AS TO THE ADMISSIBILITY OF

                      Application No. 23636/94

                      by P. M.

                      against Hungary

     The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 3 November 1993

by P.M. against Hungary and registered on 8 March 1994 under

file No. 23636/94;

     Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having regard to:

-    the observations submitted by the respondent Government on

     3 January 1996 and the observations in reply, submitted by the

     applicant on 1 March 1996;

-    the supplementary observations of 22 March and 25 September 1996,

     submitted by the respondent Government and the supplementary

     observations in reply of 30 May, 3 June and  21 August 1996,

     submitted by the applicant.

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1949, is a Hungarian citizen. He is

serving a life sentence in the Nagyfa Prison in Hungary.

     The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

A.   Particular circumstances of the case

a.   The criminal proceedings against the applicant

     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.

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

Regional Court.

     On 29 October 1990 the Attorney General's Office (Legfobb

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.

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

     On 23 June 1993 the Supreme Court (Legfelsobb 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 bünteto eljárásról szóló 1973.

évi I. törvény).

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

     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 has been imprisoned at the Nagyfa Prison.

     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.

     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.

     The parties disagree as to the conditions of the applicant's

detention upon the introduction of his application.

     The applicant gives the following account: He was placed in a

prison ward 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 ward and the balcony.

     The Government give the following account: The applicant stayed

in a bright, spacious and properly heated four-bed ward. 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

ward. 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. 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.

     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 ward with television, radio, sink, bath and

lavatory, the latter equipped with a special handle for the disabled.

His bedding is changed upon his request and he is free to open or close

the window of the ward. According to a subsequent report of the senior

physician of the prison, there was no neglected bedsore on the

applicant's lower body.

     On 8 January 1996 the penitentiary supervisory public prosecutor

(büntetésvégrehajtási ügyész) examined the conditions of the

applicant's accommodation and established 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 ward

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.

     As to his transfer to the one-bed ward in January 1996, the

applicant, while admitting that the conditions of his accommodation

have improved by this measure, maintains that he still does not receive

immediate nursing care during nights, if need be.

     The applicant also alleges that he has meanwhile filed a civil

court action, claiming compensation for his inadequate medical

treatment subsequent to his vertebral fracture in 1986. He states that

these proceedings are pending.

B.   Relevant domestic law

     S. 41 para. 1 of the Hungarian Criminal Code (1978. évi IV.

törvény a Bünteto Törvénykönyvrol) 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.

     According to Law-Decree No. 11 of 1979 on the Enforcement of

Punishments and Measures (a büntetések és intézkedések végrehajtásáról

szóló 1979. évi 11. törvényereju 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.

     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 ward

of the respective penitentiary institutes (these wards 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.

     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.

COMPLAINTS

1.   The applicant complains under Article 3 about the conditions of

his imprisonment. He submits in particular that his hygienic treatment

has been insufficient, ever since he has been imprisoned, and that the

prison authorities have not arranged for regular stays in the open air.

Moreover, he alleges that his present inability to move and to control

his bowel movements and urinary functions is partly due to the prison

authorities' failure in the past to ensure the proper medical treatment

of his vertebral fracture.

2.   The applicant also complains under Article 5 that his

imprisonment is unlawful. He submits that he was unlawfully convicted,

since he had committed the crime whilst being of unsound mind. He

further complains that the court decisions were based on an erroneous

establishment of the facts.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 3 November 1993 and registered

on 8 March 1994.

     On 18 October 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

3 January 1996.

     On 1 March 1996 the applicant submitted observations in reply to

the respondent Government's observations.

     On 22 March 1996 the Government submitted supplementary

observations.

     On 30 May and 3 June 1996 the applicant submitted his

observations in reply.

     On 21 August 1996 the applicant submitted supplementary

observations.

     On 25 September 1996 the Government submitted further

observations.

THE LAW

1.   The applicant complains under Article 3 (Art. 3) about the

conditions of his imprisonment. He submits in particular that his

hygienic treatment has been insufficient, ever since he has been

imprisoned, and that the prison authorities have not arranged for

regular stays in the open air. Moreover, he alleges that his present

inability to move and to control his bowel movements and urinary

functions is partly due to the prison authorities' failure in the past

to ensure the proper medical treatment of his vertebral fracture of

1986.     Article 3 (Art. 3) provides that no one shall be subjected to

torture or to inhuman or degrading treatment or punishment.

a.   As to the conditions of the applicant's prison accommodation, the

Government submit that all possible measures have been taken in the

matter, in particular, to balance 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

doomed to fail in many cases. 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

under Article 3 (Art. 3) is manifestly ill-founded.

     The applicant maintains that the conditions of his imprisonment

have continuously been 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 ward in January 1996, the applicant, while

admitting that the conditions of his accommodation have improved by

this measure, maintains that he still does not receive immediate

nursing care during nights, if need be.

     The Commission recalls that the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to the Party in question (cf. No. 7742/76, Dec. 4.7.78,

D.R. 14, p. 167; No. 21228/93, Dec. 24.5.95, D.R. 81, p. 42). Hungary

ratified the Convention on 5 November 1992, however, the application

refers to a situation starting in 1986. In these circumstances, the

Commission finds that the events prior to the entry into force of the

Convention in respect of Hungary do not come within the jurisdiction

of the Commission ratione temporis (cf., mutatis mutandis, No. 7211/75,

Dec. 6.10.76, D.R. 7, p. 104).

     As regards the applicant's subsequent situation, the Commission

considers, in the light of the parties' submissions, that this part of

the case raises complex issues of law and of fact under the Convention,

the determination of which should depend on an examination of the

merits. The Commission concludes, therefore, that this part of the

application is not manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

declaring it inadmissible have been established.

b.   As to the complaint about the alleged lack of the proper medical

treatment of the applicant's vertebral fracture of 1986, the Government

submit that the applicant received appropriate medical treatment. In

any event, the question whether his treatment and care were adequate,

could be cleared only in civil court proceedings which, however, were

not brought by the applicant. Consequently, this complaint must be

rejected for non-exhaustion of domestic remedies.

     The applicant submits that his irreversible paralysis is due to

the lack of an operation and of an adequate rehabilitating therapy. He

states that he has meanwhile filed a civil court action in this respect

and the proceedings are still pending.

     The Commission notes that the applicant's complaint partly

relates to events which took place prior to the Hungarian ratification

of the Convention. It follows that this part of the application is

incompatible ratione temporis and must be rejected within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

     Moreover, according to Article 26 (Art. 26) of the Convention,

the Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law.

     The Commission considers that, in the present case, filing a

civil court action claiming compensation for the allegedly

inappropriate medical treatment qualifies as an effective remedy.

     The Commission notes the applicant's allegation that he has

lodged a civil court action. These proceedings are, in his own

submissions, still pending.

     It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

2.   The applicant complains under Article 5 (Art. 5) that his

imprisonment is unlawful. He submits that he was unlawfully convicted,

since he had committed the crime whilst being of unsound mind. He

further complains that the court decisions were based on the erroneous

establishment of facts.

     Article 5 (Art. 5) of the Convention, in so far as it is

relevant, reads as follows:

     "1.   Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

           a.    the lawful detention of a person after conviction by

     a competent court...;"

     The Government submit that the applicant's final conviction took

place in 1988, i. e. prior to 5 November 1992. His petition for review,

rejected by the Supreme Court on 23 June 1993 as incompatible ratione

materiae with the legislation on review, was no effective remedy and

did not bring his conviction within the Commission's competence ratione

temporis.

     The applicant maintains that his conviction was based on facts

erroneously established. When committing the murders, he was of unsound

mind - a fact subsequently verified psychiatrically. His mental illness

lasted until at least November 1990 and his conviction comes,

therefore, within the Commission's competence ratione temporis.

Moreover, his petition for review was an effective remedy in that his

mental illness and his paralysis were facts that could have influenced

his punishment.

     The Commission recalls that it is not competent ratione temporis

to examine proceedings which effectively finished before the

Convention's entry into force in respect of Hungary (cf., mutatis

mutandis, No. 21495/93, Dec. 30.6.93, unpublished).

     The Commission notes that the Supreme Court finally convicted the

applicant in 1988, i. e. prior to 5 November 1992. It is true that on

23 June 1993 the Supreme Court rejected his petition for review,

whereby he had asked for a reduction of his sentence in the light of

his health condition. However, the Supreme Court held that the petition

was incompatible ratione materiae with the conditions of review within

the meaning of S. 284 (2) of the Hungarian Code of Criminal Procedure.

     The Commission considers that in these circumstances the final

decision authorising the applicant's detention remains the 1988

judgment. The applicant's unsuccessful petition for review does not

bring the proceedings against him within the Commission's competence

ratione temporis.

     It follows that this part of the application is incompatible

ratione temporis with the provisions of the Convention and must be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission,

     by a majority,

     DECLARES ADMISSIBLE, without prejudging the merits of the case,

     the applicant's complaint about the conditions of his

     imprisonment.

     unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber