MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-16

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-16 Gubacsi group v. Hungary (Application No. 44686/07) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)972, CM/Del/Dec(2020)1383/H46-9

 

Application	Case	Judgment of	Final on	Indicator for the classification
44686/07	GUBACSI	28/06/2011	28/09/2011	Complex problem
59214/11	BORBALA KISS	26/06/2012	26/09/2012
31373/11	RETI AND FIZLI	25/09/2012	25/12/2012
50218/08	LASZLO KAROLY Y (NO.2)	12/02/2013	12/05/2013
11327/14	HAASZ AND SZABO	13/10/2015	13/01/2016
29609/16	TARJANI	10/10/2017	10/01/2018
3625/15	TERGE	27/02/2018	27/02/2018
45855/12	M.F.	31/10/2017	05/03/2018
21314/15	KOVACS	29/01/2019	29/01/2019
48455/14	CSONKA	16/04/2019	16/04/2019
65290/14	R.S.	02/07/2019	02/10/2019
43441/15	NAGY	26/05/2020	26/05/2020
40885/16	POSA	07/07/2020	07/10/2020
75260/17	CSUCS	15/04/2021	15/04/2021

Case description

This group of cases concerns ill-treatment (between 2000 and 2016) by law enforcement officers during the applicants’ arrest, transfer and detention, and lack of effective investigations, including failure to investigate possible racist motives for ill-treatment, and violations of the right to life in the same context (substantial and/or procedural violations of Articles 2, 3, and 14 in conjunction with Article 3). The issue under Article 14 is examined in the context of the Balázs group (No. 15529/12).

Major shortcomings identified by the Court in finding violations of the procedural limb of Article 2 or 3 included: failure to hear the applicant, the suspected police officers and/or all other witnesses; lack of face-to-face confrontation; lack of genuine efforts by the investigating authorities and/or the competent courts to establish the chronology of the events and to resolve contradictions between different testimonies or between testimonies and medical reports; lapse of time in obtaining testimonies; absence of the police medical report sheet; destruction of the full, uncut version of the arrest video-recording after the thirty-day statutory storage period; and, lack of judicial review of the decision to discontinue investigations.

Status of execution

Individual measures 

The just satisfaction awarded by the Court was duly paid in all cases except for Nagy, Pósa and Csúcs.

At its 1383^rd meeting (September 2020) (DH), the Committee urged the authorities “to ensure without further delay that a competent independent body makes every effort to examine, in compliance with the Convention standards, which investigatory steps may still be taken and to ascertain in reasoned decisions, subject to judicial review, what investigatory steps may no longer be taken for practical or legal reasons”. It also urged the authorities “to re-examine the possibility of reopening and completing, as a matter of priority, the investigations and any consequent criminal proceedings in those cases which are not yet time-barred”.

In response, the authorities submitted that no further investigation can be conducted in ten (unidentified) cases of this group, which have become-time-barred.

General measures

In response to the Committee’s decisions of September 2020, the authorities submitted information
(DH-DD(2021)972) which may be summarised as follows:

1. Message at the highest possible level of “zero tolerance” of ill-treatment in law enforcement

The authorities indicated that Instruction No. 22/2010 (OT 10.) of the National Police Headquarters on Police Detention Service Regulations provides that the prohibition of torture, coercive interrogation and inhuman or degrading treatment or punishment and the requirement of proportionality when carrying out police measures shall form part of the training of police agents. Further, police commanders shall give priority to, examine and follow up on complaints about police ill-treatment. According to the authorities, it has been established that police commanders fulfil their obligations as to the dissemination of information related to the prohibition of torture and ill-treatment by law-enforcement agents. The police authorities prepare reports on ill-treatment complaints, on the basis of which the Supervision Service of the National Police Headquarters annually evaluates the respect of human rights by the police.

