MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1288/H46-16

7 June 2017

1288th meeting, 6-7 June 2017 (DH) Human rights   H46-16 Varga and Others + István Gábor Kovács group v. Hungary (Applications No. 14097/12, 15707/10) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2017)313, CM/Del/Dec(2016)1250/H46-11

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
14097/12+	VARGA AND OTHERS	10/03/2015	10/06/2015	Pilot judgment
ISTVÁN GÁBOR KOVÁCS GROUP
15707/10	ISTVÁN GÁBOR KOVÁCS	17/01/2012	17/04/2012	Complex problem
69095/10	FEHÉR	02/07/2013	02/10/2013
46857/06	ENGEL	20/05/2010	20/08/2010
30042/08	CSÜLLÖG	07/06/2011	07/09/2011
30221/06	SZÉL	07/06/2011	07/09/2011
52624/10	HAGYÓ	23/04/2013	23/07/2013
26982/12+	BALOGH AND OTHERS	10/10/2015	10/10/2015
34753/12+	BOTA AND OTHERS	10/10/2015	10/10/2015
44753/12	GÉGÉNY	16/07/2015	16/10/2015
29176/12+	LIGETI AND OTHERS	10/10/2015	10/10/2015
29213/13+	POLGÁR AND OTHERS	10/10/2015	10/10/2015
29644/13+	BAKOS AND OTHERS	07/01/2015	07/01/2015
53398/13+	BÓDAY AND OTHERS	07/01/2015	07/01/2015
6467/13 +	JUHÁSZ AND OTHERS	07/01/2015	07/01/2015
16599/12+	MAGYAR AND OTHERS	07/01/2015	07/01/2015
65853/13+	TAMÁSI AND OTHERS	07/01/2015	07/01/2015
50130/12	BANDUR	05/07/2016	05/10/2016

Case description

This group of cases concerns inhuman and/or degrading treatment due to the applicants’ poor conditions of detention (both pre-trial and post-conviction) resulting mainly from a structural problem of overcrowding in Hungarian prisons (violations of Article 3), and lack of effective preventive and compensatory remedies in this respect (violations of Article 13 read in conjunction with Article 3).

In view of the scale of the problem, the European Court delivered a pilot judgment finding the above-mentioned violations in the case of Varga and Others and requested the respondent State to “produce, under the supervision of the Committee of Ministers, within six months from the date on which this judgment becomes final”, that is by 10 December 2015, “a time frame in which to make appropriate arrangements and to put in practice preventive and compensatory remedies in respect of alleged violations of Article 3 of the Convention on account of inhuman and degrading conditions of detention”.

Previously, the Court had already found violations of Article 3 on account of similar conditions of detention in cases belonging to the István Gábor Kovács group and had underlined the seriousness of the problem and the need for the authorities to “react rapidly in order to secure appropriate conditions of detention for detainees” (namely in the cases of Szél, István Gábor Kovács and Fehér).

Other violations were also found in this group of cases: degrading treatment of a paraplegic applicant due to his conditions of detention in an unmodified institution and under a special security regime (violation of Article 3 in the case of Engel); inhuman and degrading treatment due to the conditions of detention under a special security regime for an extended period of time and lack of an effective remedy to challenge the security classification (violations of Article 3 and of Article 13 read in conjunction with Article 3 in the case of Csüllög); disproportionate statutory restrictions on family visits during pre-trial detention (violations of Article 8 in the cases of István Gábor Kovács and Hagyó) and lack of an effective remedy in this respect (violation of Article 13 read in conjunction with Article 8 in the case of Hagyó); insufficient reasons given by the domestic courts to justify the applicant's detention on remand and infringement of the principle of equality of arms as he had no access to the relevant parts of the investigation file when challenging his detention (violations of Article 5 §§ 3 and 4 in the case of Hagyó).

Status of execution

On 8 November 2016, the European Court, having regard to the legislation adopted by the Hungarian Parliament on 25 October 2016 and the continuing examination by the Committee of Ministers of the related action plan, suspended the examination of some 6,800 pending applications until 31 August 2017 (see ECHR 381 (2016)). At the present time, these applications stand in excess of 8,000.

Individual measures:

The applicant in the case of Engel was transferred to a purpose-built institution on 15 December 2006, where he is detained in a single cell designed for disabled inmates. His physical and medical needs are met and no complaints have been received from him since the Court’s judgment became final. The authorities submitted that he is no longer detained under the special security regime. Sixty-nine applicants belonging to this group (including Csüllög, István Gábor Kovács and Hagyó) are no longer detained. Therefore, no further individual measures are necessary in these cases.

Of the remaining applicants, 15 are detained in multiple-occupancy cells with a living space of less than 3 m² per inmate (Fehér, No. 69095/10; Bulenda, No. 42486/13; Sanyó, No. 43868/13; Károly, No. 51719/13; Herczig, No. 76213/13; Galó, No. 46587/13; Juhász, No. 6467/13; Kristóf, No. 34757/12; Kiss, No. 45141/12; Máté, No. 31766/13; Baranyi, No. 65103/13; Katona, No. 18201/14; Salamon, No. 21840/14; Balogh, no. 71523/13; and Nagy, no. 72597/13), another five applicants are detained in multiple-occupancy cells with between 3 and 4 m² living space per inmate (Madocsai, No. 11581/13; Asbolt, No. 44661/13; Ignácz, No. 46576/13; Gulyás, No. 58632/12; Vitányi, No. 45132/12), and in the case of Földes-Szabó (No. 42808/13), the applicant is detained in a single-occupancy cell with a living space of 3.2 m².

General measures:

I) The structural problem of prison overcrowding

In their communications, the Hungarian authorities listed a number of measures already taken or envisaged to solve the structural problem of prison overcrowding. Since the Committee’s last examination of the group of cases (1250^th meeting – March 2016), the following new information was submitted:

Overcrowding and material conditions of detention

Alternative sanctions: Since April 2015, persons convicted of petty offences or misdemeanours can be allowed to serve part of their sentences at home, using electronic tagging devices. The application of such so-called “reintegration custody” was further facilitated and extended by section 8 of Act No. CX of 2016, which entered into force on 1 January 2017; it can now be applied for the last 10 to 12 months of the sentence. Furthermore, as of January 2014, the rules and conditions of house arrest were amended. This made it easier to monitor compliance and resulted in an increased willingness of judges to order house arrest. As a result, recourse to house arrest has increased (in 2015, 165 of 4,502 requests were granted, compared to 116 of 4,900 in 2014) while the rate of defendants placed in pre-trial detention dropped from 2.79% in 2014 to 2.37% in 2015.

Increases to prison capacity: Based on statistical data from January 2017, the prison population was 18,023 inmates for the 13,774 places available, meaning there were 4,249 places less than needed to meet standards (compared to a shortage of 7,409 places in 2014). The overpopulation rate therefore decreased from 43% in 2014 to 31% in 2016.

Construction of new prison facilities, renovation and re-activation of old ones: Such measures led to an increase in the number of places by 915 in 2015 and by 154 in 2016. By the end of 2019, the authorities intend further to increase capacity by 6,207 places in total.

Introduction of effective preventive and compensatory remedies

By Act no. CX of 2016 (amending Act No. CCXL of 2013 on the enforcement of punishments, measures, certain coercive measures and confinements for regulatory offences – hereafter: Bv.tv.), which was adopted on 25 October 2016 and entered into force on 1 January 2017, the respondent State put in place a preventive and a compensatory remedy (the law is attached to the latest action plan, DH-DD(2017)313).

a) The newly introduced preventive remedy allows any inmate to submit a written complaint to the governor of the penal institution (section 144/B Bv.tv.), about conditions of detention violating fundamental rights notably the non-respect of the minimum living space of at least 3 m² per person also guaranteed by decree No. 16/2014 (VII.12.) of the Minister of Justice. The complaint has to be decided within 15 days (30 days in case of pre-trial detention). If the complaint is well-founded, the governor shall take steps either to improve the conditions (i.e. by moving the inmate to another cell within the prison ) or to counterbalance the injury suffered (e.g. by allowing additional outside exercise, increased visiting time, more frequent showers or other improvements to conditions of detention).

Where a violation due to the lack of living space cannot be resolved within the same prison, the governor shall request the National Prison Administration to relocate the inmate to another prison capable of providing sufficient living space. A reasoned decision on this request, taking into account the inmate’s visiting rights, shall be taken within eight days. The inmate has the right to file a request for review with the penitentiary judge as regards the actions taken by the governor, the failure to take action and in cases where the relocation decision may violate the inmate’s contact rights (section 144/B § 6 Bv.tv.). In case of failure to act, the penitentiary judge shall instruct the governor of the penal institution to take action. The request for review shall be determined within five working days and has suspensive effect as regards the relocation. The costs of that review are borne by the State. The authorities emphasised that decisions of the penitentiary judge (section 75/A § 1) are legally binding.

In cases where the impugned conditions of detention have lasted longer than 30 days, the exhaustion of this remedy is a pre-condition for a subsequent compensation claim (see below), except in cases where persons were unable to lodge the complaint for reasons beyond their control (section 10/A § 6 Bv.tv.).

It appears from the available information that the first applications for this remedy have been filed and that the authorities are monitoring its effectiveness (see Instruction of the National Commander of Penitentiary Institutions, no. 63/2016 (XII.30.)).

b) According to the newly established compensatory remedy, any inmate is entitled to pecuniary compensation for conditions of detention violating the prohibition of torture or cruel, inhuman or degrading treatment (section 10/A Bv.tv.). The compensation amounts to HUF 1,200-1,600 (EUR 4-5) per day and was determined on the basis of the Court’s case law and the average monthly wage in Hungary. The request has to be filed in writing with the competent penal institution and at the latest six months after the violation has ceased to exist. Where the violation is interrupted for a short period of up to 30 days, it is not considered as having ceased to exist. The penal institution shall transmit the request within 30 days to the competent penitentiary judge, together with its comments and all information relevant for the adjudication of the claim. The costs of the proceedings are borne by the State.

The remedy is also applicable to cases which were pending before the European Court when the remedy entered into force (except where the application was lodged both after 10 June 2015 and more than six months after the end of the violation) and to cases where the violation ceased to exist in the year before the entry into force (section 436 Bv.tv.). These cases are exempted from the requirement of prior exhaustion of the preventive remedy and the six month time-limit starts to run with the entry into force of the law. The authorities submitted that they published a leaflet informing applicants of the procedural rules and underlined that the cases pending before the Court can be dealt with at domestic level.

II) Other violations concerned by this group of cases

1) Restrictions on family visits in pre-trial detention and lack of an effective remedy in this respect

a) The authorities emphasised that the violation of Article 8 found by the Court (in the case of István Gábor Kovács) resulted from the internal regulations of Szeged Prison, which limited the visiting rights of a detainee to one hour per month. These regulations have in the meantime been amended, so as to comply with the requirements of the Court’s judgment in this case. Section 177 of Act No. CCXL of 2013, which entered into force on 1 January 2015, provides for “at least” one visit per month. Additional visiting rights can be granted. The details are regulated in decree No. 16/2014 of the Minister of Justice.

b) As regards the violation of Article 13 read in conjunction with Article 8 (in the case of Hagyó), the authorities submitted that it resulted from an individual error by the Chief Public Prosecutor. They further submitted translations of different provisions of Act no. CCXL of 2013 relating to the possibilities for detainees to complain about decisions concerning their visiting rights.

c) As regards the violations of Article 3 and Article 13 read in conjunction with Article 3 (in the cases of Engel and Csüllög), the authorities submitted translations of different provisions of Act no. CCXL of 2013 relating to the different special security regimes in Hungarian detention facilities.

2) The general measures required in respect of the violations of Article 5 §§ 3 and 4 found in the case of Hagyó are examined in the X.Y. group of cases (no. 43888/08).

Analysis by the Secretariat

Individual measures:

In the light of the Court’s findings in its recent Grand Chamber judgment in the case of Muršić v. Croatia (No. 7334/13; see, in particular §§ 137 and 139) and taking into account that, at its 1250th meeting, the Committee already pointed out as a matter of concern that certain applicants were still detained in conditions not meeting the minimum standards set by the CPT (Living space per prisoner in prison establishments: CPT standards, CPT/Inf (2015) 44), it should be noted with concern that 15 applicants are still detained in multiple-occupancy cells with a living space of less than 3 m² per inmate, five applicants are detained in multiple-occupancy cells with between 3 and 4 m² of living space per inmate and in one case the applicant is detained in a single-occupancy cell with a living space of 3.2 m².

The Committee might therefore wish to call on the authorities to rectify the situation of all applicants by taking the measures necessary to ensure that their conditions of detention are brought into line with Convention requirements and, in cases where the living space is between 3 and 4 m² per inmate, to submit information on other aspects of the applicants’ physical conditions of detention which would enable it to make an assessment.

General measures:

1.         Overcrowding and material conditions of detention

It is recalled that “when a State is not able to guarantee each detainee conditions of detention consistent with Article 3 of the Convention, it has been the constant position of the Court and all Council of Europe bodies that the most appropriate solution for the problem of overcrowding would be the reduction of the number of prisoners by more frequent use of non-custodial punitive measures (…) and minimising the recourse to pre-trial detention” (Varga and Others, §§ 104-105, and the recommendations of the Committee of Ministers No. R (99) 22 and Rec(2006)13).

Against this background, and while it appears that alternative sanctions are still being underused, the Committee might wish to note with interest the further substantial measures taken by the authorities in this regard. Taken together, these measures are important steps in the right direction and they appear already to be having an impact, particularly on the average prison overpopulation rate. It is also noted that the authorities have further increased the total number of new prison places they intend to create.

Despite these positive developments, Hungary’s prison population rate is still among the highest in Europe (see Council of Europe Annual Penal Statistics: SPACE I – 2015, PC‐CP (2016) 6, p. 50), the overcrowding rate in certain penitentiary institutions remains even higher than 150% (see Review of Hungarian Prison Statistics 2016/1, Hungarian Prison Service, p. 8), and lengthy pre-trial detention remains problematic (see the group of cases X.Y. v. Hungary, no. 43888/08). Therefore, and with regard to the very high number of applications pending with the Court, the Committee might also want strongly to encourage the authorities further to pursue their efforts in this regard and to find all possible means “to encourage prosecutors and judges to use as widely as possible alternatives to detention and redirect their criminal policy towards reduced use of imprisonment” (Varga and Others, § 105). In this context it is reiterated that a reduced prison sentence may also offer adequate redress for poor conditions of detention (Varga and Others, § 109) and that reduced living space in prison cells can be compensated by allowing detainees a high degree of freedom of movement outside their cells during the day (Stella and Others, § 53).

2.         Introduction of effective preventive and compensatory remedies

The enactment of the law providing for both a preventive and a compensatory remedy should be welcomed. The Committee assessed the new remedies in the light of the criteria established in the European Court’s case law (see, in particular, Stella and others, §§ 46-55 and §§ 57-62), taking into account the margin of appreciation afforded to states in this respect (see Varga and Others, § 107):

a) The new preventive remedy appears, at least in theory, to meet the requirements of the Convention and to constitute an accessible remedy capable of swiftly putting an end to conditions of detention violating the Convention. However, as regards the situation in practice, the question arises whether the measures taken by the authorities (see above) have led to a reduction in the prison population sufficient to enable the effective functioning of the preventive remedy – an aspect which was considered “crucial” by the European Court (Stella and others, § 50). Otherwise, there is a risk that the situation of one detainee “could only be improved at the expense and to the detriment of other detainees” (Varga and Others, § 63). In this context, it should be recalled that the overpopulation rate in Hungarian prisons still stands at 31%. To enable it fully to assess this newly established remedy (and its effectiveness), the Committee might therefore wish to invite the authorities to provide detailed information on its implementation (such as statistics on the measures taken), notably in the light of the monitoring they are undertaking in this context. Against the background of the current overpopulation rate it would be of particular interest to receive information on the cases where the violation suffered was counterbalanced by measures other than increasing living space or relocation.

b) The new compensatory remedy appears to meet Convention requirements and to constitute, a priori, an accessible remedy capable of affording plaintiffs adequate compensation for periods of detention spent under poor conditions. In particular, it is applicable to cases pending with the European Court, thus implementing the principle of subsidiarity which underpins the Convention system. As regards the amount of compensation provided for, it is pointed out that the Court has accepted “amounts which – while being lower than those awarded by the Court – are not unreasonable, on condition that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, are speedy, reasoned and executed very quickly” (Cocchiarella v. Italy, No. 64886/01, § 97). In order to enable it also fully to assess the newly established compensatory remedy (and its effectiveness), the Committee might wish to invite the authorities to provide detailed information on its implementation e.

It is reiterated in this context that the Court has indicated that the grant of monetary compensation can in no case dispense the State from achieving the necessary structural reforms to resolve the root problem of prison overcrowding (see Stella and Others, § 61). The progress already achieved is set out above. It is nevertheless important that the authorities keep up their efforts in this regard and provide statistics showing a consolidation of the positive trend, along with information on all other measures aimed at improving conditions of detention and the functioning of the remedies.

3.         Other violations concerned by this group of cases

The Committee might want to note the information received regarding the other violations concerned by this group, invite the Hungarian authorities to submit outstanding information and to clarify outstanding issues on a bilateral basis with the Secretariat.

a) In the case of István Gábor Kovács, the violation of Article 8 resulted from prison regulations, which did not allow for visiting rights exceeding one hour per month. It would be useful to receive information on the exact amendments made. In the case of Hagyó, the violation of Article 8 stemmed from a too stringent application of the law, which led to a disproportionate restriction of the applicant’s visiting rights. In view of the isolated nature of the violation no further general measures appear to be necessary in this regard.

b) The violation of Article 13 read in conjunction with Article 8 in the case of Hagyó stemmed from the unlawful inaction of the Chief Public Prosecutor, who did not examine the applicant’s complaint. It is not clear from the authorities’ submissions whether there is an effective remedy available for detainees to complain and obtain a decision in the event of such inactivity. Further explanations in this regard would be helpful.

c) As regards the violations of Article 3 and of Article 13 read in conjunction with Article 3 found in conjunction with special security regimes and the lack of an effective remedy to challenge security classification, it is in particular unclear from the authorities’ submission whether there is an effective remedy available for detainees to complain about such classification decisions. It would further be useful to receive concrete explanations on how it is ensured that paraplegic detainees are placed in adapted conditions.

Financing assured: YES