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CSULLOG v. HUNGARY - 30042/08 [2011] ECHR 904 (7 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/904.html
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[2011] ECHR 904
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SECOND
SECTION
CASE OF CSÜLLÖG v. HUNGARY
(Application
no. 30042/08)
JUDGMENT
STRASBOURG
7 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Csüllög
v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30042/08) against the Republic
of Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Hungarian national, Mr Zsigmond Csüllög
(“the applicant”), on 9 June 2008.
The
applicant was represented by Mr G. Győző, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Public Administration and Justice.
The
applicant alleged that the conditions of his detention amounted to
inhuman and degrading treatment and that he had no effective remedy
at his disposal to challenge the same. He relied on Articles 3 and 13
of the Convention.
On
25 August 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1964 and lives in Budapest.
The
applicant was arrested on 7 February 2005. In 2006 he was convicted
of conspiracy to murder and sentenced to five years’
imprisonment in a strict-regime prison. Following the delivery of a
non-final judgment, on 24 April 2006 he was transferred to
Sopronkőhida Strict and Medium Regime Prison, where he was
placed in a special security cell. On 28 April 2006 the applicant’s
defence counsel filed a request for transfer with the Ministry of
Justice. On 27 June 2006 the Head of the Penitentiary Administration
Unit of the Detention Affairs Department of the National Headquarters
of the Penitentiary Service (“the Penitentiary Administration”)
authorised the applicant’s transfer to Vác Strict and
Medium Regime Prison.
Upon
a subsequent decision of the Committee for Ordering Special Detention
(“the “Committee”), on 17 August 2006 the applicant
was transferred to Sátoraljaújhely Strict and Medium
Regime Prison in order to be placed in a special security department.
In this context the Government submitted that the prison authorities
had been informed that his escape had been under preparation; that
under Section 30(3) of Act no. CVII of 1995 on the Penitentiary
Service this kind of information relating to the security of
detention could not be communicated to the detainee; that, besides,
further criminal proceedings were being conducted against him; and
that these elements had warranted his placement in an appropriate,
closed institution and his separation, as far as possible, from his
accomplices. The applicant’s placement in a special security
department was also supported by information received from the
National Bureau of Investigation, classified as a State secret. The
information which served as the basis for the decision has never been
revealed to the applicant. None of the applicant’s accomplices
were placed in a special security department.
Between
17 August 2006 and 23 September 2008 the applicant was detained
as a “Grade 4 security” inmate in Sátoraljaújhely
prison’s special security department (“KBK”), apart
from the period between 15 February and 27 March 2007,
which he spent in similar circumstances in Budapest Prison. His
classification as a “Grade 4 security” inmate and his
placement in the “KBK” department were reviewed and
prolonged at regular intervals, but without any reasoning. His
complaints about the conditions of detention to the National
Commander of Penitentiaries, the Borsod-Abaúj-Zemplén
County Public Prosecutor’s Office and the Attorney General’s
Office were to no avail. Upon the applicant’s enquiry, on
25 June 2007 the County Public Prosecutor’s Office
stated that “decisions concerning placement in KBK departments
falls within the jurisdiction of the National Headquarters of the
Penitentiary Service, therefore the County Public Prosecutor’s
Office is not entitled to take measures in this regard.” The
Public Prosecutor’s Office found that all the measures taken by
the prison authorities had a proper legal basis.
The
rules pertaining to the conditions prevailing in the KBK departments
are outlined in the chapter on Relevant domestic law (see paragraphs
13 to 16 below). The applicant submitted that there was only
artificial light in his cell, the ventilation was insufficient, the
toilet had neither a seat nor a cover, and he had to endure full
cavity searches on a daily basis. Moreover, the range of objects he
was allowed to possess in his cell was very restricted: no watch,
pen, comb, plastic cutlery, teabag or stationery was allowed, and he
could have only a limited number of books or newspapers.
Subsequently,
the applicant was transferred to Budapest Prison. His detention
continued under the “Grade 4 security” regime, although
he was no longer placed in a KBK department. He was accommodated in a
special security cell located in the basement level of the
institution.
Having
served his sentence, the applicant was released on 10 February
2009.
II. RELEVANT DOMESTIC LAW
12. Act no. CVII of 1995 on the Penitentiary Service
Section 30
“(2) Inmates shall have the right to access,
with the exceptions specified in subsection (3), all the data related
to them and to request the rectification of any incorrect data and
the deletion of unlawfully kept data. Such requests of the inmates
shall be complied with.
(3) Data relating to the security of detention and
originating from an action which the detainee must tolerate under the
law shall not be communicated to the inmate. On release, such data
shall be communicated to the inmate upon request, unless they contain
service or State secrets.”
13. Decree No. 6/1996 (VII.12.) of the Minister of
Justice on the Rules Governing the Enforcement of Imprisonment and
Pre-trial Detention
Section 6
“(1) Unless provided otherwise under the law,
matters relating to an inmate’s detention shall be decided on –
upon request or ex officio – by the head of the
designated unit of the penitentiary institution in which the inmate
is residing for the purpose of serving the punishment or measure
imposed on him. In matters relating to his detention, the inmate may,
without indicating the subject matter of his request ..., request the
head of the unit or the governor of the penitentiary to hear him in
person, or submit a written request.
(2) Inmates may file a complaint to the governor
against a ruling, measure, decision or omission occurring in the
context of subsection (1). Where the decision has been taken by the
governor ..., the complaint shall be examined by the national
governor.
(3) Where, in cases specified under the law, the
inmate’s case was decided on ... by the national commander, the
complaint shall be examined by the Minister ...”
Section 42
“(1) Inmates shall be classified by the
Reception and Employment Committee ... as belonging to the ‘Grade
1, 2, 3 or 4 security groups’ on the basis of the increasing
threat level which their detentions pose.
(2) When assigning inmates into a security group,
the following elements shall be taken into consideration:
a) the offence committed (its nature and
circumstances), the duration of the imprisonment and the prison
regime imposed, the portion of the sentence not yet served, and the
date of parole,
b) the inmate’s personality, previous record,
health and physical state and contacts,
c) – if other criminal proceedings have been
instituted against the detainee – the nature and circumstances
of the act giving rise to those proceedings,
d) the characteristics of the penitentiary
institution and the security aspects of the inmate’s
occupation.
(3) On the basis of the elements specified in
subsection (2): ...
d) Inmates who are expected with good reason to
commit an act severely violating the order of the penitentiary, to
escape, or to endanger their own life or limb or that of others, or
who have already committed such acts and whose safe detention may
only be guaranteed by close guarding or – exceptionally –
by strict surveillance shall be classified as “Grade 4
security” prisoners.
(4) If the facts or data necessary for the security
group classification are incomplete, inmates shall be classified as
‘Grade 3 security’ prisoners until the missing facts or
data are obtained.”
Section 43
“(1) ... ‘Grade 4 security’
classification is to be reviewed by the reception committee every
three months.
(2) If a change occurs in the circumstances
underlying the inmate’s classification, the reception committee
... shall modify it, irrespective of the time-limit[s] specified in
section (1).”
Section 44
“(1) Classification into security groups
shall not affect statutory inmate rights; the manner and order of
exercising those rights under the various security regimes shall be
regulated in the prison rules.
(2) The reasons underlying the classification of an
inmate into a certain security group shall only be communicated to
him if such communication does not endanger the security of
detention.”
Placement in a special safety cell or department
Section 47
“(1) An inmate classified as ‘Grade 4
security’ prisoner may be placed in a special security cell or
department.
(2) An inmate may also be placed in a special
security cell or department if the protection of his life or limb
cannot be secured otherwise.
(3) An inmate placed in a special security cell or
department shall:
a) be under constant surveillance,
b) move around on the premises of the institution only
with permission and under supervision, and his cell shall be kept
locked,
c) work only inside the special safety department or at
a place designated by the governor,
d) not participate in inmates’ associations,
e) participate in educational, sport and spare-time
group activities only inside the special security department or with
the governor’s permission; he, however, may practice
self-education,
f) not wear his own clothes – except for inmates
placed in a special security cell or department pursuant to
subsection (2),
g) possess only a limited range of personal objects.
(4) The implementing rules concerning inmates
placed in special security cells or departments shall be laid down in
the prison rules.
(5) Placement in a special security cell shall be
ordered by the reception committee for a period of maximum three
months which can be prolonged twice, each time for a period of
maximum three months. Placement in a special security cell for a
period exceeding these periods shall be ordered by a committee
designated by the national commander... The justification for
continued placement shall be reviewed by the committee every six
months.
(6) Placement in a special security department
shall be ordered by the committee for a period of maximum six months.
This period can be prolonged if reasons for such placement continue
to exist. The justification for placement in a special security
department shall be reviewed by the committee every six months.
(7) Placement in a special security cell or
department shall immediately be terminated when the underlying
reasons cease to exist.
(8) For the purposes of this Decree:
a) ‘special security cell’ means specially
built and equipped premises operating under special rules where
inmates specified under subsections (1) and (2) shall be placed
alone. The cells of the penitentiary institutions operating as
special security cells shall be designated by the national
governor...
b) ‘special security department’ means a
purpose-built, segregated part of the penitentiary institution
designated by the national governor, which consists of special
security cells and adjoining premises, where inmates specified under
subsections (1) and (2) can be placed irrespective of the prison
regime imposed on them.”
14. Law-Decree no. 11 of 1979 on the Enforcement of
Punishments and Measures
Section 36
“(1) Inmates shall have the right: ...
g) to submit a statement of public interest, a
complaint, a request or a legal declaration to the penitentiary
institution, or to another organ independent of the penitentiary
service;”
15. Instruction No. 1-1/51/2003. OP of the National
Commander of Penitentiaries
The
rules governing the conditions prevailing in “KBK”
departments can be summarised as follows. Inmates under the “KBK”
regime receive their visitors in special security rooms and have
their meals on their own. They can exercise their right to periods in
the open-air one person at a time in a special area; they may not
participate in cultural or sport events together with other inmates;
they may only watch television, listen to the radio, read, practise
sport or observe their religion alone in their cells. Before and
after every removal from the cell, the inmate must be body-searched
and stripped if necessary. Such inmates shall undergo medical
examinations, shave and wash themselves in their cells.
16. Instruction No. 41/2005. OP of the Commander of
Sátoraljaújhely Prison
Inmates
under the “KBK” regime may be removed from the “KBK”
department only if handcuffed and if it is ensured that they will not
encounter other inmates. For medical examinations, such inmates must
be handcuffed. At any given time, a maximum of two such inmates can
benefit simultaneously from open-air periods or sports; however, they
must not see or have contact with each other.
III. RELEVANT INTERNATIONAL DOCUMENTS
17. Recommendation Rec(2006)2 of the Committee of
Ministers of the Council of Europe to Member States on the European
Prison Rules (adopted by the Committee of Ministers on 11 January
2006 at the 952nd meeting of the Ministers’
Deputies)
Security
“51.1 The security measures applied to individual
prisoners shall be the minimum necessary to achieve their secure
custody.
51.2 The security which is provided by physical barriers
and other technical means shall be complemented by the dynamic
security provided by an alert staff who know the prisoners who are
under their control.
51.3 As soon as possible after admission, prisoners
shall be assessed to determine:
a. the risk that they would present to the
community if they were to escape;
b. the risk that they will try to escape either
on their own or with external assistance.
51.4 Each prisoner shall then be held in security
conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed
at regular intervals throughout a person’s imprisonment.”
Safety
“52.1 As soon as possible after admission,
prisoners shall be assessed to determine whether they pose a safety
risk to other prisoners, prison staff or other persons working in or
visiting prison or whether they are likely to harm themselves.
52.2 Procedures shall be in place to ensure the safety
of prisoners, prison staff and all visitors and to reduce to a
minimum the risk of violence and other events that might threaten
safety.
52.3 Every possible effort shall be made to allow all
prisoners to take a full part in daily activities in safety.
52.4 It shall be possible for prisoners to contact staff
at all times, including during the night.
52.5 National health and safety laws shall be observed
in prisons.”
Special high security or safety measures
“53.1 Special high security or safety measures
shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when
such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and
the grounds on which they may be applied shall be determined by
national law.
53.4 The application of the measures in each case shall
be approved by the competent authority for a specified period of
time.
53.5 Any decision to extend the approved period of time
shall be subject to a new approval by the competent authority.
53.6 Such measures shall be applied to individuals and
not to groups of prisoners.
53.7 Any prisoner subjected to such measures shall have
a right of complaint in the terms set out in Rule 70.”
Requests and complaints
“70.1 Prisoners, individually or as a group, shall
have ample opportunity to make requests or complaints to the director
of the prison or to any other competent authority.
70.3 If a request is denied or a complaint is rejected,
reasons shall be provided to the prisoner and the prisoner shall have
the right to appeal to an independent authority.”
The
Commentary to the draft Rule 70 of the above Recommendation reads as
follows:
“This Rule does not attempt to prescribe an
exclusive model of a complaints procedure but sets out the basic
requirements such procedures should comply with lest they be
considered to represent effective remedies in terms of art. 13 of the
ECHR (see: Van der Ven v. The Netherlands (appl. nr. 50901/99
– 04/02/2003)). What is important is that the complaint
procedure ends with a final binding decision taken by an independent
authority. The member states are free to designate the independent
authority that has the power to handle complaints. This can be an
ombudsman or a judge (enforcement magistrate or executing or
supervisory judge), supervising prosecutor, court, or a Public
Defender (CPT/Inf (2002) 14 – Visit to Georgia in 2001).”
19. Extracts from 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 (“the CPT”) from 5 to 16 December
1999
“94. In every country there will be a number
of so-called “dangerous” prisoners (a notion which covers
a variety of types of person) in respect of whom special conditions
of custody are required. This group of prisoners will (or at least
should, if the classification system is operating satisfactorily)
represent a very small proportion of the overall prison population.
However, it is a group that is of particular concern to the CPT, in
view of the fact that the need to take exceptional measures
concerning such prisoners brings with it a greater risk of inhuman
treatment than is the case with the average prisoner.
95. The dangers involved in this area are well
described in the following extract from the Explanatory Memorandum to
the Recommendation (No. R(82)17) on the custody and treatment of
dangerous prisoners adopted by the Committee of Ministers of the
Council of Europe on 24 September 1982: “43. Human dignity is
to be respected notwithstanding criminality or dangerousness and if
human persons have to be imprisoned in circumstances of greater
severity than the conventional, every effort should be made, subject
to the requirements of safe custody, good order and security and the
requirements of community well-being, to ensure that living
environment and conditions offset the deleterious effects –
decreased mental efficiency, depression, anxiety, aggressiveness,
neurosis, negative values, altered biorhythms – of the severer
custodial situation. In the most serious instances prisoners regress
to a merely vegetative life. Generally the impairment may be
reversible but if imprisonment, especially in maximum security, is
prolonged, perception of time and space and self can be permanently
and seriously impaired – ‘annihilation of personality’.”
96. ... The status of Grade 4 prisoners is reviewed
every six months. However, it would appear that the reasons
underlying the decision for placement/prolongation of a Grade 4
measure are not disclosed to the prisoner concerned.
97. It is axiomatic that a prisoner should not be
held in a special security regime any longer than the risk which he
presents makes necessary. This calls for regular reviews of the
placement decision. Further, prisoners should as far as possible be
kept fully informed of the reasons for their placement and, if
necessary, its renewal; this will inter alia enable them to make
effective use of avenues for challenging that measure.
98. Consequently, the CPT recommends that:
– a prisoner who is placed in a Grade 4 regime by
the judicial or prison authorities or whose placement in such a
regime is renewed be informed in writing of the reasons for that
measure (it being understood that the reasons given could exclude
information which security requirements reasonably justify
withholding from the prisoner);
– a prisoner in respect of whom such a measure is
envisaged be given an opportunity to express his views on the matter;
– the placement of a prisoner in such a regime
should be as short as possible and reviewed at least every three
months.
100. Firstly, the delegation observed at Budapest
Remand Prison that means of restraint (such as handcuffs and/or
anklecuffs) were routinely applied to Grade 4 prisoners. ... The
practice of routinely handcuffing and/or anklecuffing prisoners when
outside their cell is highly questionable, all the more so when it is
applied over a prolonged period of time in a secure environment. ...
101. Secondly, some Grade 4 prisoners were kept for
some considerable time in isolation and had particular difficulties
to receive visits and have access to a telephone, allegedly for
security reasons.”
20. Extracts from the Report to the Hungarian
Government on the visit to Hungary carried out by the CPT from 30
March to 8 April 2005
“64. ... The CPT calls upon the Hungarian
authorities to take steps to implement its previous recommendations
concerning the provision to prisoners placed in a Grade 4 regime of
written information on the reasons for the measure as well as the
opportunity to express their views on the matter. It is equally
important to provide such prisoners with written information on the
possibilities to contest the decision. More generally, the Committee
recommends that the Hungarian authorities review and refine the
system of classifying prisoners as Grade 4 with a view to ensuring
that this grade is only applied – and retained –
vis-à-vis prisoners who genuinely require to be
accorded such a status.”
“66. ... The CPT must reiterate its view that
there can be no justification for routinely handcuffing prisoners
outside their cells, all the more so when this measure is applied in
an already secure environment. The application of restraints while
the prisoner is inside a secure exercise yard is clearly an
unacceptable practice. As regards the handcuffing of prisoners during
medical consultations, in the CPT’s view, such a practice
infringes upon the dignity of the prisoners concerned and prohibits
the development of a proper doctor-patient relationship (and is
possibly detrimental to the establishment of an objective medical
finding). The CPT calls upon the Hungarian authorities to review
without further delay their current policy with regard to the
application of means of restraint to prisoners placed under a special
security regime (Grade 4 prisoners).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the conditions of detention under the “KBK”
regime – to which he was subjected for about two years –
amounted to inhuman and degrading treatment on account of the almost
total isolation and absence of human contacts as well as the
ubiquitous application of means of restraint. He relied on Article 3
of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
The
applicant submitted that the physical conditions of detention in the
“KBK” regime result, in their interaction, in inhuman and
degrading treatment, in particular in view of the fact that he served
his sentence in complete social isolation in a cell which he was
entitled to leave daily only for an hour to stay in the open air and
a few times a week to exercise. He was always handcuffed when outside
his cell, including during medical examinations. He had difficulties
in receiving visitors, since he was placed in a prison situated far
from his family’s place of residence. He was entitled to one or
two visits per month and physical contact were not allowed.
The
Government argued that the treatment complained of had not attained
the minimum level of severity required for it to fall within the
scope of Article 3. In their submissions, ‘Grade 4 security’
regime applied to prisoners having committed the most serious
offences. The personal circumstances of the inmate might, in
themselves, not justify the lowering of the security level, since
escape or endangering the order of enforcement of punishments
included not only acts committed by an inmate alone, but also ones
committed with external help, or by making use of criminal
connections, easier under a more lenient custody.
As
regards the applicant’s visitors, between 15 August 2006 and
9 November 2007 he had benefited from altogether thirteen visits
while in institutions located near the visitors’ places of
residence. In February, May and October 2007 the applicant had
received visitors two times each month, which had exceeded his legal
entitlement. He had had at his disposal a television, and books from
the library had been available to him. Moreover, he could rely on the
services of the prison chaplain, which he had availed himself of on
one occasion.
2. The Court’s assessment
a. General principles
The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of a democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim’s
behaviour (see Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV).
The
Court reiterates that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level is, in the
nature of things, relative; it depends on all the circumstances of
the case, such as the duration of the treatment, its physical and
mental effects and, in some cases, the sex, age and state of health
of the victim (see Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece,
no. 28524/95, § 67, ECHR 2001-III). Although the
purpose of such treatment is a factor to be taken into account, in
particular whether it was intended to humiliate or debase the victim,
the absence of any such purpose does not inevitably lead to a finding
that there has been no violation of Article 3 (see Peers,
ibid., § 74).
The
Court has consistently stressed that, for Article 3 to come into
play, the suffering involved must in any event go beyond that
inevitable element of suffering connected with a given form of
legitimate treatment or punishment. Measures depriving a person of
his liberty may often involve such an element. In accordance with
this provision the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention and that, given the practical
demands of imprisonment, his health and well being are
adequately secured (see Kudła v. Poland [GC], cited
above, §§ 92-94).
The
prohibition of contacts with other prisoners for security,
disciplinary or protective reasons does not in itself amount to
inhuman treatment or punishment (see, among others, Messina v.
Italy (dec.), no. 25498/94, ECHR 1999 V). As stated by
the CPT, however, all forms of solitary confinement without
appropriate mental and physical stimulation are likely, in the long
term, to have damaging effects, resulting in deterioration of mental
faculties and social abilities (see Iorgov v. Bulgaria, no.
40653/98, § 83, 11 March 2004.)
The
Court has established the circumstances in which the solitary
confinement of even a dangerous prisoner will constitute inhuman or
degrading treatment. It has thus observed that complete sensory
isolation, coupled with total social isolation, can destroy the
personality and constitutes a form of inhuman treatment which cannot
be justified by the requirements of security or any other reason
(see Ramirez Sanchez v. France [GC],
no. 59450/00, §§ 120 to 124, ECHR 2006 IX, and
the authorities cited therein). In order to avoid any risk of
arbitrariness, substantive reasons must be given when a protracted
period of solitary confinement is extended. The decision should thus
make it possible to establish that the authorities have carried out a
reassessment that takes into account any changes in the prisoner’s
circumstances, situation or behaviour. The statement of reasons will
need to be increasingly detailed and compelling the more time goes
by. Furthermore, such measures, which are a form of “imprisonment
within the prison”, should be resorted to only exceptionally
and after every precaution has been taken, as specified in paragraph
53.1 of the European Prison Rules adopted by the Committee of
Ministers on 11 January 2006. A system of regular monitoring of the
prisoner’s physical and mental condition should also be set up
in order to ensure its compatibility with continued solitary
confinement (Ramirez Sanchez v. France, op. cit., §
139).
b. Application of those principles to the
present case
The
Court considers that the conditions of the applicant’s
detention may be contrasted with those which it examined in the case
of Rohde v. Denmark (no. 69332/01, § 97, 21
July 2005). In that case, the applicant was held in solitary
confinement for eleven and a half months. He was excluded from
activities with other prisoners but had access to television and
newspapers, had language lessons, was able to meet the prison
chaplain and received a visit once a week from his lawyer and some
members of his family. In that case, the Court found no violation of
Article 3 of the Convention.
In
the present case, the number of contacts granted to the applicant was
lower than that in Rohde, although he was entitled to visits
and indeed received some. He had no access to cultural activities and
was kept handcuffed every time when outside his cell. Moreover, he
served almost the entirety of his prison time in the “KBK”
regime, entailing very harsh conditions including only artificial
light in his cell, insufficient ventilation, a toilet without a seat
or a cover as well as full cavity searches on a daily basis (see
paragraphs 9 and 13 to 16 above). However, books, television and the
services of the chaplain were available to him. Considering all these
elements, the Court concludes that the applicant cannot be considered
to have been in complete sensory isolation and that his isolation was
partial and relative.
In
the Court’s view, solitary confinement is appropriate only as
an exceptional and temporary measure, given its likely negative
effects on the inmate’s personality. However, several of the
restrictive measures applied to the applicant – such as the
prohibition on possessing a watch or teabags or the restriction on
the number of books kept in the cell (see paragraph 9 above) –
cannot reasonably be related to the purported objective of the
isolation, namely to frustrate attempted escape.
Furthermore,
the objective conditions of detention are only one of the elements to
be considered in the determination of inhuman and degrading
treatment. The Court notes that there were no security reasons for
constantly handcuffing the applicant every time he was outside his
cell.
Contrary
to the above-cited case of Ramirez Sanchez, in the instant
application nothing indicated that the applicant would incite
disorder in the prison. Nor does the Court find any element in the
case file suggesting that the dangerousness of the applicant –
although he was convicted of conspiracy to murder – can be
compared to that of mafia prisoners (compare and contrast Messina
v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999–V).
Moreover, there is no evidence that the measure was applied on the
basis of the applicant’s personal characteristics representing
a security risk to other prisoners, the prison staff or himself.
The
Court further notes that no substantive reasons were given by the
authorities when the solitary confinement was applied or extended. In
the absence of reasoning, the impugned restriction must have been
perceived as arbitrary. Arbitrary restrictive measures applied to
vulnerable individuals like prisoners inevitably contribute to the
feeling of subordination, total dependence, powerlessness and,
consequently, humiliation. The authorities did not apply any measures
to counter the negative effects of protracted solitary confinement on
the applicant’s physical and mental condition. In the Court’s
view, open air stays or sport opportunities, of limited availability,
cannot under the present circumstances be considered as capable of
remedying those negative effects, especially since all the movements
of the applicant entailed handcuffing in an otherwise secure
environment.
In
sum, the Court considers that the cumulative effects of the stringent
custodial regime to which the applicant was subjected for an extended
period of time and the material conditions in which he was detained
must have caused him suffering which exceeded the unavoidable level
inherent in detention. The Court thus concludes that the minimum
level of severity required for Article 3 to come into play being
attained, the applicant has been subjected to inhuman and degrading
treatment. There has, accordingly, been a breach of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION
WITH ARTICLE 3 OF THE CONVENTION
The
applicant also complained under Article 13 read in conjunction with
Article 3 of the Convention that no effective remedies were available
to him to challenge his situation. Article 13 of the Convention
provides:
“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.”
The
Government contested that argument.
A. Admissibility
Having
found a violation of Article 3 of the Convention (see paragraph 38
above), the Court is satisfied that the applicant has an “arguable
claim” for the purposes of Article 13
(see Silver and Others v. the United
Kingdom, 25 March 1983, § 113, Series A no. 61). It
notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. Arguments of the parties
The
applicant submitted that he had been subjected to the “KBK”
regime without any particular reasoning and, moreover, that the
reasons for his classification as a “Grade 4 security”
inmate – a precondition for the application of the “KBK”
regime – had not been communicated to him. Nor had the security
risks entailed by such communication been established by the
authorities. He argued that, unaware of the reasons underlying the
measure complained of, he had not been in a position effectively to
challenge it.
The
Government submitted that the applicant had made use of his general
right of complaint under section 36(1) g) of Law-Decree no. 11 of
1979 (see paragraph 14 above) which entitled him to request the
review of the reasons for his security classification by a body
independent of the penitentiary service and authorised to take
action. The Borsod-Abaúj-Zemplén County Public
Prosecutor’s Office had held that the conditions of the
applicant’s detention had not violated his rights under Article
3 of the Convention and provided detailed reasoning.
According
to the Government, there had been a serious security interest in
keeping undisclosed the information which had served as the basis for
the applicant’s classification, namely the interest to protect
the source of information. When classifying an inmate for security
purposes, all circumstances had to be taken into consideration. The
applicant had committed serious, violent crimes and due to the
criminal connections he had established in the course of the
commission of those crimes, it could not be excluded that his escape
from prison would be facilitated from outside.
Lastly,
the Government recalled the findings of the European Commission of
Human Rights in the case of Sárközy v. Hungary (Report
of the Commission, 6 March 1997, §§ 122-124) according to
which the prosecution service was an independent organisation
authorised to supervise detentions, and the complaint procedure
before the public prosecutor’s office could be regarded as one
meeting the requirements of Article 13.
2. The Court’s assessment
The
Court considers that, in the evaluation of the effectiveness of a
remedy for the purposes of Article 13 of the Convention, the
requirements of Article 6 may be relevant. As a rule, the fundamental
criterion of fairness, including the equality of arms, is a
constituent element of an effective remedy. A remedy cannot be
considered effective unless the minimum conditions enabling an
applicant to challenge a decision that restricts his or her rights
under the Convention are provided. Moreover, the national authority
that provides the remedy in question must be independent and capable
of providing redress.
Subject
to compliance with the requirements of the Convention, the
Contracting States are afforded – as the Court has held on many
previous occasions – some discretion as to the manner in which
they provide the relief required by Article 13 and conform to their
Convention obligation under that provision (see mutatis mutandis
Kudła v. Poland [GC], no. 30210/96, § 154, ECHR
2000 XI).
The
Court is satisfied that the prosecution service may be regarded as an
independent organisation (see also the Commentary to the draft
Rule 70 of the European Prison Rules, paragraph 18 above).
However, it is not persuaded that its powers go beyond the control of
the legality of decisions taken by the prison authorities based on
undisclosed secret information. In these circumstances, it cannot
exercise a substantive review that is required for an effective
remedy to be provided by a competent national authority to comply
with Article 13. Without proper information as to the reasons for the
security classification, neither the prosecution service nor the
prisoners are in a position respectively to review or challenge the
decisions of the prison authorities. The Court would add that the
provision of the information in question does not necessitate the
full disclosure of the sources thereof.
The
Court notes that the Public Prosecutor’s Office admitted the
limits of its decision (see paragraph 8 above). It is therefore not
convinced that the Public Prosecutor’s Office, independent as
it may be, has the power to provide adequate remedy.
Since
the applicant, deprived of information crucial in the circumstances,
did not benefit from the equality of arms in challenging the prison
authorities’ decision amounting to a violation of Article 3
(see paragraph 38 above), and in view of the prosecution authorities’
lack of genuine power to overturn that decision, the Court concludes
that there has been a violation of Article 13 read in conjunction
with Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 6,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested this claim.
The
Court considers that the applicant must have sustained some
non-pecuniary damage on account of the conditions of his detention
and awards him the full sum claimed.
B. Costs and expenses
The
applicant also claimed EUR 2,640 for the costs and expenses incurred
before the Court. This sum corresponds to the fee of his lawyer, who
spent, as per the time-sheet submitted, 27.5 hours of legal work
charged at an hourly fee of EUR 96. An additional EUR 40 is claimed
to cover clerical costs.
The
Government contested this claim.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the full sum claimed, i.e. EUR
2,680.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds that there has been a violation of Article
13 read in conjunction with Article 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Hungarian forints at the rate
applicable at the date of settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
2,680 (two thousand six hundred and eighty euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
