Submission to the Council of Europe on pre-trial detention

The X.Y. v. Hungary group of cases concerns different violations of the applicants’ right to liberty and security under Article 5 of the European Convention on Human Rights on account of their unlawful detention, their unreasonably long pre-trial detention, the domestic courts failure to give sufficient reasons for their continued pre-trial detention, an infringement of the principle of “equality of arms” as they had no access to the relevant material of the investigation when challenging their detention, and the excessive length of the judicial review of their detention.

In its communication submitted to the Committee of Ministers of the Council of Europe (in the latter’s capacity of supervising the execution of judgments of the European Court of Human Rights), the HHC argues that the judgments in the X.Y. v. Hungary group of cases cannot be considered as implemented for the following reasons. While the new Code of Criminal Procedure that entered into force in July 2018 brought along positive changes in the legal framework in the area of pre-trial detention and coercive (pre-trial) measures in general, no representative and/or large-scale research has been conducted to assess the impact of these legal changes, neither by the Government, nor by other state actors. Without such research, it is impossible to assess the current practice of the authorities regarding pre-trial detention and its compliance with European Court of Human Rights standards, and to ascertain whether the new rules indeed facilitated positive trends in the practice or not.

This is especially so considering that statistical data show a worrying picture. After 2019, the number of pre-trial detentions ordered and the proportion of pre-trial detainees has increased; at the end of 2023, the proportion of pre-trial detainees was 23.6% and their number was much higher than at the end of 2019. The success rate of prosecutorial motions aimed at pre-trial detention during the investigative phase remains high, and it shows a slight upward trend since 2019, with large territorial differences between counties. Alternative, non-custodial pre-trial measures remain severely underused. In spite of what is suggested by the Government, the increase in pre-trial detentions and the current numbers cannot be attributed solely to human smuggling cases. Excessive length of pre-trial detentions in general remains a systemic problem as well; of the new violations found by the European Court of Human Rights regarding Hungary in 2022, most concerned lengthy judicial proceedings or pre-trial detention. The surge in the number of pre-trial detainees contributed to the highest prison population in 33 years.

The full submission of the HHC is available here:
Rule 9(2) communication in the X.Y. v. Hungary group of cases