EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 21967/93
Sándor Sárközi
against
Hungary
REPORT OF THE COMMISSION
(adopted on 6 March 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-0)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-0)1
C.The present Report
(paras. 0-0)2
II.ESTABLISHMENT OF THE FACTS
(paras. 0-0)4
A.Particular circumstances of the case
(paras. 0-0)4
B.Evidence before the Commission
(paras. 0-0)8
C.Relevant domestic law and practice
(paras. 0-0)8
III.OPINION OF THE COMMISSION
(paras. 0-0) 11
A.Complaints declared admissible
(para. 0) 11
B.Points at issue
(para. 0) 11
C.Article 3 of the Convention
(paras. 0-0) 11
CONCLUSION
(para. 0) 14
D.Article 8 of the Convention
(paras. 0-0) 14
CONCLUSION
(paras. 0, 0) 17
E.Article 13 of the Convention
(paras. 0-0) 17
a.Claims concerning the applicant's detention
(paras. 0-0) 17
CONCLUSION
(para. 0) 19
b.Claims concerning the applicant's correspondence
(paras. 0-0) 19
CONCLUSION
(para. 0) 20
F.Recapitulation
(paras. 0-0) 20
PARTLY DISSENTING OPINION OF MRS. THUNE, MRS. LIDDY,
MR. BUSUTTIL, MR. BRATZA AND MRS. HION 21
APPENDIX :DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION 23
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.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 in the Budapest Prison. In the proceedings before the Commission,
he is represented by Ms. J. Gaál, a lawyer practising in Budapest.
3.The application is directed against Hungary. The respondent Government
were represented by Mr. K. Bárd, Agent of the Government of Hungary.
4.The case concerns the applicant's complaints that the conditions of his
detention amounted to inhuman and degrading treatment, that the Budapest prison
authorities had violated his right to respect for his correspondence, and that
he had no effective remedy before a national authority to complain about these
alleged violations of his Convention rights. The applicant invokes Articles 3,
8 and 13 of the Convention.
B.The proceedings
5.The application was introduced on 19 April 1993 and registered on 3 June
1993.
6.On 19 October 1993 the Commission (First Chamber) decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application
to the respondent Government and to invite the parties to submit written
observations on its admissibility and merits.
7.The Government's observations were submitted on 30 December 1993. The
applicant replied on 30 March 1994.
8.On 18 January 1994, the Commission granted the applicant legal aid for the
representation of his case.
9.On 27 June 1995 the case was transferred from the First Chamber to the
Plenary Commission, by decision of the latter.
10.On 5 July 1995 the Commission declared admissible the applicant's
complaints under Articles 3, 8 and 13 of the Convention. It declared
inadmissible the remainder of the application.
11.The text of the Commission's decision on admissibility was sent to the
parties on 19 July 1995 and they were invited to submit further observations,
namely factual information concerning the applicant's conditions of
imprisonment.
12.The Government submitted observations on 25 August and 4 September 1995,
to which the applicant replied on 21 February 1996, following a considerable
extension of the time-limit in view of the fact that the applicant's
representative had been temporarily unable to reach the applicant following his
release. The Government supplemented their observations on 12 April 1996, and
the applicant replied again on 13 May 1996. The Government filed additional
observations on 27 July 1996.
13. During the examination of the merits, the respondent Government requested
the Commission to apply Article 29 of the Convention, presenting further
submissions on admissibility. However, the Commission decided that there was no
basis on which to apply Article 29.
14.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, also placed itself at the
disposal of the parties with a view to securing a friendly settlement. In the
light of the parties' reaction, the Commission now finds that there is no basis
on which such a settlement can be effected.
C.The present Report
15.The present Report has been drawn up by the Commission in pursuance of
Article 31 of the Convention and after deliberations and votes, the following
members being present:
Mr.S. TRECHSEL, President
Mrs.G.H. THUNE
Mrs.J. LIDDY
MM.E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. ŠVÁBY
G. RESS
A. PERENI?
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELI?NAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs.M. HION
Mr.R. NICOLINI
16.The text of this Report was adopted on 6 March 1997 by the Commission and
is now transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
17.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
18.The Commission's decision on the admissibility of the application is
annexed hereto.
19.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.Particular circumstances of the present case
a.The general background
20.In May 1990 the applicant was arrested by the Szigetvár City Police
(Városi Rend?rkapitányság) on a charge of theft. After having absconded in June
1990, the applicant was arrested again in May 1991 and he was kept in detention
during the subsequent criminal proceedings. On 3 March 1992 the Szigetvár
District Court (Városi Bíróság) convicted the applicant of theft and of the
offence of having escaped from prison and sentenced him to four years and two
months' imprisonment. In the ensuing proceedings, a cumulative sentence of five
years and six months' imprisonment was fixed. The criminal proceedings against
the applicant were subsequently reopened; however, in the resumed trial
proceedings, his conviction was confirmed.
b.The conditions of the applicant's detention
aa.The Budapest Prison
21. On 6 July 1992 the applicant was transferred to the Budapest Prison
(Fegyház és Börtön) to serve his sentence under the strict regime.
22.The prison authorities classified the applicant as "particularly
dangerous" ("különösen veszélyes"). In this respect, the authorities had regard
to the nature of the criminal offences committed by the applicant, his having
set fire on two occasions of earlier detention, as well as his previous attempts
to commit suicide. Upon the regular review, his classification was not changed,
mainly because of his aggressive behaviour towards other inmates and the prison
staff.
