SECOND SECTION

CASE OF GÉGÉNY v. HUNGARY

( Application no. 44753/12 )

JUDGMENT

STRASBOURG

16 July 2015

FINAL

16/10/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Gégény v. Hungary ,

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

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

Having deliberated in private on 23 June 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 44753/12) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr János Gégény (“the applicant”), on 10 July 2012 .

2 . The applicant was represented by Mr D. Karsai , a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi , Agent, Ministry of Justice.

3 . The applicant complained of inadequate conditions of detention in prison, in particular a lack of personal space, and the absence of any effective remedy in that regard, contrary to Articles 3 and 13 of the Convention .

4 . On 9 January 2014 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1966 and is currently detained at Sátoraljaújhely Prison .

6 . On 19 October 2001 he started to serve a prison sentence at Szeged Prison, where he remained until 30 January 2006. According to the applicant, he spent 63 months with eleven other inmates in three different cells (nos. 356, 358 and 215) measuring 27 square metres each, including sanitary facilities. The cells were equipped only with one tap and a toilet, separated from the living area only by a curtain. The dining table was fixed to the floor just a metr e away from the toilet. The applicant had a daily one ‑ hour ‑ long outdoor activity. The yards were closed premises measuring 40 by 20 metres , about 100-150 persons being taken to the yard at a time .

The applicant was also entitled to thirty minutes ’ exercise in the gym three times a week. He attended secondary school classes three times a week, six hours on each occasion .

7 . On 30 January 2006 the applicant was transferred to Budapest Prison Unit “ B ” , where his cells (no s . 316, 130, 325, 211, and 206) measured 27 square metres and were occupied by him and seven other men (that is, 3.4 square metres gross living space per inmate). The c ells had no venti lation system and were infes ted with parasites. Detainees were permitted to take a shower once a week, according to the applicant, in unhygienic conditions and for no longer than 1-2 minutes.

The applicant was entitled to a daily walk of about one hour in the prison yard measuring 20 by 20 metres . He indicated, however, that he was not able to go outdoors during the period between 20 June 2009 and 12 May 2010 on those days when he was employed as a librarian.

8 . Between 12 May 2010 and 27 May 2011 the applicant contin ued to serve his sentence in Unit “A ” of Budapest Prison. He was kept in five cells described as follows: cell nos. 8, 9 and 141 (8 square metres , three inmates), and cell nos. 3 and 252 (6.5 square metres , two inmates). Only a curtain was used as a partition between the toilet and the living area.

Throughout his detent ion the applicant had no out-of- cell activities other than a daily one-hour walk in the yard of the prison facility, gym exercise twice a week for about 50 minutes each time and a weekly visit to the library for about 15 minutes.

The inmates were allowed one shower per week. The shower room was equipped with four shower heads. There were about 25 inmates taken to have a shower at the same time, making it impossible to move around because of the sheer number of prisoners.

9 . On 27 May 2011 the applicant was transferred back to Unit “B” of Budapest Prison , where he spent two years in five different cells.

The size of those cells was 27 square metres . The occupancy rate varied between 8 persons (that is, 3.38 square metres gross living space per inmate) and 10 persons (that is 2.7 square metres gross living space per inmate).

10 . Since 16 June 2013 the applicant has been detained at Sátoraljaújhely Prison with three other inmates in a cell measuring 8 square metres .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE S 3 AND 13 OF THE CONVENTION

11 . The applicant complained that the conditions of his detention in different prison facilities were in breach of Article 3 of the Convention , which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

12 . The applicant also argued that he did not have effective remedies for those complaints, in breach of Article 13 of the Convention:

“Everyone whose rights and freedoms as set forth in [the] 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.”

13 . The Government contested th ese argument s .

A. Admissibility

14 . The Government submitted that there was an effective remedy to address the applicant ’ s grievances under Article 3, which he had not availed himself of , namely a civil action in compensation against the authorities . For that reason, his complaint under Article 3 should be rejected for non ‑ exhaustion of domestic remedies, whereas the complaint under Article 13 read in conjunction with Article 3 was manifestly ill-founded.

15 . The applicant contested these views , arguing that his complaint about the inh uman physical circumstances of his detention should be declared admissible, since there was no effective remedy available for him to exhaust.

16 . The Court has previously dismissed similar argument s of the Government (see Varga and Others v. Hungary , nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13 , § § 41 and 51-65 , 10 March 2015 ). The Court finds no reason to reach a different conclusion in the present case.

17 . The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 13 of the Convention

18 . In the Varga and Others v. Hungary judgment ( cited above, §§ 44 ‑ 65) the Court carried out a thorough analysis of domestic remedies in the Hungarian legal system in respect of complaint s relating to the material conditions of detentio n . The Court concluded in that case that it had not been shown that the Hungarian legal system offered an effective remedy that could be used to prevent the alleged violation or its continuation and provide the applicant s with adequate and sufficient redress in connection with a complaint of inadequate conditions of detention . Accordingly, the Court found that the applicants did not have at their disposal an effective domestic remedy for their grievances, in breach of Article 13 of the Convention.

19 . The Court finds no reason to depart from this conclusion in the present case. Noting that the applicant raises an “arguable” complaint under Article 3 of the Convention, the Court finds that there has been a violation of Article 13 of the Convention.

2. Article 3 of the Convention

20 . The applicant submitted that the conditions of his detention in different prison facilities, in which he had spent more than thirteen years, had been inhuman and degrading.

21 . The Government did not dispute the applicant ’ s account of the conditions of his detention.

22 . Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of a democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim ’ s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV ) ; and Balogh v. Hungary , no. 47940/99, § 44, 20 July 2004 ). The Court has consistently stressed that the suffering and humiliation involved must, for a violation to be found, go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element.

In accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).

23 . When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece , no. 40907/98 , § 46, ECHR 2001-II; Idalov v. Russia [GC], no. 5826/03, § 94, 22 May 2012). The length of time a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia , no. 64812/01, 8 November 2005).

24 . The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania , no. 53254/99, § 36, 7 April 2005). However, the Court has always refused to determine, once and for all, how many square metres should be allocated to a detainee in terms of the Convention, having considered that a number of other relevant factors, such as the duration of detention, the possibilities for outdoor exercise, the physical and mental condition of the detainee and so forth, play an important part in deciding whether the detention conditions complied with the guarantees of Article 3 of the Convention (see, for example, Sergey Babushkin v. Russia , no. 5993/08, § 50, 28 November 2013).

25 . In the present case the thrust of the applicant ’ s complaint is the overcrowding of the different prison facilities where he was detained. The Court accepts as credible the applicant ’ s assertion that the cells in the different prison facilities where he was detained were overcrowded. For most of the period, the personal space afforded t o the applicant did not exceed s quare m etres (see paragraphs 6, 8 and 9 above) . On certain occasions it was as low as 2 square metres (see paragraph 10 above).

26 . In previous cases where the applicants disposed of less than 3 square metres of personal space, the Court has found that the overcrowding was severe enough to justify, in its elf , a fi nding of a violation of Article 3 of the Convention (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 145, 10 January 2012).

27 . Furthermore, the Court notes the applicant ’ s submissions on further factual elements, not refuted by the Government . Both th e dining tables and the toilet s were located inside the cells, sometimes as close to each other as one metre (see paragraph 6 above). Occasionally, only a curtain separated the toilet from the living area (see paragraph 6 and 8 above) ; and the cells were infes ted with parasites (see paragraph 7 above).

28 . Moreover , the difficulty of the applicant ’ s situation was not in any significant way attenuated, for instance by virtue of the time spent out side his cell. For extended periods the applicant was confined to his cell for almost the whole day, apart from an hour ’ s daily outdoor exercise and a weekly maximum of three hours spent with other activities such as gym exercise and visits to the library.

29 . The Court is mindful of the fact that the periods of overcrowding alternated with a period of relative normality when the applicant shared a cell measuring 27 sq uare m etres with seven other inmate s (see paragraph 7 above) . However, in the Court ’ s opinion, that fact did not alleviate the applicant ’ s situation, since this latter period must be seen against the background of virtually non-existent outdoor exercise and deficient hygiene facilities .

30 . Finally, t he Court puts special emphasis on the fact that the applicant i s serving a long term of imprisonment. His placement in a cramped cell for most of the day was not temporary. He has been held in such conditions, lacking any privacy, for more than thirteen years ( compare and contrast, Dmitriy Rozhin v. Russia , no. 4265/06, § 53, 23 October 2012) .

31 . Having regard to the cumulative effect of those factors, the Court finds that the fact that the applicant was detained in overcrowded prison cells with poor sanitary facilities and little access to o ut-of-cell activities for more than thirteen years must have caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention .

The Court therefore considers that the applicant was subjected to inhuman and degrading treatment in breach of Article 3 of the Convention.

32 . In the circumstances, the Court concludes that there has been a violation of Article 3 of the Convention

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

33 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

34 . The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

35 . The Government considered this claim to be excessive.

36 . As regards the violation of Article 13, the Court holds that the finding of a violation constitutes sufficient just satisfaction (see Varga , cited above, § 120 ; Ananyev , cited above, § 173 ).

37 . Concerning Article 3, t he Court considers that the applicant ’ s situation must have caused him serious suffering and frustration and necessitates an award under Article 41. Making its assessment on the basis of equit y , the C ourt awards the applicant EUR 26 ,000 in respect of non ‑ pecuniary damage (see Varga , cited above, § 121).

B. Costs and expenses

38 . The applicant claimed EUR 55,880 for the costs and expenses incurred before the Court. This sum corresponds to 220 hours of legal work billable by his lawyer at an hourly rate of EUR 200 plus VAT. This global figure has been submitted in respect of the case of the applicant and another 19 applications, out of which one has already been adjudicated.

39 . The Government contested this claim.

40 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria , the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads .

C. Default interest

41 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1 . Declares the application admissible;

2 . Holds that there has been a violation of Article 3 of the Convention;

3 . Holds that there has been a violation of Article 13 of the Convention;

4 . Holds that the finding of a violation constitutes sufficient just satisfaction in regard to Article 13 read in conjunction with Article 3 of the Convention ;

5 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

( i ) EUR 26 ,000 ( twenty- six thousand euros) , plus any tax that may be chargeable, in respect of non- pecuniary damage;

( ii) EUR 1,000 ( one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith Işıl KarakaÅŸ Registrar President