Communicated on 22 October 2014

SECOND SECTION

Application no. 50255/12 Péter SÜVEGES against Hungary lodged on 2 August 2012

STATEMENT OF FACTS

The applicant, Mr Péter Süveges , is a Hungarian national, who was born in 1972 and lives in Budapest. He is represented before the Court by Mr A.K. Kádár , a lawyer practising in Budapest.

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

A. Criminal proceedings conducted against the applicant

On 2 June 2005 the applicant was arrested on suspicion of misuse of explosives.

On 11 May 2007 the Central Investigation Prosecutor ’ s Office indicted the applicant in the Pest County Regional Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives.

The first hearing in the case took place before the Pest County Regional Court on 17 December 2007. Up until 10 March 2009 the trial judge, Ms K.B.H., held 24 hearings.

Later, the applicant was charged by the Budapest Chief Prosecutor ’ s Office with armed robbery. The two sets of criminal proceedings were joined by the Pest County Regional Court on 22 June 2009.

The applicant challenged the trial judge for bias , which motion was dismissed. On the applicant ’ s renewed request, the trial judge recused herself.

A new judge, Ms Gy.Sz ., was appointed to hear the case. She held 11 hearings in the period June-December 2009. This judge eventually declared herself biased and the case was assigned to yet another judge, Ms A.F., who held 23 hearings between September 2010 and April 2011.

Meanwhile, on 25 October 2010 the applicant was indicted by the Komárom -Esztergom Regional Prosecutor ’ s Office for aggravated murder. The case was joined to the two ongoing criminal proceedings on 28 January 2011 by the Pest County Regional Court.

On 17 April 2011 applicant challenged Ms A.F. for bias. On 24 June 2011 the Budapest Court of Appeal dismissed this motion. It pointed out that the trial judge had declared herself impartial, along with four other judges of the Pest County Regional Court. Despite the decision of the Court of Appeal, the trial judge eventually recused herself, since, in her view, the applicant ’ s letters addressed to the Regional Court had infringed her dignity.

Subsequently the case was assigned to a fourth judge at the Pest County Regional Court, Mr S.P. On 25 January 2012 he also recused himself following the applicant ’ s different motions. The remaining three judges of the Pest County Regional Court declared themselves bias ed as well. On 31 January 2012 the Budapest Court of Appeal appointed the Budapest High Court to hear the case. The trial judge of the High Court held the first hearing on 7 May 2012.

On 28 February 2014 the applicant was found guilty of most of the charges and was sentenced to life imprisonment with the possibility of release on parole after 30 years. As appears from the case file, the appeal proceedings are still pending.

B. The applicant ’ s pre-trial detention and house arrest

In the context of the above proceedings, on 4 June 2005 the Kaposvár District Court remanded the applicant in custody.

His detention was repeatedly prolonged at the statutory intervals until 30 May 2008 when the Budapest Court of Appeal suspended his detention and ordered him to serve a prison sentence which had become enforceable in connection to other criminal proceedings unrelated to the present case.

On 21 May 2010, on the new charges of aggravated murder preferred by the Komárom -Esztergom Regional Prosecutor ’ s Office, the Tatabánya District Court again remanded the applicant in custody. The decision was upheld on appeal by the Komárom -Esztergom Regional Court on 1 June 2010.

The applicant was actually placed in pre-trial detention again on 2 February 2011, after having served his prison sentence. He submits that under the law, his detention should have been reviewed within six months, that is, on 2 August 2011 at the latest but that this did not take place.

On 10 February 2011 the applicant filed an interlocutory application for his immediate release and placement in house arrest with the Pest County Regional Court. The court dismissed the application on the same day. The applicant appealed without success. His further requests for release or, alternatively, a less coercive measure were to no avail.

On 21 November 2011 the Budapest Appellate Public Prosecutor ’ s Office requested the Budapest Court of Appeal to review the applicant ’ s pre-trial detention pursuant to section 132(2) of the Code of Criminal Procedure.

On 5 December 2011 the detention was extended until the delivery of the first-instance judgment under section 129(1 )( b) and (d) of the Code of Criminal Procedure (risk of absconding and of reoffending). The court held that there was a risk that the applicant might abscond given the seriousness of the charges and reoffend given that he was a multiple recidivist.

The applicant ’ s pre-trial detention reached the statutory time-limit of four years on 2 February 2012. On 23 January 2012 the Budapest Surroundings High Court placed the applicant under house arrest with continuous police surveillance, to be carried out in the flat of Ms I.T, an acquaintance of the applicant. The applicant was allowed to leave the flat every second Wednesday of the month, between 8 a.m. and 4 p.m. The court noted that the reasons for the applicant ’ s detention were still valid, and a less restrictive measure was to be applied only because the statutory four-year time-limit for pre-trial detention had expired. The court also dismissed the applicant ’ s request for release on the undertaking not to leave his place of residence. According to the court, the applicant ’ s argument concerning his mother ’ s health and the modest financial situation of his host could not serve as a ground for the application of a less coercive measure. This decision was upheld by the Budapest High Court on 8 February 2012.

