Written observations of the applicant concerning the Government’s observations and claim for just satisfaction

 

 

S. Naismith

Section Registrar

Second Section

European Court of Human Rights

Council of Europe

F-67075 STRASBOURG CEDEX

 

 

Application no. 52624/10

Hagyó v. Hungary

 

 

 

Written observations of the applicant concerning the Government’s observations

and claim for just satisfaction

in the case Hagyó v. Hungary (no. 52624/10)

 

 

Dear Sir,

 

1. In response to your letter dated 19 September 2012, the applicant respectfully submits his written observations concerning the Government’s stance, and his claim for just satisfaction.

 

2. The applicant reserves the right to make further submissions in relation to the case and is ready to make observations in the course of the procedure should further questions by the Court be raised or further observations by the Government submitted.

 

Part I. Observations concerning the facts of the case

 

3. As the applicant mentioned in his submission dated 16 February 2012, he was acquitted on 16 January 2012 from the charge of giving his common-law wife a retainer with false contents with the purpose of circumventing the provisions pertaining to family visits in penitentiary institutions. The decision (attached under C/1) states that the authorization given by the applicant to his common-law wife did not contain false information, therefore, no criminal offence was committed by the applicant or his partner. The prosecution appealed against the decision, but on 11 April 2012, it withdrew the appeal (C/2). According to the spokesperson of the Prosecutor’s Office the reason for the withdrawal was that “there was no ground on which the court’s decision could be challenged” (see the article attached under C/3 and available at: http://www.origo.hu/print/itthon/20120509-jogerosen-felmentettek-hagyo-miklost-az-okirathamisitas-vadja-alol.html). According to the article, the judge – when providing the verbal reasons for her decision at the court session – said that it could not be established that the applicant’s common-law wife had wished to visit the applicant with the intention of contacting him without external control (“Az ítélet indokolásában elhangzott, hogy [...a] másodrendű vádlott [the applicant’s partner] nem is akart oilyan jogosultságokra szert tenni, amelyekhez jogi végzettség kellene. Németh Leóna bíró januárban elmondta, egy polgári peres ügyben eljáró bíróság is elfogadta, hogy érvényes a meghatalmazás, amely egyébként is alkalmatlan volt arra, hogy többletjogokat biztosítson.ˇ)

 

4. In the course of the criminal procedure launched against the applicant with the charge of falsification, it became clear that – as opposed to what the prosecution had claimed – none of the visits paid by the applicant's common-law wife to the applicant had been conducted without proper control.

 

5. On 20 October 2010, the prosecution – in an official letter – approached both the Metropolitan Penitentiary Institution and the Central Hospital of the Penitentiary Administration (see the letters attached as C/4 and C/5), asking – among other things – who, when, in what capacity and under what type of supervision had met the applicant. Both wardens replied to the request on the next day.

 

6. On 21 October the warden of the Metropolitan Penitentiary Institution wrote the following (see C/6): “I inform you that in Unit III of the Metropolitan Penitentiary Institution visits by legal representatives are conducted in consultation booths. In the booths the detainee and the visitor are separated by a transparent plastic wall, they can talk to each other through a telephone. At the time of the visits two staff members – one from the Penitentiary Department and one from the SecurityDepartment – are present in a waiting area outside the booth, but the discussion can be monitored with an appliance (through tapping).”  [Tájékoztatom, hogy a Fővárosi Büntetés-végrehajtási Intézet III. objektumában a látogatások lebonyolítása – jogi képviselők esetében – beszélő fülkében történik. A fülkében a fogvatartottat és a látogatót átlátható műanyag elem választja el, egymással telefonon keresztül beszélhetnek. A beszélő alkalmával a fülkén kívül, egy előtérben jelen van a büntetés-végrehajtási osztály, illetve a biztonsági osztály 1-1 munkatársa, a beszélgetés azonban technikai eszköz révén ellenőrizhető (belehallgatással).]

 

7. The warden of the Central Hospital informed the prosecutor's office (C/7) that “all the visits conducted in the institution are monitored”. (Az Intézményt érintő beszélők ellenőrzésére minden esetben sor kerül.)

 

8. Thus, the wardens of both institutions refuted that the applicant had ever met his common-law wife without supervision. This means that the 9 November 2010 resolution of the prosecution, in which the applicant was banned from meeting and phoning his common-law wife (see Annex A/IV/10 of the applicant's submission dated 20 April 2011) stated completely falsely and without any factual ground (in fact in blatant contradiction with the information provided by the wardens of the concerned institutions) that the applicant's partner successfully got into unsupervised contact with the applicant. (“According to the available information, she tried successfully on a number of occasions to get into contact with the arrested Miklós Hagyó in a more favourable manner – without supervision – than she would have been entitled to as his common-law wife.” – A rendelkezésre álló adatok alapján [az élettárs] több alkalommal is sikeresen az élettársként őt megillető jogosultságokat meghaladó módon – ellenőrzés nélkül – törekedett kapcsolatot tartani az előzetes letartóztatásban lévő Hagyó Miklós gyanúsítottal.) It must be stressed that since the prosecutor’s office requested the reply to be sent urgently (on the next day) by fax, it is also certain that the prosecutor’s office must have known by 9 November 2010 that no unsupervised visits had taken place.

 

9. As the applicant already pointed out in his submission of 16 February 2012, in its decision terminating the applicant's house arrest (attached as Annex B/I/16 to the said submission) the Metropolitan Court indicated that it could not find in the material attached by the prosecution the evidence that substantiated the applicant's intention to escape (“A kényszerintézkedés megalapozottsága kapcsán korábban és jelen határozatban is történt hivatkozás egy a nyomozás során felmerült információra, amely szerint Hagyó Miklós a büntetőjogi felelősségre vonása elől külföldre kívánt távozni, azonban a Központi Nyomozó Főügyészség által a bíróság részére megküldött nyomozati anyag erre vonatkozóan adatokat nem tartalmaz, azaz nem derül ki, hogy a gyanúsított esetében mely tények igazolják a külföldre távozás szándékát.”) The applicant wishes to emphasise that although – in line with the relevant provisions of the Code of Criminal Procedure – he was provided with the full file of the investigation after it had been closed down (on 5 October 2011) and he as well as his defence counsels have examined the material thoroughly, they found no trace of any evidence, report, or anything else that could have substantiated the – false – assumption that he planned to escape abroad.

 

10. § 3 of the Government's observations: While it is true that on 23 August 2010 neither the nurse nor the physician detected an asthmatic attack, from the documentation attached by the Government it is also clear from the documentation that by the time the health personnel examined the applicant he had already inhaled three puffs from his anti-asthma spray, therefore the health personnel's observations do not refute that the applicant had had an asthmatic incident on the said day.

 

11. The reason for the applicant's refusal on 24 August 2010 to be transferred to the Central Hospital of the Penitentiary Administration was that a family visit was scheduled for 26 August, which would have had to been postponed if he had been transferred into another institution in the meantime. (The fact of the family visit on the 26th is substantiated by the list of visits submitted by the Government – see the second paragraph on p. 4 of the English language version of the Government's observations.) Therefore, the reason for the applicant's decision was not a “family problem”, but the scheduled visit from his family. (It also needs to be emphasised that the applicant subsequently agreed to be and was transferred to the Central Hospital in mid-September).

 

12. Every time the applicant refused to take medication, he had rational reasons to do so. An example is the 28 December 2010 occasion (see p. 41 of Annex 1 of the Government's observations), when he refused to take the medication because he had not eaten yet, and the description of the medication indicated that it had to be taken after meals. (In the penitentiary institutions medication has to be taken in the presence of the health personnel, so it may not be postponed for later, therefore, if the inmate has not had his meal when the medication is distributed, he may not ask to be provided with it for later use.) It also happened that the applicant took the prescribed medication at a subsequent distribution round by the health personnel. See for instance the 27 August 2010 case (p. 26 of Annex 1 of the Government's observations), when the applicant refused to take Doxycyclin in the morning, so the nurse prescribed it for the evening round, when the applicant took it without objection (which is proven by the fact that no documentation about the refusal to take medication in the evening of that day is found in his health records). In any case the following has to be noted: due to his bad health status the applicant was provided with medication at all of the three daily medication distribution rounds (morning, noon and evening) by the prison's health staff, which means approximately 810 occasions when medication was provided to him during the 9 months of his pre-trial detention. Out of these 810 occasions, there were only four instances when the applicant refused to take some of the medication prescribed for him. Therefore, this matter is obviously not relevant at all from the point of view of the deterioration of his health.

 

13. It needs to be pointed out that the Government only partially and tendentiously quotes the medical documentation attached on pages 44-45 of Annex 1 of the observations. While on 17 September it was recorded that explicit deterioration was noticeable in the applicant's pulmonological status (“akkori pulm. állapotához viszonyítva kifejezett romlás észlelhető”), the degree of improvement by 30 September was only relative, minor (“[A] hörgtágító szerekre némi javulást észlelt, de az aktuálisan fennálló fül-orr-gégészeti gyulladás miatt még fennállnak a pulm. panaszai. […] Légzésfunkciós vizsgálat: LF értékei valamelyest javultak.”)

 

14. As to the running of the ears on 17 and 18 October 2010, it must be emphasised that the 18 October court hearing at which the applicant did not wish to appear is not related to the case in which he was remanded. He was not supposed to appear as a defendant in that case but as the injured party of a libellous statement in relation to which the applicant had launched a criminal case against ... (see the summons for the hearing attached as Annex C/8). Therefore, the applicant does not understand why the Government finds that this incident bears any relevance to the present case.

 

15. § 4 of the Government’s observations: It needs to be emphasised that the Government only provides the gross surface area of the cells in which the applicant was detained. When calculating the net surface area, the following shall be deducted from the gross figure: the 1-1.5 square meter safety area between the cell door and the bar that is there to prevent inmates from attacking those who enter the cell; the area of the toilet; and the area covered by the furniture of the cell (2 bunkbeds, 1 table and 4 chairs fixed to the ground, 2 lockers attached to the wall, and 1 basin).

 

16. Thus, the net moving space per inmate was much smaller than claimed by the Government. It was around 4 square meters, which means 1 square meter moving space for the applicant when he shared his cell with two other inmates and 1.3 square meters when he was placed together with two other persons. It needs to be emphasised in this regard that the pertaining Hungarian legislation (Article 137(2) of Decree 6/1996. (VII. 12.) IM of the Minister of Justice on the Rules of the Implementation of Imprisonment and Pre-trial Detention, hereinafter: Penitentiary Decree) prescribes that the moving space shall be defined in a way that the equipment and furniture of the cell shall be deducted from its gorss surface area (“[a] mozgástér meghatározása szempontjából a zárka (lakóhelyiség) alapterületéből az azt csökkentő berendezési és felszerelési tárgyak által elfoglalt területet figyelmen kívül kell hagyni”).

