AS TO THE ADMISSIBILITY OF
Application No. 21967/93
by Sándor SÁRKÖZI
against Hungary
The European Commission of Human Rights sitting in private on
5 July 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 April 1993 by
Sándor SÁRKÖZI against Hungary and registered on 3 June 1993 under file
No. 21967/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the observations submitted by the respondent Government on
30 December 1993;
- the Commission's decision of 18 January 1994 to grant legal aid;
- the observations in reply submitted by the applicant on
30 March 1994;
- the supplementary observations submitted by the respondent
Government on 19 August 1994, and the observations in reply
submitted by the applicant on 30 October 1994; the Government's
further comments of 2 December 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as they have been submitted by the parties, may be
summarised as follows.
The applicant is a Hungarian citizen born in 1960. When lodging
his application, he was serving a sentence of five years and six
months' imprisonment under a strict regime (fegyház) in the Budapest
Prison (Fegyház és Börtön). In the proceedings before the Commission,
he is represented by Mrs. J. Gaál, a lawyer practising in Budapest.
A. Particular circumstances of the present case
On 31 May 1990 the applicant was arrested by the Szigetvar City
Police (Városi Rendorkapitányság) on a charge of theft.
According to the applicant, policemen severely beat him several
times in order to persuade him to plead guilty. On 3 June 1990 the
applicant was, following an alleged ill-treatment and attempt to commit
suicide, transferred to a hospital. He fled from the hospital the same
day.
On 31 May 1991 the applicant was arrested again and he was kept
in detention during the subsequent criminal proceedings, at first in
the Pecs City Police cells (Pécsi Városi Rendorkapitányság fogdája),
later in Pecs Prison (Pécsi Büntetésvégrehajtási Intézet).
The applicant claims that he was several times ill-treated both
in the police cells and in the prison. In or about the summer of 1991
he lodged charges with the Public Prosecutor's Office (Ügyészség)
against the policemen and the prison staff concerned. On 14 December
1991 the Pecs Local Office of the Kaposvar Prosecutor's Investigation
Office (Kaposvári Ügyészség Nyomozó Hivatal Pécsi Kirendeltsége)
dismissed the charges.
On 3 March 1992 the Szigetvár District Court (Városi Bíróság)
convicted the applicant, inter alia, of the offence of having escaped
from prison and sentenced him to four years and two months'
imprisonment. On 17 June 1992 the Baranya Regional Court (Megyei
Bíróság) dismissed the applicant's appeal against the judgment of
3 March 1992. It also ordered the District Court to fix a cumulative
sentence, taking into account a prior sentence of one year and five
months' imprisonment. Thereupon, the Szigetvár District Court, as
confirmed by the Baranya Regional Court on 20 November 1992, fixed a
cumulative sentence of five years and six months' imprisonment.
On 6 July 1992 the applicant was transferred to the Budapest
Prison to serve his sentence under the strict regime where he is
presently still detained. The prison authorities, having regard to the
criminal offences committed by the applicant, his previous attempts to
commit suicide and his attempts to escape from prison, treat him as
particularly dangerous. He is presently detained with seven other
detainees in a cell of 25.2m². In case of bad weather conditions, the
Budapest Prison authorities do not arrange for the inmates' daily
exercise of one hour in the uncovered prison yard.
According to the applicant, some of his complaints to various
authorities about his conviction and about alleged ill-treatment were
torn up by the prison staff; as a result of his complaining he was
beaten several times by some inmates instigated by the prison staff;
he further suffers other disconfort, such as being locked up for 23 and
a half hours a day in his cell.
On 11 and 31 December 1992 the applicant was, according to the
Budapest Prison records on the health of prisoners, attacked by other
inmates. The applicant received medical treatment and the persons
concerned were held responsible.
On 8 February 1993 the National Headquarters of Penal
Institutions of the Ministry of Justice (Igazságügyi Minisztérium
Büntetés-végrehajtás Országos Parancsnoksága) rejected the applicant's
complaint concerning the conditions of his detention.
