DOMJÁN v. HUNGARY
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
1. The applicant is a Hungarian national who was born in Pécs and is detained in Szeged Prison. 3. On 12 December 2010 the applicant was placed in Pálhalma Prison. He alleged that during his time in Pálhalma Prison he had been kept in a cell measuring thirty square metres, which he had had to share with fourteen other inmates. Outdoor exercise had been limited to one hour a day and the applicant had spent the remainder of his time in the cell. Furthermore, the cell had been infected with bed bugs. 4. In March 2011 the applicant was transferred to the Prison of the Central Transdanubia Region, where he was first accommodated together with seventeen other inmates in a cell measuring forty-five square metres, then together with thirteen other inmates in a cell measuring twenty-five square metres. He claimed that in both cells the toilet had been separated from the living area only by a curtain. The applicant was allowed to take a five-minute shower once a week. 5. As of 11 January 2012, he was transferred to Baranya County Prison where he was held in a cell measuring sixty square metres and accommodating twenty eight inmates including him. Throughout this confinement he had outdoor stays for only an hour a day in a yard measuring twenty-five square metres. He spent the remainder of his time in the cell. 6. Between March 2015 and 15 July 2015 the applicant was detained in Veszprém County Prison. The cell where he was held measured seven square metres and accommodated three inmates. It was equipped with a separate toilet. The applicant was allowed to take a ten-minute-long shower once a week. 7. From 15 July 2015 to 9 July 2016 the applicant was detained in Szombathely Prison, where six persons were held in a cell measuring twelve square metres. Outdoor exercise was limited to one hour a day. 8. Since 9 July 2016 the applicant has been detained in Szeged Prison with eleven other detainees in a cell measuring twenty-five square metres. The applicant is allowed to move freely outside his cell. 9. On 25 October 2016 the Hungarian Parliament adopted Act No. CX of 2016, amending certain Acts on criminal matters in relation to the judgment adopted by the European Court of Human Rights in the case of Varga and Others v. Hungary (hereinafter, the “2016 Act” – see paragraph 15 below). This Act was promulgated on 4 November 2016 and entered into force on 1 January 2017. It was aimed at introducing preventive and compensatory remedies in cases of inadequate conditions of detention. 10. On 15 September 2017, the Minister of Justice of Hungary addressed to the President of the Court a letter “concerning the implementation of the pilot judgment in the case of Varga and Others v. Hungary”. The Minister noted that under the 2016 Act, a complaint alleging conditions of detention in violation of Article 3 of the Convention could be presented to the prison governor, who should, as far as practicable, take the necessary actions in order to improve the conditions or counterbalance the injury suffered (for instance: relocation, increasing the time allowed for visits or the time spent in the open air, and improvement of the sanitary facilities). According to the Minister, in view of the progress of the prison capacity expansion programme, there was a “real prospect” of finding penal institutions with sufficient capacity. A preventive remedy could, however, be used only while the detention was still ongoing. After release, and within six months of the termination of the prison sentence, only a compensatory claim could be submitted. This could lead to the granting of a sum calculated on the basis of the number of days spent in conditions contrary to Article 3 of the Convention, the daily tariff ranging from a minimum of 1,200 Hungarian forints (HUF – approximately 4 euros (EUR)) and a maximum of HUF 1,600 (approximately EUR 5.3). The judge must exercise his or her judicial discretion in order to award an amount proportionate to the gravity of the violation found, taking into account, for instance, the absence of toilets separated from the living space in the cell, in addition to a general situation of overcrowding, or to other inadequate conditions of detention. The sum thus determined must be paid within sixty days of the decision being served. 11. The Minister further stated that from 1 January to 7 August 2017, 5,447 applications for compensation had been lodged with the penal institutions, thus showing the accessibility of the new remedy. Referring to the strict time-limits provided for by the 2016 Act, the Minister argued that the remedy also satisfied the requirement of quick adjudication and underlined that the judge responsible for the execution of sentences must provide reasons for his or her decision. As to the amount of compensation, the Minister noted that the Italian legislation adopted following the pilot judgment in the case of Torreggiani and Others v. Italy (nos. 57875/09 and 6 others, 8 January 2013) fixed the sum to be granted at EUR 8 per day of detention in conditions incompatible with the requirements of Article 3 of the Convention. Having regard to the burden-bearing capacity and of the economic realities of the two countries, the choice of the Hungarian legislator to fix the daily tariff at between EUR 4 and 5 could be deemed to be reasonable. 12. The Minister lastly noted that out of 3,554 cases brought before the judges responsible for the execution of sentences, 248 claims had been adjudicated by 14 July 2017, awarding a total amount of HUF 153,510,900 (approximately EUR 497,040). Moreover, due to the extension of the prison capacity achieved as part of the action plan, overcrowding in Hungarian prisons had significantly dropped: whereas in 2014 the occupancy level had been 413%, in 2016 and 2017 the respective figures were 131% and 129%. 13. In the light of the above, the Minister urged the Court to find that the preventive and compensatory remedies provided for by the 2016 Act were effective and needed to be exhausted in accordance with Article 35 § 1 of the Convention. 14. In a letter of 27 September 2017 the Registry of the Court asked the applicant to indicate whether he had used the remedies provided for by the 2016 Act or intended to do so. In his reply of 12 October, the applicant stated that he had lodged a claim under the relevant domestic legislation and the proceedings were still pending before the Szeged High Court. 15. The 2016 Act introduced, inter alia, new sections into Act No. CCXL of 2013 on the enforcement of punishments, measures, certain coercive measures and confinement for regulatory offences. In so far as relevant, those sections read as follows: Compensation for conditions of detention violating fundamental rights Section 10/A “(1) Convicts and persons detained on other grounds are entitled to compensation for not having been provided with the inmate living space specified in the law and for any other conditions of detention violating the prohibition of torture or cruel, inhuman or degrading treatment, in particular for violations caused by unseparated toilets, and lack of proper ventilation or lighting or heating and disinfection (henceforth together: conditions of detention violating fundamental rights). Compensation shall be awarded for the number of days spent in conditions of detention violating fundamental rights. Compensation shall be paid by the State. (2) Under the head specified in subsection (1), no further indemnification or damages for infringement of personality rights shall be sought but convicts and persons detained on other grounds may apply to a civil court seeking additional damages exceeding the amount of compensation. (3) The daily compensation tariff shall be a minimum of HUF 1,200 but a maximum of HUF 1,600. (4) A compensation claim may be made within six months of the date on which the conditions of detention violating fundamental rights ceased to exist. This time-limit is absolute. For the purposes of this subsection, conditions of detention violating fundamental rights will not be considered to have ceased to exist where those conditions are interrupted for a short period, but for a maximum of thirty days, on account of the fact that within the term of imprisonment of the convict or person detained on other grounds the statutory living space has been provided. (5) A compensation claim may be lodged by a convict or person detained on other grounds or by their counsel or, if the detainee has already been released, by his legal representative. The compensation claim shall be lodged in writing with the penal institution where the detention is being effected or, if the convict or person detained on other grounds has been released, with the penal institution which released him. In the application for compensation the convict or person detained on other grounds shall give a statement as to whether the European Court of Human Rights (henceforth: the ECHR) has obliged the State to pay damages to him on account of conditions of detention violating fundamental rights and whether a civil court has already awarded him indemnification or damages for infringement of personality rights. If the answer is yes, the detainee shall also state the name of the court and the case number in the application. (6) Save for inmates undergoing involuntary treatment or temporary involuntary treatment, a further condition for the lodging of such an application for compensation is the prior submission by the convict or person detained on other grounds of a complaint under Section 144/B to the head of the organ responsible for the enforcement of the sentence about the conditions of detention violating fundamental rights. This condition shall be applicable where the number of days spent in conditions of detention violating fundamental rights has exceeded thirty (30). Where conditions of detention violating fundamental rights exist over a longer period of time, a further complaint does not need to be lodged within three months.. Where the convict or person detained on other grounds could not enforce his right of complaint for reasons beyond his control, it shall not be imputed to him. (7) It will be possible to satisfy other claims from the compensation awarded only (a) up to the amount of a civil claim or of an indemnification or damages for infringement of personality rights awarded under a final civil judgment in relation to the offence for the enforcement of which the compensation is awarded, and (b) up to the amount of a child-support claim enforced in enforcement proceedings for the collection of child support. (8) Where in the cases specified in subsection (7) the amount of compensation is not enough to satisfy all the claims, first the child-support claim, then the civil claim and the indemnification or damages for infringement of personality rights awarded on account of the offence shall be satisfied in equal proportion. Section 10/B (1) The minister responsible for justice shall make arrangements for the payment of the compensation awarded. (2) In making the arrangements for the payment of the compensation, the minister responsible for justice shall, from the register kept by the office of the Hungarian Court Bailiffs’ Organisation, request data on any child-support enforcement proceedings stayed or pending against the convict or person detained on other grounds, as well as the case number and the name of the bailiff with jurisdiction in the case. (3) Where the data received under subsection (2) or from the penitentiary judge indicate that enforcement proceedings for the collection of child support or for the satisfaction of a civil claim or for the payment of indemnification or damages for infringement of personality rights awarded against the inmate on account of the commission of the offence have been instituted, the minister responsible for justice shall inform the bailiff of the amount of compensation awarded to the debtor and the claims that may be satisfied from the compensation by way of debt collection. In such cases the compensation may, in line with Section 10/A(8), only be paid after the bailiff has taken the necessary enforcement measures for the attachment of the debt. (4) Where in his decision the penitentiary judge orders that a partly or fully unpaid civil claim or indemnification or damages for infringement of personality rights awarded on account of the committed offence are to be deducted and paid to the beneficiaries of such claims, the remaining compensation is to be paid to the convict or person detained on other grounds. Where the available data indicate that enforcement proceedings for the collection of child support have been instituted, the compensation may only be paid after the bailiff has, in line with Section 10/A(8), taken the necessary enforcement measures for the attachment of the child support Child support shall be collected primarily from the compensation payable to the convict or person detained on other grounds. (5) Payment may be effected via bank transfer to the bank account number given by the convict or person detained on other grounds or paid into the bank account of, or in cash to, the beneficiary of the indemnification or damages for infringement of personality rights awarded on account of the offence committed, in accordance with his or her request. Where the convict or person detained on other grounds is still detained, he may request that the compensation be transferred to a deposit account. (6) The minister responsible for justice may process personal data obtained under subsections (2)-(4) and being related to the enforcement of a child support claim or civil claim or indemnification or damages for a violation of personality rights awarded on account of the offence committed, for thirty days from the date of payment of the compensation. Compensation proceedings to redress damage resulting from conditions of detention violating fundamental rights Section 70/A (1) A decision on whether compensation is payable to an inmate for damage resulting from conditions of detention violating fundamental rights shall be taken by the penitentiary judge at the request of the inmate or his counsel. A decision by the penitentiary judge may be taken also on the basis of documents. (2) The penal institution shall transmit the application, together with its opinion on the application, to the penitentiary judge within fifteen days or, where several penal institutions are affected, within thirty days with the specification that if the inmate has lodged a complaint alleging conditions of detention violating fundamental rights, the penal institution’s opinion may only be transmitted after the complaint, including an application for judicial review lodged against a decision on relocation, has been determined. A summary of the inmate’s records containing data on the conditions of detention in the period complained of shall be appended to the opinion. (3) The penitentiary judge shall, ex officio, examine whether the ECHR has obliged the State to pay damages to the inmate on account of the conditions of his detention violating fundamental rights or whether a civil court has awarded indemnification or damages for infringement of personality rights, and if the answer is yes, the penitentiary judge shall obtain the relevant decisions before taking a decision. (4) The penitentiary judge shall evaluate the inmate’s conditions of detention in their entirety and shall determine the daily compensation tariff on the basis of the extent of the injury caused. Thereafter, compensation shall be calculated by multiplying the daily compensation tariff by the time spent in conditions of detention violating fundamental rights. (5) The penitentiary judge shall reject the application on the basis of the documents, without an examination on the merits, where (a) the application has been lodged belatedly (b) the application has been lodged by a person not entitled to lodge such an application (c) the inmate has failed to lodge the complaint as specified in Section 144/D, or (d) in respect of the period indicated in the application, the ECHR has obliged the State to pay compensation, or a civil court has awarded indemnification or damages for infringement of personality rights on account of the conditions of the inmate’s detention violating fundamental rights. (6) Where the inmate has been released, proceedings shall be conducted by the penitentiary judge with jurisdiction for the location of the penal institution, but if a separate request to that effect has been made by the inmate or his defence counsel, the penitentiary judge with jurisdiction for the inmate’s place of domicile or place of residence shall proceed. ... Section 70/B (1) Where the court that dealt with the criminal case against the inmate has awarded a civil claim to the injured party or his heir or referred the enforcement of the civil claim to another legal avenue, the penitentiary judge shall invite the injured party to submit, within a time-limit of fifteen days, a statement as to whether the inmate has paid the civil claim awarded to the injured party or has paid – if the injured party lodged an action seeking to recover the damage caused by the offence or seeking the payment of damages for infringement of personality rights – the indemnification or damages for infringement of personality rights awarded by the civil court. If full payment has not been made by the inmate, the statement shall also confirm whether the injured party requests the deduction of the outstanding claim from any compensation that may be awarded to the inmate. (2) In the case specified in subsection (1), the penitentiary judge shall also invite the injured party to state the precise amount he is claiming and to append any documents in his possession in relation to the civil claim or the indemnification or damages for infringement of personality rights awarded to him on account of the committed offence. Where the penitentiary judge adjudicates the case on the basis of documents, he shall obtain a statement from the inmate on the payment of the indemnification or damages for infringement of personality rights awarded against him on account of the committed offence. (3) If the injured party requests the payment of the outstanding part of the indemnification or damages for infringement of personality rights awarded to him on account of the committed offence, the penitentiary judge shall request data from the register kept by the office of the Hungarian Court Bailiffs’ Organisation on any stayed or pending proceedings instituted for the collection of such claims, as well as the case number and the name of the bailiff with jurisdiction in the case. (4) In the case specified in subsection (1), the time-limit specified in Section 50 subsection (1)(d) shall be extended by sixty days. Where the invitation to the injured party has not produced any result within sixty days, the penitentiary judge shall adjudicate the case by ignoring any outstanding amount of indemnification or damages for infringement of personality rights awarded on account of the committed offence. (5) The penitentiary judge shall make arrangements for the payment from the compensation amount to the beneficiary of any outstanding civil claim amount or indemnification or damages for infringement of personality rights awarded on account of the committed offence, where (a) the civil claim or the indemnification or damages for infringement of personality rights awarded to the injured party on account of the committed offence has not yet or not fully been paid by the inmate, (b) no enforcement proceedings have been instituted for the collection of the claims specified in point (a), (c) in examining a defence statement to that effect filed by the inmate or his counsel, the penitentiary judge has established that the limitation period specified in the Civil Code has not yet elapsed. (6) In the decision the penitentiary judge shall oblige the State to pay the compensation and shall invite the State to effect the payment within a time-limit of sixty days from the service of the decision. Review of a decision on the measures taken following a complaint about conditions of detention violating fundamental rights and on relocation Section 75/A (1) An application by the inmate or his counsel for the judicial review of a decision on the measures taken following a complaint about conditions of detention violating fundamental rights and on relocation shall be determined by the penitentiary judge within five working days of the receipt of the application. (2) If in the review the penitentiary judge finds that the governor of the penal institution has failed to take a measure the penitentiary judge shall, by applying – mutatis mutandis – Section 72(1)(d), instruct the governor of the penal institution to conduct the proceedings. (3) The costs of the criminal proceedings shall be borne by the State. ... Complaint about conditions of detention violating fundamental rights Section 144/B (1) The inmate or his counsel may submit a written complaint alleging conditions of detention violating fundamental rights directly to the governor of the penal institution. (2) The complaint shall be determined within fifteen days of its submission. Upon receipt of the complaint, the governor of the penal institution shall, in the event of conditions of detention violating fundamental rights, take the necessary actions to improve the conditions or to counterbalance the injury suffered. With the exceptions specified in subsection (3) below, the governor of the penal institution shall issue a decision setting out the actions to be taken. (3) Where the conditions of detention violating fundamental rights on account of the lack of statutory inmate living space cannot be terminated in the penal institution in issue, the governor of the penal institution shall, with urgency, contact the National Prison Administration’s department responsible for detention matters and shall request the inmate’s relocation to another penal institution capable of guaranteeing the statutory inmate living space. (4) The head of the National Prison Administration’s department responsible for detention matters shall decide on the request within eight days, in a reasoned decision. If the statutory inmate living space can be guaranteed in another penal institution, the head of the National Prison Administration’s department responsible for detention matters will designate such a penal institution for serving the term of imprisonment; otherwise, it shall not issue any decision and shall inform the governor of the penal institution accordingly. In deciding on the inmate’s relocation, the inmate’s contact rights shall be taken into consideration. (5) Where the conditions of detention violating fundamental rights on account of the lack of the statutory inmate living space can be terminated neither within the penal institution in issue, nor by relocating the inmate to another penal institution, the governor of the penal institution shall take action to counterbalance the injury, provided that no such action has yet been taken by him and that the taking of such action does not hamper the performance of tasks, and provided that the conditions thereof are ensured. (6) The inmate and his defence counsel may apply to the penitentiary judge for a review against action taken under subsections (2) and (5) above, or for a failure to take action, and if relocation violates the inmate’s contact rights. The application for review shall have a suspensive effect on the relocation. Section 187/A (1) Where the purposes of the incarceration may be achieved in this way as well, if conditional release is imminent or if conditional release has been excluded, before the prospective date of his release the inmate may be placed in reintegration custody if he consents to being placed in such custody and if he has been sentenced to imprisonment for an offence committed with criminal negligence. The same applies to a person sentenced for an intentional offence, provided that he (a) was not convicted for a violent crime committed against another person specified in Article 459(1) point 26 of the Criminal Code, (b) was sentenced to enforceable imprisonment for the first time or is a repeat offender without being a recidivist, and (c) is serving a term of imprisonment not exceeding five years. (1a) Reintegration custody shall last (a) for a maximum of one year if the inmate was sentenced to a term of imprisonment for an offence committed with criminal negligence, (b) in cases other than the one specified in point (a), for a maximum of ten months. ... Section 390 (8) Where a pre-trial detainee or his counsel has lodged a complaint alleging conditions of detention violating fundamental rights, the governor of the penal institution shall also append a consent statement by the person authorised to make decisions in respect of the pre-trial detainee to the request made under Section 144/B(3) for the relocation of the pre-trial detainee to another penal institution. In such cases the complaint shall be determined and a decision made within thirty days. Section 436 ... (10) A compensation claim under Section 10/A, enacted by Section 22 of Act No. CX of 2016, may also be submitted by a convict or person detained on other grounds (a) in respect of whom the injury having resulted from conditions of detention violating fundamental rights ceased to exist within one year preceding the entry into force of the amendment, (b) who submitted an application to the ECHR alleging conditions of detention violating fundamental rights and the application was registered by the ECHR before the entry into force of the amendment, except where the inmate submitted his application to the ECHR after 10 June 2015 and by the date of receipt of the application, more than six months have elapsed since the termination of the violation. (11) For the purposes of subsection (10) the absolute time-limit specified in Section 10/A (4) shall start to run on the date of the entry into force of this provision. In determining claims submitted under subsection (10), Section 10/A(6) shall not be applicable and the time-limit specified for the proceedings before the penitentiary judge under Section 50(1)d) shall be extended by thirty days. (12) Where data are obtained indicating that before the entry into force of the compensation claim provided for in Section 10/A of Act No. CX of 2016, on account of conditions of detention violating fundamental rights (a) proceedings were instituted before a civil court, or (b) an application was submitted to the ECHR and the application was registered by the ECHR before the date of the entry into force of the amendment the penitentiary judge shall suspend the proceedings until the completion of these proceedings or, if there are proceedings pending before the ECHR, until notification by the ECHR of the referral of the case to national adjudication has been received.” 16. At its 1288th meeting held on 6-7 June 2017, in the ambit of the execution of the judgments Varga and Others and István Gábor Kovács v. Hungary, the Committee of Ministers of the Council of Europe adopted the following decision (CM/Del/Dec(2017)1288/H46-16; hereinafter, the “decision of June 2017”): “The Deputies 1. welcomed the authorities’ commitment to resolve the problem of prison overcrowding in Hungary and noted with interest that the substantive measures taken appear to be showing the first concrete results, in particular a decrease in the rate of overcrowding and a drop in the shortage of prison places; As regards individual measures 2. noted that a number of applicants are still detained in conditions not meeting the minimum standards for personal living space and reminded the authorities of their obligation to rectify the situation by ensuring that all applicants’ conditions of detention are in line with the Convention; invited them to provide the outstanding information, in particular, on other relevant aspects of the material conditions of detention where the available living space is between 3 and 4 m² per inmate; As regards general measures 3. noted with interest the further extension of the application of “reintegration custody”, the facilitation of an increase in the use of house arrest, and the slight decrease in the number of defendants placed in pre-trial detention; strongly encouraged the authorities further to pursue their efforts in this regard and to find all possible means “to encourage prosecutors and judges to use as widely as possible alternatives to detention and redirect their criminal policy towards reduced use of imprisonment”; invited them to submit updated statistical information on the impact and further promotion of alternative sanctions and the reduction of overcrowding; 4. welcomed the fact that, in response to the Varga and Others pilot judgment, the authorities have introduced both a preventive and a compensatory remedy aimed at guaranteeing genuinely effective redress for Convention violations arising from poor material conditions of detention, which took effect on 1 January 2017; invited them to provide further detailed information (including statistical data) on the implementation and functioning of these newly introduced remedies, notably in the light of the monitoring they will undertake in this context, and more concretely on the impact of the preventive remedy on the general problem of prison overcrowding; 5. welcomed the information received as regards the other violations concerned by this group and invited the authorities to submit the outstanding information; 6. in view of the European Court’s decision to suspend the examination of the similar pending applications until 31 August 2017, invited the authorities to provide the information expected by that date, at the latest.”