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SECOND
SECTION
CASE OF ISTVÁN GÁBOR KOVÁCS v. HUNGARY
(Application
no. 15707/10)
JUDGMENT
STRASBOURG
17
January 2012
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 István Gábor
Kovács v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi,
Paulo
Pinto de Albuquerque, judges,
and
Stanley Naismith,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15707/10)
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 István Gábor Kovács (“the
applicant”), on 5 March 2010.
- The
applicant was represented by Ms Zs. Szirtesi, a lawyer practising in
Szeged. The Hungarian Government (“the Government”)
were represented by M L. Höltzl, Agent, Ministry of Public
Administration and Justice.
3. The
applicant alleged inter alia
that the conditions of his detention amounted to inhuman and
degrading treatment and an infringement of his right to respect for
family life.
- On
13 September 2010 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 1969 and lives in
Szatymaz. When introducing the application, he was detained at Szeged
Prison.
- The
applicant was arrested on 8 January 2008. From 11 January 2008 on he
was detained on remand at Szeged Prison on charges of trafficking in
goods subject to excise tax. On 9 October 2009 the Csongrád
County Regional Court found him guilty as charged. Pursuant to the
final judgment of 9 June 2010 of the Szeged Court of Appeal, he
served a prison sentence of three years and six months in a strict
regime at Szeged Prison. His pre-trial detention was credited against
his imprisonment.
- Szeged
Prison is comprised of two separate parts: Unit I, a strict- and
medium-regime facility for sentenced prisoners, and Unit II, a
facility for remand prisoners. The applicant’s pre-trial
detention, which is the subject matter of his complaints, took place
in various cells of Unit II, and the remainder of his detention, as
from 10 June 2010, in Unit I.
- The
applicant submitted that he had shared cells with an average of 16 sq
metres’ ground surface with five to seven persons, not counting
furniture, and could stay outside the cell only about an hour daily.
He also stated that he could receive visitors for only one hour every
month (an exception being his brother, who was granted three extra
visits, lasting two hours on each occasion); however, he had not been
at all allowed to touch his family members during these visits.
Moreover, despite his requests, the prison administration had not
provided him with toiletries free of charge, nor had it authorised
him to possess, with a view to preparing his defence, a personal
computer in his cell, although it would have had no access to
internet. Lastly, he submitted that the prison had not provided him
with free stationery so that he could post submissions to the
authorities in charge of his criminal case pending at that time.
- He
submitted that his requests and complaints concerning the above
matters and also the catering at the prison, to various instances of
the penitentiary administration were to no avail. He availed himself
of a formal remedy with regard to the refusal by the prison
administration to authorise him to possess a personal computer in his
cell. Whilst the Government submitted that Szeged Prison had been
inspected by the penitentiary prosecutor once every two weeks, the
applicant stated that no such visit had taken place in Unit II during
his detention.
- According
to the National Penitentiary Service’s statistics available on
its website,
the average occupancy rate of Hungarian prisons was 118% in 2008,
124% in 2009 and 133% in 2010.
II. RELEVANT DOMESTIC LAW
- Section
118(1) d) of Law-Decree no. 11 of 1979 on the Execution of Sentences
and Measures provides that a remand detainee is entitled to at least
one visit per month.
- Rule
25 of Szeged Prison’s House Regulations provide that a detainee
is entitled to a visit of one hour every month.
- According
to Rule 34, no physical contact is allowed between a detainee and
his/her visitor, unless a so-called family visit takes place in a
dedicated room.
- Rule
38 provides that family visits can be initiated by an inmate’s
warden, rather than the detainee himself.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that his detention in
overcrowded prison cells amounted to inhuman and degrading treatment
in breach of 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
Government argued that the applicant had not exhausted domestic
remedies in that he had not pursued formal complaints in this
respect, notably to the public prosecutor supervising penitentiary
matters.
- The
applicant contested this view, pointing out that he had repeatedly
complained to the prison administration about the cramped conditions.
- The
Court recalls that a similar objection raised by the Government in
respect of Budapest Prison was dismissed on account of the little
prospect of success of the remedies referred to, in the face of the
high occupancy rate of that facility (see Szél v.
Hungary, no. 30221/06, §§ 11 to 13,
7 June 2011). Given that the average occupancy rate of
Hungarian prisons was 118 to 133% in the material period (see
paragraph 10 above), the Court is not convinced that, in addition to
those addressed to the prison administration, a further complaint to
the public prosecutor could have remedied the applicant’s
situation, which seems to have derived from material constraints.
Therefore it sees no reason to depart from its earlier conclusion,
and finds that this complaint cannot be rejected for non-exhaustion
of domestic remedies.