2. Legislative and regulatory framework/Safeguards against ill-treatment including administrative measures

In this respect the authorities submitted that secondary legislation^[1] regulates the provision of basic and emergency medical care to detainees in police holding units. It designates the persons and bodies mandated to perform specific medical tasks and regulates the processing of and access to medical opinions prepared when detainees are admitted to police holding units.^[2] The authorities reiterated that it is mainly Instruction No. 22/2010 (OT 10.) which regulates the procedure to be followed in case of ill-treatment complaints during preliminary medical examinations.

The authorities submitted that, in 2022, the police will examine, in the light of budgetary constraints, the feasibility of and timetable for the adoption of additional administrative measures, including the installation of audio- and video-recording equipment in police vehicles, and the acquisition and use of body cameras. According to data provided to the Hungarian Helsinki Committee by the National Police Headquarters, many relevant statistical indicators appear to have deteriorated in 2021.[3]

3. Adequate and systematic training to all actors involved

The authorities reiterated their previous examples of training directed at Supervision Service staff, police commanders and district commissioners. They submitted that information on police ill-treatment is included in the curricula of the police patrol, border patrol and passport control trainings, and of the two-year-long training for police officers.

4. Ineffective investigations into police ill-treatment

The previous organisational structure of the prosecuting authorities, pursuant to which investigations into allegations of ill-treatment by police officers were carried out by different prosecutors’ offices, has been amended. Under the relevant provisions in force since February 2019,[4] the investigation of such complaints now falls exclusively within the competence of the regional investigative prosecution authorities and the Central Investigative Prosecution Service, with a view to ensuring a uniform application of standards.

Secondary legislation adopted in 2014[5] provides that, if a detainee who has been transferred from a police holding unit claims to have been ill-treated, a medical examination shall be carried out without delay and a copy of the medical report shall be sent to the competent prosecutor's office. When prosecuting authorities are informed of ill-treatment that occurred during a police measure or detention, they shall investigate the complaint and prepare a report. If the commission of a criminal offence is suspected, criminal proceedings shall be initiated without delay.[6] Senior public prosecutors’ offices annually report to the Chief Public Prosecutor's Office on ill-treatment complaints in their respective jurisdictions; the latter prepares an annual report on this matter.

According to the Hungarian Helsinki Committee’s communication of October 2021 (DH-DD(2021)1121), pp. 8-11), based on official data, between 2016 and 2020, 280 to 746 complaints of ill-treatment by law enforcement agents during performance of their duties were filed each year. Out of these, 3 to 5% resulted in an indictment. The remaining cases were concluded by rejection of the report or by termination of the investigations. In the same period, 45 to 163 complaints of coercive interrogation were also filed each year, out of which 0 to 6.6% resulted in an indictment.

Analysis by the Secretariat

Individual measures

The deadline for the payment of just satisfaction awarded by the Court in Nagy, Pósa and Csúcs expired more than 14, ten and four months ago respectively. The authorities should thus be urged to proceed to the outstanding payments without further delay.

As regards the re-examination of cases by a competent independent body, it is a matter of deepest concern that, ten years after the leading case of this group became final, despite the Committee’s repeated calls, and given that the possibility of concrete results is undermined by the passage of time, the authorities have still provided no information on the re-examination of these cases by a competent independent body. In particular, it is deeply concerning that the respective public prosecutors apparently have not established which cases are not yet time-barred and taken all necessary action to ensure that criminal investigations and/or proceedings are completed in a Convention-compliant manner.

The Committee might thus wish to strongly urge the authorities to submit copies of the competent independent body’s reasoned decisions on the investigatory steps that can still be taken in the cases of this group, on those that can no longer be taken for practical or legal reasons and on the means that can be deployed to overcome existing obstacles.^[7]

In cases which have become time-barred, the possibility of (re)opening disciplinary proceedings should be explored^[8] and information be provided on whether the domestic legal order provides for the possibility of seeking compensation outside the just satisfaction awarded by the Court.^[9] In respect of the cases that are not yet time-barred, the Committee might wish to strongly urge anew the authorities to give them absolute priority in order to avoid prescription and to take all the necessary measures to ensure that reopened criminal investigations and/or proceedings are completed in a Convention-compliant manner. The Committee may wish to request the authorities to submit information on these measures by 31 March 2022.