On 6 April 1993 the Szigetvár District Court, upon the
applicant's request of 22 October 1992 and following preliminary
investigations, ordered the reopening of the criminal proceedings
against him regarding his conviction of 3 March 1992 concerning, inter
alia, the offence of having escaped from prison and fixed 11 May 1993
as date for a hearing. On 16 April 1993 the applicant was summoned for
hearings in these proceedings on 11 May and 16 July 1993. On
28 April 1993 the Baranya Regional Court dismissed the applicant's
motion to challenge the judges at the District Court for bias.
Following the hearing on 16 July 1993, the District Court confirmed his
conviction.
On 26 May 1993 the Pecs Public Prosecutor's Office dismissed the
applicant's complaint, dated 29 April 1993, against the decision of the
Pecs Local Office of the Kaposvar Attorney's Investigation Office of
14 December 1991 as well as his new complaints about alleged ill-
treatment in June 1990. The Office found that these submissions were
unsubstantiated and also lodged one and a half years after the expiry
of the eight days time limit.
On 19 April 1993 the applicant lodged an application with the
Commission. Regarding the subsequent exchange of correspondence, there
are diverging submissions by the parties.
According to the applicant, letters of the Commission's
Secretariat, sent to him on 5 May, 3 June and 23 June 1993, were
stopped by the prison authorities, opened in his absence, and handed
to him with an average delay of two or three days.
The applicant also claims that his letters to authorities and to
the Commission have been often stopped by the prison authorities and
mailed only with considerable delay. He alleges in particular a delay
in mailing his letter to the Commission dated 11 June 1993, and points
out that his letter of 13 June 1993 arrived earlier at the Commission.
According to the Government, the Budapest Prison did not keep
records of the prisoners' correspondence and the delivery of
correspondence addressed to them, but incoming mail was stamped with
the date of arrival. Thus, the envelope of the Commission's letter of
3 June 1993, mailed on 7 June, was stamped with 11 June 1993 as date
of arrival. The Commission's letter of 23 June had been mailed on
25 June 1993; its envelope was stamped with 29 June 1993 as date of
arrival, it had been opened and the letter itself was stamped by the
Prison Governor. The letter of 1 July 1993 and its envelope had not
been stamped upon arrival. The envelope of the letter of 13 July 1993,
mailed on the same day, was stamped with 19 July 1993 as date of
arrival; the envelope of the letter dated 29 July was stamped with
6 August 1993 and the envelope of the letter of 22 October with
28 October 1993 as date of arrival. In the course of the Government's
investigations, no indications were found that all envelopes had been
opened by the prison authorities.
The Government further submit that there was no evidence on
whether or not the letter of 11 June 1993 had been retained, in
particular there was no record on when the applicant had given it to
the prison authorities for mailing.
The applicant's letter of 11 June 1993, in which he complained,
inter alia, about alleged ill-treatment and interference with his
correspondence, was stamped on 18 June 1993 and arrived at the
Commission on 23 June 1993. The applicant's letter of 13 June 1993 was
apparently stamped on 14 June and arrived at the Commission on
16 June 1993. The applicant's letter of 22 June 1993 complaining
about, inter alia, ill-treatment and interferences with his mail was
smuggled from the prison by his wife, and the letter was mailed in
France. In his letter of 25 June 1993 the applicant informed the
Commission that he was prohibited from continuing correspondence with
the Commission.
The applicant's complaints with the National Headquarters of
Penal Institutions dated 14 and 24 June 1993, which related to his
alleged ill-treatment and the prison conditions as well as the
interference with his correspondence, was dismissed. The National
Headquarters found in particular that the applicant's letters were
never stopped by the Budapest Prison, the fact that these letters were
duly mailed being evidenced by the arrival of correspondence in reply
thereto.
Following the above complaints, the prison authorities changed
their routine regarding the applicant's correspondence with the
Commission. On 6 July 1993 the Commission's letter of 1 July 1993 was
handed unopened to the applicant and he was promised to experience no
more interferences with his correspondence either to or from the
Commission.