- Moreover,
the Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant submitted that he had been kept in cells with a personal
space of around 2.5 sq metres, calculated without taking into account
the furniture, which he had found very hard to bear, especially in
the summer heat of 2008 and 2009.
- The Government pointed out that, applying the method
of calculation without deducting the space taken up by the
furnishings, the average personal space in the respective cells in
which the applicant had been detained on remand was as follows: 3.50
sq metres (1 day), 4.00 sq metres (260 days), 4.41 sq metres (174
days), 4.77 sq metres (64 days), 5.09 sq metres (151 days), 5.42 sq
metres (98 days), 5.60 sq metres (86 days), 7.00 sq metres (1 day),
7.75 sq metres (6 days) and 10.33 sq metres (6 days). Being
aware of the fact that these figures reflect the average occupancy of
the respective cells and the actual number of detainees in each of
them fluctuated somewhat during the periods concerning the applicant,
the Government emphasised that the applicant at no time had had less
personal space than 3.50 sq metres of ground surface. A total of 67
days during the applicant’s pre-trial detention corresponded to
personal space of between 3.50 and 4.00 sq metres, and these periods
did not coincide with the months of July or August. In these
circumstances, the Government argued that the conditions complained
of had not attained the minimum level of severity required for them
to fall within the scope of Article 3.
- As
the Court has held on many occasions, 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 further recalls 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 of the Convention. 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. Furthermore, in considering whether treatment is
“degrading” within the meaning of Article 3, the
Court will have regard to whether its object is to humiliate and
debase the person concerned and whether, as far as the consequences
are concerned, it adversely affected his or her personality in a
manner incompatible with Article 3. However, the absence of such a
purpose cannot conclusively rule out a finding of a violation of
Article 3 (see Peers v. Greece, no. 28524/95, §§
67-68, 74, ECHR 2001-III).
- The
Court has consistently stressed that a breach of Article 3 of the
Convention would generally involve suffering and humiliation beyond
that which is inevitably connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his or her
liberty may often involve such elements. Thus, under this provision,
the State must ensure that a person is detained in conditions which
are compatible with respect for human dignity, that the manner and
method of the execution of the measure do not subject the individual
to distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention and that, given the
practical demands of imprisonment, the prisoner’s health and
well-being are adequately secured (see Kudła v. Poland
[GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
- The
Court notes that in Unit II of Szeged Prison, the applicant was
accommodated for 67 days in cells with under 4.00 sq metres’
ground surface per person (see paragraph 22 above), furnishings
included. It observes by contrast that the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) considers 4.00 sq metres’
living space per inmate an acceptable minimum standard in
multi-occupancy cells (see, for example, paragraphs 65 and 80 of the
Report to the Hungarian Government on the visit to Hungary carried
out by the CPT from 24 March to 2 April 2009). The Court therefore
finds that the applicant’s detention under cramped conditions
at Szeged Prison in conjunction with the fact that he had to spend
almost the entirety of the days inside those cells, (a non-refuted
allegation – see paragraph 8 above) failed to respect basic
human dignity and must therefore have been prejudicial to his
physical and mental state (see, mutatis mutandis, Savenkovas
v. Lithuania, no. 871/02, §§ 81-82, 18 November
2008). Accordingly, it concludes that the overcrowded conditions of
this detention amounted to inhuman and degrading treatment in breach
of Article 3 of the Convention.
- Finally,
mindful of the fact that the seriousness of the problem of
overcrowding and of the resultant inadequate living and sanitary
conditions in Hungarian detention facilities has been acknowledged by
the domestic authorities (see Szél v. Hungary,
no. 30221/06, § 8,
7 June 2011), the Court considers that an effective remedy
responding to this issue could be offered by taking the necessary
administrative and practical measures. In the Court’s view, the
authorities should react rapidly in order to secure appropriate
conditions of detention for detainees.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the fact that, while detained on remand, he
could receive visitors for only one hour every month amounted to a
breach of his right to respect for his family life, enshrined in
Article 8 of the Convention, which provides as relevant:
“1. Everyone has the right to respect
for his ... family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested this view.
A. Admissibility
- The
Government submitted that under section 118(1) d) of Law-Decree no.
11 of 1979 on the Execution of Sentences and Measures (see paragraph
11 above) it was not excluded that the applicant be granted extra
visits; however, he had not requested this.
- The
applicant did not address this issue.
- The
Court observes that, under the legal provision cited by the
Government, remand detainees are entitled to one visit per month.
This visit lasts one hour, according to Rule 25 (see paragraph 12
above). It notes that the Government have not pointed to any other
legal provision or procedure which could give a reasonable prospect
of success to a detainee requesting longer or extra visits, the
latter appearing a mere favour potentially obtainable from the prison
administration. It follows that this complaint
cannot be rejected for non-exhaustion of domestic remedies. Moreover,
it notes that it is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) 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 that the statutory limitation on prison visits
was a justified interference with the applicant’s rights,
dictated by the conditions of pre-trial detention.
- The
applicant contested this view in general terms.
- The Court reiterates that detention, like any other
measure depriving a person of his liberty, entails inherent
limitations on his private and family life. However, it is an
essential part of a detainee’s right to respect for family life
that the authorities enable him or, if need be, assist him in
maintaining contact with his close family. Such restrictions as
limitations imposed on the number of family visits, supervision over
those visits and, if so justified by the nature of the offence,
subjection of a detainee to a special prison regime or special visit
arrangements constitute an interference with his rights under Article
8 but are not, by themselves, in breach of that provision.
Nevertheless, any restriction of that kind must be applied “in
accordance with the law”, must pursue one or more of the
legitimate aims listed in paragraph 2 and, in addition, must be
justified as being “necessary in a democratic society”
(see, among other authorities, Estrikh v. Latvia,
no. 73819/01, § 166, 18 January 2007; Kučera
v. Slovakia, no. 48666/99, § 127,
17 July 2007 (extracts); and Klamecki v. Poland (no. 2),
no. 31583/96, § 144, 3 April 2003).
- It
was submitted by the applicant, and not contested by the Government,
that during the applicant’s pre-trial detention family visits
had been limited to one one-hour meeting per month (with the
exception of three extra visits by the applicant’s brother).
The Court finds that this restriction amounted to an interference
with the applicant’s right to respect for his family life. It
will now proceed to examine whether each of the above-mentioned
restrictions was justified in the present case.
- The
limitation on the frequency and duration of family visits afforded to
detainees is regulated by section 118(1) d) of Law-Decree no. 11 of
1979 on the Execution of Sentences and Measures as well as Szeged
Prison’s House Regulations, and had therefore a lawful basis.
The Court moreover accepts that the limitation pursued the legitimate
aims of protecting public safety and preventing disorder and crime.
- As
regards necessity in a democratic society, the Court notes that the
Government have not put forward any argument for justification of the
restriction beyond a reference to the applicable section of the
Law-Decree. The Court notes with concern that the latter restricts
the frequency of family visits to one per month in a general manner,
without affording sufficient flexibility for determining whether such
limitations were appropriate or indeed necessary in each individual
case. As regards the applicant’s personal situation, the Court
is unable to discern the necessity for such stringent limitations on
the frequency and duration of family visits, in view of the fact that
the applicant was detained on remand – rather than convicted –
on the relatively mild charge of excise tax fraud. In these
circumstances, and having regard to the duration of the impugned
period (it lasted from January 2008 until June 2010), the Court
concludes that the limitation went beyond what was necessary in a
democratic society “to prevent disorder and crime”.
Indeed, the measure in question reduced the applicant’s family
life to a degree that can be justified neither by the inherent
limitations involved in detention nor by the pursuance of the
legitimate aim relied on by the Government. The Court therefore holds
that the authorities failed to maintain a fair balance of
proportionality between the means employed and the aim they sought to
achieve (see, mutatis mutandis, Moiseyev v. Russia, no.
62936/00, § 255, 9 October 2008).
- There
has therefore been a violation of Article 8 on account of the
restrictions on the frequency and duration of family visits.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained that he was not allowed to touch his family
members during the visits, which represented a breach of his rights
under Article 8 of the Convention.
- The
Government argued that the applicant should have complained to the
prison authorities and the penitentiary prosecutor (who had regularly
inspected the premises) about these issues. In any case, he had made
no specific request for the authorisation of physical contacts with
his family members in the framework of family visits. In sum, he had
not exhausted domestic remedies in this regard.
- The
applicant contested these arguments, submitting that initially he had
not been aware of the possibility to obtain family visits. Once he
had learned thereof, he had repeatedly requested the same from his
warden, but in vain. Moreover, he reiterated that the public
prosecutor had never inspected Unit II during his pre-trial
detention.
- The
Court notes the parties’ diverging positions about the
exhaustion of the remedies suggested by the Government. It recalls
that, in the area of exhaustion of domestic remedies, Article 35
apportions the burden of proof. It is incumbent on the Government
claiming non-exhaustion to convince the Court that the remedy was an
effective one available in theory and in practice at the relevant
time, that is to say, that it was accessible, was capable of
providing redress in respect of the applicant’s complaints and
offered reasonable prospects of success. However, once this burden of
proof has been discharged, it falls to the applicant to establish
that the remedy advanced by the Government was in fact exhausted or
was for some reason inadequate and ineffective in the particular
circumstances of the case or that there existed special circumstances
absolving him or her from the requirement (see, inter alia,
Horvat v. Croatia, no. 51585/99, § 39,
ECHR 2001-VIII).
- In
the present case, the Court considers it unnecessary to embark on a
detailed scrutiny of the effectiveness of a complaint to the prison
authorities or the prosecutor, since the applicant has failed to show
that he pursued any formal primary request whatsoever about the issue
in question. In particular, he has not demonstrated that he requested
his warden to initiate the granting of family visits which could have
potentially resolved the problem of no-touch visits under Rules 34
and 38 (see paragraphs 13 and 14 above).
In
any event, this part of the application is unsubstantiated and should
be rejected as manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
- Lastly,
the applicant complained that the fact that
toiletries were available only for money in the prison was a
violation of Article 14, whereas the deprivation of computer and free
stationery prejudiced his defence rights, an infringement of Article
6 § 3. He also invoked Article 17 of the Convention, without
further developing this complaint.
- The
Court is not convinced that the applicant’s defence rights were
impaired in any way on account of the mere fact that he could not use
a computer and stationery was available only for money. It moreover
considers that the remainder of his submissions does not disclose any
appearance of a violation of his rights under the Convention. It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 (a) and must be rejected,
pursuant to Article 35 § 4 of the Convention.
IV. 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 20,000 euros (EUR) in respect
of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage and awards him, on the basis of equity, EUR
10,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 2,500 for the costs
and expenses incurred before the Court. This sum corresponds to
twenty hours of legal work billable by his lawyer at an hourly rate
of EUR 100, plus EUR 500 incurred as miscellaneous, largely clerical,
expenses.
- 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 are
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 EUR 1,500
under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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
- Declares unanimously the
complaints concerning inhuman and degrading treatment and non-respect
for family life on account of the scarce visits admissible and the
remainder of the application inadmissible;
- Holds unanimously that
there has been a violation of Article 3 of the Convention;
- Holds by 6 votes to 1 that
there has been a violation of Article 8 of the Convention;
- Holds unanimously
(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
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five 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 unanimously the
remainder of the applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Jočienė
is annexed to this judgment.
F.T.
S.H.N.
DISSENTING OPINION OF JUDGE Jočienė
I
voted against the finding of a violation in this case as regards the
Article 8 complaint. The applicant was entitled, according to the
domestic law, to at least one visit per month (see paragraph 11 of
the judgment). He received one visit per month while detained on
remand.
Even
accepting that the Szeged Prison’s House regulations (see
paragraph 12 of the judgment) limited the above-mentioned, more
positive provision to only one visit per month, my position is that
the applicant himself had an obligation to take a more active
approach in order to receive an additional visit as allowed under
section 118(1) of Law-Decree no. 11 of 1979.
In
the hierarchy of legal norms, the law has priority over the
regulations adopted by State institutions. In my opinion, the
applicant should at least have shown his wish to receive an extra
visit, to which he was entitled under the law, applying directly to
the Szeged Prison’s House Administration or to the Director of
that prison. The applicant did not do this at the domestic level (see
paragraph 30 of the judgment), submitting such a complaint directly
to the European Court of Human Rights.
Therefore,
the question arises as to how the State/Prison Administration could
have known about his wish or intention to receive an extra or longer
visits per month, which was not excluded under the domestic law (see
paragraph 11 of the judgment), when no such request had been
submitted. I agree that in this case no effective domestic remedies
were available to the applicant as regards the Article 8 complaint at
the domestic level (see, mutatis mutandis, L. v. Lithuania,
no. 27527/03, §§ 35-36, 11 September 2007), but in my
personal opinion the applicant has not even shown any wish to receive
an extra visit while detained on remand (a contrario, in the
aforementioned L. v. Lithuania case the applicant clearly
showed at the domestic level his serious intention and willingness to
undergo the gender reassignment surgery).
Therefore,
I conclude that the State’s positive obligation under Article 8
of the Convention cannot be without limits (as regards the State’s
positive obligation, see the Court’s jurisprudence: Evans v.
the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-IV;
Von Hannover v. Germany, no. 59320/00, § 57, ECHR
2004-VI; etc.). I nonetheless recall that Article 8, like any other
provision of the Convention or its Protocols, must be interpreted in
such a way as to guarantee not rights that are theoretical or
illusory but rights that are practical and effective (see Shevanova
v. Latvia, no. 58822/00, § 69, 15 June 2006), but in the
circumstances of this case, the applicant should have at least shown
or demonstrated clearly at the domestic level his wish/intention to
receive an extra visit or longer ones during his detention on remand.
Moreover, the State’s positive obligation under Article 8
of the Convention cannot be interpreted so broadly as to impose an
obligation on the prison authorities to request every detainee
separately about his/her wish to receive or not an extra visit or
longer ones. It should remain the right of every detainee to ask for
it.
Therefore,
I conclude that there has been no violation of Article 8 of the
Convention in this case.
