Communicated on 9 January 2014 and 19 February 2015

SECOND SECTION

Application no. 50130/12 János BANDUR against Hungary lodged on 1 August 2012

STATEMENT OF FACTS

The applicant, Mr János Bandur , is a Hungarian national, who was born in 1963 and lives in Budaörs . He is represented before the Court by Mr T. Fazekas , a lawyer practising in Budapest .

Particular circumstances of the case

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

On an unspecified date the representative of a limited liability company lodged a criminal complaint against unknown persons for having allegedly stolen the company ’ s goods in the value of 11,000,000 Hungarian forints (HUF) (approximately 34,400 euros (EUR)).

In connection with the criminal complaint, investigations were opened in respect of two individuals on suspicion of forgery of public documents and aggravated fraud.

On 1 June 2012 the Tatabánya Police Department issued an arrest warrant against the applicant in connection with the ongoing criminal proceedings, since at the material time the applicant had been hired as a truck driver to transfer the goods which subsequently went missing and, following the opening of the investigations, he was unreachable at his permanent address.

The applicant maintains that, at the time of the arrest warrant being issued, he did have a lawyer appointed for him, as required by section 527(2) of the Code of Criminal Procedure .

On 8 June 2012 the applicant appeared at the Jászfényszaru Police Station, where he was immediately arrested. On the same day the applicant was heard as a suspect. In these and the ensuing proceedings the applicant was represented by a lawyer of his choice. The applicant appealed against his placement in custody, arguing that he had not been present at his permanent address as he had worked as a truck driver abroad, he had constant employment and a permanent address, that the alleged offence of which he was suspected was of a minor nature, that he had voluntarily appeared before the investigation authorities, and that he had given a detailed account of the events; thus, there were no grounds to believe that he would abscond or commit any other crime. He also maintained that the only evidence against him was that his personal information had allegedly been registered erroneously by the company where he had been employed as a driver.

The appeal was dismissed by the Tatabánya District Prosecutor ’ s Office on 14 June 2012.

On 8 June 2012 the Komárom -Esztergom County Regional Public Prosecutor ’ s Office requested the applicant ’ s placement in pre-trial detention since there were grounds to believe that the applicant had committed aggravated fraud, as he had been the driver of the truck containing the missing goods and he had used false personal information for his identification. It also argued that further investigatory measures were necessary and that the applicant would obstruct the investigation or abscond , should he be left at large.

On 9 June 2012 the Tatabánya District Court held a detention hearing. The motion of the Public Prosecutor ’ s Office was presented to the applicant ’ s lawyer only minutes before the hearing. The court ordered the applicant ’ s detention on remand until 9 July 2012 under section 12 9(2 ) ( b) and (c ) of the Code of Criminal Procedure . According to the court ’ s reasoning, the applicant, in cooperation with another suspect, had transferred the missing goods to an unknown place and submitted false information about his identity. Referring to the arrest warrant, the court also held that there were grounds to believe that the applicant would abscond, obstruct the investigations or commit further offences.

The applicant appealed, arguing that the pre-conditions for pre-trial detention were not fulfilled, since there was neither strong suspicion that he had committed the criminal act nor any risk of absconding or collusion. He reiterated that he had voluntarily cooperated with the police both as regards his arrest and the taking of evidence. Furthermore, his personal circumstances, that is, the illness of his mother and brother and his permanent employment and residence, would also exclude the risk of absconding. As regards the question of reasonable suspicion, the applicant argued that there was no evidence substantiating that he had committed a crime. He further submitted that he had not been informed of any of the evidence justifying his placement in detention on remand.

In the alternative, the applicant requested his release and his placement under house arrest or under the obligation not to leave a certain area.

The first-instance decision was upheld on appeal, without further reasoning, by the Tatabánya High Court on 14 June 2012.

The applicant was placed in pre-trial detention at Székesfehérvár Prison, where the prison cell measured around 30 square metres and accommodated 7-11 inmates. Moreover, during the summer period the temperature in the prison cell reached 30 degrees Celsius during day time, and occasionally even 35 degrees Celsius.

On 3 July 2012, at the request of the Public Prosecutor ’ s Office, the applicant ’ s detention was extended until 9 September 2012 by the District Court. The court found that there remained a strong suspicion that the applicant had committed aggravated fraud. Furthermore, the risk of absconding persisted, since the applicant had been arrested under an arrest warrant. Finally, there was a risk of collusion given the ongoing investigations and the applicant ’ s denial of the offences. The decision was upheld on appeal on 20 July 2012 by the Tatabánya High Court. .

The applicant sought the termination of his detention, which request was dismissed by the District Court on 9 July 2012. It reiterated in essence the same reasoning as in its decision of 3 July 2012. The District Court examined the prosecution ’ s motion to keep the applicant detained without previously communicating it to the applicant. On appeal, on 9 August 2012, the Tatabánya High Court partly upheld the applicant ’ s appeal, finding that the risk of absconding was not present, given the applicant ’ s personal circumstances, namely his mother ’ s fragile health and his brother ’ s illness, and the fact that he had voluntarily appeared before the police following the issuing of the arrest warrant. Nonetheless, the High Court upheld the first-instance decision as to the prolongation of the applicant ’ s pre-trial detention for risk of collusion.

On 28 August 2012 the investigation was terminated and the case file presented to the defence.

On 7 September 2012 the Prosecutor ’ s Office terminated the applicant ’ s pre-trial detention on the ground that no specific reason (such as the risk of collusion) existed for his further detention.

COMPLAINTS

The applicant complains under Article 3 of the Convention about the inhu man conditions of his detention and, under Article 13, about the absence of remedies in this regard.

He further submits under Article 5 §§ 1 (c) and 3 of the Convention that he was detained despite the absence of a “reasonable suspicion” that he had committed a criminal offence. He further complains that, upon ordering his pre-trial detention, the domestic courts failed to provide relevant and sufficient reasons justifying the necessity for his detention pending trial.

He also complains under Article 5 § 4 of the Convention about the lack of access to evidence in his case file in order to mount an effective defence against his continued detention.

QUESTIONS TO THE PARTIES

1. Did the applicant ’ s deprivation of liberty , by means of pre-trial detention , comply with the requirements of Article 5 § 1 of the Convention? In particular, was he detained “on reasonable suspicion of having committed an offence (Article 5 § 1 (c) ) ”?

2. Were the reasons relied upon by the Tatabánya District Court and the Tatabánya High Court when detaining the applicant and prolonging this measure relevant and sufficient for the purposes of Article 5 § 3 of the Convention?

3. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? In particular, did he have access to the relevant part of his criminal file in order effectively to challenge his detention on remand? Was the principle of “equality of arms respected” (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58 , ECHR 1999 ‑ II ; Osváth v. Hungary , no. 20723/02, § 18 , 5 July 2005 )?