General measures

At the outset it may be noted with serious concern that ill-treatment by law-enforcement officers has been a long-standing and complex problem in Hungary, which continues giving rise to a significant number of complaints examined both at domestic level and by the Court (since the Committee’s examination of this group in September 2020, two new judgments have become final (Pósa, No. 40885/16; and Csúcs, No. 75260/17) and at least three similar applications were communicated to the government in 2019).[10] Notwithstanding this, no global approach with a view to effectively addressing this situation is set out in the authorities’ submissions, which additionally, so far, lack clarity and repeat elements that the Committee has already examined and concluded  do not address the violations in these cases.

1. Message of “zero tolerance” of ill-treatment

In September 2020, the Committee explicitly called on the authorities, at the highest possible level, to reiterate their “zero tolerance” message towards ill-treatment in law enforcement. The authorities’ response that police commanders fulfil their obligations as to the dissemination of information related to the prohibition of torture and ill-treatment is reassuring. However, given the persistence of the problem at stake, it is disappointing that no follow up was given to the Committee’s call, for example, through public declarations, where appropriate, at the highest political level conveying the “zero tolerance” message.[11] The Committee might thus wish to strongly reiterate its call.

2. Legislative and regulatory framework/Safeguards against ill-treatment including administrative measures

The Committee has noted with interest certain legislative amendments aimed at eradicating ill-treatment.^[12] Nevertheless, it does not appear that the authorities have assessed the impact of the legislative and regulatory measures already adopted and whether the provisions in force are being properly implemented by all relevant actors and further improvement is required. These assessments however appear required for the establishment of a “strategic plan aimed at tackling and eradicating the problem of ineffective investigations into police ill-treatment” as requested by the Committee (CM/Del/Dec(2020)1383/H46-9, no. 9) and should be carried out as a matter of priority.

In this context, the authorities should be urged anew to examine the possibility of extending the scope of instances where video recording of interrogations is mandatory, in line with the CPT’s recommendations.[13] In the light of the Court’s findings in Pósa, they should also be urged to reflect on extending the “remarkably tight” thirty-day statutory period of storage of relevant video-recordings (in that case: of the applicant’s arrest) to ensure their availability for the investigation.[14]

The authorities’ announcement that they will examine, in 2022, the possibilities of extending the number of police vehicles with operating sound and image recording devices and the use of body cameras should be noted and they should be encouraged in this effort. This step appears crucial, particularly in the light of the information that many relevant statistical indicators appear to have deteriorated in 2021, in comparison to 2020. At the same time, the Committee might wish to strongly reiterate its call to reflect on measures leading to the installation of adequate recording devices in all police detention facilities and to present data on the number of recorded interrogations broken down by categories as foreseen by law.

As regards detainees’ access to a doctor, the authorities continue to merely refer to the regulations in place. However, important problems linked to the absence of any measures to ensure their practical implementation persist, in particular as regards the poor quality of the medical examination of detainees in police holding facilities complaining of ill-treatment,[15] the absence of an independent medical examination body to examine alleged victims of ill-treatment,[16] and the inability to ensure in practice the full confidentiality of medical examinations.[17] The Committee might wish to strongly urge the authorities to provide information on the measures taken or envisaged to address the above concerns.

As regards the NPM function of the Commissioner for Fundamental Rights and the information requested (cf. CM/Del/Dec(2020)1383/H46-9, no. 5), a matter not addressed in the latest action plan, the Committee might wish strongly to reiterate its call for information on the measures taken to strengthen its independence, to increase the human and financial resources allocated thereto and its capacity to carry out additional preventive work other than detention monitoring.[18]

3. Adequate and systematic training to all actors involved

The information provided by the authorities makes it difficult to discern whether a firm “zero tolerance” message is also conveyed through the adequate and systematic training of all actors involved, including low-ranking police officers. The Committee might wish to strongly urge the authorities to provide detailed information on the relevant training sessions for low-ranking officers, including on their frequency, duration and content of the curricula. The authorities should also be urged to consider developing guidelines for the Convention-compliant conduct of arrests and interrogations (if necessary, in cooperation with national and international partners, including the Council of Europe, and taking into account relevant international recommendations). The Committee might furthermore wish to urge the authorities to provide information on the measures taken, other than publication and dissemination of the Court’s judgments, to enhance the capacity of the prosecution and judicial authorities to examine ill-treatment complaints in a Convention-compliant manner.

4. Ineffective investigations into police ill-treatment

The centralisation of investigations into police ill-treatment with specific prosecution authorities to ensure uniform standards could be a positive step forward. However, to enable the Committee to assess the impact of this measure, further information appears required, notably on whether it has been supplemented for example with updated instructions or guidelines for a Convention-compliant conduct of investigations.

It is regrettable that the authorities did not submit the previously requested statistical data at their disposal on the outcome of ill-treatment complaints.[19] The extremely low rates of indictment following complaints of ill-treatment by law enforcement agents and the reportedly lenient sentences imposed by courts on law enforcement officers in ill-treatment cases, as presented in the HHC submissions,[20] remain a matter of grave concern.

In this respect, it is noted that the deterrent effect of increased statutory sentences for
ill-treatment by law enforcement agents and extended prescription periods (see above p. 4) is likely to be undermined by a failure to ensure effective investigations. In addition, no information has been provided on the measures taken to address the recurring deficiencies of investigations established by the Court.[21] The Committee might therefore wish to exhort the authorities anew to present, without further delay, a strategic plan aimed at tackling the problem of ineffective investigations into police ill-treatment.

The authorities’ long-standing failure to promptly re-examine the effectiveness of investigations even in cases where the Court found a violation (cf. Individual measures) is an additional matter of grave concern. Considering the obligation to examine ex officio the possibility of reopening investigations in cases where the Court finds a violation of the procedural aspect of Articles 2 and/or 3 and the need for prompt reaction in this respect to avoid impunity, the authorities should be urged to consider introducing an ex officio practice of re-examining such investigations at an earlier stage of the Convention proceedings, either when applications are communicated by the Court, or at the latest immediately after the delivery by the Court of a judgment finding a violation.^[22] In this connection, the authorities may wish to draw inspiration from the practice of other member States. For instance in Bulgaria[23] and Poland,[24] the Prosecutor’s Office initiates examination of complaints on ineffective investigations from the stage of communication of such cases by the Court.

As for Turkey, the Committee has urged the authorities to consider introducing a practice of
re-examining such investigations at an earlier stage of the Convention proceedings.[25] In this context, the Committee might also wish to reiterate the need of expanding this practice to complaints for police ill-treatment dismissed at the investigatory stage (without indictment).^[26]

Lastly, it may be recalled that under the Court’s case-law (e.g. Gäfgen v. Germany, GC, 2010, §125) “where State agents have been charged with offences involving ill‑treatment, it is important that they should be suspended from duty while being investigated or tried and should be dismissed if convicted”. It is therefore a matter of serious concern that the domestic legislation allows the Minister of Interior to restore to their positions law enforcement officers sentenced to suspended imprisonment, including for ill-treatment.[27] The Committee might therefore wish to urge the authorities to review domestic law in order to align it with the Court’s case-law.

Concluding remarks

It is deeply concerning that despite the long-standing nature of the issue, it is not possible to discern, on the basis of the information provided, an overall strategy envisaged by the authorities to ensure that
ill-treatment by law-enforcement agents is eradicated and ill-treatment complaints are effectively investigated. A fundamentally renewed, swift and resolute approach of the Hungarian authorities, and their close cooperation with the Department for the Execution of Judgments on this matter is therefore urgently required. The Committee might thus invite the authorities to provide updated information on all the above issues in an updated action plan by the end of September 2022, at the latest, and as regards the above-mentioned outstanding individual measures by 31 March 2022. In the event that no tangible progress is achieved by December 2022 it would appear appropriate for the Secretariat to be instructed to prepare a draft interim resolution for the Committee’s consideration.

Financing assured: YES