B. Relevant domestic law and practice
S. 41 para. 1 of the Hungarian Penal 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 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 (fegyház).
According to Law-Decree 11 of 1979 on the enforcement of
punishments and measures (Büntetések és intézkedések végrehajtárásról
szóló 1979. évi. 11. törvényereju), as amended by Law 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, or
to medical experiments, and no scientific research or experiment may
be performed without their consent.
S. 26 of Law-Decree 11 of 1979, as amended by Law XXXII of 1993
relates to strict regime prisons (fegyház) and provides in particular
that the inmate's daily life shall be regulated in detail and that he
is to be under constant control; that even within the prison, his
movements are subject to permission and supervision; that he may
exceptionally participate in work outside the prison if he can be
separated from the outside world. Having served at least one year of
the prison sentence imposed, the inmate may be permitted to move within
the prison or part of it without supervision but under control, and to
take part in work outside prison.
According to S. 36 para. 1 (b) of Law-Decree 11 of 1979, as
amended by Law XXXII of 1993, inmates are entitled to correspond with
their relatives and persons designated by them and approved by the
prison authorities; the frequency and length of letters are not subject
to any restrictions. S. 36 para. 5 provides for a control of inmates'
correspondence for reasons of security, except for letters sent to
public authorities and to international organisations; inmates are
entitled to be informed about the possibility of control. According
to S. 36 para. 1 (g), the inmate may state, or complain about, alleged
violations of his rights with the prison authorities or with other
state organs. S. 36 para. 1 (k) provides that the inmates are entitled
to one hour's daily exercise. Under S. 41 para. 1 inmates may be
rewarded inter alia for exemplary conduct.
Order 8/1979/VI.30/IM (8/1979 (VI.30.) IM), issued by the
Minister of Justice (Igazságügyminiszter), sets out the Prison Rules.
According to Rule 9 of Order 8/1979/VI.30/IM, 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 the other areas of
the prison. Within that area the different groups within the category
shall be kept separately, and the doors of the cells shall be kept
locked. Inmates are classified into different groups according to
security aspects, pursuant to Rule 33 para. 1. In this respect,
Rule 23 of the Security Rules (Biztonsági Szabályzat), issued as
Appendix to Instruction 102/1982/IK.2.IM, provides that an inmate shall
be considered as extremely dangerous if, having regard to his
personality or the nature of the offence committed by him, it is likely
that he is a danger to his own or another's life or health, or that he
may escape from prison or if his conduct otherwise constitutes a
security risk.
Under Rule 85 para. 1 of Order 8/1979/VI.30/IM, inmates are
placed in common cells of six to eight cubic metres each. In this
respect, Rule 366 para. 1 of Instruction 101/1981/IK.2/IM, as amended
by Instruction 6/1990/IK Bv. Mell. 1/IM, specifies that common cells
should allow at least 3 m² per person.
According to Rule 22 of Order 8/1979/VI.30/IM, an inmate may
lodge complaints and apply for the remedying of any individual injury.
His complaint and application shall be settled by the competent special
service of the institution, except when the matter belongs to the
competence of the governor. If the inmate is not satisfied with the
measures taken by the competent special service, he may complain with
the governor, and afterwards with the National Headquarters of the
Penal Institutions. No further complaint lies against the measures
taken by the National Headquarters. Complaints have no suspensive
effect. According to Rule 27 para. 2, the inmate may request to be
heard by the competent public prosecutor.
S. 11 (a) of Law V of 1972 on the Public Prosecutor's Office
(Magyar Köstársaság Ügyészségérol szóló, 1972. évi V. törvény) provides
inter alia that the public prosecutor may supervise the lawfulness of
the conditions of detention, detention on remand, forced medical
treatment and the execution of the detention. According to S. 11 (c),
the public prosecutor may hear inmates and examine complaints
concerning the execution of sentences. The organs competent for the
execution of sentences are required to comply with the public
prosecutor's instructions concerning the lawfulness and the conditions
of detention on remand.
