EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 21967/93

Sándor Sárközi

against

Hungary

REPORT OF THE COMMISSION

(adopted on 6 March 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-0) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-0) 1

C. The present Report

(paras. 0-0) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 0-0) 4

A. Particular circumstances of the case

(paras. 0-0) 4

B. Evidence before the Commission

(paras. 0-0) 8

C. Relevant domestic law and practice

(paras. 0-0) 8

III. OPINION OF THE COMMISSION

(paras. 0-0) 11

A. Complaints declared admissible

(para. 0) 11

B. Points at issue

(para. 0) 11

C. Article 3 of the Convention

(paras. 0-0) 11

CONCLUSION

(para. 0) 14

D. Article 8 of the Convention

(paras. 0-0) 14

CONCLUSION

(paras. 0, 0) 17

E. Article 13 of the Convention

(paras. 0-0) 17

a. Claims concerning the applicant's detention

(paras. 0-0) 17

CONCLUSION

(para. 0) 19

b. Claims concerning the applicant's correspondence

(paras. 0-0) 19

CONCLUSION

(para. 0) 20

F. Recapitulation

(paras. 0-0) 20

PARTLY DISSENTING OPINION OF MRS. THUNE, MRS. LIDDY,

MR. BUSUTTIL, MR. BRATZA AND MRS. HION 21

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 23

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Hungarian citizen, born in 1960. When lodging his

application, he was serving a sentence of five years and six months'

imprisonment in the Budapest Prison.  In the proceedings before the Commission,

he is represented by Ms. J. Gaál, a lawyer practising in Budapest.

3. The application is directed against Hungary.  The respondent Government

were represented by Mr. K. Bárd, Agent of the Government of Hungary.

4. The case concerns the applicant's complaints that the conditions of his

detention amounted to inhuman and degrading treatment, that the Budapest prison

authorities had violated his right to respect for his correspondence, and that

he had no effective remedy before a national authority to complain about these

alleged violations of his Convention rights.  The applicant invokes Articles 3,

8 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 19 April 1993 and registered on 3 June

1993.6. On 19 October 1993 the Commission (First Chamber) decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application

to the respondent Government and to invite the parties to submit written

observations on its admissibility and merits.

7. The Government's observations were submitted on 30 December 1993. The

applicant replied on 30 March 1994.

8. On 18 January 1994, the Commission granted the applicant legal aid for the

representation of his case.

9. On 27 June 1995 the case was transferred from the First Chamber to the

Plenary Commission, by decision of the latter.

10. On 5 July 1995 the Commission declared admissible the applicant's

complaints under Articles 3, 8 and 13 of the Convention.  It declared

inadmissible the remainder of the application.

11. The text of the Commission's decision on admissibility was sent to the

parties on 19 July 1995 and they were invited to submit further observations,

namely factual information concerning the applicant's conditions of

imprisonment.

12. The Government submitted observations on 25 August and 4 September 1995,

to which the applicant replied on 21 February 1996, following a considerable

extension of the time-limit in view of the fact that the applicant's

representative had been temporarily unable to reach the applicant following his

release.  The Government supplemented their observations on 12 April 1996, and

the applicant replied again on 13 May 1996.  The Government filed additional

observations on 27 July 1996.

13. During the examination of the merits, the respondent Government requested

the Commission to apply Article 29 of the Convention, presenting further

submissions on admissibility.  However, the Commission decided that there was no

basis on which to apply Article 29.

14. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also 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

15. 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:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENI?

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELI?NAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

16. The text of this Report was adopted on 6 March 1997 by the Commission and

is now transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

17. 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 State concerned of its obligations under the Convention.

18. The Commission's decision on the admissibility of the application is

annexed hereto.

19. 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. Particular circumstances of the present case

a. The general background

20. In May 1990 the applicant was arrested by the Szigetvár City Police

(Városi Rend?rkapitányság) on a charge of theft.  After having absconded in June

1990, the applicant was arrested again in May 1991 and he was kept in detention

during the subsequent criminal proceedings.  On 3 March 1992 the Szigetvár

District Court (Városi Bíróság) convicted the applicant of theft and of the

offence of having escaped from prison and sentenced him to four years and two

months' imprisonment.  In the ensuing proceedings, a cumulative sentence of five

years and six months' imprisonment was fixed.  The criminal proceedings against

the applicant were subsequently reopened; however, in the resumed trial

proceedings, his conviction was confirmed.

b. The conditions of the applicant's detention

aa. The Budapest Prison

21. On 6 July 1992 the applicant was transferred to the Budapest Prison

(Fegyház és Börtön) to serve his sentence under the strict regime.

22. The prison authorities classified the applicant as "particularly

dangerous" ("különösen veszélyes").  In this respect, the authorities had regard

to the nature of the criminal offences committed by the applicant, his having

set fire on two occasions of earlier detention, as well as his previous attempts

to commit suicide.  Upon the regular review, his classification was not changed,

mainly because of his aggressive behaviour towards other inmates and the prison

staff.

23. In the Budapest Prison, which was constructed in 1988, all prison cells

are of equal size, i.e. 27.56m?, and have an adjoining separate lavatory.

Natural light comes from two windows sized 135x75cm.  The maximum of prison

inmates per cell is eight.  Each prisoner has a bed (bunk beds) and a wardrobe,

there is one table per cell and one chair per inmate.  Prisoners can watch

television in a communal room and they are allowed to take their personal

television sets into their cell.

24. In the course of the applicant's detention, prisoners exceeding the

maximum number were placed in the prison cells.  For these purposes, a third

upper bed was installed on the bunk beds.

25. The applicant asserts that he has been detained together with a maximum of

eleven prisoners in a cell, and that this accommodation, due to a general

overcrowding in the prison, lasted regularly several months.

