CASE OF Z.H. v. HUNGARY
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information in language understood);Non-pecuniary damage - award
András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
6. The applicant was born in 1987 and lives in the village of A. in eastern Hungary. 7. The applicant is innately deaf and dumb and has medium-grade intellectual disability. He is illiterate. 8. According to the bill of indictment preferred in the case, on 10 April 2011 the applicant – a multiple recidivist offender with the most recent conviction dating from 2 November 2009 – mugged a passer-by in Gyüre. He was then halted for an identity check by officers of the Vásárosnamény Police Department. He attempted to escape but was apprehended while still in possession of the stolen item. He was committed to the police station. 9. Since the applicant was perceived to use a sort of sign language, a sign-language interpreter was appointed for him at once. Later in the day he was interrogated as a suspect of robbery. No lawyer was present. 10. The Government submitted that the applicant had understood the charges brought against him but made no complaint about it and admitted the commission of the offence by signing the minutes of the interrogation. The applicant denied this, arguing that the sign language used by him and the one used by the interpreter were different and thus no comprehension had been possible between them. The applicant’s signature on the minutes in question consists of his scribbled nickname, hardly legible. 11. Between 10 April and 4 July 2011 the applicant was detained on remand on the charge of mugging at Szabolcs-Szatmár-Bereg County Prison. 12. The applicant maintained that the conditions of detention were inapt to his condition and that he had been molested, sexually and otherwise, by the other inmates. The Government argued that special measures had been put in place to address the applicant’s situation (in particular, the prison governor issued an instruction to that effect on 23 May 2011) – an assertion of which the efficacy has been disputed by the applicant (for details, see paragraphs 25 and 26 below). 13. On 4 July 2011 the applicant was released from detention and placed under house arrest. The Vásárosnamény District Court, having noted that he did not know any sign language and was able to communicate only with his mother, was of the view that the time spent by the applicant in detention had be to be reduced to a minimum. 14. Meanwhile, on 20 June 2011 the applicant was indicted for robbery. His mental condition was noted by the prosecution. A public defence counsel and a sign-language interpreter were appointed for him. 15. While detained, the applicant was examined by a forensic psychiatrist. On 30 June 2011 the expert gave the opinion that the applicant’s faculties were to a large extent reduced and that he should be placed under partial guardianship. This was done by the Vásárosnamény District Court on 27 September 2011. The court noted that the applicant’s IQ was 39, he was deaf and dumb, he had medium-grade intellectual disability, he could not count and did not know sign language; the only person with whom he could communicate was his mother. 16. The criminal proceedings conducted against the applicant are still pending. 17. The applicant submitted the testimonies of a Mr F. and a Mr R. who were present when Mr Karsai met with the applicant on 6 May 2012 to discuss his representation before the Court. According to these testimonies, the applicant communicated using a peculiar sign-language-like method, essentially only intelligible to his mother, which appeared to be completely different from the standard sign language. 18. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows: “(2) A defendant’s pre-trial detention may be ordered in proceedings conducted for a criminal offence punishable by imprisonment and only if: a) the defendant has escaped or absconded from the reach of the court, the prosecutor or the investigating authority or attempted to do so, or if other proceedings for an intentional criminal offence punishable by imprisonment has been instituted against him during the procedure, b) due to the risk of his escape or absconding or for other reasons it can reasonably be assumed that his attendance at the procedural acts cannot be ensured otherwise, c) it can reasonably be assumed that if left at large he would frustrate, obstruct or jeopardise the taking of evidence, especially by influencing or intimidating the witnesses, or by destroying, falsifying or concealing physical evidence or documents, d) it can reasonably be assumed that if left at large he would accomplish the attempted or prepared criminal offence, or would commit another criminal offence punishable by imprisonment.” 19. The United Nations Convention on the Rights of Persons with Disabilities contains the following provisions: “For the purposes of the present Convention: ... “Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...” “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.” “2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” 20. The Interim Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, submitted on 28 July 2008 by the Office of the United Nations High Commissioner for Human Rights to the 63rd session of the General Assembly of the UN (A/63/175), contains the following passages: “The Special Rapporteur draws the attention of the General Assembly to the situation of persons with disabilities, who are frequently subjected to neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence. He is concerned that such practices, perpetrated in public institutions, as well as in the private sphere, remain invisible and are not recognized as torture or other cruel, inhuman or degrading treatment or punishment.” [summary] “Persons with disabilities are often segregated from society in institutions, including prisons, social care centres, orphanages and mental health institutions. They are deprived of their liberty for long periods of time including what may amount to a lifelong experience, either against their will or without their free and informed consent. Inside these institutions, persons with disabilities are frequently subjected to unspeakable indignities, neglect, severe forms of restraint and seclusion, as well as physical, mental and sexual violence. The lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect, violence, abuse, torture and ill-treatment.” [paragraph 38] “Persons with disabilities often find themselves in ... situations [of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...” [paragraph 50] “States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...” [paragraph 53] “The Special Rapporteur notes that under article 14, paragraph 2, of the [Convention on the Rights of Persons with Disabilities], States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” [paragraph 54]