According to Article 70/K of the Hungarian Constitution
(Alkotmány), as amended by Act XXXI of 1989 (1989. évi XXXI. törvény),
claims based on the violation of fundamental rights, and objections
regarding decisions taken by public authorities in the performance of
their functions can be brought before a court. It follows from the
official commentary which is attached to Act XXXI of 1989 that
Article 70/K was intended to create the possibility of access to court
in respect of claims against other persons or the state in connection
with the fundamental rights. Article 59 para. 1 of the Constitution
ensures the right to a good reputation, the right to respect for one's
home and the protection of private secrets and personal data.
COMPLAINTS
1. The applicant complains about his conviction claiming that he was
innocent and also submits that the courts dealing with his case were
biased. In this respect and also with regard to the following
complaints, the applicant does not invoke any particular provision of
the Convention.
2. Moreover, the applicant complains that the prison authorities
interfered with his correspondence.
He submits that some of his letters addressed to public
authorities were torn up, that others, inter alia, to the Commission
were mailed with considerable delay and that he was prohibited from
carrying on correspondence with the Commission for a while. He claims
that reprisals were applied against him by the prison authorities often
through other inmates as a consequence of his complaining.
He also submits that letters to him from the domestic public
authorities and from the Commission are opened in his absence and read
by the prison authorities and that he receives these letters only with
considerable delay.
3. The applicant further complains that he was subjected to inhuman
and degrading treatment in the course of his detention in different
police cells and prisons including the Budapest Prison where he is
currently detained.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 April and registered on
3 June 1993.
On 19 October 1993 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 30 December 1993 the Government submitted their observations.
On 18 January 1994 the Commission decided to grant the applicant
legal aid.
The applicant's observations in reply were submitted on
30 March 1994.
The respondent Government submitted supplementary observations
on 19 August 1994, and observations in reply were submitted by the
applicant on 30 October 1994. The Government's further comments dated
2 December 1994.
THE LAW
1. The applicant complains about his conviction and also of the
court proceedings concerned.
The Commission recalls that the Convention only governs, for each
Contracting Party, facts subsequent to its entry into force with
respect to that Party (cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146).
The Commission observes that the date of entry into force of the
Convention with respect to Hungary was 5 November 1992. The applicant
was convicted by the Szigetvár District Court on 3 March 1992 and his
appeal was dismissed by the Baranya Regional Court on 17 June 1992.
The Szigetvár District Court subsequently fixed a cumulative sentence
which was confirmed by the Baranya Regional Court on 20 November 1992.
Following the applicant's request of 22 October 1992, the Szigetvár
District Court ordered the reopening of the proceedings regarding his
conviction of March 1992 on 6 April 1993. On 16 July 1993 the District
Court, having held two hearings, confirmed the applicant's conviction.
In these circumstances, the Commission finds that the decisions
taken prior to the date of entry into force of the Convention in
respect of Hungary, and the proceedings relating thereto 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).
The Commission is therefore only competent ratione temporis to
examine the proceedings concerning the fixing of a cumulative sentence
and the reopening of the criminal proceedings in 1993. The Commission
has examined these proceedings under Article 6 (Art. 6) of the
Convention.
As regards the proceedings concerning the fixing of a cumulative
sentence, the Commission recalls that, in the event of conviction,
there is no determination of any criminal charge, within the meaning
of Article 6 para. 1 (Art. 6-1), as long as the sentence is not
definitely fixed (cf. Eur. Court H.R., Eckle judgment of 15 July 1982,
Series A no. 52, p. 35, para. 77). Article 6 (Art. 6) is therefore
applicable to the proceedings regarding the fixing of a cumulative
sentence. However, the applicant's submissions do not disclose any
appearance of unfairness in this part of the proceedings.