23.In the Budapest Prison, which was constructed in 1988, all prison cells
are of equal size, i.e. 27.56m?, and have an adjoining separate lavatory.
Natural light comes from two windows sized 135x75cm. The maximum of prison
inmates per cell is eight. Each prisoner has a bed (bunk beds) and a wardrobe,
there is one table per cell and one chair per inmate. Prisoners can watch
television in a communal room and they are allowed to take their personal
television sets into their cell.
24. In the course of the applicant's detention, prisoners exceeding the
maximum number were placed in the prison cells. For these purposes, a third
upper bed was installed on the bunk beds.
25. The applicant asserts that he has been detained together with a maximum of
eleven prisoners in a cell, and that this accommodation, due to a general
overcrowding in the prison, lasted regularly several months.
26. The Government disagree with the applicant as to the reasons and the
length of these periods of accommodation in overcrowded cells. They maintain
that a number of prisoners had to be moved for some weeks on account of
reconstruction works in another municipal prison. In the absence of any
information in the Budapest Prison registers, they cannot confirm or refute the
applicant's submissions that he was detained in overcrowded cells.
27. The applicant had to change cells several times. The applicant claims
that this moving formed part of a routine to prevent him from informing other
inmates about their rights. The Government refer to the applicant's problems
with other inmates, as stated by the prison educators in several written
reports.
28. In reply to the applicant's allegation that sanitary equipments did not
function for lengthy periods, the Government submit that, as a general rule, any
necessary repair work is carried out quickly. The parties further disagree on
the facilities to watch television.
29.Due to the applicant's classification as "particularly dangerous", the
range of working facilities was limited. Between 11 January and 10 March 1993
and between 11 and 20 April 1994, the applicant worked for the Budapest Timber
Company (Budapesti Faipari Vállalat), first as a trained, later as an unskilled
worker in the processing of synthetic materials. During these periods the
applicant spent eight hours a day at work outside his cell. The applicant's
employment was, on both occasions, terminated upon his own request, inter alia,
for health reasons. The applicant claims that he faced practical problems in
presenting himself for work on the ground that he frequently had to move cells.
30.The applicant did not participate in the other activities generally
offered to inmates, such as visiting the library once a week, joining workshops,
using body-building and other training facilities, or participating in religious
ceremonies. The applicant claims that the participation in such activities was
permitted only as a special reward for prisoners. Moreover, in case of bad
weather conditions, the Budapest Prison authorities did not arrange for the one
hour's daily exercise in the uncovered prison yard.
31.The applicant claims that, following various complaints with Hungarian
authorities about his conviction and ill-treatment in prison, he was beaten
several times by other inmates, at the instigation of the prison staff.
32.According to the Budapest Prison records on the health of prisoners, the
applicant was involved in fights with other inmates on 11 and 31 December 1992,
respectively. He received medical treatment. The inmate who had attacked the
applicant on 11 December 1992 was punished by twenty days' solitary confinement.
The inmate who had attacked the applicant on 31 December 1992 was punished by a
suspension of his right to receive visits.
33.Following the fight on 31 December 1992, the applicant was detained in
separation from other prisoners. On 6 January 1993 the disciplinary punishment
of six days' solitary confinement was inflicted upon him. Taking into account
the period of time previously spent in separation, the punishment was not
executed.
34.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.
35. On 26 May 1993 the Pécs Public Prosecutor's Office dismissed the
applicant's complaint, dated 29 April 1993, about, inter-alia, alleged ill-
treatment in June 1990. The Prosecutor's Office found that his submissions were
unsubstantiated and, in any event, belated.
bb.The transfers to the Pécs Prison
36. In the course of his retrial before the Szigetvár District Court, the
applicant was three times transferred to the Pécs Prison (Büntetés-végrehajtási
Intézet) in order to attend the trial hearings on 11 May, 12 June and 16 July
1993.
37. The applicant alleges that he was also transferred to Pécs Prison in order
to be questioned by the Public Prosecutor prior to the retrial and that on one
of these occasions, he was beaten by the Pécs prison staff and received medical
treatment at the Tököl Prison Hospital. The Government dispute the applicant's
contention. They note that, at the relevant time, the applicant did not
complain about any such ill-treatment and that, according to the medical files
of the Tököl Prison Hospital, he did not receive any medical treatment in 1993.
cc.The Sopronk?hida Prison
38. Between 13 June and 17 July 1994, the applicant was detained in the
Sopronk?hida Prison (Fegyház és Börtön).
39. He was confined to a cell with a basic area of 8.3m?, destined for
occupation by two prison inmates. The cell had natural light and was furnished
with two beds, two chairs and a table. Furthermore, there was a lavatory and a
wash-basin.
40. For most of the time, the applicant was alone in one of these cells.
According to the Government, the other inmates did not tolerate the applicant's
provocative and aggressive behaviour.
41.During his detention in the Sopronk?hida Prison, the applicant was
entitled to visit the library, to listen to radio or watch television. In
accordance with the prison rules, he in fact spent one hour every day in the
open air. Moreover, he could have applied for participation in sporting
activities which were offered two and three times a week for one and a half or
two hours, respectively.
c.The applicant's correspondence
42.In the course of his detention, the applicant corresponded, inter alia,
with domestic authorities and, as from 19 April 1993, when he introduced his
application pursuant to Article 25 of the Convention, with the Commission.
43. According to the applicant, the Commission's letters were stopped by the
prison authorities, opened in his absence, and handed to him with an average
delay of two or three days. He also claims that his letters to authorities and
to the Commission were often stopped by the prison authorities and mailed only
after considerable delay. The respondent Government dispute the applicant's
allegations of constant interferences with his correspondence.
44. The Budapest Prison does not keep a record of the prisoners'
correspondence and the delivery of correspondence addressed to them, but
incoming mail is, as a rule, stamped with the date of arrival.
45.The exchange of correspondence with the Commission took the following
course:
(a)The applicant's letter of 19 April 1993 reached the Commission on 29 April
1993. The applicant replied to the Commission's general information letter,
sent on 5 May 1993, on 19 May 1993.
(b)The envelope of the Commission's letter of 3 June 1993, mailed on 7 June
1993, was stamped by the Budapest Prison authorities with 11 June 1993 as date
of arrival.
(c)The postmark on the envelope of the applicant's letter of 11 June 1993 is
sufficiently legible to read 16 June 1993. The letter arrived at the Commission
on 23 June 1993.
(d)The applicant's letter of 13 June 1993 was posted on 14 June 1993 and
arrived at the Commission on 16 June 1993.
(e)The applicant's letter of 22 June 1993 in which he complained about, inter
alia, ill-treatment and interferences with his mail was smuggled from the prison
by his wife and was mailed in France. It reached the Commission on 30 June
1993.
(f)The Commission's letter of 23 June 1993 was 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 authorities. The applicant
alleges that this letter was handed over to him not by prison staff, but by
another prisoner.
(g)The applicant's letter of 25 June 1993 arrived at the Commission on 29
June 1993 (postmark illegible). In this letter he stated that he was prohibited
from continuing correspondence with the Commission.
46.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, were dismissed. The National Headquarters found in particular
that the applicant's letters were never stopped by the Budapest Prison, but all
letters were duly mailed, as evidenced by the arrival of correspondence in reply
thereto.
47.The prison authorities subsequently changed their routine regarding the
applicant's correspondence with the Commission. The Commission's letter of 1
July 1993 and its envelope were not stamped upon arrival. On 6 July 1993 it was
handed unopened to the applicant and he was promised that he would experience no
more interferences with his correspondence either to or from the Commission.
The ensuing correspondence was transmitted within normally eight to ten days.
B.Evidence before the Commission
48.As regards the conditions of the applicant's detention, the Commission had
regard to the parties' submissions and, inter alia, to documents and photographs
filed by the respondent Government.
49.The Commission also took note of the Report to the Hungarian Government on
the visit to Hungary carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 1 to 14
November 1994, the Comments of the Hungarian Government of 14 December 1995 and
a further Interim Report of April 1996.
C.Relevant domestic law and practice
a.General provisions on detention after conviction
50.S. 41 para. 1 of the Hungarian Penal Code (a Büntet? Törvénykönyvr?l szóló
1978. évi IV. törvény) 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 for
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.
51.According to Law-Decree 11 of 1979 on the enforcement of punishments and
measures (a büntetések és intézkedések végrehajtásáról szóló 1979. évi 11.
törvényerej? rendelet), as amended by Law XXXII of 1993 (1993. évi XXXII.
törvény) ("the Law on Enforcement of Sentences") 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 degrading treatment, or to medical
experiments, and no scientific research or experiment may be performed upon them
without their consent.
52.S. 26 of the Law on Enforcement of Sentences relates to strict regime
prisons 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.
53. S. 36 para. 1 (k) provides that inmates are entitled to one hour's daily
exercise.
54.Pursuant to S. 41 para. 1 of the Law on Enforcement of Sentences, inmates
may be rewarded, inter alia, for exemplary conduct.
55.S. 42 para. 1 of the Law on Enforcement of Sentences provides for
disciplinary punishment in cases of breach of discipline (reprimand, reduction
of a prisoner's money for personal expenditure, or solitary confinement), if the
general means of handling conflicts between inmates, i.e. pedagogical and
psychological consultation and therapeutic treatment, fail. If a prisoner's
aggressive behaviour constitutes a criminal offence, criminal prosecution
measures are taken against the person concerned.
56.The prison rules are contained in Order 8/1979. (VI.30.)IM (8/1979.
/VI.30./ IM rendelet) ("the Prison Rules"), issued by the Minister of Justice.
57.According to Rule 9 of the Prison Rules, 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 in 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
102/1989 (IK.2)IM, provides that an inmate shall be considered as "particularly
dangerous" ("különösen veszélyes") 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. S. 94 para. 2 of these Security
Rules provides for a review of an inmate's classification in an interval of six
months.
58.Under Rule 85 para. 1 of the Prison Rules, 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 m? per person.
b. Prisoners' correspondence
59.According to S. 36 para. 1 (b) of the Law on Enforcement of Sentences,
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.
60. The National Commander of the Penitentiary Institutions
(Büntetésvégrehajtás Országos Parancsnoka) has instructed all prison authorities
to open letters in the presence of the prisoner concerned and, if no
objectionable objects are found, to hand them over to him unread. If letters
are transilluminated or other technical screening methods are used, letters must
be handed over to the prisoners unopened.
c.Complaints about prison conditions and interference with correspondence
61. According to S. 36 para. 1 (g) of the Law on Enforcement of Sentences, an
inmate may report, or complain about, alleged violations of his rights with the
prison authorities or with other state organs.
62.According to Rule 22 of the Prison Rules, 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.
63.S. 11 (a) of Law V of 1972 on the Public Prosecutor's Office (a Magyar
Köztársaság Ügyészségér?l 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 ensuring respect for the law, and concerning the
conditions of detention on remand (S. 12 para. 1).
64. The public prosecutors' legal status is laid down in SS. 51-53 of the
Hungarian Constitution (Alkotmány). Thus the Chief Public Prosecutor is elected
by Parliament, upon nomination by the President of the Republic. He is
responsible to the Parliament. Public Prosecutors are appointed by the Chief
Public Prosecutor. The Chief Public Prosecutor is the Director of Public
Prosecutions.
65.According to Article 70/K of the Constitution, 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 make access to court possible in respect of claims against
other persons or the state in connection with fundamental rights.
66. The Hungarian Constitutional Court has characterised Article 70/K as a
"living and effective instrument of the Hungarian legal system" (decisions
32/1990. /XII.22./ AB; 58/1991. /XI.8./ AB; 46/1994. /X.21./ AB; 34/1994.
/VI.24./ AB). In its decision 32/1990.(XII.22.)AB, the Constitutional Court
held that a Government order of 1981, according to which the judicial review of
particular administrative decisions could be excluded, was in breach of the
Constitution and the Government was requested to pass new legislation. In the
interim, the petitioner was instructed to seek judicial review on the basis of
Article 70/K.
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
67.The following complaints were declared admissible:
-that the conditions of his imprisonment in Hungarian prisons
amounted to inhuman and degrading treatment or punishment contrary to Article 3
(Art. 3) of the Convention;
- that the control of his correspondence as a prisoner amounted to a
breach of his right to respect for his correspondence contrary to Article 8
(Art. 8) of the Convention;
-that he did not have an effective remedy in respect of the alleged
violation of Article 3 (Art. 3);
-that he did not have an effective remedy in respect of the alleged
violation of Article 8 (Art. 8).
B.Points at issue
68.Accordingly, the issues to be determined are:
-whether there has been a violation of Article 3 (Art. 3) of the
Convention;
-whether there has been a violation of Article 8 (Art. 8) of the
Convention;
-whether there has been a violation of Article 13 of the Convention
in respect of the applicant's claims under Article 3 (Art. 3);
-whether there has been a violation of Article 13 (Art. 13) of the
Convention in respect of his claims under Article 8 (Art. 8).
C.Article 3 (Art. 3) of the Convention
69.The applicant complains that the conditions of his detention amounted to
inhuman and degrading treatment and punishment. He invokes Article 3 (Art. 3)
which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment
or punishment".
70.The applicant turns the Commission's attention in particular to the fact
that he had to spend most of the day in the Budapest Prison in a cell of 27.56m?
with seven or even more other inmates. He also alleges a general practice of
unfavourable treatment, such as having to change cells frequently, facing
difficulties in the allocation of work or in participating in sport or other
leisure facilities.
71.The respondent Government maintain that the circumstances of the
applicant's detention did not amount to inhuman and degrading treatment or
torture prohibited by Article 3 (Art. 3). According to the Government, the
conditions of his detention are in compliance with the demands of the
enforcement of sentences in respect of inmates qualified as "particularly
dangerous".
a.General principles
72.The Commission recalls that ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3). The
assessment of this minimum is relative and must take account of all the
circumstances of the case, including the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and state of health of the
person subjected to it (cf. Eur. Court HR, Ireland v. the United Kingdom
judgment of 18 January 1978, Series A no. 25, p. 65, para. 162). In order for a
punishment to be degrading and in breach of Article 3 (Art. 3), the humiliation
or debasement involved must attain a particular level and must in any event be
other than the usual element of humiliation associated with imprisonment after a
criminal conviction. Such an examination is also relative and depends on all
the circumstances of the case and, in particular, on the nature and context of
the punishment itself and the manner and method of its execution (Eur. Court HR,
Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15,
para. 30).
73.The Commission has previously examined complaints under Article 3 (Art. 3)
about prison conditions (cf. No. 6038/73, Dec. 11.7.73, Collection 44, p. 115;
No. 7854/77, Dec. 12.7.78, D.R. 12 p. 185; No. 8317/78, Dec. 15.5.80, D.R. 30,
p. 44; No. 11701/85, Dec. 12.5.1988, unpublished; No. 14610/89, Dec. 9.7.1991,
D.R. 71, p. 168; No. 18942/91, Dec. 6.4.1993, and No. 20560/92, Dec. 30.8.1994,
unpublished). These cases often concerned the solitary confinement of prisoners
(cf. No. 5310/71, Ireland v. the United Kingdom, Comm. Report 25.1.76, Series B
no. 23, Vol. I, p. 379; Nos. 7572/76, 7586/76 and 7587/76, Dec. 8.7.78, D.R. 14
p. 64; No. 8317/78, loc. cit.; No. 14610/89, loc. cit.).
b.The applicant's status as prisoner
74.The applicant was convicted of theft and of having escaped from prison and
a cumulative sentence of five years and six months' imprisonment was fixed.
Until his release on probation in August 1994, he served his sentence under a
strict regime, first in the Budapest Prison and the last month in the
Sopronk?hida Prison.
