AS TO THE ADMISSIBILITY OF
Application No. 23636/94
by P. M.
against Hungary
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 November 1993
by P.M. against Hungary and registered on 8 March 1994 under
file No. 23636/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the observations submitted by the respondent Government on
3 January 1996 and the observations in reply, submitted by the
applicant on 1 March 1996;
- the supplementary observations of 22 March and 25 September 1996,
submitted by the respondent Government and the supplementary
observations in reply of 30 May, 3 June and 21 August 1996,
submitted by the applicant.
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1949, is a Hungarian citizen. He is
serving a life sentence in the Nagyfa Prison in Hungary.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
A. Particular circumstances of the case
a. The criminal proceedings against the applicant
The applicant, having murdered his estranged wife and their five-
month-old daughter in 1986, suffered, in the context of a subsequent
suicide attempt, a fracture of his second lumbar vertebra and became
paralysed from the waist down.
On 27 November 1987 the Hajdú-Bihar County Regional Court (Hajdú-
Bihar Megyei Bíróság) convicted the applicant of murder and sentenced
him to life imprisonment in a strict regime prison (fegyház). The
Regional Court found that the applicant had murdered his wife and their
daughter. On 22 June 1988 the Supreme Court upheld the decision of the
Regional Court.
On 29 October 1990 the Attorney General's Office (Legfobb
Ügyészség) refused to initiate review proceedings on the legality of
the Supreme Court decision of 1988. Furthermore, the Attorney General's
Office established that, as a result of the fracture of the second
lumbar vertebra, moreover, of psychogenous factors as well as of the
applicant's inactivity, his lower body had become paralytic, this being
a severe medical condition which had been deteriorating due to the lack
of specific rehabilitating treatment.
The applicant's request for retrial was to no avail.
On 23 June 1993 the Supreme Court (Legfelsobb Bíróság) rejected
the applicant's petition for review, whereby the applicant had asked
for a reduction of his sentence in the light of his health condition,
namely, that he needed a wheelchair and could not control his bowel
movements and urinary functions. The Supreme Court held that the
applicant's petition was incompatible ratione materiae with the
conditions of review, within the meaning of Section 284 para. 2 of the
Hungarian Code of Criminal Procedure (a bünteto eljárásról szóló 1973.
évi I. törvény).
b. The applicant's state of health and prison conditions
Following his suicide attempt and arrest in August 1986, the
applicant was first treated at the Intensive Care Department of the
Debrecen Hospital. In September 1986 he was treated at the Tököl
Central Prison Hospital (Büntetésvégrehajtás Központi Kórháza, Tököl)
and between October 1988 and November 1990 at the Prison Psychiatry
Institute (IMEI) in Budapest. From November 1990 until January 1991 he
was again committed to the Tököl Central Prison Hospital and, until
mid-February 1991, to the Szeged Prison Hospital. From 18 February 1991
onwards he has been imprisoned at the Nagyfa Prison.
According to a medical report, dated 14 January 1991, prepared
by the Tököl Central Prison Hospital, the applicant suffered from
status post fracturam vertebrae L.II, conus-cauda syndrome,
paraparesis, psychopathy, detention psychosis and post-tuberculosis
syndrome. The report also stated that the applicant's loss of working
capacity was 100% and that he was in need of continuous care.
According to a medical report prepared by the Department of
Rehabilitation of Locomotor Disorders at the MÁV Hospital in Budapest
(MÁV Kórház Mozgásszervi Rehabilitációs Osztály) on 29 May 1991, the
applicant, paralysed from the waist down, suffered from a poor general
physical condition. Although there was no prospect of any improvement
from a neurology aspect, his capacity for locomotion could be somewhat
enhanced by regular gymnastics.
The parties disagree as to the conditions of the applicant's
detention upon the introduction of his application.
The applicant gives the following account: He was placed in a
prison ward together with other inmates, who assaulted him on account
of the penetrating smell due to his inability to control his bowel
movements and urinary functions and to clean himself. The lack of
nightly hygienic care and of proper sanitary facilities prevailed until
early 1995, when the prison authorities assigned a cell-mate to take
care of him during nights. From June 1995 he again lacked any permanent
hygienic assistance and could rely only on the fellow inmates, whom,
however, he had to compensate for their services with gifts and some
of whom were not in a position to assist him, being disabled
themselves. Often he had to wait, lying in his excrement, until morning
before being taken care of. His adult diapers, special arm-support for
baths and the other devices placed at his disposal were unsuitable for
application without assistance. No faeces container was at his disposal
and his in-bed urine container was not emptied upon his request; he was
not able to reach the bathroom in his wheelchair. Although his
occasional physio-therapeutic treatment ceased in 1995 and he did not
receive proper rehabilitation and anti-bedsore treatment, he, by virtue
of his efforts to carry out certain gymnastics on his own, became
capable of moving himself over to the wheelchair and of "dragging"
himself to the lavatory in order to reduce his need for care.
Nevertheless, his overweight, aggravating his situation, was due to the
prison authorities' failure to provide for adequate gymnastics.
Furthermore, over a period of three years, he was taken into the open
air only two or three times altogether and, due to the lack of
assistance, he could not exercise his right to a daily stay in the open
air in that he was unable, unassisted, to cover the distance between
his ward and the balcony.
The Government give the following account: The applicant stayed
in a bright, spacious and properly heated four-bed ward. His bed was
covered by a foam rubber mattress, bed-tick and three separate sheets.
To prevent bedsores, he was supplied with an "anti-decubitor", which,
however, he did not wish to use. He wore adult diapers, hygienic and
easy to change, but which he was often reluctant to wear, complaining
of discomfort. The nurses' room was located within 15 metres from his
ward. Whenever he wished, he was free to wash himself in a nearby
bathroom, which he, in his wheelchair, could reach on his own. Though
with some difficulty, he was able to move himself into his wheelchair,
parked next to his bed, without assistance. He was free to watch his
own television, listen to the radio, read or study languages. Meals
were served him in bed. His roommates were selected from among inmates
capable of walking, who, directed by nurses, were responsible for his
hygienic care. To prevent muscle withering, he was supplied with a
palm-conditioner and an expander, moreover, a series of nurse-assisted
gymnastic exercises were worked out for him, which, however, he was
reluctant to carry out. His overweight, due to his irregular diet and
physical inactivity, was eventually reduced by a slimming diet. The
attempts to control his urinary functions by medicine or by applying
special devices were to no avail, the applicant thus remaining
committed to the use of an in-bed urine container. He did not accept
any rectal suppositories to regulate his bowel movements. Stays in the
open air were provided for in that he had access to a balcony, which
he could reach in his wheelchair without assistance.
On 3 January 1996 the applicant, upon his complaint to the
governor of the prison about his conflicts with his roommates, was
transferred to a one-bed ward with television, radio, sink, bath and
lavatory, the latter equipped with a special handle for the disabled.
His bedding is changed upon his request and he is free to open or close
the window of the ward. According to a subsequent report of the senior
physician of the prison, there was no neglected bedsore on the
applicant's lower body.
On 8 January 1996 the penitentiary supervisory public prosecutor
(büntetésvégrehajtási ügyész) examined the conditions of the
applicant's accommodation and established that the applicant was
satisfied with his treatment as well as the nursing and medical care
and considered his accommodation good. As a result of regular
gymnastics, he was capable without assistance of leaving his bed and
of washing himself and, moreover, of giving a sign of alarm, if in
trouble. The applicant was satisfied with his actual accommodation to
an extent that he requested that it be made permanent. Having
interviewed the applicant's two former roommates, the public prosecutor
found that the doctors and nurses had done their utmost to improve the
applicant's condition. Having interviewed the senior prison physician,
the public prosecutor established that accommodation in a separate ward
improved the applicant's state of mind. The applicant became capable
of carrying out gymnastics on his own and his relations with other
inmates and with the nursing staff were settled.
As to his transfer to the one-bed ward in January 1996, the
applicant, while admitting that the conditions of his accommodation
have improved by this measure, maintains that he still does not receive
immediate nursing care during nights, if need be.
The applicant also alleges that he has meanwhile filed a civil
court action, claiming compensation for his inadequate medical
treatment subsequent to his vertebral fracture in 1986. He states that
these proceedings are pending.
B. Relevant domestic law
S. 41 para. 1 of the Hungarian Criminal Code (1978. évi IV.
törvény a Bünteto Törvénykönyvrol) provides for three categories of
detention after conviction, namely, a light regime (fogház), a medium
regime (börtön) and a strict regime (fegyház). According to S. 42,
criminal offenders sentenced to life imprisonment, to a term of
imprisonment of three years or more in case of particularly serious
offences, or to a term of imprisonment of two years or more for
recidivism, have to serve their sentence in a strict regime prison.