26. The Government disagree with the applicant as to the reasons and the

length of these periods of accommodation in overcrowded cells.  They maintain

that a number of prisoners had to be moved for some weeks on account of

reconstruction works in another municipal prison.  In the absence of any

information in the Budapest Prison registers, they cannot confirm or refute the

applicant's submissions that he was detained in overcrowded cells.

27. The applicant had to change cells several times.  The applicant claims

that this moving formed part of a routine to prevent him from informing other

inmates about their rights.  The Government refer to the applicant's problems

with other inmates, as stated by the prison educators in several written

reports.

28. In reply to the applicant's allegation that sanitary equipments did not

function for lengthy periods, the Government submit that, as a general rule, any

necessary repair work is carried out quickly.  The parties further disagree on

the facilities to watch television.

29. Due to the applicant's classification as "particularly dangerous", the

range of working facilities was limited.  Between 11 January and 10 March 1993

and between 11 and 20 April 1994, the applicant worked for the Budapest Timber

Company (Budapesti Faipari Vállalat), first as a trained, later as an unskilled

worker in the processing of synthetic materials.  During these periods the

applicant spent eight hours a day at work outside his cell.  The applicant's

employment was, on both occasions, terminated upon his own request, inter alia,

for health reasons.  The applicant claims that he faced practical problems in

presenting himself for work on the ground that he frequently had to move cells.

30. The applicant did not participate in the other activities generally

offered to inmates, such as visiting the library once a week, joining workshops,

using body-building and other training facilities, or participating in religious

ceremonies.  The applicant claims that the participation in such activities was

permitted only as a special reward for prisoners.  Moreover, in case of bad

weather conditions, the Budapest Prison authorities did not arrange for the one

hour's daily exercise in the uncovered prison yard.

31. The applicant claims that, following various complaints with Hungarian

authorities about his conviction and ill-treatment in prison, he was beaten

several times by other inmates, at the instigation of the prison staff.

32. According to the Budapest Prison records on the health of prisoners, the

applicant was involved in fights with other inmates on 11 and 31 December 1992,

respectively.  He received medical treatment.  The inmate who had attacked the

applicant on 11 December 1992 was punished by twenty days' solitary confinement.

The inmate who had attacked the applicant on 31 December 1992 was punished by a

suspension of his right to receive visits.

33. Following the fight on 31 December 1992, the applicant was detained in

separation from other prisoners.  On 6 January 1993 the disciplinary punishment

of six days' solitary confinement was inflicted upon him.  Taking into account

the period of time previously spent in separation, the punishment was not

executed.

34. On 8 February 1993 the National Headquarters of Penal Institutions of the

Ministry of Justice (Igazságügyi Minisztérium, Büntetés-végrehajtás Országos

Parancsnoksága) rejected the applicant's complaint concerning the conditions of

his detention.

35. On 26 May 1993 the Pécs Public Prosecutor's Office dismissed the

applicant's complaint, dated 29 April 1993, about, inter-alia, alleged ill-

treatment in June 1990.  The Prosecutor's Office found that his submissions were

unsubstantiated and, in any event, belated.

bb. The transfers to the Pécs Prison

36. In the course of his retrial before the Szigetvár District Court, the

applicant was three times transferred to the Pécs Prison (Büntetés-végrehajtási

Intézet) in order to attend the trial hearings on 11 May, 12 June and 16 July

1993.

37. The applicant alleges that he was also transferred to Pécs Prison in order

to be questioned by the Public Prosecutor prior to the retrial and that on one

of these occasions, he was beaten by the Pécs prison staff and received medical

treatment at the Tököl Prison Hospital.  The Government dispute the applicant's

contention.  They note that, at the relevant time, the applicant did not

complain about any such ill-treatment and that, according to the medical files

of the Tököl Prison Hospital, he did not receive any medical treatment in 1993.

cc. The Sopronk?hida Prison

38. Between 13 June and 17 July 1994, the applicant was detained in the

Sopronk?hida Prison (Fegyház és Börtön).

39. He was confined to a cell with a basic area of 8.3m?, destined for

occupation by two prison inmates.  The cell had natural light and was furnished

with two beds, two chairs and a table.  Furthermore, there was a lavatory and a

wash-basin.

40. For most of the time, the applicant was alone in one of these cells.

According to the Government, the other inmates did not tolerate the applicant's

provocative and aggressive behaviour.

41. During his detention in the Sopronk?hida Prison, the applicant was

entitled to visit the library, to listen to radio or watch television.  In

accordance with the prison rules, he in fact spent one hour every day in the

open air.  Moreover, he could have applied for participation in sporting

activities which were offered two and three times a week for one and a half or

two hours, respectively.

c. The applicant's correspondence

42. In the course of his detention, the applicant corresponded, inter alia,

with domestic authorities and, as from 19 April 1993, when he introduced his

application pursuant to Article 25 of the Convention, with the Commission.

43. According to the applicant, the Commission's letters  were stopped by the

prison authorities, opened in his absence, and handed to him with an average

delay of two or three days.  He also claims that his letters to authorities and

to the Commission were often stopped by the prison authorities and mailed only

after considerable delay.  The respondent Government dispute the applicant's

allegations of constant interferences with his correspondence.

44. The Budapest Prison does not keep a record of the prisoners'

correspondence and the delivery of correspondence addressed to them, but

incoming mail is, as a rule, stamped with the date of arrival.

45. The exchange of correspondence with the Commission took the following

course:

(a) The applicant's letter of 19 April 1993 reached the Commission on 29 April

1993.  The applicant replied to the Commission's general information letter,

sent on 5 May 1993, on 19 May 1993.

(b) The envelope of the Commission's letter of 3 June 1993, mailed on 7 June

1993, was stamped by the Budapest Prison authorities with 11 June 1993 as date

of arrival.

(c) The postmark on the envelope of the applicant's letter of 11 June 1993 is

sufficiently legible to read 16 June 1993.  The letter arrived at the Commission

on 23 June 1993. 

(d) The applicant's letter of 13 June 1993 was posted on 14 June 1993 and

arrived at the Commission on 16 June 1993.

(e) The applicant's letter of 22 June 1993 in which he complained about, inter

alia, ill-treatment and interferences with his mail was smuggled from the prison

by his wife and was mailed in France.  It reached the Commission on 30 June

1993.(f) The Commission's letter of 23 June 1993 was mailed on 25 June 1993; its

envelope was stamped with 29 June 1993 as date of arrival, it had been opened

and the letter itself was stamped by the prison authorities.  The applicant

alleges that this letter was handed over to him not by prison staff, but by

another prisoner.

(g) The applicant's letter of 25 June 1993 arrived at the Commission on 29

June 1993 (postmark illegible).  In this letter he stated that he was prohibited

from continuing correspondence with the Commission.

46. The applicant's complaints with the National Headquarters of Penal

Institutions, dated 14 and 24 June 1993, which related to his alleged ill-

treatment and the prison conditions as well as the interference with his

correspondence, were dismissed.  The National Headquarters found in particular

that the applicant's letters were never stopped by the Budapest Prison, but all

letters were duly mailed, as evidenced by the arrival of correspondence in reply

thereto.

47. The prison authorities subsequently changed their routine regarding the

applicant's correspondence with the Commission.  The Commission's letter of 1

July 1993 and its envelope were not stamped upon arrival.  On 6 July 1993 it was

handed unopened to the applicant and he was promised that he would experience no

more interferences with his correspondence either to or from the Commission.

The ensuing correspondence was transmitted within normally eight to ten days.  

B. Evidence before the Commission

48. As regards the conditions of the applicant's detention, the Commission had

regard to the parties' submissions and, inter alia, to documents and photographs

filed by the respondent Government.

49. The Commission also took note of the Report to the Hungarian Government on

the visit to Hungary carried out by the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 1 to 14

November 1994, the Comments of the Hungarian Government of 14 December 1995 and

a further Interim Report of April 1996.

C. Relevant domestic law and practice

a. General provisions on detention after conviction

50. S. 41 para. 1 of the Hungarian Penal Code (a Büntet? Törvénykönyvr?l szóló

1978. évi IV. törvény) 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 for

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.

51. According to Law-Decree 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 XXXII of 1993 (1993. évi XXXII.

törvény) ("the Law on Enforcement of Sentences") 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 degrading treatment, or to medical

experiments, and no scientific research or experiment may be performed upon them

without their consent.

52. S. 26 of the Law on Enforcement of Sentences relates to strict regime

prisons and provides in particular that the inmate's daily life shall be

regulated in detail and that he is to be under constant control; that even

within the prison, his movements are subject to permission and supervision; that

he may exceptionally participate in work outside the prison if he can be

separated from the outside world.  Having served at least one year of the prison

sentence imposed, the inmate may be permitted to move within the prison or part

of it without supervision but under control, and to take part in work outside

prison.

53. S. 36 para. 1 (k) provides that inmates are entitled to one hour's daily

exercise.

54. Pursuant to S. 41 para. 1 of the Law on Enforcement of Sentences, inmates

may be rewarded, inter alia, for exemplary conduct.

55. S. 42 para. 1 of the Law on Enforcement of Sentences provides for

disciplinary punishment in cases of breach of discipline (reprimand, reduction

of a prisoner's money for personal expenditure, or solitary confinement), if the

general means of handling conflicts between inmates, i.e. pedagogical and

psychological consultation and therapeutic treatment, fail.  If a prisoner's

aggressive behaviour constitutes a criminal offence, criminal prosecution

measures are taken against the person concerned.

56. The prison rules are contained in Order 8/1979. (VI.30.)IM (8/1979.

/VI.30./ IM rendelet) ("the Prison Rules"), issued by the Minister of Justice.

57. According to Rule 9 of the Prison Rules, 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 the other areas of the prison.  Within that area the different groups

within the category shall be kept separately, and the doors of the cells shall

be kept locked.  Inmates are classified in different groups according to

security aspects, pursuant to Rule 33 para. 1.  In this respect, Rule 23 of the

Security Rules (Biztonsági Szabályzat), issued as Appendix to Instruction

102/1989 (IK.2)IM, provides that an inmate shall be considered as "particularly

dangerous" ("különösen veszélyes") if, having regard to his personality or the

nature of the offence committed by him, it is likely that he is a danger to his

own or another's life or health, or that he may escape from prison or if his

conduct otherwise constitutes a security risk.  S. 94 para. 2 of these Security

Rules provides for a review of an inmate's classification in an interval of six

months.

58. Under Rule 85 para. 1 of the Prison Rules, inmates are placed in common

cells of six to eight cubic metres each.  In this respect, Rule 366 para. 1 of

Instruction 101/1981 (IK.2)IM, as amended by Instruction 6/1990 (IK. Bv. Mell.

1)IM, specifies that common cells should allow at least 3 m? per person.

b. Prisoners' correspondence

59. According to S. 36 para. 1 (b) of the Law on Enforcement of Sentences,

inmates are entitled to correspond with their relatives and persons designated

by them and approved by the prison authorities; the frequency and length of

letters are not subject to any restrictions.  S. 36 para. 5 provides for a

control of inmates' correspondence for reasons of security, except for letters

sent to public authorities and to international organisations; inmates are

entitled to be informed about the possibility of control.

60. The National Commander of the Penitentiary Institutions

(Büntetésvégrehajtás Országos Parancsnoka) has instructed all prison authorities

to open letters in the presence of the prisoner concerned and, if no

objectionable objects are found, to hand them over to him unread.  If letters

are transilluminated or other technical screening methods are used, letters must

be handed over to the prisoners unopened.

c. Complaints about prison conditions and interference with correspondence

61. According to S. 36 para. 1 (g) of the Law on Enforcement of Sentences, an

inmate may report, or complain about, alleged violations of his rights with the

prison authorities or with other state organs.

62. According to Rule 22 of the Prison Rules, an inmate may lodge complaints

and apply for the remedying of any individual injury.  His complaint and

application shall be settled by the competent special service of the

institution, except when the matter belongs to the competence of the governor.

If the inmate is not satisfied with the measures taken by the competent special

service, he may complain with the governor, and afterwards with the National

Headquarters of the Penal Institutions.  No further complaint lies against the

measures taken by the National Headquarters.  Complaints have no suspensive

effect.  According to Rule 27 para. 2, the inmate may request to be heard by the

competent public prosecutor.

63. S. 11 (a) of Law V of 1972 on the Public Prosecutor's Office (a Magyar

Köztársaság Ügyészségér?l szóló 1972. évi V. törvény) provides, inter alia, that

the public prosecutor may supervise the lawfulness of the conditions of

detention, detention on remand, forced medical treatment and the execution of

the detention.  According to S. 11 (c), the public prosecutor may hear inmates

and examine complaints concerning the execution of sentences.  The organs

competent for the execution of sentences are required to comply with the public

prosecutor's instructions ensuring respect for the law, and concerning the

conditions of detention on remand (S. 12 para. 1).

64. The public prosecutors' legal status is laid down in SS. 51-53 of the

Hungarian Constitution (Alkotmány).  Thus the Chief Public Prosecutor is elected

by Parliament, upon nomination by the President of the Republic.  He is

responsible to the Parliament. Public Prosecutors are appointed by the Chief

Public Prosecutor.  The Chief Public Prosecutor is the Director of Public

Prosecutions.

65. According to Article 70/K of the Constitution, as amended by Act XXXI of

1989 (1989. évi XXXI. törvény), claims based on the violation of fundamental

rights, and objections regarding decisions taken by public authorities in the

performance of their functions can be brought before a court.  It follows from

the official commentary which is attached to Act XXXI of 1989 that Article 70/K

was intended to make  access to court possible in respect of claims against

other persons or the state in connection with fundamental rights.

66. The Hungarian Constitutional Court has characterised Article 70/K as a

"living and effective instrument of the Hungarian legal system" (decisions

32/1990. /XII.22./ AB; 58/1991. /XI.8./ AB; 46/1994. /X.21./ AB; 34/1994.

/VI.24./ AB). In its decision 32/1990.(XII.22.)AB, the  Constitutional Court

held that a Government order of 1981, according to which the judicial review of

particular administrative decisions could be excluded, was in breach of the

Constitution and the Government was requested to pass new legislation.  In the

interim, the petitioner was instructed to seek judicial review on the basis of

Article 70/K.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

67. The following complaints were declared admissible:

- that the conditions of his imprisonment in Hungarian prisons

amounted to inhuman and degrading treatment or punishment contrary to Article 3

(Art. 3) of the Convention;

- that the control of his correspondence as a prisoner amounted to a

breach of his right to respect for his correspondence contrary to Article 8

(Art. 8) of the Convention;

- that he did not have an effective remedy in respect of the alleged

violation of Article 3 (Art. 3);

- that he did not have an effective remedy in respect of the alleged

violation of Article 8 (Art. 8).

B. Points at issue

68. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 3 (Art. 3) of the

Convention;

- whether there has been a violation of Article 8 (Art. 8) of the

Convention;

- whether there has been a violation of Article 13 of the Convention

in respect of the applicant's claims under Article 3 (Art. 3);

- whether there has been a violation of Article 13 (Art. 13) of the

Convention in respect of his claims under Article 8 (Art. 8).

C. Article 3 (Art. 3) of the Convention

69. The applicant complains that the conditions of his detention amounted to

inhuman and degrading treatment and punishment.  He invokes Article 3 (Art. 3)

which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment

or punishment".

70. The applicant turns the Commission's attention in particular to the fact

that he had to spend most of the day in the Budapest Prison in a cell of 27.56m?

with seven or even more other inmates.  He also alleges a general practice of

unfavourable treatment, such as having to change cells frequently, facing

difficulties in the allocation of work or in participating in sport or other

leisure facilities.

71. The respondent Government maintain that the circumstances of the

applicant's detention did not amount to inhuman and degrading treatment or

torture prohibited by Article 3 (Art. 3).  According to the Government, the

conditions of his detention are in compliance with the demands of the

enforcement of sentences in respect of inmates qualified as "particularly

dangerous".

a. General principles

72. The Commission recalls that ill-treatment must attain a minimum level of

severity if it is to fall within the scope of Article 3 (Art. 3).  The

assessment of this minimum is relative and must take account of all the

circumstances of the case, including the duration of the treatment, its physical

and mental effects and, in some cases, the sex, age and state of health of the

person subjected to it (cf. Eur. Court HR, Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).  In order for a

punishment to be degrading and in breach of Article 3 (Art. 3), the humiliation

or debasement involved must attain a particular level and must in any event be

other than the usual element of humiliation associated with imprisonment after a

criminal conviction.  Such an examination is also relative and depends on all

the circumstances of the case and, in particular, on the nature and context of

the punishment itself and the manner and method of its execution (Eur. Court HR,

Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15,

para. 30).

73. The Commission has previously examined complaints under Article 3 (Art. 3)

about prison conditions (cf. No. 6038/73, Dec. 11.7.73, Collection 44, p. 115;

No. 7854/77, Dec. 12.7.78, D.R. 12 p. 185; No. 8317/78, Dec. 15.5.80, D.R. 30,

p. 44; No. 11701/85, Dec. 12.5.1988, unpublished; No. 14610/89, Dec. 9.7.1991,

D.R. 71, p. 168; No. 18942/91, Dec. 6.4.1993, and No. 20560/92, Dec. 30.8.1994,

unpublished).  These cases often concerned the solitary confinement of prisoners

(cf. No. 5310/71, Ireland v. the United Kingdom, Comm. Report 25.1.76, Series B

no. 23, Vol. I, p. 379; Nos. 7572/76, 7586/76 and 7587/76, Dec. 8.7.78, D.R. 14

p. 64; No. 8317/78, loc. cit.; No. 14610/89, loc. cit.).

b. The applicant's status as prisoner

74. The applicant was convicted of theft and of having escaped from prison and

a cumulative sentence of five years and six months' imprisonment was fixed.

Until his release on probation in August 1994, he served his sentence under a

strict regime, first in the Budapest Prison and the last month in the

Sopronk?hida Prison.

75. Throughout the applicant's detention, the prison authorities, having

regard to the nature of offences committed by him and his previous attempts to

commit suicide, treated him as being a "particularly dangerous" person.  Upon

regular reviews during his detention, this classification was confirmed on

account of his aggressive behaviour towards other prisoners and the prison

staff.  The Commission finds that, in view of the applicant's own conduct, there

was a need for security measures.  His classification as being a "particularly

dangerous" person as such, and the corresponding restrictions on his movement in

prison, did not, therefore, amount to treatment contrary to Article 3 (Art. 3).

c. The applicant's detention in the Budapest Prison

76. In the Budapest Prison, the applicant was detained in a cell of 27.56m?

which was generally destined to be occupied by eight inmates.  There was

sufficient natural light and elementary furniture as well as a sanitary

installation.  There are no indications that the cells, and in particular the

sanitary equipment suffered from neglect to such an extent as to render the

confinement inhuman or degrading.

77. Considering the applicant's submissions as to the temporary admission of

additional inmates in the Budapest Prison, the Commission finds that such

practice may have contributed to the overcrowding of the cell.  However, in the

circumstances of the present case, such temporary measures to face the necessity

of placing prisoners exceeding the maxiumum number, though undesirable in a

modern prison system, were not contrary to Article 3 (Art. 3).

78. As to the daily routine in the Budapest Prison, the Government has drawn

the Commission's attention to the various working and leisure facilities usually

available to inmates.  However, the one hour's daily exercise could not be

ensured to the prisoners in case of bad weather conditions, as the premises of

the Budapest Prison lacked adequate facilities, its court-yard being uncovered.

79. In this context, the Commission also notes that, pursuant to the relevant

provisions of Hungarian law, the applicant was entitled to exchange

correspondence, in particular with his relatives, and to receive visits.

80. The applicant's occupational situation in the Budapest Prison has to be

seen against his classification as being a "particularly dangerous" prisoner.

The Commission notes that the applicant was only assigned work for short periods

early in 1993 and again in April 1994.  However, the applicant's employment was

terminated upon his own wish.

81. Examination of the material before the Commission permits the conclusion

that generally his possibilities to participate in working and other activities

depended upon his own conduct.

82. In assessing the applicant's situation in the Budapest Prison, the

Commission has also considered the aggressive behaviour of other inmates.

However, to the extent that, on two occasions in December 1992, the applicant

suffered injuries following fights by other inmates, the Commission notes that

his medical treatment was ensured and disciplinary measures were taken against

both prisoners in question.  There is no evidence to show that the prisoners

acted at the instigation of the prison staff, or with their acquiescence.

83. In this respect, the Commission further notes that the applicant himself

was classified as being a "particularly dangerous" person and reported as

aggressive towards other inmates and the prison staff.  Following the fight of

31 December 1992, a disciplinary measure was inflicted upon him and there is

nothing to suggest that this disciplinary punishment was not justified in the

circumstances.

d. The applicant's transfers to the Pécs Prison

84. Moreover, in 1993, in the course of his detention in the Budapest Prison,

the applicant was repeatedly transferred to the Pécs Prison in the context of

his retrial proceedings.  In this respect, the applicant raised a new complaint

about alleged ill-treatment by the Pécs prison staff.  Even assuming that its

consideration of the present case can extend to this additional allegation, the

Commission, in the absence of any entries in the medical files of the Tököl

Prison Hospital or other evidence, finds no sufficient factual basis for

accepting the applicant's rather generally phrased accusation.

e. The applicant's detention in the Sopronk?hida Prison

85. In the Sopronk?hida Prison, the applicant was accommodated in a cell of

8.3m? with the elementary furniture for two inmates and a lavatory and a wash-

basin.  The applicant spent most of the time alone in such a cell.  However, it

appears that this single accommodation was a consequence of the applicant's own

conduct towards the other inmates and not imposed as a disciplinary measure of

solitary confinement.  There is no indication that the applicant was thereby

segregated from other prisoners.  Having regard to the Government's information

on the opportunities to take part in physical exercises and other activities,

the Commission, in the absence of any particular criticism on the part of the

applicant, finds no element of ill-treatment in the course of his one-month

detention in the Sopronk?hida Prison.

f. General appreciation

86. In sum, the Commission considers that, during his detention, the applicant

was not subjected to any "inhuman or degrading treatment or punishment" within

the meaning of Article 3 (Art. 3) of the Convention.

CONCLUSION

87. The Commission concludes, unanimously, that in the present case there has

been no violation of Article 3 (Art. 3) of the Convention.

D. Article 8 (Art. 8) of the Convention

88. The applicant complains about interferences by the Budapest Prison

authorities with his correspondence.  He invokes Article 8 (Art. 8), which

provides as follows:

"1. Everyone has the right to respect for his private and family life,

his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of national security, public

safety or the economic well-being of the country, for the prevention of disorder

or crime, for the protection of health or morals, or for the protection of the

rights and freedoms of others."

89. The applicant generally complains about a practice of the Budapest Prison

authorities to open and to control as well as to delay prisoners'

correspondence.  Nevertheless his argument before the Commission is focused on

alleged interferences with his correspondence to and from the Commission, in

particular the control and delay of such letters.

90. The Government submit that there was only evidence to show that one letter

sent by the Commission had been opened by the prison authorities, i.e. the

letter of 23 June 1993.  Moreover, there was nothing to show that there had been

delays in forwarding the applicant's letters.

91. The Commission has examined in turn the applicant's complaints about

interferences by the Hungarian authorities with his right to respect for his

correspondence.

a. The opening of the Commission's letter of 23 June 1993

92. The Commission finds that its letter of 23 June 1993 had been opened in

the applicant's absence, as evidenced by the entry stamp put by the prison

authorities not only on the envelope, but on the letter itself.

93. There has, therefore, been an interference with the applicant's right

under Article 8 para. 1 (Art. 8-1) in this respect.  Such interference is in

breach of Article 8 (Art. 8), unless justified under paragraph 2 of Article 8

(Art. 8-2).

94. The basis for interferences with a prisoner's correspondence is to be

found in S. 36 of the Hungarian Law on the Enforcement of Sentences.  While

prisoners are in principle entitled to correspond with relatives, other persons

as well as with domestic authorities and international organisations, their

correspondence may be controlled by the prison authorities for reasons of

security, except for letters sent to public authorities and to international

organisations (S. 36 para. 5 of the Law on the Execution of Sentences). 

95. The Commission finds that its letter dated 23 June 1993 had been opened by

the Budapest Prison authorities contrary to S. 36 para. 5 of the Law on the

Enforcement of Sentences.  This interference was not, therefore, "in accordance

with the law".

96. It follows that the interference complained of was not justified under

Article 8 para. 2 (Art. 8-2) of the Convention.

97. The Commission further examined, for reasons of completeness, whether the

other conditions under paragraph 2 of Article 8 (Art. 8-2) were satisfied.  In

this respect, the Commission considers that it has been recognised that some

measure of control over prisoners' correspondence is called for in order to

secure the order in prison and is not in itself incompatible with the Convention

(cf. Eur. Court HR, Silver and Others judgment, op. cit., pp. 37-38, paras. 97-

98; Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233,

p. 18, paras. 44-45).  However, under the Convention, there can be no compelling

reason for the control of the Commission's correspondence (cf. Eur. Court HR,

Campbell judgment, op. cit., p. 22, para. 62).  Accordingly, the opening of the

Commission's letter of 23 June 1993 cannot be regarded as "necessary in a

democratic society" within the meaning of paragraph 2 of Article 8 (Art. 8-2).

b. Further issues relating to the Commission's correspondence

98. The Commission considers that the applicant's allegation that the

Commission's letter of 23 June 1993, after having been opened in his absence,

was not handed over to him by the prison staff, but by another prisoner, is not

supported by evidence.

99. As regards the applicant's submission that the opening of the letter of 23

June 1993 showed a general practice of opening letters from the Commission, the

Commission notes the Government's statement that in July 1993 the Budapest

Prison authorities changed their "routine" of control.  Nevertheless,

considering all circumstances, the Commission finds no sufficient factual

elements to conclude that any of its other letters had been opened before being

handed over to the applicant.

100. As regards the alleged delays in forwarding correspondence, the Commission

notes that the lapse of time between the date of a letter and its receipt by the

applicant or the Commission, respectively, varied generally between eight and

ten days.  There is no indication that these periods considerably exceeded the

usual periods of postal delivery.

101. However, the applicant's letter of Friday, 11 June 1993 was only posted on

Wednesday, 16 June 1993 and received by the Commission on 23 June 1993, which

was the next Wednesday.

102. The applicant maintains that this letter had been deliberately retained by

the Budapest Prison authorities.  The Government deny any such interference.

They argue in particular that there is no proof of the date when the applicant

put his letter for mailing.

103. The Commission observes that the applicant's letter was mailed five days

after it had been dated by him.  Taking into account that the possible delay in

mailing the said letter comprised a week-end, the transmission period of a total

of twelve days does not, in the Commission's view, result in an interference

with the applicant's right under Article 8 para. 1 (Art. 8-1).

104. The Commission finally finds that the applicant's assertion, raised in his

letter of 25 June 1993, that he was prohibited from continuing further

correspondence with the Commission has not been substantiated.

105. In sum, the Commission, on the material before it, finds no further

interferences with the Commission's correspondence.

c. Other correspondence issues

106. As regards his other correspondence, the applicant did not specify the

letters subjected to control or other interferences. However, the Commission

considers, and this was not disputed by the Government, that the Hungarian

prison authorities generally subjected the applicant's other correspondence to a

control for security reasons.  Such interference is in breach of Article 8 (Art.

8), unless justified under paragraph 2 of Article 8 (Art. 8-2).

107. In the Commission's view, the control of the applicant's other

correspondence was based on S. 36 of the Act on the Execution of Sentences.

There is no indication that the applicant was not, in accordance with the

relevant rules, aware of the possibility of control.  Moreover, the applicant

did not substantiate any incident of unlawful interference by the Budapest

Prison authorities with his correspondence other than with the Commission.

These control measures were, therefore, "in accordance with the law".

108. Furthermore, the Commission finds that there are no concrete circumstances

justifying the conclusion that these control measures were in themselves

incompatible with the Convention, regard being paid to the ordinary and

reasonable requirements of imprisonment (cf. Eur. Court HR, Silver and Others

judgment, op. cit., pp. 37-38, paras. 97-98; Campbell judgment, op. cit., p. 18,

paras. 44-45)

109. In these circumstances, the control of the applicant's correspondence

other than the Commission's correspondence can reasonably be regarded as

"necessary in a democratic society" for maintaining the order in prison.  It

follows that the interference complained of was justified under Article 8 para.

2 (Art. 8-2) of the Convention. 

CONCLUSION

110. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 8 (Art. 8) of the Convention as a result of the

opening of the Commission's letter to the applicant dated 23 June 1993.

111. The Commission concludes, unanimously, that there has been no violation of

Article 8 (Art. 8) of the Convention in respect of the remainder of

correspondence issues.

E. Article 13 (Art. 13) of the Convention

112. The applicant alleges that there existed in Hungary no effective remedy in

respect of his claims under Articles 3 and 8 (Art. 3, 8) and that he was

therefore the victim of a violation of Article 13 (Art. 13) of the Convention.

113. Article 13 (Art. 13) provides as follows:

"Everyone whose rights and freedoms as set forth in this Convention are

violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons acting in an

official capacity."

a. Claims concerning the conditions of the applicant's detention (Article 3)

(Art. 3)

114. The Commission recalls that Article 13 (Art. 13) guarantees the

availability of a remedy at national level in respect of any "arguable" claim of

a violation of Convention rights (cf. Eur. Court HR, Boyle and Rice v. the

United Kingdom judgment on 27 April 1988, Series A no. 131, pp. 23-24, paras.

52, 54).

115. As regards the applicant's complaint under Article 3 (Art. 3) about the

conditions of his detention, the Commission considers that there was a prima

facie case against Hungary, and that the requirement that the complaint must be

"arguable" is satisfied in respect of this submission.

116. In the applicant's submission, both the complaints procedure within the

framework of the penal institutions and the possibility of a complaint with the

public prosecutor's office do not allow for a review of complaints by an

independent and impartial body or tribunal.  He is also of the opinion that

Article 70/K of the Constitution is of a declaratory nature and does not as such

create an effective remedy.

117. According to the Government, the complaint with the National Headquarters

of Penal Institutions and/or the competent public prosecutor's office as well as

the possibility to bring the matter before a court, pursuant to Article 70/K of

the Hungarian Constitution, ensure an effective legal protection for the

purposes of Article 13 (Art. 13) of the Convention.

118. Article 13 (Art. 13) guarantees the availability of a remedy at national

level to enforce the substance of the Convention rights.  Its effect is thus to

require the provision of a domestic remedy allowing the competent "national

authority" both to deal with the substance of the relevant Convention complaint

and to grant appropriate relief in meritorious cases (cf. Eur. Court HR,

Vilvarajah v. the United Kingdom judgment of 30 October 1991, Series A no. 215,

p. 39, para. 122; Murray v. the United Kingdom judgment of 28 October 1994,

Series A no. 300-A, pp. 37-38, para. 100; Chahal v. the United Kingdom judgment

of 15 November 1996, para. 145, to be published in Reports of Judgments and

Decisions 1996).  Article 13 (Art. 13) does not require any particular form of

remedy, Contracting States being afforded a margin of discretion in conforming

to their obligations under this provision (Eur. Court HR, Vilvarajah judgment,

loc. cit.).  However, if the "national authority" is no judicial authority, the

powers and the guarantees which it affords are relevant in determining whether

the remedy before it is effective (cf. Eur. Court HR, Silver judgment, op. cit.,

p. 42, para. 113; Chahal judgment, loc. cit.).

119. The Commission notes that Article 70/K of the Constitution stipulates, in

general terms, a right of recourse to court.  The respondent Government have not

put forward any example showing the application of Article 70/K of the

Constitution in a case similar to the present one.  Moreover, the Government

conceded that there were considerable difficulties in finding domestic court

decisions referring to Article 70/K.  In these circumstances, the Government

have failed to show that this remedy would have been effective.

120. The Commission further notes that pursuant to the Law on Enforcement of

Sentences as well as under the Prison Rules, prisoners may lodge complaints and

apply for the remedying of any individual injury.  Such matters are examined

first by the competent authorities of the prison concerned and, if the issue is

not satisfactorily settled at this level, a further complaint lies with the

National Headquarters of the Penal Institutions.

121. The Commission considers that both the prison authorities and the National

Headquarters of Penal Institutions are thereby competent to receive complaints

and they are also under an obligation to examine such complaints in order to

ensure that the prisoners' rights have been respected.  Moreover, they have the

power to render a legally binding decision.  However, the Commission finds that

the prison authorities do not only lack the necessary independence of the

Government, but, being directly affected by such complaint, do not offer the

necessary guarantees to ensure an effective control.  As far as the National

Headquarters of Penal Institutions is concerned, it may, in practice, proceed to

a full examination of complaints.  Nevertheless, it is subject to Government

control and there remain doubts whether, at least in practice, it performs its

supervisory functions independently.

122. Finally, under the Law on the Public Prosecutor's Office, the public

prosecutors are competent to supervise the lawfulness of the conditions of

detention and the execution of the detention, and to hear inmates and examine

complaints concerning the execution of sentences (see above para. 0).  This

possibility of complaint is also mentioned in the Prison Rules (see above para.

0).  Taking into account their legal status, as laid down in the Hungarian

Constitution (see above para. 0), public prosecutors can be considered as

independent of the Government.  As to the efficiency of the control afforded by

public prosecutors, the Commission considers that it follows from the wording of

the Law on the Public Prosecutor's Office that there are no limitations on the

right to address the competent public prosecutor.  Moreover, the organs

competent for the execution of sentences are required to comply with the public

prosecutor's instructions ensuring  respect for the law.

123. The Commission finds that, although the possibility of recourse to the

competent public prosecutor is, in the relevant legal texts, couched in vague

terms as to whether there is a duty to investigate such individual complaints

and whether the complainant is entitled to a decision in his or her individual

case, this control mechanism has proved to be an effective remedy in the present

case.  In this context, the Commission observes that the applicant had in fact

recourse to a complaint with the competent Public Prosecutor's Office which

examined his complaints and rendered an individual decision.  It is true that

the Public Prosecutor's Office  dismissed his complaint.  However, the

effectiveness of a remedy for the purposes of Article 13 (Art. 13) does not

depend upon the certainty of a favourable outcome (cf. Eur. Court HR,

Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment of

19 December 1994, Series A no. 302, p. 20, para. 55).

124. In these circumstances, the Commission finds that the complaints procedure

with the competent Public Prosecutor's Office can be considered sufficient to

ensure compliance with Article 13 (Art. 13).

CONCLUSION

125. The Commission concludes,  by 26 votes to 5, that in the present case

there has been no violation of Article 13 (Art. 13), in conjunction with Article

3 (Art. 3), of the Convention.

b. Complaint about interferences with the applicant's correspondence (Article

8) (Art. 8)

126. The applicant's complaint of a violation of his right to respect for his

correspondence relates to several issues.

127. To the extent that the opening of the Commission's letter of 23 June 1993

is concerned, the Commission, referring to its above conclusion (para. 0),

considers that the claim of a violation of Article 8 (Art. 8) in this respect is

an "arguable" one for the purposes of Article 13 (Art. 13).

128. As regards the remainder of the applicant's submissions under Article 8

(Art. 8), the Commission observes that, on the evidence adduced, either no

interferences with his right could be established (see above paras. 0-0), or

there was no appearance of unjustified control (see above paras. 0-0).  In the

light of these considerations, the question arises whether there is an

"arguable" claim of a violation of Article 8 (Art. 8) in these respects.

However, in the circumstances of the present case, it is not necessary to reach

a separate conclusion under this head.

129. The Commission, having regard to its above findings (see paras. 0-0),

considers that the complaint with the Public Prosecutor's Office constituted an

effective remedy for the purposes of Article 13 (Art. 13).

CONCLUSION

130. The Commission concludes, by 26 votes to 5, that in the present case there

has been no violation of Article 13 (Art. 13), in conjunction with Article 8

(Art. 8), of the Convention.

F. Recapitulation

131. The Commission concludes, unanimously, that in the present case there has

been no violation of Article 3 (Art. 3) of the Convention (para. 0).

132. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 8 (Art. 8) of the Convention as a result of the

opening of the Commission's letter to the applicant dated 23 June 1993 (para.

0).

133. The Commission concludes, unanimously, that there has been no violation of

Article 8 (Art. 8) of the Convention in respect of the remainder of

correspondence issues (para. 0).

134. The Commission concludes, by 26 votes to 5, that in the present case there

has been no violation of Article 13 (Art. 13), in conjunction with Article 3

(Art. 3), of the Convention (para. 0).

135. The Commission concludes, by 26 votes to 5, that in the present case there

has been no violation of Article 13 (Art. 13), in conjunction with Article 8

(Art. 8), of the Convention (para. 0).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                            President

     to the Commission                    of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF MRS. THUNE, MRS. LIDDY,  MR. BUSUTTIL, MR. BRATZA

AND MRS. HION

We have voted with the majority of the Commission on the main complaints

under Articles 3 and 8, but have been unable to agree that there has been no

violation of Article 13 in conjunction with Article 3 and Article 8

respectively. Accordingly we have voted against the conclusions in paragraph 125

and 130.

The applicant alleges that he did not have at his disposal an effective

remedy for his Article 3 complaint. The majority of the Commission, found that

the possibility to complain to the Public Prosecutors Office was sufficient in

the particular circumstances of this case.

We regret that we have not been convinced that this remedy is sufficiently

effective to comply with the requirements under Article 13  of the Convention.

Under S. 11(a) of Law V. of 1972 on the Public Prosecutor's Office, the

public prosecutor is empowered to supervise, inter alia,  the lawfulness of the

conditions of detention, forced medical treatment and the execution of the

detention. Further, by S. 12 para. 1 of the Law it is provided, inter alia, that

the organs competent for the execution of sentences are required to comply with

the prosecutor's instructions "ensuring respect for the law".

The majority of the Commission acknowledge - rightly, in our view - that

the possibility of recourse to the competent public prosecutor is in the

relevant legal texts couched in vague terms. In particular, it is unclear

whether there is a duty to investigate such individual complaints and whether a

complainant is entitled as of right to a decision in his or her individual case.

Recalling the vulnerable position of detainees, we consider that clarity

as regards their legal position is essential. It must be the responsibility of

the Contracting States to ensure that the applicable rules are precise and clear

as to the possibility to complain and the procedure to follow.

In addition, we have doubts as to the scope of the powers of the public

prosecutor to issue binding instructions to the relevant prison authorities. It

is true that in the present case the applicant had recourse to the public

prosecutor and received a reasoned decision rejecting his complaint. However, we

note that his complaint to the prosecutor did not relate to general prison

conditions but to specific allegations of ill-treatment in prison.

The complaints set out in the decision of admissibility concerning

conditions of detention and control of correspondence relate to alleged

structural deficiencies within the prison for which in our view an application

to the public prosecutor would appear to afford no obvious remedy within the

meaning of Article 13.

The applicant has exemplified his problems by stating that the activities

out of the wards were only possible "as special rewards". He liked reading and

sport but these possibilities were restricted for him on the stated ground that

"it is better if such a man does not read". The Government has not disputed the

assertions.

It appears therefore that an award system, with all its risks of

arbitrariness and favouritism, operated within the prison rather than a system

of disciplinary measures to deprive a prisoner of a privilege or right because

of the prisoner's verifiable misconduct and following appropriate procedures.

There is no evidence as to how the remedies relied on by the majority could

resolve such structural problems. In particular, in the absence of any prison

records regarding receipt and transmission of the applicant's mail, it is

difficult to see how complaints to the National Headquarters of Penal

Institutions or the competent Public Prosecutor's Office could have been

effective. It would appear that any changes in the structural organisation of

prisons, probably with financial and personnel implications, were primarily a

matter for the Minister for Justice and his or her Government colleagues to

decide on. In these circumstances, the only effective remedy would appear to be

a Court Order establishing the prisoner's rights and engendering appropriate

administrative or legal consequences. Article 70/K of the Constitution has not

been shown to be effective in this respect, for the reasons given in para. 119

of the Report.

Accordingly, there has been a violation of Article 13.