AS TO THE ADMISSIBILITY OF

                      Application No. 21967/93

                      by Sándor SÁRKÖZI

                      against Hungary

      The European Commission of Human Rights sitting in private on

5 July 1995, the following members being present:

           MM.   C.A. NØRGAARD, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 19 April 1993 by

Sándor SÁRKÖZI against Hungary and registered on 3 June 1993 under file

No. 21967/93;

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

of Procedure of the Commission;

      Having regard to:

-     the observations submitted by the respondent Government on

      30 December 1993;

-     the Commission's decision of 18 January 1994 to grant legal aid;

-     the observations in reply submitted by the applicant on

      30 March 1994;

-     the supplementary observations submitted by the respondent

      Government on 19 August 1994, and the observations in reply

      submitted by the applicant on 30 October 1994; the Government's

      further comments of 2 December 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts, as they have been submitted by the parties, may be

summarised as follows.

      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 under a strict regime (fegyház) in the Budapest

Prison (Fegyház és Börtön).  In the proceedings before the Commission,

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

A.    Particular circumstances of the present case

      On 31 May 1990 the applicant was arrested by the Szigetvar City

Police (Városi Rendorkapitányság) on a charge of theft.

      According to the applicant, policemen severely beat him several

times in order to persuade him to plead guilty.  On 3 June 1990 the

applicant was, following an alleged ill-treatment and attempt to commit

suicide, transferred to a hospital.  He fled from the hospital the same

day.

      On 31 May 1991 the applicant was arrested again and he was kept

in detention during the subsequent criminal proceedings, at first in

the Pecs City Police cells (Pécsi Városi Rendorkapitányság fogdája),

later in Pecs Prison (Pécsi Büntetésvégrehajtási Intézet).

      The applicant claims that he was several times ill-treated both

in the police cells and in the prison.  In or about the summer of 1991

he lodged charges with the Public Prosecutor's Office (Ügyészség)

against the policemen and the prison staff concerned.  On 14 December

1991 the Pecs Local Office of the Kaposvar Prosecutor's Investigation

Office (Kaposvári Ügyészség Nyomozó Hivatal Pécsi Kirendeltsége)

dismissed the charges.

      On 3 March 1992 the Szigetvár District Court (Városi Bíróság)

convicted the applicant, inter alia, of the offence of having escaped

from prison and sentenced him to four years and two months'

imprisonment.  On 17 June 1992 the Baranya Regional Court (Megyei

Bíróság) dismissed the applicant's appeal against the judgment of

3 March 1992.  It also ordered the District Court to fix a cumulative

sentence, taking into account a prior sentence of one year and five

months' imprisonment.  Thereupon, the Szigetvár District Court, as

confirmed by the Baranya Regional Court on 20 November 1992, fixed a

cumulative sentence of five years and six months' imprisonment.

      On 6 July 1992 the applicant was transferred to the Budapest

Prison to serve his sentence under the strict regime where he is

presently still detained.  The prison authorities, having regard to the

criminal offences committed by the applicant, his previous attempts to

commit suicide and his attempts to escape from prison, treat him as

particularly dangerous.  He is presently detained with seven other

detainees in a cell of 25.2m².  In case of bad weather conditions, the

Budapest Prison authorities do not arrange for the inmates' daily

exercise of one hour in the uncovered prison yard.

      According to the applicant, some of his complaints to various

authorities about his conviction and about alleged ill-treatment were

torn up by the prison staff; as a result of his complaining he was

beaten several times by some inmates instigated by the prison staff;

he further suffers other disconfort, such as being locked up for 23 and

a half hours a day in his cell.

      On 11 and 31 December 1992 the applicant was, according to the

Budapest Prison records on the health of prisoners, attacked by other

inmates.  The applicant received medical treatment and the persons

concerned were held responsible.

      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.

      On 6 April 1993 the Szigetvár District Court, upon the

applicant's request of 22 October 1992 and following preliminary

investigations, ordered the reopening of the criminal proceedings

against him regarding his conviction of 3 March 1992 concerning, inter

alia, the offence of having escaped from prison and fixed 11 May 1993

as date for a hearing.  On 16 April 1993 the applicant was summoned for

hearings in these proceedings on 11 May and 16 July 1993.  On

28 April 1993 the Baranya Regional Court dismissed the applicant's

motion to challenge the judges at the District Court for bias.

Following the hearing on 16 July 1993, the District Court confirmed his

conviction.

      On 26 May 1993 the Pecs Public Prosecutor's Office dismissed the

applicant's complaint, dated 29 April 1993, against the decision of the

Pecs Local Office of the Kaposvar Attorney's Investigation Office of

14 December 1991 as well as his new complaints about alleged ill-

treatment in June 1990.  The Office found that these submissions were

unsubstantiated and also lodged one and a half years after the expiry

of the eight days time limit.

      On 19 April 1993 the applicant lodged an application with the

Commission.  Regarding the subsequent exchange of correspondence, there

are diverging submissions by the parties.

      According to the applicant, letters of the Commission's

Secretariat, sent to him on 5 May, 3 June and 23 June 1993, were

stopped by the prison authorities, opened in his absence, and handed

to him with an average delay of two or three days.

      The applicant also claims that his letters to authorities and to

the Commission have been often stopped by the prison authorities and

mailed only with considerable delay.  He alleges in particular a delay

in mailing his letter to the Commission dated 11 June 1993, and points

out that his letter of 13 June 1993 arrived earlier at the Commission.

      According to the Government, the Budapest Prison did not keep

records of the prisoners' correspondence and the delivery of

correspondence addressed to them, but incoming mail was stamped with

the date of arrival.  Thus, the envelope of the Commission's letter of

3 June 1993, mailed on 7 June, was stamped with 11 June 1993 as date

of arrival.  The Commission's letter of 23 June had been 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 Governor.  The letter of 1 July 1993 and its envelope had not

been stamped upon arrival.  The envelope of the letter of 13 July 1993,

mailed on the same day, was stamped with 19 July 1993 as date of

arrival; the envelope of the letter dated 29 July was stamped with

6 August 1993 and the envelope of the letter of 22 October with

28 October 1993 as date of arrival.  In the course of the Government's

investigations, no indications were found that all envelopes had been

opened by the prison authorities.

      The Government further submit that there was no evidence on

whether or not the letter of 11 June 1993 had been retained, in

particular there was no record on when the applicant had given it to

the prison authorities for mailing.

      The applicant's letter of 11 June 1993, in which he complained,

inter alia, about alleged ill-treatment and interference with his

correspondence, was  stamped on 18 June 1993 and arrived at the

Commission on 23 June 1993.  The applicant's letter of 13 June 1993 was

apparently stamped on 14 June and arrived at the Commission on

16 June 1993.  The applicant's letter of 22 June 1993 complaining

about, inter alia, ill-treatment and interferences with his mail was

smuggled from the prison by his wife, and the letter was mailed in

France.  In his letter of 25 June 1993 the applicant informed the

Commission that he was prohibited from continuing correspondence with

the Commission.

      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, was dismissed.  The National

Headquarters found in particular that the applicant's letters were

never stopped by the Budapest Prison, the fact that these letters were

duly mailed being evidenced by the arrival of correspondence in reply

thereto.

      Following the above complaints, the prison authorities changed

their routine regarding the applicant's correspondence with the

Commission.  On 6 July 1993 the Commission's letter of 1 July 1993 was

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

more interferences with his correspondence either to or from the

Commission.

B.    Relevant domestic law and practice

      S. 41 para. 1 of the Hungarian Penal 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 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 (fegyház).

      According to Law-Decree 11 of 1979 on the enforcement of

punishments and measures (Büntetések és intézkedések végrehajtárásról

szóló 1979. évi. 11. törvényereju), as amended by Law 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, or

to medical experiments, and no scientific research or experiment may

be performed without their consent.

      S. 26 of Law-Decree 11 of 1979, as amended by Law XXXII of 1993

relates to strict regime prisons (fegyház) 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.

      According to S. 36 para. 1 (b) of Law-Decree 11 of 1979, as

amended by Law XXXII of 1993, 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.  According

to S. 36 para. 1 (g), the inmate may state, or complain about, alleged

violations of his rights with the prison authorities or with other

state organs.  S. 36 para. 1 (k) provides that the inmates are entitled

to one hour's daily exercise.  Under S. 41 para. 1 inmates may be

rewarded inter alia for exemplary conduct.

      Order 8/1979/VI.30/IM (8/1979 (VI.30.) IM), issued by the

Minister of Justice (Igazságügyminiszter), sets out the Prison Rules.

      According to Rule 9 of Order 8/1979/VI.30/IM, 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 into 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 102/1982/IK.2.IM, provides that an inmate shall

be considered as extremely dangerous 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.

      Under Rule 85 para. 1 of Order 8/1979/VI.30/IM, 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 m² per person.

      According to Rule 22 of Order 8/1979/VI.30/IM, 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.

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

(Magyar Köstársaság Ügyészségérol 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 concerning the lawfulness and the conditions

of detention on remand.

      According to Article 70/K of the Hungarian Constitution

(Alkotmány), 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 create the possibility of access to court

in respect of claims against other persons or the state in connection

with the fundamental rights.  Article 59 para. 1 of the Constitution

ensures the right to a good reputation, the right to respect for one's

home and the protection of private secrets and personal data.

COMPLAINTS

1.    The applicant complains about his conviction claiming that he was

innocent and also submits that the courts dealing with his case were

biased.  In this respect and also with regard to the following

complaints, the applicant does not invoke any particular provision of

the Convention.

2.    Moreover, the applicant complains that the prison authorities

interfered with his correspondence.

      He submits that some of his letters addressed to public

authorities were torn up, that others, inter alia, to the Commission

were mailed with considerable delay and that he was prohibited from

carrying on correspondence with the Commission for a while.  He claims

that reprisals were applied against him by the prison authorities often

through other inmates as a consequence of his complaining.

      He also submits that letters to him from the domestic public

authorities and from the Commission are opened in his absence and read

by the prison authorities and that he receives these letters only with

considerable delay.

3.    The applicant further complains that he was subjected to inhuman

and degrading treatment in the course of his detention in different

police cells and prisons including the Budapest Prison where he is

currently detained.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 19 April and registered on

3 June 1993.

      On 19 October 1993 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

      On 30 December 1993 the Government submitted their observations.

      On 18 January 1994 the Commission decided to grant the applicant

legal aid.

      The applicant's observations in reply were submitted on

30 March 1994.

      The respondent Government submitted supplementary observations

on 19 August 1994, and observations in reply were submitted by the

applicant on 30 October 1994.  The Government's further comments dated

2 December 1994.

THE LAW

1.    The applicant complains about his conviction and also of the

court proceedings concerned.

      The Commission recalls that the Convention only governs, for each

Contracting Party, facts subsequent to its entry into force with

respect to that Party (cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146).

      The Commission observes that the date of entry into force of the

Convention with respect to Hungary was 5 November 1992.  The applicant

was convicted by the Szigetvár District Court on 3 March 1992 and his

appeal was dismissed by the Baranya Regional Court on 17 June 1992.

The Szigetvár District Court subsequently fixed a cumulative sentence

which was confirmed by the Baranya Regional Court on 20 November 1992.

Following the applicant's request of 22 October 1992, the Szigetvár

District Court ordered the reopening of the proceedings regarding his

conviction of March 1992 on 6 April 1993.  On 16 July 1993 the District

Court, having held two hearings, confirmed the applicant's conviction.

      In these circumstances, the Commission finds that the decisions

taken prior to the date of entry into force of the Convention in

respect of Hungary, and the proceedings relating thereto 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).

      The Commission is therefore only competent ratione temporis to

examine the proceedings concerning the fixing of a cumulative sentence

and the reopening of the criminal proceedings in 1993.  The Commission

has examined these proceedings under Article 6 (Art. 6) of the

Convention.

      As regards the proceedings concerning the fixing of a cumulative

sentence, the Commission recalls that, in the event of conviction,

there is no determination of any criminal charge, within the meaning

of Article 6 para. 1 (Art. 6-1), as long as the sentence is not

definitely fixed (cf. Eur. Court H.R., Eckle judgment of 15 July 1982,

Series A no. 52, p. 35, para. 77).  Article 6 (Art. 6) is therefore

applicable to the proceedings regarding the fixing of a cumulative

sentence.  However, the applicant's submissions do not disclose any

appearance of unfairness in this part of the proceedings.

Consequently, this complaint is manifestly ill-founded within the

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

      As regards the proceedings concerning the applicant's request for

a reopening of the criminal proceedings, the Commission recalls that

Article 6 (Art. 6) does not apply to such proceedings given the fact

that someone who applies for his case to be reopened and whose sentence

has become final is not charged with a criminal offence within the

meaning of the said Article (Art. 6) (cf. No. 7761/77, Dec. 8.5.78, D.R

14 p. 171).  However, in the present case, the applicant's request

resulted in the reopening of the proceedings against him, as decided

on 6 April 1993, and the competent District Court conducted hearings

in May and July 1993.  On 16 July 1993 the applicant's conviction was

confirmed.  In these circumstances, the Commission is of the opinion

that Article 6  (Art. 6) is applicable to the reopened proceedings as

the latter involved a determination of the criminal charges against the

applicant.  However, having considered the applicant's submissions

regarding these proceedings and all material submitted in this respect,

the Commission finds that the applicant failed to show any appearance

of unfairness in the conduct of these proceedings or of bias on the

part of the District Court.  This complaint is, therefore, also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

      It follows that this part of the application is inadmissible

under Article 27 (Art. 27) of the Convention.

2.    The applicant further complains about the interference with his

correspondence by the authorities of the Budapest Prison.

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

a.    As to whether the applicant complied with Article 26 (Art. 26)

      The Government maintain that the applicant failed to exhaust, as

required by Article 26 (Art. 26) of the Convention, the domestic

remedies available to him under Hungarian law.  The Government submit

that the applicant already complained to the Commission about the

correspondence issues in his letter of 11 June 1993, before filing such

complaints with the competent Hungarian authorities, namely the

National Headquarters of Penal Institutions and/or the competent public

prosecutor's office.  According to the Government, the applicant could

have also brought the matter before a court, pursuant to Article 70/K

of the Hungarian Constitution.  They consider that Article 70/K, which

was introduced in 1989, created an effective remedy for the purposes

of Article 26 (Art. 26), although there is no case-law on the

application of this provision.

      The applicant considers that the remedies as set out by the

Government could not be regarded as effective for the purposes of

Article 26 (Art. 26).  According to the applicant, the complaints

procedure within the framework of the penal institutions as well as the

possibility of a complaint with the public prosecutor's office do not

allow for a review of the matter complained about 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.

      Under 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, and within a period of six months from the date on which the final

decision was taken.

      The Commission recalls that the only remedies which Article 26

(Art. 26) of the Convention requires to be exercised are those that are

both available and sufficient in respect of the violation alleged.  The

existence of such remedies must be sufficiently certain not only in

theory but also in practice, failing which they will lack the requisite

accessibility and effectiveness.   Moreover, it is for the State to

prove that there exist available remedies which have not been utilised

by those concerned (see Eur. Court H.R., Deweer judgment of 27 February

1980, Series A no. 35, pp. 15 and 16, paras. 26 and 29, with further

references; De Jong, Baljet and Van den Brink judgment of 22 May 1984,

Series A no. 77, p. 19, para. 39).

      With regard to the first remedy suggested by the respondent

Government, the Commission notes that the applicant in fact raised his

complaint about interference with his correspondence with the National

Headquarters of Penal Institutions, and he received a negative reply.

      It is true that, at the time that he made use of this remedy

referred to by the Government, he had already mentioned this complaint

in his correspondence with the Commission.

      However, while an applicant is, as a general rule, in duty bound

to exercise the different remedies before he applies to the Commission,

it is open to the Commission to accept the fact that the last stage of

such remedies may be reached shortly after the lodging of the

application but before its decision on admissibility (cf., Eur. Court

H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p. 38,

para. 91).

      The Commission notes that the applicant introduced complaints

relating to various matters on 19 April 1993, and he subsequently

amended his submissions and filed further complaints.  The applicant

raised his complaints about the control of his correspondence at about

the same time in June 1993 both with the Commission and the National

Headquarters of Penal Institutions, and the latter took a decision

shortly afterwards.  The Government failed to show any legitimate

interest which could have been prejudiced by the fact that this

particular complaint was raised with the Commission shortly before the

Hungarian authorities had the opportunity to decide upon the matter.

      The applicant's complaints under Article 8 (Art. 8) cannot,

therefore, be rejected for non-exhaustion of the remedies before the

prison authorities, in particular the National Headquarters of Penal

Institutions.

      With regard to the second remedy proposed by the Government, i.e.

a complaint with the competent public prosecutor's office, the

Commission notes that no further appeal lies against the measures taken

by the National Headquarters of Penal Institutions pursuant to Rule 22

of Order 8/1979/VI.30/IM.  It is true that, according to Rule 27

para. 2 of Order 8/1979/VI.30/IM, an inmate may request to be heard by

the competent public prosecutor.  However, the Commission finds that

the applicant, after having exhausted the remedy with the highest body

in the administration of penal institutions, cannot be reproached for

not having raised a further complaint with another administrative

authority, namely the Public Prosecutor's Office.

      As regards the third remedy, namely the court action referred to

in Article 70/K of the Hungarian Constitution, the Commission notes

that the Hungarian Government were unable to cite a single instance in

which a plaintiff had instituted court proceedings under Article 70/K

of the Constitution, as amended in 1989.  This absence of case-law

indicates the uncertainty of this remedy in practical terms.

Accordingly, the Government have not shown that this action could

constitute an available and sufficient remedy that the applicant ought

to have exhausted.

      It follows that the applicant's complaint about interference with

his correspondence cannot be rejected for non-exhaustion of domestic

remedies under Article 27 para. 3 (Art. 27-3) of the Convention.

b.    As to whether the applicant can be regarded as a "victim"

      The Government maintain that only in one instance it could be

proved that a letter from the Commission to the applicant had been

opened by the authorities of the Budapest Prison, i.e. the letter dated

23 June 1993.  In this respect, the Government point out that the

routine regarding the control of correspondence from the Commission was

changed by the prison authorities following the applicant's complaint

with the National Headquarters of Penal Institutions.  They consider

that the applicant thereby obtained redress which would preclude him

from complaining to the Commission pursuant to Article 25 (Art. 25) of

the Convention.

      The Commission recalls that the Convention leaves to each

Contracting State, in the first place, the task of securing the

enjoyment of the rights and freedom it enshrines.  To duplicate the

domestic process with proceedings before the Commission and the Court

would appear hardly compatible with the subsidiary character of the

machinery of protection established by the Convention.  Accordingly,

a person may exceptionally no longer claim to be a victim within the

meaning of Article 25 (Art. 25) of the Convention, when the national

authorities have acknowledged either expressly or in substance, and

then afforded redress for, the breach of the Convention (see Eur.

Court. H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30,

para. 66).

      In the present case, the applicant received a negative reply by

the National Headquarters of Penal Institutions regarding his complaint

about interference with his correspondence.  In particular, the

National Headquarters found that the applicant's letters were never

stopped by the Budapest Prison, their due mailing being evidenced by

the arrival of correspondence in reply thereto.

      The Commission considers that there was thus no express

acknowledgement of the breach of the Convention alleged by the

applicant.  As to the question whether there was an implicit

acknowledgement, the Commission finds that, having regard to the above-

mentioned negative reply by the National Headquarters of Penal

Institutions, the change of the prison routine regarding the control

of his correspondence cannot be regarded as amounting in substance to

such an acknowledgement, and redress for the alleged breach of the

Convention.

      Consequently, the Commission is not, pursuant to Article 25

para. 1(Art. 25-1) , precluded from examining in full the applicant's

complaint about interference with his correspondence.

c.    The alleged breach of Article 8 (Art. 8)

      The Government, referring to the case-law of the Convention

organs in this area, submit that some measure of control over

prisoners' correspondence is not contrary to the Convention.  They

consider that the control of the applicant's correspondence was based

on Hungarian law and that it was necessary for the prevention of crime

and in the interest of public safety, namely the safety of the prison

concerned.  In this respect, they also point out that the legal

provisions only allow, but do not oblige, the authorities to control

the prisoners' correspondence, and in practice not all letters are

controlled.  According to the Government, there is no proof of delay

in forwarding letters to the applicant.

      The applicant objects to the Government's views.  He maintains

that there was a systematic control of his correspondence which could

not be regarded as necessary in a democratic society in the interest

of public safety.

      The Commission finds that this complaint raises serious issues

of such complexity that they require an examination of the merits.

This part of the application cannot, therefore, be considered

manifestly ill-founded, and there is no other ground on which it could

be declared inadmissible.

3.    The applicant also complains about inhuman and degrading

treatment in the course of his detention.

      According to Article 3 (Art. 3) of the Convention, "no one shall

be subjected to torture or to inhuman or degrading treatment or

punishment".

a.    The Commission notes that some of the events referred to by the

applicant, in particular alleged ill-treatment by police officers,

occurred prior to 5 November 1992, the date of entry into force of the

Convention in respect of Hungary, and do not, therefore, come within

the jurisdiction of the Commission ratione temporis.  In this context

the Commission observes that the Pecs Public Prosecutor's Office, in

its decision of 26 May 1993, regarded the applicant's complaint about

the decision of the Investigation Office of 14 December 1991, which

dismissed his charges against several police officers, as having been

lodged out of time.  This procedure does not affect the Commission's

finding as to its competence ratione temporis regarding the incidents

complained of.

      It follows that this part of the applicant's complaint under

Article 3 is inadmissible under Article 27 (Art. 27) of the Convention.

b.    The applicant's further submissions relating to Article 3

(Art. 3) of the Convention concern both alleged incidents of ill-

treatment by other inmates of the Budapest Prison, allegedly upon the

instigation of the prison staff, and the particular conditions of his

detention.

      The Government maintain that the applicant failed to exhaust the

domestic remedies available to him.

      The Commission notes that the applicant lodged complaints with

the National Headquarters of Penal Institutions regarding his prison

conditions which remained unsuccessful.  As regards the further

remedies proposed by the Government, the Commission refers to its

findings on the question of exhaustion of domestic remedies in respect

of the applicant's complaints about the control of his correspondence.

His complaints about treatment contrary to Article 3 (Art. 3) cannot,

therefore, be rejected for non-compliance with Article 26 (Art. 26) of

the Convention.

      The Government further submit that there is no evidence to show

that, in the relevant period, the applicant was detained in the

Budapest Prison in a manner contrary to Article 3 (Art. 3).  According

to them, the conditions of his detention are in compliance with the

demands of the enforcement of sentences in respect of inmates qualified

as particularly dangerous, and do not constitute inhuman or degrading

treatment or torture.

      The applicant turns the Commission's attention in particular to

the size of his cell, which he shares with seven other inmates, and to

the fact that, in the absence of a regular daily exercise, he has to

spend his time in his cell, except for the meals.

      The Commission finds that the applicant's complaints concerning

the conditions of his detention raise serious issues of such complexity

that they require an examination of the merits.  This part of the

application cannot, therefore, be considered manifestly ill-founded,

and there is no other ground on which it could be declared

inadmissible.

4.    The Commission has finally examined the applicant's submissions

relating to the conditions of his detention (Article 3) (Art. 3) and

the control of his correspondence (Article 8) in the context of Article

13 (Art. 13) of the Convention.

      Article 13 (Art. 13) provides that "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".

      According to the Government, the remedies suggested in the

context of its submissions under Article 26 (Art. 26) of the Convention

provide an effective legal protection for the purposes of Article 13

(Art. 13).

      The Commission, having regard to its above considerations under

Articles 3 and 8 (Art. 3, 8) of the Convention, considers that the

present aspect of the application cannot be declared manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2).

Accordingly, it reserves also this issue for an examination as to its

merits.

      For these reasons, the Commission by a majority

      DECLARES INADMISSIBLE the applicant's complaints about his

      conviction and also of the court proceedings concerned, as well

      as his complaints about alleged ill-treatment prior to 5 November

      1992;

      DECLARES ADMISSIBLE the remainder of the application,

      without prejudging the merits of the case.

      Secretary to the Commission      President of the Commission

           (H.C. KRUGER)                     (C.A. NORGAARD)