According to Law-Decree No. 11 of 1979 on the Enforcement of
Punishments and Measures (a büntetések és intézkedések végrehajtásáról
szóló 1979. évi 11. törvényereju rendelet), as amended by Law No. XXXII
of 1993 (1993. évi XXXII. törvény) which entered into force on
15 April 1993, the human dignity of convicts shall be respected, they
may not be subjected to torture or to cruel, inhuman or humiliating
treatment. Section 26 relates to the strict regime prisons and provides
in particular that inmates' daily life shall be regulated in detail and
they shall be under constant control; S. 36 (1) provides that inmates
are entitled to stay in the open air for at least an hour daily.
Order No. 8/1979. (VI.30.) IM, issued by the Minister of Justice,
sets out the Prison Rules. Rule 3 (4) thereof safeguards that inmates
shall not be offended in their self-esteem. Abuse, threat, insult or
harm among the inmates shall not be tolerated. Rule 4 (1) provides
that, when placing inmates in penitentiary institutions, ill persons
shall be kept separate from the healthy and persons with infectious
diseases shall be kept separate from persons with non-infectious
diseases. According to Rule 9, the custody, supervision and control of
inmates are organised according to their category of detention and the
classification of the inmates within the category concerned. According
to Rule 10, inmates under the strict regime shall be detained in an
area separate from other areas of the prison. Rule 85 provides that
inmates are placed in common cells. According to Rule 112, ill inmates
in need of hospitalisation shall be placed in the Central Prison
Hospital in Tököl. Bed-patient inmates in need of constant medical care
rather than of hospitalisation shall be placed in the in-patient ward
of the respective penitentiary institutes (these wards are operated as
outlets of the Tököl Central Prison Hospital). If the Tököl Central
Prison Hospital cannot ensure adequate medical treatment and care, the
inmate shall be transferred to a non-penitentiary hospital, where the
proper control of the inmate shall be secured.
Section 284 para. 1 of the Hungarian Code of Criminal Procedure
provides that a final court judgment may be subject to a review (a) if
the offender's conviction has taken place in breach of substantive
criminal law, or (b) if an unlawful punishment has been imposed due to
the unlawful qualification of the crime or to another breach of
substantive criminal law. Paragraph 2 provides that, in the latter
case, no review shall take place, if the punishment has been
nevertheless imposed within the limits of the potential punishment
corresponding to the lawful qualification of the crime.
COMPLAINTS
1. The applicant complains under Article 3 about the conditions of
his imprisonment. He submits in particular that his hygienic treatment
has been insufficient, ever since he has been imprisoned, and that the
prison authorities have not arranged for regular stays in the open air.
Moreover, he alleges that his present inability to move and to control
his bowel movements and urinary functions is partly due to the prison
authorities' failure in the past to ensure the proper medical treatment
of his vertebral fracture.
2. The applicant also complains under Article 5 that his
imprisonment is unlawful. He submits that he was unlawfully convicted,
since he had committed the crime whilst being of unsound mind. He
further complains that the court decisions were based on an erroneous
establishment of the facts.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 November 1993 and registered
on 8 March 1994.
On 18 October 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
3 January 1996.
On 1 March 1996 the applicant submitted observations in reply to
the respondent Government's observations.
On 22 March 1996 the Government submitted supplementary
observations.
On 30 May and 3 June 1996 the applicant submitted his
observations in reply.
On 21 August 1996 the applicant submitted supplementary
observations.
On 25 September 1996 the Government submitted further
observations.
THE LAW
1. The applicant complains under Article 3 (Art. 3) about the
conditions of his imprisonment. He submits in particular that his
hygienic treatment has been insufficient, ever since he has been
imprisoned, and that the prison authorities have not arranged for
regular stays in the open air. Moreover, he alleges that his present
inability to move and to control his bowel movements and urinary
functions is partly due to the prison authorities' failure in the past
to ensure the proper medical treatment of his vertebral fracture of
1986.
Article 3 (Art. 3) provides that no one shall be subjected to
torture or to inhuman or degrading treatment or punishment.
a. As to the conditions of the applicant's prison accommodation, the
Government submit that all possible measures have been taken in the
matter, in particular, to balance the applicant's incontinence, to
maintain his personal hygiene and to ensure his access to the open air.
Given, however, the applicant's poor co-operation, these efforts were
doomed to fail in many cases. Given the applicant's relocation on
3 January 1996 and in the light of the findings of the examination,
carried out by the penitentiary supervisory public prosecutor on
8 January 1996, the Government argue that the applicant's complaint
under Article 3 (Art. 3) is manifestly ill-founded.