On 5 March 2012 the Budapest High Court granted the applicant ’ s request for leave for 21 March 2012 to visit his mother in hospital between 8 a.m. and 12 noon and to undergo dental treatment.

On 8 March 2012 the applicant requested his release from house arrest, pointing out that he had no income on his own and intended to work. He also produced a job offer from a company. His request was dismissed on 14 March 2012 by the Budapest High Court on the ground that no new circumstances existed that would affect the necessity of the house arrest.

On 16 April 2012 the applicant was granted exceptional leave from house arrest for every last Friday of the month between 9 a.m. to 3 p.m. to visit his hospitalised mother.

On 16 July 2012 the applicant was granted leave to visit his father in the town of Pápa on 28 July 2012 between 6 a.m. and 6 p.m.

His further request for extraordinary leave to visit his mother for five hours on 21 June 2012 and to study his case file was granted on 18 June 2012.

The applicant ’ s further request for leave for medical reasons was granted on 18 July 2012. However, the Budapest High Court dismissed his application for leave so as to look after his mother on a daily basis, in particular to assist her with insulin injections. The court reasoned that Ms I.T., the applicant ’ s acquaintance and a co-defendant in the criminal proceedings who lodged in the flat of the applicant ’ s mother, was capable of doing this. The court also stated that lengthy daily leaves would be incompatible with the house arrest.

The applicant ’ s further motions for leave to accompany his mother to medical examinations were granted on 20 July and 1 August 2012 for 23 July (between 3 p.m. and 10 p.m.) and 3 and 15 August 2012, respectively.

The applicant lodged further requests for leave in August 2012 to visit his ill father in Pápa , to take his mother home after her hospitalisation and to make certain arrangements with the financial institution and previous workplace of his mother, since the latter was under guardianship proceedings.

By a decision of 14 August 2012 the Budapest High Court granted the applicant leave to visit his father every fourth Saturday between 6 a.m. and 6 p.m., and to accompany his mother coming home from hospital on 22 August between 7 a.m. and 10 a.m. His request to visit his mother ’ s financial institution and workplace was dismissed, since he had not specified their addresses, whereas under section 138(1) of the Criminal Procedure Code, leave could be granted only for a specific time and destination. The applicant appealed, arguing that the time period to assist his mother was too short, that his father ’ s health was deteriorating fast, requiring more frequent visits, that is every second week, and that he had already submitted the contact details of his mother ’ s financial institution and workplace. On 1 October 2013 the Budapest Court of Appeal, acting as a second-instance court, found that the applicant ’ s appeal concerning the restricted time to assist his mother was well-founded, nonetheless no longer pertinent, because she had already left the hospital. The remainder of the applicant ’ s appeal was dismissed.

On 10 October 2012 the court granted the applicant leave for the period 15 to 17 October 2012 to make arrangements concerning the funeral of his deceased father.

On 3 December 2012 the Budapest High Court released the applicant from house arrest with an undertaking not to leave his place of residence. The court observed that there were no grounds to believe that the applicant would pervert the course of justice or that he would reoffend. Nonetheless, in its view, he was charged with a serious offence requiring a coercive measure.

On appeal, the Budapest Court of Appeal reversed the first-instance decision and placed the applicant under house arrest on 20 December 2012. It noted that given the seriousness of the offence there existed a danger of his absconding and given his previous multiple convictions a risk of reoffending.

On 21 December 2012 the Budapest High Court dismissed the applicant ’ s motion for leave to attend Christmas and Sunday masses on 27 and 28 December 2012 and 2 and 4 January 2013. The court observed that the applicant, being a teacher of religion, was not disproportionately restricted in the exercise of his religious conviction. This decision was upheld on appeal on 24 January 2013, the Court of Appeal finding that the applicant ’ s religious convictions did not justify the modification of the house arrest.

Meanwhile, the applicant ’ s host, Ms I.T. complained on a number of occasions to various authorities about the police officers interfering with her private life. She also submitted that, as she had indicated from the beginning of the house arrest, she did not have the necessary financial means to accommodate the applicant.

On 7 January 2013 Ms I.T. submitted a motion to the Budapest High Court stating that the applicant was to leave her flat since she could not further provide for him. On the same day, the applicant requested the court to establish the place of his house arrest at a camping site in Nagyteve . He was informed by the court that, according to information received by the relevant authorities, the camping site was not suitable for residence during the winter. Notwithstanding this information, the applicant maintained his request.

A new decision was issued by the investigating judge on 8 January 2013 establishing the place of the applicant ’ s house arrest at a camping site in the municipality of Nagyteve . On 8 January 2013 the Pápa Police Department issued a report on the applicant ’ s presence at the camping site, stating that the weather conditions, the lack of food supply and the poor hygienic conditions endangered the applicant ’ s health. On 9 January 2013 the Veszprém County Chief Police Department lodged a request with the Budapest High Court to amend its decision of 8 January 2012 since the camp site was unsuitable for long-term residence.

On 14 January 2013 the applicant sought the termination of his house arrest again. His motion was dismissed on 16 January 2013 by the Budapest High Court, which stated that there was no reason to overturn the decision of 20 December 2012 and that he had been aware of the conditions of the camping site when he had requested to be committed there.

On 18 January 2013 the applicant fell ill and was taken to hospital. After that, he was placed in a social care institution in Pápa .

On 21 January 2013 the Budapest High Court amended its decision of 8 January 2013 and ordered the applicant ’ s house arrest to be carried out in the flat of Ms I.T. again. The applicant ’ s appeal against this decision was to no avail. In its decision of 26 February 2013 the Budapest Court of Appeal reiterated that the applicant was a multiple reoffender charged with serious crimes, thus the risk of absconding and reoffending existed. The court also noted that had the statutory maximum of detention on remand not expired, the most restrictive measure should have been applied. It further argued that the measure was not disproportionate, since the protraction of the proceedings had been compensated for by the statutory discontinuation of the applicant ’ s detention on remand. The court also dismissed the applicant ’ s argument that the other co-defendants were released from house arrest.

On 10 July 2013 the Budapest High Court carried out the statutory review of the applicant ’ s house arrest and, at the same time, decided on the applicant ’ s request for release. During the court hearing the judge presented to the applicant and the prosecutor a letter allegedly originating from one of the applicant ’ s previous cellmates. The writer of the letter informed the court that the applicant intended to obstruct the criminal proceedings by physically threatening the investigating judge and subsequently requesting his exclusion for bias, initiating criminal proceedings against the trial judge for judicial errors and absconding and inciting the co-accused to do so. Relying on the protection of the author ’ s personal data as provided in section 60(1) of the Criminal Procedure Code, the court dismissed the applicant ’ s request to have access to the document or to find out its author ’ s identity. The court upheld the applicant ’ s house arrest because of the risk of reoffending and absconding as provided in section 129(2)(b) and (d) of the Criminal Procedure Code. In its decision it relied, in particular, on the fact that the applicant refused to be supervised through electronic monitoring and on the letter mentioned above.

On 22 July 2013 the Budapest High Court authorised the applicant to leave his house arrest to undergo physiotherapy every second weekday in the period 22 July to 15 August 2013.

On 8 August 2013 the applicant ’ s request for leave to take up a job and to look after his ill mother on a daily basis was dismissed by the Budapest High Court, which found that such a daily leave would defeat the purpose of house arrest.

On 12 September 2013 the applicant was appointed as his mother ’ s guardian.

The applicant stayed in house arrest until 8 November 2013, when he was placed in pre-trial detention in connection with criminal proceedings concerning another offence.

On 28 February 2014 the applicant was found guilty and sentenced to life imprisonment with the possibility of parole after 30 years.

The appeal proceedings are pending.

COMPLAINTS

The applicant alleges that the conditions of his house arrest from 7 January 2013 until 18 January 2013 amounted to inhuman and degrading treatment. He relies on Article 3 of the Convention.

The applicant further submits that his detention on remand and house arrest lasted an unreasonably long time and the decisions prolonging them were not individualised. He complains that the principle of “equality of arms” and of adversarial proceedings were not respected in that he had no access to the part of the criminal file containing evidence relied on by the domestic courts, that is an anonymous letter, in support of the decision to prolong his house arrest. He relies on Article 5 §§ 3 and 4 of the Convention.

Moreover, the applicant complains that the length of the criminal proceedings conducted against him has been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.

H e further alleges that the refusal to allow him to visit and assist his parents was in breach of Article 8 of the Convention.

Finally, he asserts that the authorities interfered with his freedom of religion by failing to grant him leave from house arrest to attend Sunday and Christmas masses.

QUESTIONS TO THE PARTIES

1. Did the physical condition of the applicant ’ s house arrest at a camping site amount to inhuman or degrading treatment prohibited by Article 3 of the Convention?

2. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, did the authorities produce an individualised assessment of his situation when repeatedly prolonging the measure?

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 and the inherent requirement of “equality of arms”? In particular, did he have adequate access to the material on which the prosecution proposed, and the courts ordered, the continued coercive measures?

4. Is the length of the criminal proceedings conducted against the applicant in compliance with the reasonable time requirement of Article 6 § 1 of the Convention?

5. Were the restrictions on the applicant ’ s leave from house arrest to visit his seriously ill parents compatible with his right to respect for his private and family life guaranteed by the Article 8 of the Convention?

6. Did the refusal to grant the applicant leave to attend masses represent an interference necessary in a democratic society for the purposes of Article 9 of the Convention?