75. Throughout the applicant's detention, the prison authorities, having
regard to the nature of offences committed by him and his previous attempts to
commit suicide, treated him as being a "particularly dangerous" person. Upon
regular reviews during his detention, this classification was confirmed on
account of his aggressive behaviour towards other prisoners and the prison
staff. The Commission finds that, in view of the applicant's own conduct, there
was a need for security measures. His classification as being a "particularly
dangerous" person as such, and the corresponding restrictions on his movement in
prison, did not, therefore, amount to treatment contrary to Article 3 (Art. 3).
c.The applicant's detention in the Budapest Prison
76.In the Budapest Prison, the applicant was detained in a cell of 27.56m?
which was generally destined to be occupied by eight inmates. There was
sufficient natural light and elementary furniture as well as a sanitary
installation. There are no indications that the cells, and in particular the
sanitary equipment suffered from neglect to such an extent as to render the
confinement inhuman or degrading.
77. Considering the applicant's submissions as to the temporary admission of
additional inmates in the Budapest Prison, the Commission finds that such
practice may have contributed to the overcrowding of the cell. However, in the
circumstances of the present case, such temporary measures to face the necessity
of placing prisoners exceeding the maxiumum number, though undesirable in a
modern prison system, were not contrary to Article 3 (Art. 3).
78. As to the daily routine in the Budapest Prison, the Government has drawn
the Commission's attention to the various working and leisure facilities usually
available to inmates. However, the one hour's daily exercise could not be
ensured to the prisoners in case of bad weather conditions, as the premises of
the Budapest Prison lacked adequate facilities, its court-yard being uncovered.
79.In this context, the Commission also notes that, pursuant to the relevant
provisions of Hungarian law, the applicant was entitled to exchange
correspondence, in particular with his relatives, and to receive visits.
80. The applicant's occupational situation in the Budapest Prison has to be
seen against his classification as being a "particularly dangerous" prisoner.
The Commission notes that the applicant was only assigned work for short periods
early in 1993 and again in April 1994. However, the applicant's employment was
terminated upon his own wish.
81. Examination of the material before the Commission permits the conclusion
that generally his possibilities to participate in working and other activities
depended upon his own conduct.
82.In assessing the applicant's situation in the Budapest Prison, the
Commission has also considered the aggressive behaviour of other inmates.
However, to the extent that, on two occasions in December 1992, the applicant
suffered injuries following fights by other inmates, the Commission notes that
his medical treatment was ensured and disciplinary measures were taken against
both prisoners in question. There is no evidence to show that the prisoners
acted at the instigation of the prison staff, or with their acquiescence.
83. In this respect, the Commission further notes that the applicant himself
was classified as being a "particularly dangerous" person and reported as
aggressive towards other inmates and the prison staff. Following the fight of
31 December 1992, a disciplinary measure was inflicted upon him and there is
nothing to suggest that this disciplinary punishment was not justified in the
circumstances.
d.The applicant's transfers to the Pécs Prison
84. Moreover, in 1993, in the course of his detention in the Budapest Prison,
the applicant was repeatedly transferred to the Pécs Prison in the context of
his retrial proceedings. In this respect, the applicant raised a new complaint
about alleged ill-treatment by the Pécs prison staff. Even assuming that its
consideration of the present case can extend to this additional allegation, the
Commission, in the absence of any entries in the medical files of the Tököl
Prison Hospital or other evidence, finds no sufficient factual basis for
accepting the applicant's rather generally phrased accusation.
e.The applicant's detention in the Sopronk?hida Prison
85. In the Sopronk?hida Prison, the applicant was accommodated in a cell of
8.3m? with the elementary furniture for two inmates and a lavatory and a wash-
basin. The applicant spent most of the time alone in such a cell. However, it
appears that this single accommodation was a consequence of the applicant's own
conduct towards the other inmates and not imposed as a disciplinary measure of
solitary confinement. There is no indication that the applicant was thereby
segregated from other prisoners. Having regard to the Government's information
on the opportunities to take part in physical exercises and other activities,
the Commission, in the absence of any particular criticism on the part of the
applicant, finds no element of ill-treatment in the course of his one-month
detention in the Sopronk?hida Prison.
f.General appreciation
86.In sum, the Commission considers that, during his detention, the applicant
was not subjected to any "inhuman or degrading treatment or punishment" within
the meaning of Article 3 (Art. 3) of the Convention.
CONCLUSION
87.The Commission concludes, unanimously, that in the present case there has
been no violation of Article 3 (Art. 3) of the Convention.
D.Article 8 (Art. 8) of the Convention
88. The applicant complains about interferences by the Budapest Prison
authorities with his correspondence. He invokes Article 8 (Art. 8), which
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."
89. The applicant generally complains about a practice of the Budapest Prison
authorities to open and to control as well as to delay prisoners'
correspondence. Nevertheless his argument before the Commission is focused on
alleged interferences with his correspondence to and from the Commission, in
particular the control and delay of such letters.
90.The Government submit that there was only evidence to show that one letter
sent by the Commission had been opened by the prison authorities, i.e. the
letter of 23 June 1993. Moreover, there was nothing to show that there had been
delays in forwarding the applicant's letters.
91. The Commission has examined in turn the applicant's complaints about
interferences by the Hungarian authorities with his right to respect for his
correspondence.
a.The opening of the Commission's letter of 23 June 1993
92. The Commission finds that its letter of 23 June 1993 had been opened in
the applicant's absence, as evidenced by the entry stamp put by the prison
authorities not only on the envelope, but on the letter itself.
93.There has, therefore, been an interference with the applicant's right
under Article 8 para. 1 (Art. 8-1) in this respect. Such interference is in
breach of Article 8 (Art. 8), unless justified under paragraph 2 of Article 8
(Art. 8-2).
94.The basis for interferences with a prisoner's correspondence is to be
found in S. 36 of the Hungarian Law on the Enforcement of Sentences. While
prisoners are in principle entitled to correspond with relatives, other persons
as well as with domestic authorities and international organisations, their
correspondence may be controlled by the prison authorities for reasons of
security, except for letters sent to public authorities and to international
organisations (S. 36 para. 5 of the Law on the Execution of Sentences).
95.The Commission finds that its letter dated 23 June 1993 had been opened by
the Budapest Prison authorities contrary to S. 36 para. 5 of the Law on the
Enforcement of Sentences. This interference was not, therefore, "in accordance
with the law".
96.It follows that the interference complained of was not justified under
Article 8 para. 2 (Art. 8-2) of the Convention.
97.The Commission further examined, for reasons of completeness, whether the
other conditions under paragraph 2 of Article 8 (Art. 8-2) were satisfied. In
this respect, the Commission considers that it has been recognised that some
measure of control over prisoners' correspondence is called for in order to
secure the order in prison and is not in itself incompatible with the Convention
(cf. Eur. Court HR, Silver and Others judgment, op. cit., pp. 37-38, paras. 97-
98; Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233,
p. 18, paras. 44-45). However, under the Convention, there can be no compelling
reason for the control of the Commission's correspondence (cf. Eur. Court HR,
Campbell judgment, op. cit., p. 22, para. 62). Accordingly, the opening of the
Commission's letter of 23 June 1993 cannot be regarded as "necessary in a
democratic society" within the meaning of paragraph 2 of Article 8 (Art. 8-2).
b.Further issues relating to the Commission's correspondence
98. The Commission considers that the applicant's allegation that the
Commission's letter of 23 June 1993, after having been opened in his absence,
was not handed over to him by the prison staff, but by another prisoner, is not
supported by evidence.
99.As regards the applicant's submission that the opening of the letter of 23
June 1993 showed a general practice of opening letters from the Commission, the
Commission notes the Government's statement that in July 1993 the Budapest
Prison authorities changed their "routine" of control. Nevertheless,
considering all circumstances, the Commission finds no sufficient factual
elements to conclude that any of its other letters had been opened before being
handed over to the applicant.
100.As regards the alleged delays in forwarding correspondence, the Commission
notes that the lapse of time between the date of a letter and its receipt by the
applicant or the Commission, respectively, varied generally between eight and
ten days. There is no indication that these periods considerably exceeded the
usual periods of postal delivery.
101.However, the applicant's letter of Friday, 11 June 1993 was only posted on
Wednesday, 16 June 1993 and received by the Commission on 23 June 1993, which
was the next Wednesday.
102.The applicant maintains that this letter had been deliberately retained by
the Budapest Prison authorities. The Government deny any such interference.
They argue in particular that there is no proof of the date when the applicant
put his letter for mailing.
103.The Commission observes that the applicant's letter was mailed five days
after it had been dated by him. Taking into account that the possible delay in
mailing the said letter comprised a week-end, the transmission period of a total
of twelve days does not, in the Commission's view, result in an interference
with the applicant's right under Article 8 para. 1 (Art. 8-1).
104.The Commission finally finds that the applicant's assertion, raised in his
letter of 25 June 1993, that he was prohibited from continuing further
correspondence with the Commission has not been substantiated.
105.In sum, the Commission, on the material before it, finds no further
interferences with the Commission's correspondence.
c.Other correspondence issues
106.As regards his other correspondence, the applicant did not specify the
letters subjected to control or other interferences. However, the Commission
considers, and this was not disputed by the Government, that the Hungarian
prison authorities generally subjected the applicant's other correspondence to a
control for security reasons. Such interference is in breach of Article 8 (Art.
8), unless justified under paragraph 2 of Article 8 (Art. 8-2).
107.In the Commission's view, the control of the applicant's other
correspondence was based on S. 36 of the Act on the Execution of Sentences.
There is no indication that the applicant was not, in accordance with the
relevant rules, aware of the possibility of control. Moreover, the applicant
did not substantiate any incident of unlawful interference by the Budapest
Prison authorities with his correspondence other than with the Commission.
These control measures were, therefore, "in accordance with the law".
108.Furthermore, the Commission finds that there are no concrete circumstances
justifying the conclusion that these control measures were in themselves
incompatible with the Convention, regard being paid to the ordinary and
reasonable requirements of imprisonment (cf. Eur. Court HR, Silver and Others
judgment, op. cit., pp. 37-38, paras. 97-98; Campbell judgment, op. cit., p. 18,
paras. 44-45)
109.In these circumstances, the control of the applicant's correspondence
other than the Commission's correspondence can reasonably be regarded as
"necessary in a democratic society" for maintaining the order in prison. It
follows that the interference complained of was justified under Article 8 para.
2 (Art. 8-2) of the Convention.
CONCLUSION
110.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 8 (Art. 8) of the Convention as a result of the
opening of the Commission's letter to the applicant dated 23 June 1993.
111.The Commission concludes, unanimously, that there has been no violation of
Article 8 (Art. 8) of the Convention in respect of the remainder of
correspondence issues.
E.Article 13 (Art. 13) of the Convention
112.The applicant alleges that there existed in Hungary no effective remedy in
respect of his claims under Articles 3 and 8 (Art. 3, 8) and that he was
therefore the victim of a violation of Article 13 (Art. 13) of the Convention.
113.Article 13 (Art. 13) provides as follows:
"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."
a.Claims concerning the conditions of the applicant's detention (Article 3)
(Art. 3)
114.The Commission recalls that Article 13 (Art. 13) guarantees the
availability of a remedy at national level in respect of any "arguable" claim of
a violation of Convention rights (cf. Eur. Court HR, Boyle and Rice v. the
United Kingdom judgment on 27 April 1988, Series A no. 131, pp. 23-24, paras.
52, 54).
115.As regards the applicant's complaint under Article 3 (Art. 3) about the
conditions of his detention, the Commission considers that there was a prima
facie case against Hungary, and that the requirement that the complaint must be
"arguable" is satisfied in respect of this submission.
116.In the applicant's submission, both the complaints procedure within the
framework of the penal institutions and the possibility of a complaint with the
public prosecutor's office do not allow for a review of complaints 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.
117.According to the Government, the complaint with the National Headquarters
of Penal Institutions and/or the competent public prosecutor's office as well as
the possibility to bring the matter before a court, pursuant to Article 70/K of
the Hungarian Constitution, ensure an effective legal protection for the
purposes of Article 13 (Art. 13) of the Convention.
118.Article 13 (Art. 13) guarantees the availability of a remedy at national
level to enforce the substance of the Convention rights. Its effect is thus to
require the provision of a domestic remedy allowing the competent "national
authority" both to deal with the substance of the relevant Convention complaint
and to grant appropriate relief in meritorious cases (cf. Eur. Court HR,
Vilvarajah v. the United Kingdom judgment of 30 October 1991, Series A no. 215,
p. 39, para. 122; Murray v. the United Kingdom judgment of 28 October 1994,
Series A no. 300-A, pp. 37-38, para. 100; Chahal v. the United Kingdom judgment
of 15 November 1996, para. 145, to be published in Reports of Judgments and
Decisions 1996). Article 13 (Art. 13) does not require any particular form of
remedy, Contracting States being afforded a margin of discretion in conforming
to their obligations under this provision (Eur. Court HR, Vilvarajah judgment,
loc. cit.). However, if the "national authority" is no judicial authority, the
powers and the guarantees which it affords are relevant in determining whether
the remedy before it is effective (cf. Eur. Court HR, Silver judgment, op. cit.,
p. 42, para. 113; Chahal judgment, loc. cit.).
119.The Commission notes that Article 70/K of the Constitution stipulates, in
general terms, a right of recourse to court. The respondent Government have not
put forward any example showing the application of Article 70/K of the
Constitution in a case similar to the present one. Moreover, the Government
conceded that there were considerable difficulties in finding domestic court
decisions referring to Article 70/K. In these circumstances, the Government
have failed to show that this remedy would have been effective.
120.The Commission further notes that pursuant to the Law on Enforcement of
Sentences as well as under the Prison Rules, prisoners may lodge complaints and
apply for the remedying of any individual injury. Such matters are examined
first by the competent authorities of the prison concerned and, if the issue is
not satisfactorily settled at this level, a further complaint lies with the
National Headquarters of the Penal Institutions.
121.The Commission considers that both the prison authorities and the National
Headquarters of Penal Institutions are thereby competent to receive complaints
and they are also under an obligation to examine such complaints in order to
ensure that the prisoners' rights have been respected. Moreover, they have the
power to render a legally binding decision. However, the Commission finds that
the prison authorities do not only lack the necessary independence of the
Government, but, being directly affected by such complaint, do not offer the
necessary guarantees to ensure an effective control. As far as the National
Headquarters of Penal Institutions is concerned, it may, in practice, proceed to
a full examination of complaints. Nevertheless, it is subject to Government
control and there remain doubts whether, at least in practice, it performs its
supervisory functions independently.
122.Finally, under the Law on the Public Prosecutor's Office, the public
prosecutors are competent to supervise the lawfulness of the conditions of
detention and the execution of the detention, and to hear inmates and examine
complaints concerning the execution of sentences (see above para. 0). This
possibility of complaint is also mentioned in the Prison Rules (see above para.
0). Taking into account their legal status, as laid down in the Hungarian
Constitution (see above para. 0), public prosecutors can be considered as
independent of the Government. As to the efficiency of the control afforded by
public prosecutors, the Commission considers that it follows from the wording of
the Law on the Public Prosecutor's Office that there are no limitations on the
right to address the competent public prosecutor. Moreover, the organs
competent for the execution of sentences are required to comply with the public
prosecutor's instructions ensuring respect for the law.
123.The Commission finds that, although the possibility of recourse to the
competent public prosecutor is, in the relevant legal texts, couched in vague
terms as to whether there is a duty to investigate such individual complaints
and whether the complainant is entitled to a decision in his or her individual
case, this control mechanism has proved to be an effective remedy in the present
case. In this context, the Commission observes that the applicant had in fact
recourse to a complaint with the competent Public Prosecutor's Office which
examined his complaints and rendered an individual decision. It is true that
the Public Prosecutor's Office dismissed his complaint. However, the
effectiveness of a remedy for the purposes of Article 13 (Art. 13) does not
depend upon the certainty of a favourable outcome (cf. Eur. Court HR,
Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment of
19 December 1994, Series A no. 302, p. 20, para. 55).
124.In these circumstances, the Commission finds that the complaints procedure
with the competent Public Prosecutor's Office can be considered sufficient to
ensure compliance with Article 13 (Art. 13).
CONCLUSION
125.The Commission concludes, by 26 votes to 5, that in the present case
there has been no violation of Article 13 (Art. 13), in conjunction with Article
3 (Art. 3), of the Convention.
b.Complaint about interferences with the applicant's correspondence (Article
8) (Art. 8)
126.The applicant's complaint of a violation of his right to respect for his
correspondence relates to several issues.
127.To the extent that the opening of the Commission's letter of 23 June 1993
is concerned, the Commission, referring to its above conclusion (para. 0),
considers that the claim of a violation of Article 8 (Art. 8) in this respect is
an "arguable" one for the purposes of Article 13 (Art. 13).
128.As regards the remainder of the applicant's submissions under Article 8
(Art. 8), the Commission observes that, on the evidence adduced, either no
interferences with his right could be established (see above paras. 0-0), or
there was no appearance of unjustified control (see above paras. 0-0). In the
light of these considerations, the question arises whether there is an
"arguable" claim of a violation of Article 8 (Art. 8) in these respects.
However, in the circumstances of the present case, it is not necessary to reach
a separate conclusion under this head.
129.The Commission, having regard to its above findings (see paras. 0-0),
considers that the complaint with the Public Prosecutor's Office constituted an
effective remedy for the purposes of Article 13 (Art. 13).
CONCLUSION
130.The Commission concludes, by 26 votes to 5, that in the present case there
has been no violation of Article 13 (Art. 13), in conjunction with Article 8
(Art. 8), of the Convention.
F.Recapitulation
131.The Commission concludes, unanimously, that in the present case there has
been no violation of Article 3 (Art. 3) of the Convention (para. 0).
132.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 8 (Art. 8) of the Convention as a result of the
opening of the Commission's letter to the applicant dated 23 June 1993 (para.
0).
133.The Commission concludes, unanimously, that there has been no violation of
Article 8 (Art. 8) of the Convention in respect of the remainder of
correspondence issues (para. 0).
134.The Commission concludes, by 26 votes to 5, that in the present case there
has been no violation of Article 13 (Art. 13), in conjunction with Article 3
(Art. 3), of the Convention (para. 0).
135.The Commission concludes, by 26 votes to 5, that in the present case there
has been no violation of Article 13 (Art. 13), in conjunction with Article 8
(Art. 8), of the Convention (para. 0).
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. English)
PARTLY DISSENTING OPINION OF MRS. THUNE, MRS. LIDDY, MR. BUSUTTIL, MR. BRATZA
AND MRS. HION
We have voted with the majority of the Commission on the main complaints
under Articles 3 and 8, but have been unable to agree that there has been no
violation of Article 13 in conjunction with Article 3 and Article 8
respectively. Accordingly we have voted against the conclusions in paragraph 125
and 130.
The applicant alleges that he did not have at his disposal an effective
remedy for his Article 3 complaint. The majority of the Commission, found that
the possibility to complain to the Public Prosecutors Office was sufficient in
the particular circumstances of this case.
We regret that we have not been convinced that this remedy is sufficiently
effective to comply with the requirements under Article 13 of the Convention.
Under S. 11(a) of Law V. of 1972 on the Public Prosecutor's Office, the
public prosecutor is empowered to supervise, inter alia, the lawfulness of the
conditions of detention, forced medical treatment and the execution of the
detention. Further, by S. 12 para. 1 of the Law it is provided, inter alia, that
the organs competent for the execution of sentences are required to comply with
the prosecutor's instructions "ensuring respect for the law".
The majority of the Commission acknowledge - rightly, in our view - that
the possibility of recourse to the competent public prosecutor is in the
relevant legal texts couched in vague terms. In particular, it is unclear
whether there is a duty to investigate such individual complaints and whether a
complainant is entitled as of right to a decision in his or her individual case.
Recalling the vulnerable position of detainees, we consider that clarity
as regards their legal position is essential. It must be the responsibility of
the Contracting States to ensure that the applicable rules are precise and clear
as to the possibility to complain and the procedure to follow.
In addition, we have doubts as to the scope of the powers of the public
prosecutor to issue binding instructions to the relevant prison authorities. It
is true that in the present case the applicant had recourse to the public
prosecutor and received a reasoned decision rejecting his complaint. However, we
note that his complaint to the prosecutor did not relate to general prison
conditions but to specific allegations of ill-treatment in prison.
The complaints set out in the decision of admissibility concerning
conditions of detention and control of correspondence relate to alleged
structural deficiencies within the prison for which in our view an application
to the public prosecutor would appear to afford no obvious remedy within the
meaning of Article 13.
The applicant has exemplified his problems by stating that the activities
out of the wards were only possible "as special rewards". He liked reading and
sport but these possibilities were restricted for him on the stated ground that
"it is better if such a man does not read". The Government has not disputed the
assertions.
It appears therefore that an award system, with all its risks of
arbitrariness and favouritism, operated within the prison rather than a system
of disciplinary measures to deprive a prisoner of a privilege or right because
of the prisoner's verifiable misconduct and following appropriate procedures.
There is no evidence as to how the remedies relied on by the majority could
resolve such structural problems. In particular, in the absence of any prison
records regarding receipt and transmission of the applicant's mail, it is
difficult to see how complaints to the National Headquarters of Penal
Institutions or the competent Public Prosecutor's Office could have been
effective. It would appear that any changes in the structural organisation of
prisons, probably with financial and personnel implications, were primarily a
matter for the Minister for Justice and his or her Government colleagues to
decide on. In these circumstances, the only effective remedy would appear to be
a Court Order establishing the prisoner's rights and engendering appropriate
administrative or legal consequences. Article 70/K of the Constitution has not
been shown to be effective in this respect, for the reasons given in para. 119
of the Report.
Accordingly, there has been a violation of Article 13.
Full & Egal Universal Law Academy