The applicant maintains that the conditions of his imprisonment
have continuously been inhuman and degrading in that he lacked proper
hygienic and rehabilitating care and access to open air. Unable to look
after himself, he was left at the mercy of his fellow inmates. As to
his transfer to a one-bed ward in January 1996, the applicant, while
admitting that the conditions of his accommodation have improved by
this measure, maintains that he still does not receive immediate
nursing care during nights, if need be.
The Commission recalls that the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
respect to the Party in question (cf. No. 7742/76, Dec. 4.7.78,
D.R. 14, p. 167; No. 21228/93, Dec. 24.5.95, D.R. 81, p. 42). Hungary
ratified the Convention on 5 November 1992, however, the application
refers to a situation starting in 1986. In these circumstances, the
Commission finds that the events prior to the entry into force of the
Convention in respect of Hungary do not come within the jurisdiction
of the Commission ratione temporis (cf., mutatis mutandis, No. 7211/75,
Dec. 6.10.76, D.R. 7, p. 104).
As regards the applicant's subsequent situation, the Commission
considers, in the light of the parties' submissions, that this part of
the case raises complex issues of law and of fact under the Convention,
the determination of which should depend on an examination of the
merits. The Commission concludes, therefore, that this part of the
application is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
b. As to the complaint about the alleged lack of the proper medical
treatment of the applicant's vertebral fracture of 1986, the Government
submit that the applicant received appropriate medical treatment. In
any event, the question whether his treatment and care were adequate,
could be cleared only in civil court proceedings which, however, were
not brought by the applicant. Consequently, this complaint must be
rejected for non-exhaustion of domestic remedies.
The applicant submits that his irreversible paralysis is due to
the lack of an operation and of an adequate rehabilitating therapy. He
states that he has meanwhile filed a civil court action in this respect
and the proceedings are still pending.
The Commission notes that the applicant's complaint partly
relates to events which took place prior to the Hungarian ratification
of the Convention. It follows that this part of the application is
incompatible ratione temporis and must be rejected within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
Moreover, according to Article 26 (Art. 26) of the Convention,
the Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law.
The Commission considers that, in the present case, filing a
civil court action claiming compensation for the allegedly
inappropriate medical treatment qualifies as an effective remedy.
The Commission notes the applicant's allegation that he has
lodged a civil court action. These proceedings are, in his own
submissions, still pending.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant complains under Article 5 (Art. 5) that his
imprisonment is unlawful. He submits that he was unlawfully convicted,
since he had committed the crime whilst being of unsound mind. He
further complains that the court decisions were based on the erroneous
establishment of facts.
Article 5 (Art. 5) of the Convention, in so far as it is
relevant, reads as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by
a competent court...;"
The Government submit that the applicant's final conviction took
place in 1988, i. e. prior to 5 November 1992. His petition for review,
rejected by the Supreme Court on 23 June 1993 as incompatible ratione
materiae with the legislation on review, was no effective remedy and
did not bring his conviction within the Commission's competence ratione
temporis.
The applicant maintains that his conviction was based on facts
erroneously established. When committing the murders, he was of unsound
mind - a fact subsequently verified psychiatrically. His mental illness
lasted until at least November 1990 and his conviction comes,
therefore, within the Commission's competence ratione temporis.
Moreover, his petition for review was an effective remedy in that his
mental illness and his paralysis were facts that could have influenced
his punishment.
The Commission recalls that it is not competent ratione temporis
to examine proceedings which effectively finished before the
Convention's entry into force in respect of Hungary (cf., mutatis
mutandis, No. 21495/93, Dec. 30.6.93, unpublished).
The Commission notes that the Supreme Court finally convicted the
applicant in 1988, i. e. prior to 5 November 1992. It is true that on
23 June 1993 the Supreme Court rejected his petition for review,
whereby he had asked for a reduction of his sentence in the light of
his health condition. However, the Supreme Court held that the petition
was incompatible ratione materiae with the conditions of review within
the meaning of S. 284 (2) of the Hungarian Code of Criminal Procedure.
The Commission considers that in these circumstances the final
decision authorising the applicant's detention remains the 1988
judgment. The applicant's unsuccessful petition for review does not
bring the proceedings against him within the Commission's competence
ratione temporis.
It follows that this part of the application is incompatible
ratione temporis with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission,
by a majority,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicant's complaint about the conditions of his
imprisonment.
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy