Varga And Others v Hungary 2015

Varga And Others v Hungary. Prison Overcrowding and the European Convention on Human Rights

Introduction

The issues that arose initially in this judgment related to whether prison overcrowding and poor conditions in which prisoners were held constituted a breach of Article 3 of the European Convention on Human Rights^[1] in respect of these conditions amounting to degrading treatment and whether Hungarian national remedies available in respect of addressing potentially degrading treatment of prisoners were sufficient to provide an effective remedy for these individuals as required by Article 13 ECHR.

Facts

Mr Varga and a number of other connected applicants^[2] were all current or former prisoners within Hungary. During the course of their imprisonment, each was held in very small prison cells measuring around 25 square meters with a number of other prisoners providing often less than around 3 meters square living space per prisoner.^[3] Furthermore, privacy was extremely limited within this confined space by the fact that toilet facilities were within the cell and separated only by a curtain.^[4] In addition, Mr Fako asserted that he was only permitted to shower once a week, that the temperature within the cell often rose to 40 degrees centigrade and that the cell was infested with bed bugs, lice and cockroaches.^[5] The applicants also asserted that they were permitted very little opportunity to leave their cell for exercise.^[6]

National Law

National law was important in this judgment in relation to the application under Article 13 ECHR and provided that, in the first instance, a prisoner who wished to raise concerns regarding the manner of his treatment should refer the complaint either orally or in writing to the head of the prison where he was being held.^[7] Additionally, inmates could refer the matter to the public prosecutor in charge of their supervision.^[8] Most importantly in this context, the legislation provided directly for the size of living space each prisoner should have^[9] and provided the public prosecutor with powers to rectify any issues that may arise.^[10] It was also relevant that under the Civil Code that was in force at the relevant time, an individual was able to seek compensation from the Government in respect of any infringement of personal rights if they were considered to have caused the individual to suffer damage.^[11]

Article 3 ECHR

The Hungarian Government contested the applicants’ assertion that their detention amounted to degrading treatment under Article 3 ECHR.^[12] The judgment does not specifically set out any arguments put forward by the Hungarian Government in this respect, save to state that the Government did not dispute the factual nature of the complaints made.^[13] What the judgment does do, is deal with the general principle under which a breach of Article 3 will occur specifically highlighting that overcrowding that provided an individual with less than 3 meters of living space, prevented individuals from moving free between items of furniture and did not provide each prisoner with a single distinct sleeping space gave rise to as strong presumption of a violation of Article 3.^[14] The judgment also stressed the impact of the cumulative effect of the conditions in which a prisoner is held.^[15]

Following these general principles, the Court had little difficulty in finding that the treatment of all of the applicants fell short of the standards required by the Article and as such, found that in the case of all of the applicants the Hungarian Government’s treatment of them constituted a violation of Article 3.

Article 13 ECHR

In dealing with the asserted violation of Article 13, the Court began by setting out the general position in Article 35 ECHR that applicants must exhaust all domestic methods of resolution before bring the matter before the Court.^[16] The Hungarian Government put forward two arguments in respect of asserting that no violation of the Article had occurred.

Damages

In the first instance, the Government asserted that the availability of compensation within the relevant Civil Code provided the applicants with an effective remedy in respect of any harm that they may have suffered.^[17] Despite the Government citing authority for when such a remedy had been effective,^[18] the Court did not accept that this single example demonstrated a practice that was sufficiently settled to provide an effective remedy.^[19] Indeed, it was pointed out that domestic law had previously been held to only provide for desirable outcome rather than a binding obligation.^[20]

Formal Complaints

The Hungarian Government went on to assert that the formal complaints procedure described above, provided sufficient redress to individuals. The court acknowledged that this was theoretically the case, in that individual prisoners could obtain an injunction from the public prosecutor requiring their conditions to be materially improved,^[21] but found that this approach would be practically ineffective. This was because, in an already overcrowded prison system, the rectification of individual issues would impact detrimentally on other inmates and ultimately, it would be impossible for the Government to deal with numerous complaints because of the nature of the overcrowding problem itself.^[22] In addition, the Court found that the Government’s failure to demonstrate how the complaints procedure on an individual level could be effective, meant that the Government was in breach of Article 13.^[23]

Article 46

In the light of the nature of the issues raised by the violations, the court found it necessary to instruct the Hungarian Government to put in place measures to rectify the general prison overcrowding problem and provide proper redress to prisoners.^[24] It was considered that the Government should be able to demonstrate that procedures were being put in place within 6 months of the judgment.^[25]

Article 41

The Court found that the applicants were entitled to compensation and costs.^[26]

Discussion

Little discussion is required in respect of the substantive violation of Articles 3 and 13 here, the facts being sufficiently clear to demonstrate the reason for the violation. It is of note in respect of Article 13 however, that some degree of remedy is not sufficient to meet the requirements of the Article if it cannot be demonstrated that the remedy is not readily available in all circumstances. What is most interesting in this judgment however, is the approach taken by the Court under Article 46. In this respect, it was made clear that an individual approach would not be satisfactory and the Government must take steps to address the overcrowding problem as a whole. The Court’s express view was that the only effective manner in which to deal with these violations would be for the Government to introduce measures to reduce prison sentences.^[27] It is clear therefore that the court will not shy away from requiring substantive changes to national law to be implemented in order to avoid violations of ECHR.

Footnotes

^[1] ECHR

^[2] Mr Lakatos, Mt Toth, Mr Pesti Mr Fako and Mr Kapczar

^[3] Paragraphs [7] – [12]

^[4] Ibid

^[5] Paragraph [11]

^[6] Op cit at n 3

^[7] Decree no 6/1996 (VII 12) of the Minister of Justice on the Rules Governing the Enforcement of Imprisonment and Pre-trial Detention, s 6

^[8] Ibid, s 7

^[9] Ibid

^[10] Act no CLXIII of 2011 on the Public Prosecution Service, s 22

^[11] Act no IV of 1959 on the [Old] Civil Code, s 84

^[12] Paragraph [67]

^[13] Paragraph [79]

^[14] Paragraph [74]

^[15] Paragraph [72]

^[16] Paragraph [44]

^[17] Paragraph [51]

^[18] Ibid

^[19] Paragraph [53]

^[20] Paragraph [54]

^[21] Paragraph [62]

^[22] Paragraph [63]

^[23] Paragraphs [64] & [65]

^[24] Paragraph [106]

^[25] Paragraph [113]

^[26] Paragraphs [118] – [125]

^[27] Paragraph [109]