Consequently, this complaint is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
As regards the proceedings concerning the applicant's request for
a reopening of the criminal proceedings, the Commission recalls that
Article 6 (Art. 6) does not apply to such proceedings given the fact
that someone who applies for his case to be reopened and whose sentence
has become final is not charged with a criminal offence within the
meaning of the said Article (Art. 6) (cf. No. 7761/77, Dec. 8.5.78, D.R
14 p. 171). However, in the present case, the applicant's request
resulted in the reopening of the proceedings against him, as decided
on 6 April 1993, and the competent District Court conducted hearings
in May and July 1993. On 16 July 1993 the applicant's conviction was
confirmed. In these circumstances, the Commission is of the opinion
that Article 6 (Art. 6) is applicable to the reopened proceedings as
the latter involved a determination of the criminal charges against the
applicant. However, having considered the applicant's submissions
regarding these proceedings and all material submitted in this respect,
the Commission finds that the applicant failed to show any appearance
of unfairness in the conduct of these proceedings or of bias on the
part of the District Court. This complaint is, therefore, also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
It follows that this part of the application is inadmissible
under Article 27 (Art. 27) of the Convention.
2. The applicant further complains about the interference with his
correspondence by the authorities of the Budapest Prison.
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
a. As to whether the applicant complied with Article 26 (Art. 26)
The Government maintain that the applicant failed to exhaust, as
required by Article 26 (Art. 26) of the Convention, the domestic
remedies available to him under Hungarian law. The Government submit
that the applicant already complained to the Commission about the
correspondence issues in his letter of 11 June 1993, before filing such
complaints with the competent Hungarian authorities, namely the
National Headquarters of Penal Institutions and/or the competent public
prosecutor's office. According to the Government, the applicant could
have also brought the matter before a court, pursuant to Article 70/K
of the Hungarian Constitution. They consider that Article 70/K, which
was introduced in 1989, created an effective remedy for the purposes
of Article 26 (Art. 26), although there is no case-law on the
application of this provision.
The applicant considers that the remedies as set out by the
Government could not be regarded as effective for the purposes of
Article 26 (Art. 26). According to the applicant, the complaints
procedure within the framework of the penal institutions as well as the
possibility of a complaint with the public prosecutor's office do not
allow for a review of the matter complained about by an independent and
impartial body or tribunal. He is also of the opinion that
Article 70/K of the Constitution is of a declaratory nature and does
not as such create an effective remedy.
Under 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, and within a period of six months from the date on which the final
decision was taken.
The Commission recalls that the only remedies which Article 26
(Art. 26) of the Convention requires to be exercised are those that are
both available and sufficient in respect of the violation alleged. The
existence of such remedies must be sufficiently certain not only in
theory but also in practice, failing which they will lack the requisite
accessibility and effectiveness. Moreover, it is for the State to
prove that there exist available remedies which have not been utilised
by those concerned (see Eur. Court H.R., Deweer judgment of 27 February
1980, Series A no. 35, pp. 15 and 16, paras. 26 and 29, with further
references; De Jong, Baljet and Van den Brink judgment of 22 May 1984,
Series A no. 77, p. 19, para. 39).
With regard to the first remedy suggested by the respondent
Government, the Commission notes that the applicant in fact raised his
complaint about interference with his correspondence with the National
Headquarters of Penal Institutions, and he received a negative reply.
It is true that, at the time that he made use of this remedy
referred to by the Government, he had already mentioned this complaint
in his correspondence with the Commission.
However, while an applicant is, as a general rule, in duty bound
to exercise the different remedies before he applies to the Commission,
it is open to the Commission to accept the fact that the last stage of
such remedies may be reached shortly after the lodging of the
application but before its decision on admissibility (cf., Eur. Court
H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p. 38,
para. 91).
The Commission notes that the applicant introduced complaints
relating to various matters on 19 April 1993, and he subsequently
amended his submissions and filed further complaints. The applicant
raised his complaints about the control of his correspondence at about
the same time in June 1993 both with the Commission and the National
Headquarters of Penal Institutions, and the latter took a decision
shortly afterwards. The Government failed to show any legitimate
interest which could have been prejudiced by the fact that this
particular complaint was raised with the Commission shortly before the
Hungarian authorities had the opportunity to decide upon the matter.
The applicant's complaints under Article 8 (Art. 8) cannot,
therefore, be rejected for non-exhaustion of the remedies before the
prison authorities, in particular the National Headquarters of Penal
Institutions.
With regard to the second remedy proposed by the Government, i.e.
a complaint with the competent public prosecutor's office, the
Commission notes that no further appeal lies against the measures taken
by the National Headquarters of Penal Institutions pursuant to Rule 22
of Order 8/1979/VI.30/IM. It is true that, according to Rule 27
para. 2 of Order 8/1979/VI.30/IM, an inmate may request to be heard by
the competent public prosecutor. However, the Commission finds that
the applicant, after having exhausted the remedy with the highest body
in the administration of penal institutions, cannot be reproached for
not having raised a further complaint with another administrative
authority, namely the Public Prosecutor's Office.
As regards the third remedy, namely the court action referred to
in Article 70/K of the Hungarian Constitution, the Commission notes
that the Hungarian Government were unable to cite a single instance in
which a plaintiff had instituted court proceedings under Article 70/K
of the Constitution, as amended in 1989. This absence of case-law
indicates the uncertainty of this remedy in practical terms.
Accordingly, the Government have not shown that this action could
constitute an available and sufficient remedy that the applicant ought
to have exhausted.
It follows that the applicant's complaint about interference with
his correspondence cannot be rejected for non-exhaustion of domestic
remedies under Article 27 para. 3 (Art. 27-3) of the Convention.
b. As to whether the applicant can be regarded as a "victim"
The Government maintain that only in one instance it could be
proved that a letter from the Commission to the applicant had been
opened by the authorities of the Budapest Prison, i.e. the letter dated
23 June 1993. In this respect, the Government point out that the
routine regarding the control of correspondence from the Commission was
changed by the prison authorities following the applicant's complaint
with the National Headquarters of Penal Institutions. They consider
that the applicant thereby obtained redress which would preclude him
from complaining to the Commission pursuant to Article 25 (Art. 25) of
the Convention.
The Commission recalls that the Convention leaves to each
Contracting State, in the first place, the task of securing the
enjoyment of the rights and freedom it enshrines. To duplicate the
domestic process with proceedings before the Commission and the Court
would appear hardly compatible with the subsidiary character of the
machinery of protection established by the Convention. Accordingly,
a person may exceptionally no longer claim to be a victim within the
meaning of Article 25 (Art. 25) of the Convention, when the national
authorities have acknowledged either expressly or in substance, and
then afforded redress for, the breach of the Convention (see Eur.
Court. H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30,
para. 66).
In the present case, the applicant received a negative reply by
the National Headquarters of Penal Institutions regarding his complaint
about interference with his correspondence. In particular, the
National Headquarters found that the applicant's letters were never
stopped by the Budapest Prison, their due mailing being evidenced by
the arrival of correspondence in reply thereto.
The Commission considers that there was thus no express
acknowledgement of the breach of the Convention alleged by the
applicant. As to the question whether there was an implicit
acknowledgement, the Commission finds that, having regard to the above-
mentioned negative reply by the National Headquarters of Penal
Institutions, the change of the prison routine regarding the control
of his correspondence cannot be regarded as amounting in substance to
such an acknowledgement, and redress for the alleged breach of the
Convention.
Consequently, the Commission is not, pursuant to Article 25
para. 1(Art. 25-1) , precluded from examining in full the applicant's
complaint about interference with his correspondence.
c. The alleged breach of Article 8 (Art. 8)
The Government, referring to the case-law of the Convention
organs in this area, submit that some measure of control over
prisoners' correspondence is not contrary to the Convention. They
consider that the control of the applicant's correspondence was based
on Hungarian law and that it was necessary for the prevention of crime
and in the interest of public safety, namely the safety of the prison
concerned. In this respect, they also point out that the legal
provisions only allow, but do not oblige, the authorities to control
the prisoners' correspondence, and in practice not all letters are
controlled. According to the Government, there is no proof of delay
in forwarding letters to the applicant.
