I incorrectly predicted that there's no violation of human rights in A v. ICELAND and 1 other application.
Information
- Judgment date: 2022-02-10
- Communication date: 2021-03-04
- Application number(s): 25133/20;31856/20
- Country: ISL
- Relevant ECHR article(s): 6, 6-1, 8, 8-1
- Conclusion:
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.623589
- Prediction: No violation
Inconsistent
Legend
Communication text used for prediction
Published on 22 March 2021 Applications nos.
25133/20 and 31856/20A against Icelandand B against Icelandlodged on 19 June 2020 and 13 July 2020 respectivelycommunicated on 4 March 2021 The application concerns the applicants’ loss of custody of their two children after the first applicant, A, was prosecuted and acquitted of sexual abuse of the children.
In 2015, the first applicant was arrested on suspicion of sexual abuse of his two children, X and Y.
The children were temporarily fostered outside the home but returned there later that year to live with B, once A had moved out.
During the course of the investigation, B received guidance and support in caring for the children, and A was granted very limited visitation rights.
Some time after returning to the family home, X was again placed in temporary foster care.
Subsequently, Y was also placed in the same foster home.
In 2017, A was indicted for repeated sexual abuse against both children.
Later that year, he was acquitted of all charges by a district court.
No appeal against that judgment was lodged.
In 2017, the Child Protection Committee of the applicants’ municipality initiated civil proceedings to deprive the applicants of custody of both children.
By a judgment of 6 June 2019, a district court ruled to deprive the applicants of custody.
The applicants appealed against that judgment to the Court of Appeal, which overturned the district court’s findings and ruled in the applicants’ favour by a judgment of 1 November 2019.
The Supreme Court granted leave to appeal and overturned the Court of Appeal’s judgment, ruling to deprive the applicants of custody by a judgment of 10 March 2020.
The applicants complain under Article 8 that the Child Protection Committee’s procedure and the deprivation of custody violated their right to respect for their private and family life.
They submit that the actions constituted an interference which was not prescribed by law, did not pursue a legitimate aim and was not necessary.
Each applicant makes this complaint on behalf of themselves and on behalf of the children.
Judgment
FIRST SECTIONCASE OF BESIROVIC AND OTHERS v. HUNGARY
(Applications nos. 32917/20 and 9 others – see appended list)
JUDGMENT
STRASBOURG
10 February 2022
This judgment is final but it may be subject to editorial revision. In the case of Besirovic and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Alena Poláčková, President, Raffaele Sabato, Davor Derenčinović, judges,and Attila Teplán, Acting Deputy Section Registrar,
Having deliberated in private on 20 January 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The Hungarian Government (“the Government”) were given notice of the applications. THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading cases of Gál v. Hungary, no. 62631/11, 11 March 2014 and Lakatos v. Hungary, no. 21786/15, 26 June 2018, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 11. Some applicants submitted further complaints under Article 5 § 4 of the Convention which also raised issues, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in among many authorities, Bandur v. Hungary, no. 50130/12, §§ 79 to 85, 5 July 2016. 12. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
13. Regard being had to the documents in its possession and to its case‐law (see, in particular, Gál v. Hungary, no. 62631/11, 11 March 2014), the Court considers it reasonable to award the sums indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 10 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Attila Teplán Alena Poláčková
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
No. Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Length of detention
Other complaints under well‐established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
32917/20
24/07/2020
Enes BESIROVIC
1958
Kiss Dominika Szilvia
Budapest
19/11/2016 to
16/11/2020
3 year(s) and 11 month(s) and 29 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 56 days. The applicant’s appeals against detention were decided on with substantial delays. The 1.5-year review was omitted altogether. 6,800
54358/20
30/11/2020
Zoltán János KOVÁCS
1976
Karsai Dániel András
Budapest
27/06/2018 to
10/09/2020
2 year(s) and 2 month(s) and 15 day(s)
3,000
1599/21
16/12/2020
Dejan MEDIC
1972
Karsai Dániel András
Budapest
27/04/2019 to
27/10/2020
1 year(s) and 6 month(s) and 1 day(s)
2,200
7631/21
18/01/2021
László FARKAS
1975
Kiss Dominika Szilvia
Budapest
11/07/2018 to
02/11/2021
3 year(s) and 3 month(s) and 23 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 56 days. The 1.5-and 2-year reviews were also belated. 5,700
15049/21
11/03/2021
Sándor KOLOMPÁR
1991
Kiss Dániel Bálint
Budapest
08/05/2019
pending
More than 2 year(s) and 6 month(s) and 26 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The statutory 1-year review has been omitted, the delay so far is about 3 months. 4,600
15454/21
02/03/2021
Gergely Márton CSONKA
1989
Kiss Dominika Szilvia
Budapest
25/02/2019 to
29/04/2021
2 year(s) and 2 month(s) and 5 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 6-month review of the applicant’s detention took place more than a month after the expiry of the validity of the detention. 3,900
18981/21
25/03/2021
Béla DEME
1990
Karsai Dániel András
Budapest
23/04/2019 to
19/02/2021
1 year(s) and 9 month(s) and 28 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 6-month review of the detention after the indictment was omitted. 3,400
19636/21
30/03/2021
István BALÁZS
1985
Karsai Dániel András
Budapest
25/04/2019
pending
More than 2 year(s) and 7 month(s) and 14 day(s)
3,600
21994/21
12/04/2021
József BALOGH
1993
Kiss Dániel Bálint
Budapest
01/09/2018 to
30/05/2019
18/08/2019 to
04/03/2021
8 month(s) and 30 day(s)
1 year(s) and 6 month(s) and 15 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The applicant’s appeal against the decision maintaining the detention after the indictment was decided on with a delay of 1.5 months. The obligatory 6‐month review was omitted altogether. 4,100
25961/21
03/05/2021
Tamás Zsolt GOMBÁR
1997
Kiss Dániel Bálint
Budapest
27/08/2019
pending
More than 2 year(s) and 3 month(s) and 12 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 69 days. The applicant’s appeal against a decision maintaining the detention was decided with a delay of 2 months. 4,100
[1] Plus any tax that may be chargeable to the applicants. FIRST SECTION
CASE OF BESIROVIC AND OTHERS v. HUNGARY
(Applications nos. 32917/20 and 9 others – see appended list)
JUDGMENT
STRASBOURG
10 February 2022
This judgment is final but it may be subject to editorial revision. In the case of Besirovic and Others v. Hungary,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Alena Poláčková, President, Raffaele Sabato, Davor Derenčinović, judges,and Attila Teplán, Acting Deputy Section Registrar,
Having deliberated in private on 20 January 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The Hungarian Government (“the Government”) were given notice of the applications. THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
7. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‐XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‐X, with further references). 8. In the leading cases of Gál v. Hungary, no. 62631/11, 11 March 2014 and Lakatos v. Hungary, no. 21786/15, 26 June 2018, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. 11. Some applicants submitted further complaints under Article 5 § 4 of the Convention which also raised issues, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in among many authorities, Bandur v. Hungary, no. 50130/12, §§ 79 to 85, 5 July 2016. 12. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
13. Regard being had to the documents in its possession and to its case‐law (see, in particular, Gál v. Hungary, no. 62631/11, 11 March 2014), the Court considers it reasonable to award the sums indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 10 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Attila Teplán Alena Poláčková
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
No. Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Length of detention
Other complaints under well‐established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
32917/20
24/07/2020
Enes BESIROVIC
1958
Kiss Dominika Szilvia
Budapest
19/11/2016 to
16/11/2020
3 year(s) and 11 month(s) and 29 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 56 days. The applicant’s appeals against detention were decided on with substantial delays. The 1.5-year review was omitted altogether. 6,800
54358/20
30/11/2020
Zoltán János KOVÁCS
1976
Karsai Dániel András
Budapest
27/06/2018 to
10/09/2020
2 year(s) and 2 month(s) and 15 day(s)
3,000
1599/21
16/12/2020
Dejan MEDIC
1972
Karsai Dániel András
Budapest
27/04/2019 to
27/10/2020
1 year(s) and 6 month(s) and 1 day(s)
2,200
7631/21
18/01/2021
László FARKAS
1975
Kiss Dominika Szilvia
Budapest
11/07/2018 to
02/11/2021
3 year(s) and 3 month(s) and 23 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 56 days. The 1.5-and 2-year reviews were also belated. 5,700
15049/21
11/03/2021
Sándor KOLOMPÁR
1991
Kiss Dániel Bálint
Budapest
08/05/2019
pending
More than 2 year(s) and 6 month(s) and 26 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The statutory 1-year review has been omitted, the delay so far is about 3 months. 4,600
15454/21
02/03/2021
Gergely Márton CSONKA
1989
Kiss Dominika Szilvia
Budapest
25/02/2019 to
29/04/2021
2 year(s) and 2 month(s) and 5 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 6-month review of the applicant’s detention took place more than a month after the expiry of the validity of the detention. 3,900
18981/21
25/03/2021
Béla DEME
1990
Karsai Dániel András
Budapest
23/04/2019 to
19/02/2021
1 year(s) and 9 month(s) and 28 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 6-month review of the detention after the indictment was omitted. 3,400
19636/21
30/03/2021
István BALÁZS
1985
Karsai Dániel András
Budapest
25/04/2019
pending
More than 2 year(s) and 7 month(s) and 14 day(s)
3,600
21994/21
12/04/2021
József BALOGH
1993
Kiss Dániel Bálint
Budapest
01/09/2018 to
30/05/2019
18/08/2019 to
04/03/2021
8 month(s) and 30 day(s)
1 year(s) and 6 month(s) and 15 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The applicant’s appeal against the decision maintaining the detention after the indictment was decided on with a delay of 1.5 months. The obligatory 6‐month review was omitted altogether. 4,100
25961/21
03/05/2021
Tamás Zsolt GOMBÁR
1997
Kiss Dániel Bálint
Budapest
27/08/2019
pending
More than 2 year(s) and 3 month(s) and 12 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 69 days. The applicant’s appeal against a decision maintaining the detention was decided with a delay of 2 months. 4,100
No. Application no. Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Period of detention
Length of detention
Other complaints under well‐established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
32917/20
24/07/2020
Enes BESIROVIC
1958
Kiss Dominika Szilvia
Budapest
19/11/2016 to
16/11/2020
3 year(s) and 11 month(s) and 29 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 56 days. The applicant’s appeals against detention were decided on with substantial delays. The 1.5-year review was omitted altogether. 6,800
54358/20
30/11/2020
Zoltán János KOVÁCS
1976
Karsai Dániel András
Budapest
27/06/2018 to
10/09/2020
2 year(s) and 2 month(s) and 15 day(s)
3,000
1599/21
16/12/2020
Dejan MEDIC
1972
Karsai Dániel András
Budapest
27/04/2019 to
27/10/2020
1 year(s) and 6 month(s) and 1 day(s)
2,200
7631/21
18/01/2021
László FARKAS
1975
Kiss Dominika Szilvia
Budapest
11/07/2018 to
02/11/2021
3 year(s) and 3 month(s) and 23 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 56 days. The 1.5-and 2-year reviews were also belated. 5,700
15049/21
11/03/2021
Sándor KOLOMPÁR
1991
Kiss Dániel Bálint
Budapest
08/05/2019
pending
More than 2 year(s) and 6 month(s) and 26 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The statutory 1-year review has been omitted, the delay so far is about 3 months. 4,600
15454/21
02/03/2021
Gergely Márton CSONKA
1989
Kiss Dominika Szilvia
Budapest
25/02/2019 to
29/04/2021
2 year(s) and 2 month(s) and 5 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 6-month review of the applicant’s detention took place more than a month after the expiry of the validity of the detention. 3,900
18981/21
25/03/2021
Béla DEME
1990
Karsai Dániel András
Budapest
23/04/2019 to
19/02/2021
1 year(s) and 9 month(s) and 28 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 6-month review of the detention after the indictment was omitted. 3,400
19636/21
30/03/2021
István BALÁZS
1985
Karsai Dániel András
Budapest
25/04/2019
pending
More than 2 year(s) and 7 month(s) and 14 day(s)
3,600
21994/21
12/04/2021
József BALOGH
1993
Kiss Dániel Bálint
Budapest
01/09/2018 to
30/05/2019
18/08/2019 to
04/03/2021
8 month(s) and 30 day(s)
1 year(s) and 6 month(s) and 15 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The applicant’s appeal against the decision maintaining the detention after the indictment was decided on with a delay of 1.5 months. The obligatory 6‐month review was omitted altogether. 4,100
25961/21
03/05/2021
Tamás Zsolt GOMBÁR
1997
Kiss Dániel Bálint
Budapest
27/08/2019
pending
More than 2 year(s) and 3 month(s) and 12 day(s)
Art. 5 (4) - excessive length of judicial review of detention - The obligatory 1-year review was carried out with a delay of 69 days. The applicant’s appeal against a decision maintaining the detention was decided with a delay of 2 months. 4,100
[1] Plus any tax that may be chargeable to the applicants.