Order The Metropolitan Court as court of second instance dr. Katalin Gyepes Deciding on the abolition of house arrest 10/06/2011.

10/06/2011  13:38  3546840                                                                              MC Punitive College     1814    P.001

 

Municipal Court as court of second instance

31Sij.1448/2011/2

 

The Metropolitan Court as court of second instance in Budapest on the 10th of June 2011. held Council meeting gives the following:

 

Order:

 

In a criminal organization that committed a particularly large financial detrimental misappropriation of funds and other felony criminal offenses against Miklós Hagyó, and his companions at the Central Investigating Chief Prosecutor's Office under Inv. No.: 477/2010. in an ongoing criminal case the Pest Central District Court changes the number Cr. 42311/2011/2. order dated on the 19th of May 2011, and from the corrected 14th of May 2010 until the 17th of May 2010 in criminal detention, thereafter until the 23rd of February 2011 he was in preliminary arrest, and since then placed under house arrest Miklós Hagyó suspect in respect of the house arrest terminates.

 

Rationale:

 

The order of the District Court of Pest Miklós Hagyó suspect house arrest in the court of first instance, during the preparation of the trial made decision, but at most until the 23rd of August 2011 has extended.

 

Against the order the suspect's authorized attorney Dr. Miklós Kádár lawyer announced an appeal, in which he attacked the following in the first instance court's decision and the decision justification:

 

• According to the protective, the justification is essential and literally has the same content as of the previous court decisions, ignoring the passing of time, the current status of the criminal proceedings, the personal circumstances of the suspect, particularly of his medical conditions.
• Against Miklós Hagyó the last communicated insinuation date was in August 2010, so there is no substantive content to the conclusion according to which the defendant's scope of guilt has expanded since the imposition of coercive measures, but not since the imposition of house arrest.
• The diverse nature of the investigation, there is no reference torque, having regard to the fact that the investigation was ordered two years ago, Miklós Hagyó is the focus of investigation for a year and a half, and for a year now, he is deprived of his personal liberty.
• Unfounded was the need to the acquisition of expert opinion, as well as the reference for procedural acts such as supporting the rationale for coercive measures, because in the past two years, the investigating authority did not do anything about it.
• According to the protective, because of forgery of private documents criminal proceedings brought against Miklós Hagyó, II.V. and dr. Viktor Szűcs, only aims that  the court against Miklós Hagyó, should not apply milder coercive measures.

 

The defense submits that Miklós Hagyó suspect personal, family and medical circumstances, as well as his behavior during the procedure (he was available for the authority, his willingness to hearing testimony is unbroken, complied with the rules of the house arrest) provide a basis for milder coercive measures, for the application of reside ban.

 

 

 

 

 

 

 

 

10/06/2011  13:38  3546840                                                                              MC Punitive College     1814    P.002

 

Municipal Court as court of second instance

31Sij.1448/2011/2

 

2.

 

The result for appeal

 

According to the Court of second instance, the first instance court was wrong in this respect, that the maintenance of house arrest Cp.129. § (2) paragraph in points a/and b/ written conditions persist.

 

It is a fact, that in the case of suspect because of punishable by imprisonment for offenses , the investigation is on-going, and the basis of the available evidence can be establish the accusations in connection with acts of reasonable suspicion.

 

The accused freedom of movement and restricted rights of freedom to choose the place for residence, also to ensure the success of the procedure house arrest, a person's freedom - compared to pre-trial detention - significantly milder degrees affecting coercive measures, however, in the case of house arrest the authorities shall endeavor,to last for a reasonable period of time.

 

The specific causes of coercive measures in a protracted process may be terminated, or change, thus the decisive tribunal must examine the subject of coercive measures  every time with particular care in the Cp. 129. § (2) paragraph written reasons existence. It is not disputed that in the present case the investigation is diversified, with complex personal and material activity relationships with a criminal offense is in progress, from this independently, at the examination of the special conditions for coercive measures only through evidence-based conclusions can take a position on that, to whether or not  it is appropriate further maintenance of the coercive measures.

 

According to the court of second instance against suspect Miklós Hagyó, during the ongoing process, because of the initiated new criminal proceedings of forgery of private documents, no clear conclusions can be drawn that the house arrest, based on the a/ point of Cp. 129 § (2) paragraph is necessary to maintain. It can not be ignored the new criminal proceedings subject to minor acts of physical weight, and circumstances of the offense, respectively nor that, according to the data of the offense the misdemeanor of private document forgery  can not be related to the present issue crimes against property.

 

In relation to the condition of the b/ point of Cp. 129. § (2) paragraph as a preliminary point it should be noted, that the mere process of serving crime outstanding material weight and the magnitude of the imposable penalty upon determination of guilt can only be based on the escape, risk of hiding, if other datas of the procedure is probable. Court of second instance's view, in this present case in case of Miklós Hagyó suspect, there are no such datas, facts, the basis of which should continue to be afraid of absconding, from hiding, and which would make it probable, that at the procedural actions his presence only can be ensured with the maintenance of house arrest. The suspect after nearly nine months of pre-trial detention is in house arrest since more than three months, and does not reveal any information that during that time withdrew himself from procedural actions, or would have violated the rules of house arrest. In relation with the merits of coercive measures earlier and in the present decision also referred to  information incurred during the investigation, according to which Miklós Hagyó, from his criminal responsibility wanted to leave abroad, however the Central Investigating Chief Prosecutor's investigative materials submitted to the court in this respect does not contain data namely is not apparent from, that in case of the suspect which facts are demonstrating the intention of leaving abroad. The real estate assets or the transfer of property rights of the business association, can not be clearly inferred the intention of absconding, possible rescue of the property may have other causes, which in terms of coercive measures has no importance. With all this against the case of the suspect a number of previously known as well as new circumstances can be determine, which are reducing the risk of escape and hiding. 

The suspect without criminal record has settled family background, with adequate income and assets, due to various disease he needs medical care, surgery and medication, furthermore, his child suffers severe diabetes. 

 

In view of all these the court of second instance in the case of suspect Miklós Hagyó, the reasons of house arrest based on the b/ point of Cp. 129. § (2) paragraph no longer exist. The court of second instance notes, that to evaluate the coercive measures according by the investigating authority investigative material made available to the court Miklós Hagyó suspect was last interrogated on the 15th of December 2010, since then new facts in the present case there was no suspicion communicated, thus, the repeated reference according to which the facts further offenses may expand and the charges brought against suspected criminal classification is more serious, after nearly six months still not supported by datas. Otherwise, the court which made a decision of the coercive measures only at the time of the decision from available known facts may draw conclusions to the expected behavior of the suspect, and special conditions for the existence of coercive measures.

 

The court of second instance acting under the Cp. 131. § (3) paragraph, and Cp. 215. § (3) paragraph, by the meaningful applying of the Cp. 372. § (1) paragraph changed the complained order of first instance, and the house arrest of Miklós Hagyó based on Cp. 138. § (3) paragraph and basedon the last sentence of Cp. 136. § (2) paragraph, has terminated.

 

Concerning the detention of suspect - because of public clerical error - erroneous datas need clarification based on Cp. 261. § (1) paragraph.

 

 

 

Budapest, 10th of June 2010. 

 

 

 

Dr. Attila Attila                                               Dr. Katalin Gyepes                               Dr. Éva Juhász    

judge Rapporteur                                          President of the Council                     judge

 

 

In witness whereof this publication: