EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23636/94

P. M.

against

Hungary

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

TABLE OF CONTENTS

...................................................... Page

      I.     INTRODUCTION

        (paras. 1-17) ............................................ 1

        A.         The application

                     (paras. 2-5) ....................................... 1

        B.         The proceedings

                     (paras. 6-12) ...................................... 1

        C.         The present Report

                     (paras. 13-17) ..................................... 2

II.     ESTABLISHMENT OF THE FACTS

         (paras. 18-37) ........................................... 3

        A.          The particular circumstances of the case

                     (paras. 18-33) ..................................... 3

                     a)     Criminal proceeding against the applicant

                             (paras. 18-23) .................................. 3

                     b)     The applicant's state of health and

                              prison conditions

                             (paras. 24-33) .................................. 3

        B.          Relevant domestic law

                     (paras. 34-37) ..................................... 5

III.   OPINION OF THE COMMISSION

        (paras. 38-54) ........................................... 7

        A.          Complaint declared admissible

                      (para. 38) ........................................ 7

        B.           Point at issue

                      (para. 39) ........................................ 7

       C.           As regards Article 3 of the Convention

                      (paras. 40-53) ..................................... 7

                      CONCLUSION

                      (para. 54) ........................................ 9

APPENDIX:  DECISION OF THE COMMISSION AS TO

                       THE ADMISSIBILITY OF THE APPLICATION ............ 10

I. INTRO DUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights by the parties, and of the procedure before the Commission.

A. The application

2. The applicant is a Hungarian national. He was born in 1949 and lives in Békéscsaba , Hungary.

3. The application is directed against Hungary. The respondent Government were represented by their Agent, Mr. F. Kondorosi , Deputy Secretary of State, Ministry of Justice.

4. The case concerns the allegedly inhuman and degrading conditions of the imprisonment of the applicant, paralysed from the waist down, who was sentenced to life imprisonment in 1988 and was provisionally released in 1997.

5. The applicant complains under Article 3 of the Convention that the conditions of his imprisonment were inhuman and degrading essentially in that he could not receive any adequate hygienic care while imprisoned.

B. The proceedings

6. The application was introduced on 3 November 1993 and registered on 8 March 1994.

7. On 18 October 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the Hungarian Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint (under Article 3 of the Convention) based on the allegedly inhuman and degrading nature of the conditions of his imprisonment.

8. The Government's written observations were submitted on 3 January 1996. The applicant replied on 1 March 1996.

9. On 22 March 1996 the Government submitted supplementary observations. The applicant submitted observations in reply on 30 May, 3 June and 21 August 1996. On 25 September 1996 the Government submitted further observations.

10. On 21 May 1997 the Commission declared admissible the applicant's complaint about the conditions of his imprisonment in so far as it concerns the period subsequent to 5 November 1992, the date of the Convention's entry into force in respect of Hungary. The Commission declared inadmissible the remainder of the application which concerned some original complaints of the applicant about the allegedly inadequate medical treatment of his vertebral fracture of 1986, his allegedly erroneous conviction and allegedly unlawful detention.

11. The text of the Commission's decision on admissibility was sent to the parties on 3 June 1997 and they were invited to submit such further information or observations on the merits as they wished. On 9 July 1997 and 8 April 1998, respectively, the applicant and the Government submitted supplementary observations.

12. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI ï‚„

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

14. The text of this Report was adopted by the Commission on 9 September 1998 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the respondent Government of their obligations under the Convention.

16. The Commission's decision on the admissibility of the application is appended to this Report.

17. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

a. Criminal proceedings against the applicant

18. The applicant, having murdered his estranged wife and their five-month-old daughter in 1986, suffered, in the context of a subsequent suicide attempt, a fracture of his second lumbar vertebra and became paralysed from the waist down.

19. On 27 November 1987 the Hajdú-Bihar County Regional Court ( Hajdú-Bihar Megyei Bíróság ) convicted the applicant of murder and sentenced him to life imprisonment in a strict regime prison ( fegyház ). The Regional Court found that the applicant had murdered his wife and their daughter. Relying on forensic expert psychiatry evidence, the Regional Court observed that the applicant suffered from paranoiac psychopathy which, however, did not amount to a condition excluding his criminal responsibility.

20. On 22 June 1988 the Supreme Court upheld the decision of the Regional Court.

21. On 29 October 1990 the Attorney General's Office ( Legf bb Ügyészség ) refused to initiate review proceedings on the legality of the Supreme Court decision of 1988. Furthermore, the Attorney General's Office established that, as a result of the fracture of the second lumbar vertebra, moreover, of psychogenous factors as well as of the applicant's inactivity, his lower body had become paralytic, this being a severe medical condition which had been deteriorating due to the lack of specific rehabilitating treatment.

22. The applicant's request for retrial was to no avail.

23. On 23 June 1993 the Supreme Court ( Legfels bb Bíróság ) rejected the applicant's petition for review, whereby the applicant had asked for a reduction of his sentence in the light of his health condition, namely, that he needed a wheelchair and could not control his bowel movements and urinary functions. The Supreme Court held that the applicant's petition was incompatible ratione materiae with the conditions of review, within the meaning of Section 284 para. 2 of the Hungarian Code of Criminal Procedure (a büntet  eljárásról szóló 1973. évi I. törvény ).

b. The applicant's state of health and prison conditions

24. Following his suicide attempt and arrest in August 1986, the applicant was first treated at the Intensive Care Department of the Debrecen Hospital. In September 1986 he was treated at the Tököl Central Prison Hospital ( Büntetésvégrehajtás Központi Kórháza , Tököl ) and between October 1988 and November 1990 at the Prison Psychiatry Institute (IMEI) in Budapest. From November 1990 until January 1991 he was again committed to the Tököl Central Prison Hospital and, until mid-February 1991, to the Szeged Prison Hospital. From 18 February 1991 onwards he was imprisoned at the Nagyfa Prison.

25. On 22 October 1997 the applicant's prison sentence was provisionally interrupted pending the decision of the President of the Republic ( Köztársasági Elnök ) upon his request for pardon.

26. According to a medical report, dated 14 January 1991, prepared by the Tököl Central Prison Hospital, the applicant suffered from status post fracturam vertebrae L.II, conus-cauda syndrome, paraparesis , psychopathy , detention psychosis and post-tuberculosis syndrome. The report also stated that the applicant's loss of working capacity was 100% and that he was in need of continuous care.

27. According to a medical report prepared by the Department of Rehabilitation of Locomotor Disorders at the MÁV Hospital in Budapest (MÁV Kórház Mozgásszervi Rehabilitációs Osztály ) on 29 May 1991, the applicant, paralysed from the waist down, suffered from a poor general physical condition. Although there was no prospect of any improvement from a neurology aspect, his capacity for locomotion could be somewhat enhanced by regular gymnastics.

28. The parties disagree as to the conditions of the applicant's detention upon the introduction of his application.

29. The applicant gives the following account: He was placed in a prison cell together with other inmates, who assaulted him on account of the penetrating smell due to his inability to control his bowel movements and urinary functions and to clean himself. The lack of nightly hygienic care and of proper sanitary facilities prevailed until early 1995, when the prison authorities assigned a cell-mate to take care of him during nights. From June 1995 he again lacked any permanent hygienic assistance and could rely only on the fellow inmates, whom, however, he had to compensate for their services with gifts and some of whom were not in a position to assist him, being disabled themselves. Often he had to wait, lying in his excrement, until morning before being taken care of. His adult diapers, special arm-support for baths and the other devices placed at his disposal were unsuitable for application without assistance. No faeces container was at his disposal and his in-bed urine container was not emptied upon his request; he was not able to reach the bathroom in his wheelchair. Although his occasional physio -therapeutic treatment ceased in 1995 and he did not receive proper rehabilitation and anti-bedsore treatment, he, by virtue of his efforts to carry out certain gymnastics on his own, became capable of moving himself over to the wheelchair and of "dragging" himself to the lavatory in order to reduce his need for care. Nevertheless, his overweight, aggravating his situation, was due to the prison authorities' failure to provide for adequate gymnastics. Furthermore, over a period of three years, he was taken into the open air only two or three times altogether and, due to the lack of assistance, he could not exercise his right to a daily stay in the open air in that he was unable, unassisted, to cover the distance between his cell and the balcony.

30. The Government give the following account: The applicant stayed in a bright, spacious and properly heated four-bed cell. His bed was covered by a foam rubber mattress, bed-tick and three separate sheets. To prevent bedsores, he was supplied with an "anti- decubitor ", which, however, he did not wish to use. He wore adult diapers, hygienic and easy to change, but which he was often reluctant to wear, complaining of discomfort. The nurses' room was located within 15 metres from his cell. Whenever he wished, he was free to wash himself in a nearby bathroom, which he, in his wheelchair, could reach on his own. Though with some difficulty, he was able to move himself into his wheelchair, parked next to his bed, without assistance. He was free to watch his own television, listen to the radio, read or study languages. Meals were served him in bed. His roommates were selected from among inmates capable of walking, who, directed by nurses, were responsible for his hygienic care. To prevent muscle withering, he was supplied with a palm-conditioner and an expander, moreover, a series of nurse-assisted gymnastic exercises were worked out for him, which, however, he was reluctant to carry out. His overweight, due to his irregular diet and physical inactivity, was eventually reduced by a slimming diet. The attempts to control his urinary functions by medicine or by applying special devices were to no avail, the applicant thus remaining committed to the use of an in-bed urine container. He did not accept any rectal suppositories to regulate his bowel movements. His personal hygiene was ensured by virtue of a rolling bedside bathing device. Stays in the open air were provided for in that he had access to a balcony, which he could reach in his wheelchair without assistance.

31. On 3 January 1996 the applicant, upon his complaint to the governor of the prison about his conflicts with his roommates, was transferred to a one-bed cell with television and radio. Subsequently, his bedding was changed upon his request and he was free to open or close the window of the cell. The doorway between his cell and the neighbouring bathroom was enlarged in order to facilitate his access by wheelchair. In the bathroom there were a sink, a lavatory and a shower at his disposal, the latter equipped with a special handle for the disabled. According to a subsequent report of the senior physician of the prison, there was no neglected bedsore on the applicant's lower body.

32. On 8 January 1996 the penitentiary supervisory public prosecutor ( büntetésvégrehajtási ügyész ) examined the conditions of the applicant's accommodation and found that the applicant was satisfied with his treatment as well as the nursing and medical care and considered his accommodation good. As a result of regular gymnastics, he was capable without assistance of leaving his bed and of washing himself and, moreover, of giving a sign of alarm, if in trouble. The applicant was satisfied with his actual accommodation to an extent that he requested that it be made permanent. Having interviewed the applicant's two former roommates, the public prosecutor found that the doctors and nurses had done their utmost to improve the applicant's condition. Having interviewed the senior prison physician, the public prosecutor established that accommodation in a separate cell improved the applicant's state of mind. The applicant became capable of carrying out gymnastics on his own and his relations with other inmates and with the nursing staff were settled.             

33. As to his transfer to the one-bed cell in January 1996, the applicant, while admitting that the conditions of his accommodation improved by this measure, maintains that he still did not receive immediate nursing care during nights, if need be.

B. Relevant domestic law

34. S. 41 para. 1 of the Hungarian Criminal Code (1978. évi IV. törvény a Büntet  Törvénykönyvr l ) provides for three categories of detention after conviction, namely, a light regime ( fogház ), a medium regime ( börtön ) and a strict regime ( fegyház ).  According to S. 42, criminal offenders sentenced to life imprisonment, to a term of imprisonment of three years or more in case of particularly serious offences, or to a term of imprisonment of two years or more for recidivism, have to serve their sentence in a strict regime prison.

35. According to Law-Decree No. 11 of 1979 on the Enforcement of Punishments and Measures (a büntetések és intézkedések végrehajtásáról szóló 1979. évi 11. törvényerej  rendelet ), as amended by Law No. XXXII of 1993 (1993. évi XXXII. törvény ) which entered into force on 15 April 1993, the human dignity of convicts shall be respected, they may not be subjected to torture or to cruel, inhuman or humiliating treatment. Section 26 relates to the strict regime prisons and provides in particular that inmates' daily life shall be regulated in detail and they shall be under constant control; S. 36 (1) provides that inmates are entitled to stay in the open air for at least an hour daily.

36. Order No. 8/1979. (VI.30.) IM, issued by the Minister of Justice, sets out the Prison Rules. Rule 3 (4) thereof safeguards that inmates shall not be offended in their self-esteem. Abuse, threat, insult or harm among the inmates shall not be tolerated. Rule 4 (1) provides that, when placing inmates in penitentiary institutions, ill persons shall be kept separate from the healthy and persons with infectious diseases shall be kept separate from persons with non-infectious diseases. According to Rule 9, the custody, supervision and control of inmates are organised according to their category of detention and the classification of the inmates within the category concerned. According to Rule 10, inmates under the strict regime shall be detained in an area separate from other areas of the prison. Rule 85 provides that inmates are placed in common cells. According to Rule 112, ill inmates in need of hospitalisation shall be placed in the Central Prison Hospital in Tököl . Bed-patient inmates in need of constant medical care rather than of hospitalisation shall be placed in the in-patient cell of the respective penitentiary institutes (these cells are operated as outlets of the Tököl Central Prison Hospital). If the Tököl Central Prison Hospital cannot ensure adequate medical treatment and care, the inmate shall be transferred to a non-penitentiary hospital, where the proper control of the inmate shall be secured.

37. Section 284 para. 1 of the Hungarian Code of Criminal Procedure provides that a final court judgment may be subject to a review (a) if the offender's conviction has taken place in breach of substantive criminal law, or (b) if an unlawful punishment has been imposed due to the unlawful qualification of the crime or to another breach of substantive criminal law. Paragraph 2 provides that, in the latter case, no review shall take place, if the punishment has been nevertheless imposed within the limits of the potential punishment corresponding to the lawful qualification of the crime.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38. The Commission has declared admissible:

- the applicant's complaint about the conditions of his imprisonment in so far as it concerns the period subsequent to 5 November 1992, the date of the Convention's entry into force in respect of Hungary.

B. Point at issue

39. The point at issue in the present case is as follows:

- whether the conditions of the applicant's imprisonment, as between 5 November 1992 and 22 October 1997, amounted to inhuman or degrading treatment within the meaning of Article 3 of the Convention.

C. As regards Article 3 of the Convention

40. The applicant complains about the conditions of his imprisonment. He submits in particular that his hygienic treatment was insufficient while in prison and that the prison authorities did not arrange for regular stays in the open air.

41. Article 3 of the Convention provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

42. The applicant maintains that the conditions of his imprisonment were continuously inhuman and degrading in that he lacked proper hygienic and rehabilitating care and access to open air. Unable to look after himself, he was left at the mercy of his fellow inmates. As to his transfer to a one-bed cell in January 1996, the applicant, while admitting that the conditions of his accommodation improved by this measure, maintains that he still did not receive immediate nursing care during nights, if need be.

43. As regards the credibility of the applicant's account about the conditions of his imprisonment, the Government refer to the domestic courts' findings according to which the applicant suffered from paranoiac psychopathy . Moreover, they submit that all possible measures were taken in the matter, in particular, to deal with the applicant's incontinence, to maintain his personal hygiene and to ensure his access to the open air. Given, however, the applicant's poor co-operation, these efforts were often doomed to fail. Given the applicant's relocation on 3 January 1996 and in the light of the findings of the examination carried out by the penitentiary supervisory public prosecutor on 8 January 1996, the Government argue that the applicant's complaint is unsubstantiated.

44. The Commission has already examined the question of prison conditions under Article 3 of the Convention (cf. No. 14610/89, Dec. 9.7.91, D.R. 71, p. 168; No. 21132/93, Dec. 6.4.94, D.R. 77-A, p. 75; No. 22564/93, Dec. 14.4.94, D.R. 77-A, p. 90). The Commission recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all circumstances of the case, such as duration of the treatment, its physical or mental effects, and in some cases, the sex, age and state of health of the victim, etc. (cf. Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162; Tyrer v. United Kingdom judgment of 25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30; Soering v. United Kingdom judgment of 7 July 1989, Series A no. 161, p. 39, para. 100).

45. The Commission considers that the change in the applicant's accommodation which occurred on 3 January 1996 requires a separate examination of the periods prior to and subsequent to this date.

46. The Commission observes that the parties' statements diverge as to the conditions of the applicant's prison accommodation prior to 3 January 1996.

47. The Commission notes the applicant's submissions according to which he was placed in a prison cell together with other inmates, who regularly assaulted him on account of the smell which was due to his inability to control his bowel movements and urinary functions and clean himself and to the lack of proper nursing. The lack of nightly hygienic care and of proper sanitary facilities prevailed almost continuously during this period.

48. On the other hand, the Government maintain that the attempts to control the applicant's urinary functions by medicine or by applying special devices were to no avail, the applicant thus remaining committed to the use of an in-bed urine container. Likewise, he did not accept any rectal suppositories to regulate his bowel movements. As a result, he had to be provided with adult diapers, hygienic and easy to change, but which he was often reluctant to apply. His personal hygiene was ensured by virtue of a rolling bedside bathing device and, moreover, whenever he wished, he was free to wash himself in a nearby bathroom, which he could reach on his own by wheelchair.

49. The Commission finds that, in this period, the general inadequacy of the applicant's care which manifested itself mainly in the context of the handling of his incontinence, cannot be explained by the reasons advanced by the Government. In particular, the prison authorities' apparent failure to provide for the applicant's personal hygiene - a situation persisting for years - cannot be justified by the applicant's reluctance to accept certain nursing techniques.

50. In these circumstances, the Commission, having regard to the special nursing demands warranted by the applicant's disability and also considering the measures taken by the prison authorities in this respect, is of the opinion that the conditions of the applicant's imprisonment during the period between 5 November 1992 and 3 January 1996 amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

51. As to the period subsequent to 3 January 1996, the Commission notes that on that date the applicant was transferred to a one-bed cell with television and radio where his bedding was changed upon his request and he was free to open or close the window of the cell. The doorway between his cell and the neighbouring bathroom was enlarged in order to facilitate his access by wheelchair. In the bathroom there were a sink, a lavatory and a shower at his disposal, the latter equipped with a special handle for the disabled. According to a subsequent report of the senior physician of the prison, there was no neglected bedsore on his lower body. On 8 January 1996 the penitentiary supervisory public prosecutor examined the conditions of his accommodation and found that he was satisfied with his treatment as well as the nursing and medical care and considered his accommodation good. As a result of regular gymnastics, he was capable without assistance of leaving his bed and of washing himself and, moreover, of giving a sign of alarm, if in trouble. These factual elements have not been in dispute between the parties. However, the Commission also notes the applicant's submissions according to which his nightly care remained insufficient.

52. In these circumstances, the Commission is satisfied that there was a considerable improvement of the conditions of the applicant's imprisonment as of 3 January 1996 and that they can no longer be regarded as amounting to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

53. The Commission does not consider it necessary to examine the further question whether the lack of the applicant's regular access to open air itself amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

CONCLUSION

54. The Commission concludes, unanimously, that, in regard to the conditions of the applicant's imprisonment during the period between 5 November 1992 and 3 January 1996, there was a violation of Article 3 of the Convention.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber