SECOND SECTION

DECISION

Application no . 36568/07 Simon BENJAMIN against Hungary

The European Court of Human Rights (Second Section), sitting on 4 March 2014 as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş , András Sajó , Nebojša Vučinić , Paul Lemmens, Egidijus Kūris , Robert Spano , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 16 August 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Simon Benjamin, is a Hungarian national, who was born in 1972 and is currently detained at Szombathely Prison. He was represented before the Court by Mr R. Papp, a lawyer practising in Szeged.

The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi , Agent, Ministry of Public Administration and Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 31 March 1998 the applicant escaped from Pálhalma Prison where he was serving a sentence for robbery. While on the run, he shot a prison guard twice in the leg. A third shot would have hit the guard ’ s chest and may have killed him if he had not jumped away. The applicant was caught within a few hours and transferred back to prison. He claims that the prison officers beat him on arrival, which apparently caused a rupture in his abdominal wall.

On 1 April 1999 the applicant was admitted to Pálhalma Prison Hospital in response to his complaints of vomiting bile, solar plexus pain and a swollen ankle. There is no evidence in the applicant ’ s medical record that he complained of beating by the police officers during his arrest.

On 9 December 1999 the Pest County Regional Court found the applicant guilty of attempted murder of a public official, escape from imprisonment and other crimes and sentenced him to life imprisonment in a strict-regime prison. The Supreme Court, acting as a second-instance court, upheld this judgment on 15 January 2001.

The applicant was initially committed to Szeged Prison and then transferred to Budapest Prison in 2003. He was placed in a single-occupancy cell, since there were grounds to believe, based on police reports, that he would attempt to escape. He was allowed to stay outside, with physical restraints, in accordance with the prison ’ s daily routine. He complained about these restraints and his placement to the prison governor, but the rules remained unchanged.

On 28 February 2004 the applicant escaped from Budapest Prison. He was caught and returned to prison within a few hours. On his retrieval, the prison officers allegedly handcuffed him and fettered his legs, tore his clothes off, forced him down on the ground, knelt on his head and beat him. They interrogated him for thirty to forty-five minutes about his escape while he lay naked on the cold floor. This occurred in the medical ward of the prison in the presence of a female doctor and a nurse.

After having been interrogated, the applicant was led to a prison office barefoot and then placed in a special security cell, as a disciplinary measure, where he spent 40 days in isolation with his hands tied to his belt and his legs fettered day and night. During this entire period he was allowed to wash himself only six times altogether, and the cuffs and fetters seriously lacerated his skin.

The beating by the prison officers during the interrogation apparently caused a recrudescent rupture in the applicant ’ s abdominal wall, and he had to undergo surgery. He submits that he still suffers from residual inguinal hernia.

On 27 September 2004 the applicant lodged a complaint with the Ministry of the Interior, Department for Supervision of Prisons, concerning his treatment at Budapest Prison. The case was first transferred to the National Headquarters of Penitentiary Institutions and, for further examination, to Budapest Prison and the Budapest Military Prosecutor ’ s Office. The latter opened criminal investigations on 28 October 2004, which were discontinued on 28 February 2005 for want of evidence.

In relation to his second escape, on 28 March 2006 the Pest Central District Court found the applicant guilty of vandalism and escape from imprisonment and sentenced him to one year and six months of imprisonment, non-executable due to his ongoing life term. On 12 June 2008 the President of the Republic dismissed the applicant ’ s plea for clemency.

On 13 August 2008 the applicant attempted to commit suicide by hanging himself in his prison cell, but his life was saved.

In December 2009 the applicant was again transferred to Szeged Prison. On admission, he was stripped in the medical ward in front of five prison officers, a doctor and a nurse, and he was required to bend over a bed with his hands handcuffed. While he was in this position the doctor performed a cavity search. When the applicant complained that he found this humiliating in front of several spectators, the prison officers laughed at him, allegedly threatening him that they might ‘ assist ’ the doctor in the cavity search using their metal batons.

Subsequently the applicant was transferred to another penitentiary institution, but in June 2011 he was returned to Szeged Prison for a three-week period, in order to make him available to local justice as a witness in a criminal case. On admission, the otherwise routine cavity search was again carried out in the presence of several prison officers. He complained about this to the prison governor, and on 11 July 2011 he lodged a complaint with the public prosecutor in charge of penitentiary supervision. On 13 July 2011 the applicant was moved to Márianosztra Prison and his complaint was transferred to the Pest County Chief Prosecutor ’ s Office, for reasons of jurisdiction. On 11 August 2011 the applicant was heard by a public prosecutor in Márianosztra Prison, where he withdrew his complaint, stating that the issue had been resolved.

The applicant submitted that he was serving his term in a special security department, in a single-occupancy cell illuminated only by artificial light. He was excluded from any courses or social events organised within the prison, and he had difficulties in receiving visitors; in particular, he could be visited by his family, living in Germany, only once a year due to the circumstances. Moreover, he was always handcuffed whenever outside his cell.

COMPLAINTS

The applicant complained under Article 6 of the Convention about his conviction in 2001 and under Article 3 about the conditions of his detention and the inhuman treatment by prison staff.

THE LAW

1. The applicant complained about his allegedly erroneous conviction. He relied on Article 6 of the Convention.

The Court notes that this conviction became final on 15 January 2001, whereas the application was introduced only on 16 August 2007, that is, more than six months later.

This complaint must thus be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. As to the applicant ’ s complaints concerning the events of 28 February 2004, the Government submitted that the final domestic decision relating to these matters was given by the Budapest Military Prosecutor ’ s Office on 28 February 2005. Consequently, the application was introduced out of time in this respect.

The applicant did not contest this argument.

The Court observes the Government ’ s unrefuted objection based on the six-month rule. It notes that the final domestic decision was given more than six months before the date of introduction of his application.

This complaint must thus likewise be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3. Concerning the incidents of December 2009 and June 2011, the Government submitted that the applicant had not pursued any remedy about the first occasion (such as a complaint to the penitentiary management or the competent public prosecutor) and, moreover, that he had withdrawn his complaint about the second one on 11 August 2011.

The applicant did not contest these arguments.

The Court observes the Government ’ s unrefuted objection based on the exhaustion rule. It notes that the applicant did not pursue any formal remedies in respect of the incidents complained of.

This complaint must thus be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

The applicant did not contest any of these arguments.

In these circumstances, the Court cannot but accept the Government ’ s account of the conditions of the applicant ’ s detention. Even assuming that the situation complained of is a continuous one including the applicant ’ s disciplinary confinement in 2004 and lasting up until the present day, the Court is satisfied that those conditions, as submitted by the Government in their unrefuted assertions, do not disclose any appearance that the applicant was subjected to inhuman or degrading treatment, especially since the measures appear reasonable in the face of his being a dangerous inmate prone to escaping.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President