender , etc.). On 5 June 2013 the Budapest High Court dismissed the applicant ’ s appeal , agreeing with the first-instance decision and addi ng that there were some indications that the applicant had tried to ensure an alibi while he had been absconding from the police.

On 23 July 2013 the applicant ’ s lawyer, of his choice, applied for release, arguing that the authorities ha d not disclose d any evidence that might serve as ground s for the court ’ s order ; he challenged the existence of any reasonable suspicion. He emphasised that t he applicant had vol untarily appeared at the police . He submitted documents showing that the applicant ’ s mother was willing to pay for his living expenses.

On 30 July 2013 the prosecution requested the prolongation of the applicant ’ s detention. The request of the prosecution was served on the applicant ’ s lawyer on 31 August 2013, one day before the court delivered its decision on prolongation of the detention until 6 October 2013. Simultaneously, the court refused the application for release, without hearing the applicant. The court considere d that the aim of the applicant ’ s surrender to the police was to escape punishment, rather than to help the investigation and obey the authorities. The court considered that the mother ’ s undertakings would not eliminate the risk of absconding or reoffending. The court reiterated that the prolongation was justified because the applicant had previously fled from the police and might influence witnesses, and because of the impending severe punishment and the risk of repetition of crime. On 15 August 2013 the Budapest High Court dismissed the applicant ’ s appeal without hearing him.

On 3 October 2013 the Buda Central District Court ordered the prolongation of the applicant ’ s detention u ntil 6 January 2014, relying on s ection 129 b), c) and d) of the Code of Criminal Procedure. The court no longer relied on the risk of absconding but repeated, in a rather stereotypical manner, the other reason s. The applicant and his lawyer were present at the hearing. On 11 October 2013 the Budapest High Court upheld th is decision.

On 3 January 2014 the Buda Central District Court ordered the prolongation of the applicant ’ s detention until 6 April 2014, relying on s ection 129 b), c) and d). The court repeated, in a rather stereotypical manner, its previous reasons . The applicant and his lawyer were present at the hearing. On 9 January 2014 the Budapest High Court upheld this decision.

On 30 January 2014, relying on , inter alia , Article 6 § 1 of the Convention, the applicant requested the court to disclose the evidence serving as ground for the pre-trial detention. The Budapest Chief Prosecutor ’ s Office dismissed his request , find ing that the investigation was still pending.

On 27 March 2014 the applicant applied for release. In his request he complained about the fact that he had still not been provided with any evidence justifying the pre-trial detention. The expert opinions received by the authorities and forwarded to the applicant did not contain any elements supporting his involvement in the crime. He also attached documents proving that his mother , who was willing to pay for his living expenses , had sufficient incom e .

On 3 April 2014 the Budapest High Court dismissed the applicant ’ s request for release and ordered the prolongation of his detention until 6 June 2014. Th is time, th e court maintain ed the detention as necessary because o f the risk of repetition of crime (s ection 129 d)). R eferring to the case-law of the European Court of Human Rights, it considered that the applicant ’ s absconding for two weeks and his failed attempt to secure a false alibi, both at the beginning of the proceedings, c ould not be held against him when assessing the future risks i f h e were releas ed . It also noted that the investigation was almost at an end and, in the light of the nature of the investigatory steps which we re yet to be carried out, it found it implausible that the applicant could interfere with their outcome . Therefore, the High Court held that neither the risk of absconding, nor that of the applicant ’ s interference with the investigation we re real. However, considering the “professional” nature of the crime, the applicant ’ s unsettled personal circumstances and the multiple criminal proceedings against him, it held that the most severe coercive measure sh ou l d continue to be applied on account of the risk of reoffending . On 18 April 2014 t he Budapest Court of Appeal maintained the applicant ’ s detention , relying on the risks of repetition of crime , absconding and jeopardising the investiga tion by influencing witnesses (s ection 129 b), c) and d)).

On 29 May 2014 the applicant applied for release again, pointing out the lack of any evidence that might support his involvement in the robbery. He reiterated that the investigation had already finished , making the risk of jeopardising the investigation obsolete . He also argued that the impending severe punishment could not , in itself, justify the pre-trial detention. He submitted a statement on the intention of a company to employ him after release.

On 5 June 2014 the Budapest High Court ordered the prolongation of the applicant ’ s deten tion until 6 August 2014 under s ection 129 d) of the Criminal Procedures Act ( risk of repetition of crime) , pointing out the “professional” manner in which the crime had been committed .

The applicant and his lawyer were present at the hearing. The applicant appealed, emphasising that the “professional” manner was not even mentioned in the public prosecutor ’ s request for prolongation. The Budapest Court of Appeal upheld the applicant ’ s detention, relying s ection 129 b), c) and d) of the Criminal Procedures Act on 19 June 2014 (that is, fear of absconding, of jeopardising the investigation and of repetition of crime).

On 8 July 2014 the Budapest Chief Prosecutor ’ s Office preferred a bill of indictment, as the investigation had been terminated.

On 21 July 2014 the Budapest High Court – without hearing the applicant – ordered the prolongation of the detention until the first-instance court ’ s judgment , relying on s ection 129 b) and d), due to the risk of absconding and repetition of crime. On 1 August 2014 the applicant appealed against the decision , arguing that none of the evidence made available to him supported the fact that he was the person who had run away, and none of the involved police officers could identify him. He also argued that , in respect of the other criminal investigation against him , no actual prosecution had taken place, so tho se proceedings could not be taken into account when evaluating the risk of repetition of crime. On 10 September 2014 the Budapest Court of Appeal dismissed the applicant ’ s appeal , repeating its previous reasoning .

The first hearing before the criminal court took place on 19 September 2014.

When introducing the application, the applicant was still in detention and his trial was pending.

COMPLAINTS

The applicant complains under Article 5 § 1 that his pre-trial detention was unjustified. In his view, the facts of the case revealed no “reasonable suspicion” of a crime committed by him.

Moreover, under Article 5 § 3, he complains that the detention has been repeatedly prolonged without the courts indicating any evidence which would support his actual involvement in the crime. In respect of the risks of repetition of crime and absconding the courts ignored the arguments and evidence presented by him and applied only stereotypical reasoning.

Lastly, under Article 5 § 4, he submits that he was not informed of any evidence underlying the specific ground s for ordering the detention. The courts delivered decisions in respect of the prolongation of the detention more than once without hearing him .

QUESTION S TO THE PARTIES

1. Have the repeated prolongations of the applicant ’ s pre-trial detention been in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention , given the rather stereotypical reasoning provided by the courts and the apparent lack of consideration of alternative measures ?

2. D id the applicant have at his disposal an eff ective procedure by which he could cha llenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention? In particular, has the principle of “equality of arms” been respected in view of the fact that the applicant was given no information on the evidence underlying the risks of absconding, collusion and repetition of crime, all held against him?