CASE OF CSULLOG v. HUNGARY
Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
5. The applicant was born in 1964 and lives in Budapest. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. Having served his sentence, the applicant was released on 10 February 2009. “(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.” “(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 ...” “(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.” “(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).” “(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.” “(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.” “(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;” 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. 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. “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.” “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.” “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.” “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.” 18. 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).” “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.” “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).”