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SECOND
SECTION
CASE OF ENGEL v. HUNGARY
(Application
no. 46857/06)
JUDGMENT
STRASBOURG
20 May
2010
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 Engel v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46857/06) 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 Zoltán Péter
Engel (“the applicant”), on 21 September 2006.
- The
applicant was represented by Mr A. Kádár, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- The
applicant alleged that the conditions of his incarceration,
aggravated by his unjustified classification as a 'Grade 4'
security-level prisoner, amounted to degrading treatment or a breach
of his right to respect for private life. He relied on Articles 3 and
8, read alone or in conjunction with Articles 13 and 14 of the
Convention.
- On
9 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lived in Szeged.
- On
13 May 2003 the applicant was caught in the act of committing armed
robbery. In the ensuing exchange of shots, he killed a police officer
and wounded another. He was also injured in his spine, as a
consequence of which he became paralysed in both his legs from the
waist down. Ever since, he has also been suffering from incontinence.
He is now 100% disabled, only capable of moving in a wheelchair;
moreover, he has to use diapers.
- The
applicant was sentenced to life imprisonment. Between 25 February
2005 and 15 December 2006 he was detained in Szeged Prison.
- The
applicant described the conditions in Szeged Prison as follows: Since
he was unable to fulfil the obligations incumbent on healthy inmates,
he needed to sleep in his clothes in an undone bed and use his jacket
as a blanket in order to avoid being sanctioned for violating the
daily routine of making the bed on time. With no assistance from
staff, he could wash or relieve himself only if his cellmates helped
him do so. He was not provided with a proper bath chair; instead, he
was given a wooden toilet-seat which – unfit for the purposes
of bathing – rotted away fast and on one occasion, broke under
him. Because of harassment from fellow inmates on account of his
disability and incontinence, he did not participate in the daily
open-air stays. Classified as a 'Grade 4' security-level prisoner, he
was transported with his hands handcuffed to his belt at all times.
While being transported in this posture in a van without a safety
belt, he could keep himself in his wheelchair only by supporting his
body by leaning his head against the door of the transport cabin. As
a consequence, he regularly suffered swellings on his head. When
entering or exiting the transport van, staff dragged him by his belt,
sometimes on the floor causing him bruises; an incident of this kind
took place on 12 June 2006. On other occasions, his wheelchair –
with the applicant, weighing 110 kilograms, sitting in it – was
rolled down the van's steps.
- The
applicant's complaint about the above conditions to the Csongrád
County Chief Public Prosecutor's Office was to no avail.
- According
to the prison's medical service, the applicant suffered inter
alia from high blood pressure, overweight, paraplegia and a
neurogenic bladder. His transfer to a specialised penitentiary was
recommended but not taken up by the prison administration. Upon the
applicant's complaint, the National Prison Administration
investigated his situation. Its findings included the following:
“The applicant's cell is located on the ground
floor ..., next to the medical consultancy room. It is suitable for
accommodating four inmates, but only two or three inmates, including
the applicant, are actually placed in it. The furniture is
refurbished and adjusted to the applicant's health needs: the table
is elevated, the beds are single rather than bunk beds, the wardrobe
and the mirror are placed at a height reachable by the applicant,
entrance obstacles have been removed and a handrail has been fitted
next to the toilet. A cellmate has voluntarily undertaken the task of
keeping the cell tidy and helping the applicant perform his everyday
duties. The applicant has never been reproached for a violation of
the prison cell order.
A hot water shower (bath) has been provided to the
applicant on a daily basis. A hand shower and a bath chair are
available to him. ... A cellmate has voluntarily undertaken to help
the applicant wash himself. ...
... In order to prevent harassment by fellow inmates,
the applicant has been granted the opportunity to have daily open-air
stays in a [protected] courtyard ... The applicant, however, does not
wish to make use of this possibility.
Upon the applicant's complaints ... on 30 May 2006 the
warden ordered the transport van [in question] to be equipped with a
safety belt and informed the applicant thereof ... as well as of the
fact that, in the light of medical opinion, his transportation in an
ambulance car ... was not justified. According to the findings of the
investigation, the applicant suffered light scratches and bruises
[while in transport] in December 2004 and June 2006. Therefore the
prison management instructed staff to proceed with special care in
respect of the applicant. According to the opinion of the competent
health organ, the applicant's transport did not require the
participation of medical staff.
On 21 April 2006 the applicant requested to be
transferred to Nagyfa Prison. His request was dismissed by the ...
National Prison Administration on 9 June 2006 on the ground that he
was serving his sentence in a penitentiary institution whose
strictness was commensurate with the offence he had committed and
with the regime imposed on him; where his nursing and medical
supervision was resolved and where physical obstacles had been
removed in order to ensure his free movement in a wheelchair. The
applicant filed a complaint against the decision. The complaint was
dismissed by the National Commander on 26 July 2006 and his transfer
was not authorised. According to the reasoning of the decision, '[the
applicant did] not require permanent nursing or medical supervision.
At his present place of detention, alterations had been made in the
building, as required by his disability. Medical treatment, as
appropriate in his present state, can be provided for him at his
present place of detention, where the circumstances have been
adjusted to his needs ...'”
- The
applicant submitted that the transport van was not equipped with a
safety belt until the end of August 2006. Concerning open-air stays,
he explained that the surface of the courtyard in question was uneven
and therefore unsuitable for a wheelchair.
- Given
that other criminal proceedings were pending against him, the
applicant had to be regularly transported to Budapest to stand trial.
In a complaint dated 5 September 2006 and addressed to the head of
the Transportation Department of Budapest Prison, the applicant
submitted that on Monday, 4 September 2006 he had been placed in an
admission cell in which he had had to spend five hours with no access
to water and without any possibility to change his diapers. He also
submitted that during the transport he had been placed in a
one-person box of the van where he had suffered bruises: in a road
curve, he had fallen out of his wheelchair and had been travelling on
the floor of the van, handcuffed to his belt, with his arms under his
body. He furthermore submitted that the following day, when he had
requested a medical check-up, the nurse had informed him that no
medical examination was available until the next weekly consultation
to be held on the following Monday.
- In
the course of the ensuing investigation, on 18 September 2006 a
medical report was drawn up but no external sign of injury was
detected. In the absence of evidence, on 3 October 2006 the warden of
Budapest Prison dismissed the applicant's complaint.
- Upon
the applicant's criminal complaint, an investigation was opened by
the Szeged Military Public Prosecutor's Office against unknown
persons for abuse of administrative authority, but was discontinued
on
12 December 2006 by the Szeged Military Public Prosecutor's
Office for want of evidence.
- In
a letter dated 27 October 2006 and addressed to the National
Commander, the applicant complained about injuries allegedly suffered
during his transport and the malfunction of his wheelchair. The
ensuing investigation did not support the applicant's allegations
about the injuries, but his wheelchair was subsequently repaired.
- On
15 December 2006 the applicant was transferred to Sopronkőhida
Prison where he was placed in a single cell specially designed for
disabled inmates. On 18 December 2006 he was examined by a forensic
medical expert. In his opinion the expert stated:
“... [In respect of standing up] the inmate ...
partly or wholly exaggerates his pains... [He is] 100% disabled ...
[but is] nevertheless, not totally unable to care for himself. His
compulsive eating, together with his reluctance to accept painkillers
..., is a serious psychological obstacle to enhancing his mobility.
At the same time ... the very existence of pain cannot be proven
beyond doubt. From a forensic medical point of view, it can be
established that ... the inmate has received all the medical, nursing
and caring help he needs.”
II. RELEVANT DOMESTIC LAW
- Decree
No. 6/1996 (VII.12.) of the Minister of Justice on the Rules of the
Execution of Imprisonment and Pre-trial Detention provides as
follows:
Section 42(3)d
“Such inmates shall be classified as 'Grade 4
security' prisoners as are expected with good reason to commit an act
severely violating the order of the penitentiary, to escape or to
endanger his/her own life or limb or that of others, or as have
already committed such acts, and whose safe detention may only be
guaranteed by guarding or – exceptionally – by
surveillance.”
III. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION
OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT)
- The
CPT's Report to the Hungarian Government after its visit to Hungary
from 5 to 16 December 1999 provides, insofar as relevant, as follows:
“96. Under the prisoner grading system
operated in Hungary, remand or sentenced prisoners who are considered
as dangerous are placed in Grade 4 (Decree No. 6/1996 (VII.12.) of
the Minister of Justice). Allocation is made either by the
prosecutor, the court or the reception committee of the
establishment. The CPT was informed that courts and prosecutors tend
to attribute this grade to prisoners accused or convicted of serious
crimes (especially persons involved in organised crime activities)
and the prison reception committees, to persons with a previous
record of ill discipline (including those prone to escape or those
who have attempted suicide) or with a military background.
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.”
- The
CPT's Report to the Hungarian Government after its visit to Hungary
from 30 March to 8 April 2005 provides, insofar as relevant, as
follows:
“64. Concerning the legal safeguards
applicable to prisoners placed in Grade 4, their status is now
reviewed every three months (at the time of the 1999 visit, the
frequency of reviews was every six months); the CPT welcomes this
change. However, the other long-standing recommendations of the CPT –
concerning the provision to the inmates concerned of written
information on the reasons for the measure and offering them an
opportunity to express their views on the matter – had not been
implemented.
Many Grade 4 prisoners interviewed by the delegation
complained that they had not been informed of the reasons for the
measure, had had no involvement in the review procedure and had
received no information on the possibilities to contest it. Further,
it was generally felt that the periodic review of the Grade 4 status
was a pure formality. The examination of relevant documentation and
interviews with inmates led the delegation to conclude that the
determining factors in retaining the Grade 4 status were historical
ones, like the violent nature of the crime committed (often many
years before), rather than an assessment of the inmate's current
dangerousness or propensity to act again in an unacceptable way. ...”
“184. During the 2005 visit, close
attention was given to the situation of prisoners placed
under a special security regime. The CPT has welcomed the fact
that the status of prisoners classified as Grade 4 is now
reviewed every three months; at the same time, it has called upon the
Hungarian authorities to implement its previous recommendations
concerning the provision to such prisoners of written information on
the reasons for the measure as well as the opportunity to express
their views on the matter. More generally, the Committee has
recommended that the system of classifying prisoners as Grade 4 be
reviewed and refined, 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.
The policy as regards the application of means of
restraint to Grade 4 prisoners - already strongly criticised in the
past by the CPT - remains unsatisfactory; the Committee has called
upon the Hungarian authorities to review that policy without further
delay. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his incarceration and
transport amounted to inhuman and degrading treatment or represented
a breach of his right to respect for private life. He submitted that
his classification as a 'Grade 4' security-level prisoner, impossible
to challenge before the domestic authorities, was absurd in view of
his health condition and constituted one of the reasons for the
inhuman character of his imprisonment. He relied on Articles 3 and 8
read alone or in conjunction with Articles 13 and 14 of the
Convention.
- The
Court considers that the applicant's complaints fall to be examined
solely under Article 3 of the Convention, which provides 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 the application 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
- The
Government submitted at the outset that, in view of the six-month
rule contained in Article 35 § 1 of the Convention, the period
in respect of which the conditions of the applicant's detention
should be examined had started only on 21 March 2006 (i.e. six months
before the date on which the application had been introduced) and
ended on 15 December 2006, when he had been transferred to a
purpose-built unit at Sopronkőhida Prison. In respect of the
latter measure, they emphasised that this institution had been
equipped to accommodate disabled inmates. As regards the period spent
in Szeged Prison, the Government were of the view that the conditions
and incidents complained of had not attained the minimum level of
severity required for Article 3 to come into play, especially in view
of the speedy measures taken by the authorities to remedy them. Nor
had they constituted a breach of the applicant's rights enshrined
under Article 8 of the Convention, the curtailment of his privacy
being a necessary consequence of the strict-regime prison sentence
imposed on him.
- The
applicant argued that the measures, omissions and incidents
complained of amounted to inhuman and degrading treatment prohibited
by Article 3 of the Convention, and this in respect of the whole
period he had spent in Szeged Prison. The matter complained of
constituted a continuous violation of his Convention rights;
therefore, the Government's reference to the six-month rule was a
misconception. In particular, the fact that he had been at the mercy
of his cellmates for a prolonged period of time in terms of
satisfying his basic needs, such as relieving himself, bathing or
getting dressed/undressed, was unacceptable. Likewise, the practice
of transporting him in a van without a seatbelt to hold his
wheelchair in place, together with the rough methods of getting him
in and out of the vehicle was inhuman. This situation was aggravated
by his classification as a 'Grade 4' security-level prisoner –
impossible to challenge before the prison authorities and completely
unjustified in the face of his paraplegia – as a consequence of
which he had been kept handcuffed during transport and thereby
prevented from securing his position whilst the vehicle was in
motion.
- The
Court reiterates that 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 of severity is 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. In considering whether
treatment is “degrading” within the meaning of Article 3,
one of the factors which the Court will take into account is the
question whether its object was to humiliate and debase the person
concerned, although the absence of any such purpose cannot
conclusively rule out a finding of violation of Article 3 (see Price
v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 VII;
Peers v. Greece, no. 28524/95, §§ 67-68 and 74,
ECHR 2001-III).
- In
this case the applicant, paraplegic, was left at the mercy of his
cellmates in receiving assistance to relieve himself, bathe and get
dressed or undressed (cf. Vincent v. France, no. 6253/03, §§
94-103, 24 October 2006). This situation prevailed during his entire
time in Szeged Prison between 25 February 2005 and 15 December
2006. For the Court, it is immaterial in this connection whether or
not the cellmates in question were volunteers (cf. Farbtuhs v.
Latvia, no. 4672/02, § 60, 2 December 2004). It further
endorses the applicant's position that the circumstances complained
of constituted a continuous situation (cf. P.M. v. Hungary,
no. 23636/94, Commission's report of 9 September 1998, unpublished)
which must be examined in its entirety.
- Moreover,
the Court notes that the applicant's submissions about the deplorable
conditions of his transport were not refuted by the Government in
regard to the period preceding the equipment of the van in question
with a safety belt, which apparently took place only at the end of
August 2006. The Court finds particularly regretful the practice of
dragging the applicant on the floor to and from the transport van and
that of leaving his wheelchair unsecured in a moving vehicle, as
happened on 12 June 2006. In the latter respect, it would observe
that the classification of the applicant as a 'Grade 4'
security-level prisoner and the resultant handcuffing added to the
hardships he had to suffer on account of this method of transport.
The Court notes in this connection the observations of the CPT
regarding the situation of 'Grade 4' security-level prisoners in
Hungary (see paragraphs 17-18 above).
- Lastly,
the Court observes the non-pursuit, for want of evidence, of the
applicant's complaint about the incident of 4 September 2006 (see
paragraphs 12 and 13 above). It considers that the delayed access of
the applicant, a paraplegic prisoner, to a medical examination after
an alleged incident of this nature is incompatible with the
authorities' obligation under Article 3 to carry out an adequate
investigation into allegations of ill-treatment (see Kmetty v.
Hungary, no. 57967/00, § 38, 16 December 2003).
- The
foregoing considerations are sufficient to enable the Court to
conclude that, while detained in Szeged Prison, the applicant was
subjected to degrading treatment. Notwithstanding the laudable
efforts of the Government to improve his situation by transferring
him, on 15 December 2006, to a purpose-built institution, these came
too late to palliate the violation of Article 3 of the Convention.
II. 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 12,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the full amount requested.
B. Costs and expenses
- The
applicant also claimed EUR 3,800 for the costs and expenses incurred
before the Court. This amount corresponds to 31 hours of legal work
billable by his lawyer, according to the time-sheet submitted,
charged at an hourly rate of EUR 120, plus EUR 80 of 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.
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
(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
12,000 (twelve thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
3,800 (three thousand eight hundred 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