The applicant objects to the Government's views. He maintains
that there was a systematic control of his correspondence which could
not be regarded as necessary in a democratic society in the interest
of public safety.
The Commission finds that this complaint raises serious issues
of such complexity that they require an examination of the merits.
This part of the application cannot, therefore, be considered
manifestly ill-founded, and there is no other ground on which it could
be declared inadmissible.
3. The applicant also complains about inhuman and degrading
treatment in the course of his detention.
According to Article 3 (Art. 3) of the Convention, "no one shall
be subjected to torture or to inhuman or degrading treatment or
punishment".
a. The Commission notes that some of the events referred to by the
applicant, in particular alleged ill-treatment by police officers,
occurred prior to 5 November 1992, the date of entry into force of the
Convention in respect of Hungary, and do not, therefore, come within
the jurisdiction of the Commission ratione temporis. In this context
the Commission observes that the Pecs Public Prosecutor's Office, in
its decision of 26 May 1993, regarded the applicant's complaint about
the decision of the Investigation Office of 14 December 1991, which
dismissed his charges against several police officers, as having been
lodged out of time. This procedure does not affect the Commission's
finding as to its competence ratione temporis regarding the incidents
complained of.
It follows that this part of the applicant's complaint under
Article 3 is inadmissible under Article 27 (Art. 27) of the Convention.
b. The applicant's further submissions relating to Article 3
(Art. 3) of the Convention concern both alleged incidents of ill-
treatment by other inmates of the Budapest Prison, allegedly upon the
instigation of the prison staff, and the particular conditions of his
detention.
The Government maintain that the applicant failed to exhaust the
domestic remedies available to him.
The Commission notes that the applicant lodged complaints with
the National Headquarters of Penal Institutions regarding his prison
conditions which remained unsuccessful. As regards the further
remedies proposed by the Government, the Commission refers to its
findings on the question of exhaustion of domestic remedies in respect
of the applicant's complaints about the control of his correspondence.
His complaints about treatment contrary to Article 3 (Art. 3) cannot,
therefore, be rejected for non-compliance with Article 26 (Art. 26) of
the Convention.
The Government further submit that there is no evidence to show
that, in the relevant period, the applicant was detained in the
Budapest Prison in a manner contrary to Article 3 (Art. 3). According
to them, the conditions of his detention are in compliance with the
demands of the enforcement of sentences in respect of inmates qualified
as particularly dangerous, and do not constitute inhuman or degrading
treatment or torture.
The applicant turns the Commission's attention in particular to
the size of his cell, which he shares with seven other inmates, and to
the fact that, in the absence of a regular daily exercise, he has to
spend his time in his cell, except for the meals.
The Commission finds that the applicant's complaints concerning
the conditions of his detention raise serious issues of such complexity
that they require an examination of the merits. This part of the
application cannot, therefore, be considered manifestly ill-founded,
and there is no other ground on which it could be declared
inadmissible.
4. The Commission has finally examined the applicant's submissions
relating to the conditions of his detention (Article 3) (Art. 3) and
the control of his correspondence (Article 8) in the context of Article
13 (Art. 13) of the Convention.
Article 13 (Art. 13) provides that "everyone whose rights and
freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official
capacity".
According to the Government, the remedies suggested in the
context of its submissions under Article 26 (Art. 26) of the Convention
provide an effective legal protection for the purposes of Article 13
(Art. 13).
The Commission, having regard to its above considerations under
Articles 3 and 8 (Art. 3, 8) of the Convention, considers that the
present aspect of the application cannot be declared manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
Accordingly, it reserves also this issue for an examination as to its
merits.
For these reasons, the Commission by a majority
DECLARES INADMISSIBLE the applicant's complaints about his
conviction and also of the court proceedings concerned, as well
as his complaints about alleged ill-treatment prior to 5 November
1992;
DECLARES ADMISSIBLE the remainder of the application,
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NORGAARD)
Full & Egal Universal Law Academy