‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Saturday, 26 November 2016

Hungary must take measures to improve the problem of widespread overcrowding in prisons

On 8 November 2016 the European Court of Human Rights examined the situation of the pending applications brought before it concerning conditions of detention in Hungary. Such applications currently stand in excess of 6,800.

From the Court's press release: 

Having regard to the ensuing legislation adopted by the Hungarian Parliament on 25 October 2016 as well as to the currently on-going examination by the Committee of Ministers of the Council of Europe of the Hungarian Government’s related Action Plan (DH-DD(2016)1223), the Court noted that new domestic remedies are being introduced in Hungary concerning this problem which may be capable of redressing the grievances of the applicants in the cases pending before it.

In light of this development, the Court found it appropriate to suspend the examination of the entirety of these applications, including those of which notice has already been given to the Government, until 31 August 2017. This measure entails that, in this period, no procedural steps of any kind will be taken by the Court in these cases. After the expiry of this time-limit, the applicants will be notified in due course of the further procedure or any decision taken by the Court.

Case of Varga and Others v. Hungary

In its pilot judgment of 10 March 2015 (Varga and Others v. Hungary) the European Court concluded that Hungary had to take measures to improve the problem of widespread overcrowding in its prisons. The Court concluded that the limited personal space available to all six detainees in this case, aggravated by a lack of privacy when using the lavatory, inadequate sleeping arrangements, insect infestation, poor ventilation and restrictions on showers or time spent away from their cells, had amounted to degrading treatment.

The applicants’ cases, other similar cases against Hungary in which the Court had also found violations of Article 3 and approximately 450 applications currently pending against Hungary concerning complaints about inadequate conditions of detention, originated in a widespread problem within the Hungarian prison system, justifying a pilot-judgment2 procedure because of the recurrent and persistent nature of the problems identified.

Bearing in mind that at the end of 2013 over 5,000 inmates held in Hungarian prisons were detained on remand, the Court indicated one main avenue for improvement, namely reducing the number of prisoners by using as widely as possible non-custodial punitive measures.

The Court also found that the domestic remedies in Hungarian law suggested by the Government to complain about detention conditions, although accessible, were ineffective in practice. It therefore held that the Hungarian authorities should produce a timeframe, within six months of the date of this judgment becoming final, for putting in place an effective remedy or combination of remedies, both preventive and compensatory, to guarantee genuinely effective redress for violations of the European Convention originating in prison overcrowding.

The Court held in Varga v. Hungary:
"99. The violations of Article 3 found in the previous judgments, as well as those found in the present case, originated in prison facilities that were located in various administrative entities of Hungary and in geographically diverse regions. Nevertheless, the set of facts underlying these violations was substantially similar: detainees suffered inhuman and degrading treatment on account of an acute lack of personal space in their cells, restriction on access to shower facilities and outdoor activities and lack of privacy when using the sanitary facilities. It appears, therefore, that the violations were neither prompted by an isolated incident nor attributable to a particular turn of events in those cases, but originated in a widespread problem resulting from a malfunctioning of the Hungarian penitentiary system and insufficient legal and administrative safeguards against the proscribed kind of treatment. This problem has affected, and has remained capable of affecting, a large number of individuals who have been detained in detention facilities throughout Hungary (compare Broniowski, § 189; and Hutten-Czapska, § 229, both cited above).
100. Taking into account the recurrent and persistent nature of the problem, the large number of people it has affected or is capable of affecting, and the urgent need to grant them speedy and appropriate redress at the domestic level, the Court considers it appropriate to apply the pilot-judgment procedure in the present case (see Burdov (no. 2), cited above, § 130; and Finger v. Bulgaria, no. 37346/05, § 128, 10 May 2011).
2. General measures
101. As the Court’s judgments are essentially declaratory, the respondent State remains free, subject to the supervision of the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Aleksanyan v. Russia, no. 46468/06, § 238, 22 December 2008).
102. However, in exceptional cases, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist (see, for example, Broniowski, cited above, § 194).
103. Furthermore, the Court is aware that substantial and constant efforts are needed to solve the structural problem of prison overcrowding. However, the Court notes that, given the intangible nature of the right protected under Article 3 of the Convention, it is incumbent on the respondent Government to organise its penitentiary system in such a way that ensures respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006). The Court has already indicated in a number of cases general measures to facilitate the speediest and most effective solutions of the recurrent irregularities in detention conditions (see Orchowski v. Poland, no. 17885/04, § 154, 22 October 2009; Norbert Sikorski v. Poland, no. 17599/05, § 161, 22 October 2009; Ananyev and Others, §§ 197-203 and 214-231; Torreggiani and Others, cited above, §§ 91-99).
(a) Avenues for the improvement of detention conditions
104. In particular, when a State is not able to guarantee each detainee conditions of detention consistent with Article 3 of the Convention, it has been the constant position of the Court and all Council of Europe bodies that the most appropriate solution for the problem of overcrowding would be the reduction of the number of prisoners by more frequent use of non-custodial punitive measures (see Norbert Sikorski, cited above, § 158) and minimising the recourse to pre-trial detention (see Ananyev and Others, cited above, § 197).
In this latter regard, the Court notes that by the end of 2013 over five thousand of the inmates held in Hungarian prisons were persons detained on remand (see paragraph 6 above).
105. It is not for the Court to indicate to States the manner in which their criminal policy and prison system should be organised. These matters raise a number of complex legal and practical issues which, in principle, go beyond the judicial function of the Court (see Torreggiani and Others, cited above. § 95). However, it would recall in this context the recommendations of the Committee of Ministers inviting States to encourage prosecutors and judges to use as widely as possible alternatives to detention and redirect their criminal policy towards reduced use of imprisonment in order to, among other things, solve the problem of prison population inflation (see in particular Recommendation No. R (99) 22 and Recommendation Rec(2006)13 of the Committee of Ministers).
The recent example of Italy shows that such measures, implemented in the context of a pilot procedure, can contribute to solving the problem of overcrowding (see Stella and Others v. Italy (dec.), nos. 49169/09, 54908/09, 55156/09, 61443/09, 61446/09, 61457/09, 7206/10, 15313/10, 37047/10, 56614/10, 58616/10, §§ 11-14, 21-24 and 51-52, 16 September 2014).
(b) Putting in place effective remedies
106. The Court reiterates that the applicants in the present case were victims of a violation of Article 13 of the Convention on account of the absence of an effective domestic remedy. The Court found that the domestic remedy suggested by the Government, although accessible, was ineffective in practice, in that it did not afford plaintiffs adequate compensation for periods of detention spent under poor conditions. Furthermore, the Government has not demonstrated the existence of a remedy which was likely to improve the impugned conditions of detention (see paragraph 65 above).
107. It is not for the Court to specify what would be the most appropriate way of setting up such remedial procedures (see Hutten-Czapska, cited above, § 239). The State can either modify existing remedies or introduce new ones which secure genuinely effective redress for Convention violations (see Xenides-Arestis v. Turkey, no. 46347/99, § 40, 22 December 2005). It is also responsible, under the supervision of the Committee of Ministers, to ensure that the remedy or the newly introduced remedies meet both in theory and in practice the requirements of the Convention (see Torreggiani and Others, cited above, § 98).
108. Furthermore, the Court recalls that in order to assist the domestic authorities in finding appropriate solutions it has already considered specific options for preventive and compensatory remedies (see Ananyev and others, cited above, §§ 214-231).
109. The Court reiterates that a measureable reduction of a prison sentence represented, under certain conditions, satisfactory redress for a violation of the Convention in criminal cases, where the national authorities have explicitly or in substance recognised the breach of the Convention on account of the protraction of the procedure (see Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006‑V). In respect of conditions of detention, the Court has also affirmed that a reduced prison sentence offered adequate redress to poor material conditions of detention, provided that the reduction was carried out in an express and measurable way (see Stella and Others, cited above, §§ 59‑63).
110. The Court concludes that the national authorities should promptly provide an effective remedy or a combination of remedies, both preventive and compensatory in nature and guaranteeing genuinely effective redress for Convention violations originating in prison overcrowding.
(c) Time-limit
111. The Court decided to apply the pilot-judgment procedure in the present case, referring notably to the large number of people affected and the urgent need to grant them speedy and appropriate redress at domestic level. It is therefore convinced that the purpose of the present judgment can only be achieved if the required changes take effect in the Hungarian legal system and practice without undue delay.
112. The Court considers that a reasonable time-limit is warranted for the adoption of the measures, given the importance and urgency of the matter and the fundamental nature of the right which is at stake. Nonetheless, it does not find it appropriate to indicate a specific time frame for the arrangements which could lead to an overall improvement of conditions detention and the reduction of overcrowding, and for the introduction of a combination of preventive and compensatory remedies in respect of alleged violations of Article 3, which may involve the preparation of draft laws, amendments and regulations, then their enactment and implementation, together with the provision of appropriate training for the State officials concerned. The Court is of the opinion that given the nature of the problem the Government should make the appropriate steps as soon as possible.
113. In view of the foregoing, the Court concludes that the Government should produce, under the supervision of the Committee of Ministers, within six months from the date on which this judgment becomes final, a time frame in which to make appropriate arrangements and to put in practice preventive and compensatory remedies in respect of alleged violations of Article 3 of the Convention on account of inhuman and degrading conditions of detention.
The Court will examine the information provided by the Government and decide accordingly whether the continued examination of pending cases, or else their adjournment, is justified (see in next chapter below)."

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