 

17. It also needs to be added that not even the 3.52 square meter moving space (which according to the Government’s – deficient – calculation was provided to the applicant for altogether 124 days, i.e. the larger part of his detention) would have met the Hungarian standard, since according to Article 239(1) of the Penitentiary Decree, pre-trial detainees shall be possibly provided with 4 square meters of free moving space (“[a] zárkában [...] elhelyezhető létszámot úgy kell meghatározni, hogy személyenként lehetőség szerint [...] négy négyzetméter mozgástér jusson”).

 

18. It has to be emphasised that when on 17 November 2010, the penitentiary institution rejected the applicant's request for prolonged open air stay, the forensic expert's opinion prescribing open air exercise with a frequency exceeding the regular one hour per day had been available for over a month. (See Annex A/III/5 of the applicant’s submission dated 20 April 2011: “Hagyó Miklós általános egészségi állapota alapvetően a magasvérnyomás megbetegedésből és a hörgi asztmából fakadóan érdemben meggyengültnek minősíthető és számára az állapotjavulás érdekében a szokásosnál gyakoribb friss levegős sétáltatás és a testmozgás lehetőségének biztosítása indokolt, szoros für-orr-gégészeti és belgyógyászati orvosi felügyelet mellett.”) It also needs to be pointed out that the fact that in early December 2010, the additional one hour open air exercise could eventually be provided for the applicant, means that it was not impossible for the penitentiary institution to guarantee prolonged duration in this regard.

 

19. § 5 of the Government's observations: It needs to be pointed out that some of the visits listed by the Government were compensatory visits aimed at making up for the scheduled family visits that could not be realised for any reason. The 20 July, 30 November and 21 December visits were thus compensating the cancelled 19 July, 19 November and 15 December visits). Hence, these three cancelled visits shall not be added to the total number of visits.

 

20. As it is outlined above, the Government's statement that visits by representatives are uncontrolled, is factually incorrect. The wardens of the respective institutions refuted that the applicant and his common-law wife had ever met without control. This was also reflected in the judgement acquitting the applicant from the charge of falsifying private documents. Therefore, the Central Investigations Prosecutor's Office1s decision was not either well-grounded or justified.

 

II. Observations concerning the law

 

Article 5(3)

 

21. §§ 16-18 of the Government's observations: The applicant demonstrated in a detailed manner in his original application as well as his submission of 20 April 2011 how the subsequent court decisions completely disregarded very obvious facts refuting the necessity of the applicant's detention. In this regard the applicant emphasised – among others – that:

• he – as the whole Hungarian press and public – was aware that he would be charged with very serious offences after his terms as an MP expired;
• he could have left the country without any obstacles under his parliamentary immunity until the very day of his arrest, but he did not;
• his retained lawyer faxed and mailed to the police days before the applicant's arrest indicating that the applicant was willing to cooperate with the authorities;
• the applicant paid back a bank loan of significant amount at the end of 2009;
• the applicant did not try to interfere with the course of justice (either by influencing witnesses or by hiding evidence) at the time he held numerous important positions (this was acknowledged by the authorities), so he was absolutely unlikely to do so when after being deprived of all his positions as well as his access to the documents that may be relevant in his case;
• his health condition was constantly deteriorating making it necessary for him to undergo operations (which he did after his release).

 

22. It is factually incorrect to claim – as the Government does – that the subsequent court decisions did take these specific individual circumstances into consideration. Most of them did not even mention these, but instead referred rather automatically and generally to the prospective punishment, the complexity of the case and to a piece of evidence substantiating the applicant's intention to escape, that was never revealed to the defence (not even after the termination of the investigation) and that was noted as missing from the case file by the court terminating the applicant's house arrest.

 

23. The Government’s statement that the possibility of less stringent measures was also duly examined by the courts can be refuted by the fact that – in spite of the defence’s repeated requests – not even reference to this option was made in some of the decisions (see for instance decision no. 1.Bny.44549/2010/4. of 16 September 2010 of the Pest Central District Court, attached as Annex A/I/3 to the applicant’s submission of 20 April 2011), and in most decisions the courts simply stated that no less stringent coercive measures can be applied without going into any detail as to why they had come to this conclusion.

 

24. Therefore, the applicant is of the view that the Government has fully failed to substantiate its stance that the applicant's claims under Article 5 (3) are ill-founded.

 

Article 5(4)

 

25. First of all, it needs to be pointed out that not only on the basis of the denial of access to evidence did the applicant claim that his rights under Article 5(4) of the Convention had been violated. He also submitted – both in his application and his submission dated 20 April 2011 – that his Convention rights had been breached by the courts' failure to react to the substantive arguments of the defence as to the lack of the necessity of the applicant's detention. He expressly referred to the principles laid down by the Court in the Hamanov case (see: p. 16. of the application, p. 18 of the submission dated 20 April 2011 and p. 8. of the submission dated 16 February 2012) as Convention standards ignored by the Hungarian authorities. However, the Government has remained silent about this element of the application, which the applicant cannot but regard as a sign of acknowledging that the Hungarian courts failed to comply with their obligation under Article 5(4) to put forth substantive reaction to the relevant arguments of the  defence.  

 

26. §§ 19-20 of the Government’s observations: According to the well-established case law of the Court, in determining whether any particular remedy meets the criteria of availability and effectiveness, regard must be had to the particular circumstances of the individual case. In this regard it needs to be pointed out that the applicant submitted his application to the Court while he was still remanded. Taking into account this fact, it is obvious that an action for damages against the authorities which violated his right to the equality of arms cannot be regarded as an effective domestic remedy that is to be exhausted before turning to the Strasbourg Court.

 

27. A remedy can only be considered "effective" for the purposes of Article 35(1) if it provides direct and speedy protection of the rights guaranteed by the Convention. It is self-explanatory that for a person who is in pre-trial detention on the basis of evidence that is not accessible to him, only such a remedy can be regarded as meeting these requirements that provides him with access to the evidence within a relatively short period of time, thus efficiently guaranteeing his Convention right to be in a position that he can effectively challenge the necessity of the deprivation of his liberty. Taking into account the average time it takes for civil courts in Budapest to reach a final and binding decision, and also the fact that even a civil court decision favourable for the applicant would not have guaranteed that the authorities proceeding in the criminal case would provide him with access to the evidence in question, one cannot but conclude that in the present case the claiming of damages by the still detained applicant may not be regarded as a remedy to be exhausted.

 

28. It is also accepted in the Court’s jurisprudence that if more than one potentially effective remedy is available, the applicant is only required to have used one of them (see for instance:  Karakó v. Hungary, application no. 39311/05, § 14). In the present case the applicant – after his request for access was rejected by the prosecutor’s office – submitted a complaint to the superior prosecutor, and he also sought remedy for this violation before the judicial forums (both first and second instance) prolonging his detention. Not wishing to repeat what already has been described in previous submissions, the applicant wishes to draw attention to one such instance.

 

29. In the motion for the applicant’s release addressed to the Pest Central District Court on 17 November 2010 (attached as Annex A/I/6 to the applicant’s 20 April 2011 submission), the applicant’s defence counsel stated the following: “Those allegations recurring in all prosecutorial motions and judicial decisions without identifying their source [...] that there are »data« substantiating that [the applicant] wished to leave Hungary with the intention of escaping [...], are not substantiated with any proof. The European Court of Human Rights pointed out in numerous decisions that it violates [...] Article 5(4) of the Convention if the defence is deprived of access to evidence serving as the basis for coercive measures depriving the defendant of his liberty (Svipstra v. Poland, March 2006). [...] Referring to these decisions and with the aim of getting information about the source of this information and refuting the unjustified reference to the danger of absconding, I first turned to the Central Investigations Prosecutor’s Office, which [...] rejected my request, and after I filed a complaint against this, but the Chief Public Prosecutor’s Office has failed to give any response. In spite of an urging letter sent on 27 September 2010, to this day, i.e. for over 5 months (!) I have not received any response to my complaint filed on 8 June 2010.” (Azon állítások, amelyek minden ügyészi indítványban és bírósági határozatban a forrás megjelölése nélkül visszatérően azt tartalmazzák, hogy [...] arra vannak „adatok”, hogy [a kérelmező] szökési céllal el akarta hagyni Magyarországot [...], semmilyen bizonyítékkal sincsenek alátámasztva. Az Emberi Jogok Európai Bírósága több ítéletében mutatott rá, hogy a [...] Római Emberjogi Egyezmény 5. cikkének 4. pontját sérti, ha a védelemnek nincs módja megismerni a személyi szabadságot korlátozó kényszerintézkedés alapjául szolgáló bizonyítékokat (pl. Svipstra kontra Lettország, 2006. március). [...] E döntésekre hivatkozva azzal a céllal, hogy a szökés veszélyére történő kétségtelenül alaptalan hivatkozást megcáfolhassuk, az információ forrásának megismerése érdekében előbb a Központi Nyomozó Főügyészséghez fordultam, amely [...] elutasított, majd miután e határozat ellen panasszal éltem, a Legfőbb Ügyészség mély és tartós hallgatásba burkolózott. Ez ügyben 2010. június 8-án tett panaszomra, 2010. szeptember 27-én kelt sürgetésem ellenére a legmagasabb szintű ügyészi szervtől a mai napig, tehát több, mint öt hónapja (!) nem kaptam semmiféle választ.)

   

30. Although – as it can be seen from decision 4.Bny.45621/2010/2. of the Pest Central District Court (attached as Annex A/I/7 to the 20 April 2011 submission) the defence counsel read out his motion at the hearing held by the court, and also submitted its printed form to the court (see p. 3: “védő az ülésen tett felszólalását írásban a jegyzőkönyvhöz csatolta”), the court – prolonging the applicant’s detention – did not even mention the issue of access to evidence.

 

31. Therefore, in his appeal against the prolongation (attached as Annex A/I/8 of the 20 April 2011 submission, and also resubmitted as Annex C/9 of this submission) the counsel repeatedly called attention to the fact that the defence had been deprived of the possibility to get acquainted with the evidence substantiating the deprivation of liberty and that the courts have also failed to address this problem: “It is incomprehensible why the prosecution can without any reflection from the courts neglect the judgments of the European Court of Human Rights [...]. I have mentioned each and every time – and also do so on this occasion – that based on the Court’s jurisprudence it is a fundamental right of the defence to get access to the evidence on which the deprivation of liberty is based in order for it to be able to challenge that evidence. The Central Investigations Prosecutor’s Office rejected my request for access to the »data substantiating the risk of absconding« (referred to consequently but without the indication of the underlying evidence), and the Chief Public Prosecutor’s Office has failed to respond to my complaint in the past five months. Although the prosecution has never challenged the substance of my complaint, none of the courts have taken a stance in this matter which is of cardinal importance from the point of view of the equality of arms and the right to defence, none of the judicial decisions have even mentioned this issue.” (Nem érthető, miért negligálhatja az ügyészség bírói reflexió nélkül az Emberi Jogok Európai Bíróságának ítéleteit [...]. Minden alkalommal szóvá teszem ugyanis – ezúttal sem mulasztom el –, hogy a védelemnek a Strasbourgi Bíróság ítéletein nyugvó elemi joga megismerni azokat a bizonyítékokat, amelyeken a személyi szabadságtól való megfosztás alapul, annak érdekében, hogy vitába szállhasson velük. A „szökés veszélyét megalapozó adatok” (amire konzekvens hivatkozás történik, a konkrét bizonyíték megjelölése nélkül) megismerése érdekében előterjesztett kérelmemet a Központi Nyomozó Főügyészség elutasította, panaszomra, a válasz megsürgetése ellenére a Legfőbb Ügyészség öt hónapja nem reagál. Noha a szóban forgó kifogásomat az ügyészség egyetlen esetben sem vitatta, a bíróság a fegyveregyenlőség és a védelemhez fűződő jog érvényesülése szempontjából jelentős kérdésben nem foglalt állást, arról határozatainak egyikében sem tett említést.)   

 

32. Other examples of the defence indicating to the courts the prosecution’s reluctance to provide access are quoted below under § 41. It is therefore clear that the applicant (and his counsel) did try those remedial forums that could be regarded as potentially effective, but to absolutely no avail. Therefore, based on the jurisprudence of the Court they could not have been expected to try the civil lawsuit as an alternative remedy.

 

33. Finally, the applicant calls attention to the fact that the existence of remedies must be sufficiently certain not only in theory but also in practice. In determining whether any particular remedy meets the criteria of availability and effectiveness, the extent to which the position taken by the domestic courts is consolidated in the national legal order, shall be taken into consideration. In this regard the Court has attributed relevance to divergences in the domestic case law [Ferreira Alves v. Portugal (no. 6), applications no. 46436/06 and 55676/08, §§ 28-29].

 

34. In this regard, the applicant submits that – due to the problems of interpretation detailed in §§ 36-38 below and as opposed to what the Government claims – it is highly doubtful whether a Hungarian civil court would qualify the denial of the applicant’s access to the evidence underlying his detention as a breach of his inherent personal rights. At the time of the applicant’s pre-trial detention there was no established jurisprudence on whether suspects do have an enforceable right to access to the documentation serving as the basis of their detention (this statement is detailed and explained below), and therefore it is highly unlikely that a civil court (lacking an extensive expertise in criminal matters) would be willing to find against the criminal court and claim that the suspect’s right to access was evident from the legal norms of the Code of Criminal Procedure (CCP) and therefore the criminal court was clearly at fault when not providing access. 

 

35. It also needs to be added that even if a civil court would accept that the denial of access is a sanctionable breach of the right to fair trial, according to the established jurisprudence, the violation of the applicant’s rights would only be established and compensation would only be paid to him if it could be demonstrated that the court intentionally breached his procedural rights and the breach was based on an inherent personal feature of the applicant. In terms of the Supreme Court’s decision published under no. BH2008. 12 (and attached as C/10), “within the sphere of the protection of the personality as guaranteed by civil law, human dignity is the totality of the substantial features constituting the personality of a human being [...] and only breaches related to this aspect of the personality trigger the personality protection afforded against the violation of human dignity. The plaintiffs did not claim and consequently did not prove that the defendants violated the procedural rules due to characteristics and features constituting the substance of their [the plaintiffs’] personality, and that the violation of these rules was in direct relation with the plaintiffs’ personality. In the absence of a direct attack on the plaintiffs’ personality, the court may not establish that a violation of their human dignity as enshrined in Article 76 of the Civil Code has taken place.” (A polgári jog által biztosított személyiségvédelem körében az ember személyiségét alkotó lényegi tulajdonságok és ismérvek összessége jelenti az emberi méltóságot és [...] a személyiséget ebben a vonatkozásban ért támadás ad csak alapot az emberi méltóság sérelme miatti, személyiségi jogvédelemre. A felperesek nem állították és ebből eredően nem is bizonyították a perben, hogy személyiségük lényegét alkotó tulajdonságok és ismérvek miatt nem tartották be az alperesek az őket terhelő eljárási szabályokat, azokat kifejezetten személyükre tekintettel sértették meg. A felperesek személye ellen irányuló közvetlen támadás hiányában a Ptk. 76. §-ában védett emberi méltóság megsértésének megállapítására nincs lehetőség.) Based on this standard of proof, in the present case the applicant would not be able enforce his claim stemming from the violation of his right to fair trial, therefore, a civil claim for damages could not have been an effective remedy for him for this reason either.

 

36. §§ 21-22 of the Government's observations: The Government refers to Opinion No. BKv 93 of the Head of the Supreme Court’s Criminal Division, in which he expresses the view that the session of the investigating judge is an adversarial proceeding, in the course of which the defence may get acquainted with the evidence submitted by the motioning prosecutor. Based on this, the Government is of the view that the applicant’s claim that he was not provided with access to the evidence underlying his detention is manifestly ill-founded. First and foremost, it needs to be pointed out that since the applicant was de facto denied access to the evidence serving as the basis for his detention (as it will be demonstrated below, under §§ 40-42), therefore, it bears absolutely no relevance to this particular case whether in the view of the Head of the Criminal Division or the Constitutional Court, suspects in general would be entitled to have access. Nevertheless the applicant wishes to briefly react to the Governmental stance on this issue.

 

37. Firstly, exactly the fact that an Opinion on the matter had to be issued by the Head of the Supreme Court’s Criminal Division shows that the defence’s right to access to such evidence is not unproblematic in the actual judicial practice. Article 211(3) of the CCP states the following. “At the hearing the actor putting forth a motion shall present or put forth verbally the evidence substantiating the motion. Those present at the session shall – within the framework of Article 186 – be provided with the possibility to get acquainted with the evidence put forth” (Az ülésen az indítványozó az indítványt megalapozó bizonyítékokat írásban előterjeszti, vagy szóban előadja. A jelenlevőknek módot kell adni arra, hogy az indítványozó bizonyítékait – a 186. § keretei között – megismerjék). In terms of Article 186 of the CCP, as opposed to the trial phase (where defence has access to all documents), during the investigation the defendant and the defence counsel only have guaranteed access to expert opinions and the minutes of those investigative acts where they can be present. To all other documents they may be granted access if this does not infringe the interests of the investigation. [(1) Aki a nyomozási cselekményen jelen lehet, az arról készült jegyzőkönyvet nyomban megtekintheti. (2) A gyanúsított, a védő és a sértett a nyomozás során is megtekintheti a szakvéleményt, az egyéb iratokat pedig akkor, ha az a nyomozás érdekeit nem sérti.]   The provision that the defence can have access to evidence only within the framework of Article 186 was for a long time consistently interpreted by investigating judges to mean that even at the session on the ordering or prolonging pre-trial detention, the defence could have access to those documents that are listed by Article 186 as accessible (expert opinions and the minutes of those procedural acts at which they could be present), and only as a result of repeated reference to the Court’s case law did some judges start to apply a different approach to the issue.   

 

38. Under Article 33(1) of Act LXVI of 1997 on the Organisation and Management of Courts (that was in effect at the time of the issuing of the Opinion), in order to guarantee a unified jurisprudence, Divisions of the Supreme Court analyse the practice of courts and form opinions on issues with regard to which the implementation of the law is controversial (a kollégium az egységes ítélkezési gyakorlat biztosítása érdekében elemzi a bíróságok gyakorlatát, és véleményt nyilvánít a vitás jogalkalmazási kérdésekben). This is exactly why the Criminal Division had to issue an opinion on whether the defence should have access to evidence submitted by the prosecutor: this was an issue with regard to which the implementation of the  CCP’s – quite ambiguous – norm was highly controversial. It also needs to be pointed out that the Opinion was issued on 4 May 2011, i.e. only after the applicant’s pre-trial detention was terminated. Therefore, this act (aimed at unifying the contradictory/diverse Hungarian judicial practice) evidently could not have any effect on the approach of the judges who decided on whether to allow access for the applicant to the evidence referred to by the prosecution.

 

39. §§ 23-24 of the Government’s observations: The Government claims that – since the applicant did not institute a civil lawsuit claiming the violation of his fair trial rights by the judicial authorities – it is not in the position to determine the veracity of the applicant’s allegation that he was not provided access to the evidence based on which he was detained and therefore it is of the view that the Hungarian authorities proceeded lawfully, which can only mean that in the Government’s view they did provide the requested access. The applicant finds this argument completely unacceptable, as from the documents of the criminal case the veracity of his claims can be easily determined. The applicant does not wish to repeat what was put forth in the original application and the complementary submissions, he only wishes to briefly reiterate the following.

 

40. It is well documented that the applicant requested the Central Investigations Prosecutor's Office to guarantee access to the evidence serving as the basis of the applicant's detention, with special regard to the evidence allegedly substantiating his intention to escape abroad. It is also fully documented that the prosecution denied access and also failed to substantively decide on the applicant's complaint concerning this denial. (See Annexes F/15, F/18 and F/20 of the original application for the counsel’s request for access, the Prosecutor’s Office’s refusal to provide access and the counsel’s complaint against this decision to the Chief Public Prosecutor’s Office; Annex A/II/1 of the 20 April 2011 submission for the counsel’s letter urging a reply to the complaint; and Annexes B/II/1, B/II/2 and B/II/3 for the counsel’s repeated letter urging a reply and the Chief Public Prosecutor’s Office’s reply sent to the counsel over a year after the complaint had been submitted and maintaining that the denial of access was justified.)

 

41. Furthermore, in numerous petitions submitted during the time of the applicant’s pre-trial detention the defence counsel also (and expressly) complained to the proceeding courts that the defence was being deprived of the possibility of getting access to the evidence serving as the basis for the detention. Besides

• the defence counsel’s motion for the applicant’s release dated on 17 November 2010 and the 19 November 2010 appeal quoted above under §§ 29-31 (and attached in full as Annex A/I/6 to the applicant’s 20 April 2011 submission and Annex C/9 of the present submission)

the following defence  submissions can be mentioned – by way of example – as convincing illustrations to this statement:

• the defence counsel’s 9 June 2010 motion for the applicant’s release (Annex F/16 of the original application, p. 4): “A külföldre szökés veszélyére utalás minden ténybeli alapot nélkülöz; éppen az ellenkezője felel meg a valóságnak. A védelemnek mindeddig nem volt módja megismerni azokat a nyomozati iratokat, amelyekre e feltételezés épül.”
• the defence counsel’s 30 July 2010 motion for the applicant’s release (Annex F/23 of the original application, pp. 5-6): “[...] hivatkozás történik arra, hogy Hagyó Miklós előzetes letartóztatásának [...] fenntartása azért is indokolt, mert a nyomozás során adat merült fel arra: a büntetőjofi felelősségre vonás elől külföldre akart távozni. Mivel e hivatkozás indoka [...] szembeszökően ellentmond a köztapasztalatnak és a nyilvánvaló tényeknek [...], a Strasbourgi Emberjogi Bíróság ítélkezési vonatkozó gyakorlatának alapul vételével 2010. június 8-án írásban kértem [...] azon bizonyíték megismerésének lehetőségét, amely a szóban lévő bírói érvelés alapjául szolgált. Az ügyészség [...] kérelmemet – lényegében érdemi indokolás nélkül – elutasította. A határozat ellen [...] panasszal éltem. [...] Jogorvoslatomra a mai napig (tehát teljes hat hete) semmiféle válasz nem érkezett (4-6. melléklet).” 

 

42. It is rather obvious that the applicant would not have persistently asked for the evidence forming the basis of his detention had he been provided with access to it. It also needs to be re-emphasised in this regard that even one of the proceeding courts (see the above quoted decision of the Metropolitan Court, attached as Annex B/I/16 to the applicant’s 16 February 2012 submission) noted that the evidence referred to by the prosecution as proof of the applicant's intention to escape abroad could not be found in the case file.

 

43. Hence, the above described facts sufficiently substantiate the applicant’s claim that he did ask for and was in fact denied access to evidence serving as the basis of his detention. This in turn places the burden of proof on the Government to demonstrate that access was actually provided. However, as nothing in the case file, neither the minutes of the sessions held on the applicant’s detention nor the judicial decisions delivered on the matter substantiate the Government’s stance, it is obvious that the defence had no access to any of the evidence behind the decisions on the deprivation of the applicant’s liberty.

 

44. Therefore, it can be established beyond any doubt that the Hungarian authorities violated the applicant’s rights under Article 5(4) of the Convention.

 

Article 3

 

45. §§ 25-26 of the Government’s observations: In relation to the Government’s claim that the applicant has failed to exhaust the available domestic remedy (namely the filing of an action for damages) concerning the treatment of his health problems in prison, the applicant wishes to refer back to what has been set forth in relation to the exhaustion of remedies under Article 5(4). As it was said there, according to the established case law of the Court’s, if more than one potentially effective remedy is available, the applicant is only required to have used one of them. In relation to his health problems, he used the remedy that under the circumstances and taking into consideration the acuteness of the problems seemed to be the most efficient and speedy.

 

46. He repeatedly indicated the problems to the penitentiary personnel (this is in fact substantiated by the documentation attached by the Government to its observations), and in some of the cases set forth complaints against the negative decisions of the penitentiary staff (see for instance the 1 September 2010 request for more open air exercise attached as pp. 1-2 of Annex 2 of the Government’s observations, where the applicant recorded in hand writing on the printed request form that he does not accept the decision (“panasszal élek, amit későbbiekben adok ki”). As it was set forth in the applicant’s 20 April 2011 submission (which contains a detailed description of the numerous steps taken by the applicant and his defence counsel to inform the authorities about the applicant’s health problems and request adequate treatment and measures) the fact that later the applicant did not put forth the complaint in writing does not render his complaint invalid or withdrawn, as the relevant legal norm [Article 6(4) of the Penitentiary Decree] does not require that complaints by inmates shall be filed in writing, so it should have been (but was not) adjudicated by the competent penitentiary unit. Furthermore, the examination by the prosecutor overseeing the lawfulness of detention (see Annex A/III/17 of the 20 April 2011 submission) established that the way the penitentiary institution had handled the applicant’s requests and complaints had been in breach of the pertaining legal norms, so the prosecutor ordered a review of the applicant’s requests and complaints. Therefore, the fact that not in all the cases did the applicant file complaints against the penitentiary personnel’s decisions rejecting his requests may not be regarded as failure to exhaust remedies.

 

47. The applicant also persistently – and eventually successfully – requested a hearing by the prosecutor overseeing the legality of the implementation of pre-trial detention. At the hearing (requested first on 3 September 2010 and held on 25 October after an intervention with the Chief Public Prosecutor’s Office) the applicant presented to the prosecutor all his complaints (the lack of additional open air time, the insufficient food, that it was not possible to fully open the window in his current cell, etc.). Under Article 11 of Act V of 1972 on the Prosecution (which was in force at the time), the prosecutor may supervise the lawfulness of the implementation of pre-trial detention [Point (b)], hear the detainees [Point (d)], and supervise the lawfulness of the treatment of detainees [Point (e)]. In terms of Article 12, the heads of the institutions implementing the deprivation of liberty are obliged to abide by the prosecutor’s instructions concerning compliance with the laws and the circumstances of detention.

 

48. These provisions provide the prosecutor with significant powers, therefore requesting a hearing by the prosecutor and presenting the problems to him shall definitely be regarded as the exhaustion of an efficient domestic remedy. Therefore, the applicant cannot be expected to have tried the remedial route specified by the Government, especially because taking into consideration the urgency and acute nature of his health problems (e.g. the very rapid weight loss) a minimum two-year long civil court procedure could not have provided the speedy and direct protection of his Convention rights based on which it could be regarded as an effective domestic remedy. 

 

49. Finally, the applicant wishes to again refer to the Court’s test in the Malenko case (application no. 18660/03, § 38) namely that if the applicant makes prison administration and state authorities sufficiently aware of his health status and detention conditions, providing them with an opportunity to examine the conditions and, if appropriate, to offer redress, then the State cannot claim non-exhaustion of remedies. In the present case, the applicant undoubtedly made the authorities sufficiently aware of his complaints.

 

50. § 27 of the Government’s observations: While it is true that bad health condition in itself does not exclude placement in pre-trial detention, the applicant is of the view that the domestic courts should have taken his health status into account when measuring the possibility of applying less stringent coercive measures. Most court decisions claimed categorically that health may not be a factor to be weighed in this regard (see for example the 26 May 2010 decision of the Metropolitan Court or the 15 June 2010 decision of the Pest Central District Court attached as Annexes F/14 and F/19 to the original application, or the 10 September 2010 decision of the Metropolitan Court attached as Annex A/I/1 to the 20 April 2011 submission), or completely neglected the issue (e.g. the 16 September 2010 decision of the Pest Central District Court attached as A/I/3 to the 20 April 2011 submission). But exactly the decision releasing the applicant and ordering his house arrest (decision no. 21.Bnf.470/2011 of the Metropolitan Court attached as A/I/13 to the 20 April 2011 decision) refuted this stance, when it stated that “taking into account [...] the severely deteriorated health conditions of the defendant, the objectives of pre-trial detention can be achieved with house arrest as well” ([t]ekintettel a […] gyanúsított súlyosan megromlott egészségi állapotára, az előzetes letartóztatással elérni kívánt célok a házi őrizet keretei között is biztosíthatók).

 

51. While the applicant’s illness may involve recurring episodes of deterioration, it is obvious that the conditions to which the applicant was subjected during his detention could be foreseen to trigger significant aggravation of his health status. According to the medical summary attached by the Government (p. 1 of Annex 1) the applicant did indicate upon his medical admission his asthma and chronic sinusitis. For the health personnel of the penitentiary institution it must have been obvious that wet, mouldy environment is likely to exacerbate his conditions (which it rather rapidly did), but it did not take the necessary measures to prevent this. The applicant is of the firm view that the conditions of his placement (both the circumstances in the cell, where he had to spend 23 hours per day, the denial of the prolongation of his open air exercise time and the inadequate nutrition) contributed significantly to the extreme and rapid deterioration of his health status, and it is not a mere coincidence that this happened while he was in prison. This conviction is substantiated by the excessive weight loss, no episodes of which can be found in his personal medical history, and the sudden and simultaneous exacerbation of both his pulmonological and ontological diseases.  

 

52. As it was pointed out in the Section about the facts of the case and as opposed to what the Government claims, the applicant’s pulmonological condition only slightly improved as a result of the treatment in the penitentiary administration’s hospital, but it also needs to be added that even this slight improvement took place during a time period when the applicant was temporarily placed in a different institution (in the hospital instead of the Metropolitan Penitentiary Institution) and under different circumstances than when the rapid exacerbation started, which in fact substantiates his claim that the circumstances of his placement in the Metropolitan Penitentiary Institution played a significant role in the development of his health status.

 

53. The applicant finds the Government’s arguments that he himself wished to lose weight and that he exaggerated his complaints to be able to ask for the termination of his detention completely unacceptable. As it was described and substantiated in the 20 April 2011 submission, the applicant lost over one third of his body weight, as at the beginning of his detention he weighed over 130 kilograms, and at the time of his release he was 93 kilograms. Besides the fact that the applicant’s counsel persistently called the authorities’ attention to the process of weight-loss warning them about the potential danger of long-term health damages (which convincingly proves that the defence found this loss alarming), the Government’s assumption that the applicant’s 40-kilogram weight-loss was due to his using the battery powered muscle stimulation belt qualifies as explicit cynicism. The same can be said about the claim that the applicant must have exaggerated an asthmatic episode on 23 August 2010: not only because – as it was outlined in the Section on facts – the health personnel only saw the applicant after he had inhaled three puffs from his spray, but also because only few weeks later, on 17 September the penitentiary administration’s own physician established that the applicant’s pulmonological condition had significantly exacerbated since June of the same year.

 

54. Similarly, that the running of the ear on 17-18 October was not just “made up”, is substantiated by  the fact that after his release from pre-trial detention the applicant’s ear was actually operated, as proven by the documentation attached to the 16 February 2012 submission as Annex B/III/2. In this regard it has to be emphasised again that on 18 October the applicant was not supposed to appear in his capacity as a defendant of the case in which he was remanded, but in a libel case that he himself had launched against ... (see the summons for the hearing attached as Annex C/8), so he obviously had an interest in attending the hearing. Furthermore, it has to added that in the criminal case against him, the applicant did not ask for the cancellation of procedural events not even when his health condition was really bad. This is proven by the fact that he participated in his confrontation with ... on 14 September 2010, just a day before he was taken to hospital and one day after the examination by the forensic medical expert, who had established on the basis of this examination that the applicant suffered from several illnesses and that his health condition may turn into a life threatening state. At the hearing the applicant actually mentioned that his health condition had deteriorated, but said that as long as he could, he would be at the disposal of the prosecution (see p. 2. of the minutes attached as Annex C/11: “Tegnapi igazságügyi orvosszakértői vizsgálatom során megállapították, hogy súlyos egészségkárosodásom van, mindkét fülem jelen pillanatban gyulladt, műtét előtt állok. Az asztmám is romlott. Holnap visznek kórházba, azért vagyok itt, hogy a nyomozást segítsem, és tisztázzam a kérdéseket. Addig ülök itt, amíg az egészségi állapotom megengedi. Ügyész kérdésére elmondom, hogy vállalom a szembesítést.”)   

 

55. § 28 of the Government’s observations: The Government’s analysis of the developments related to the applicant’s placement starts with November 2010, however, it is obvious that in order to assess whether his detention conditions were adequate to his health status, the whole span of the deprivation of his liberty shall be measured.

 

56. It is not refuted by the Government that the applicant called attention to his illnesses at the very beginning of the pre-trial detention. Although it is obvious that these illnesses would have required specific care with regard to the applicant’s placement and the frequency of his access to fresh open air, he was placed in a mouldy cell where the moving space did not reach even the Hungarian minimum standards and was not provided addition open air time in the first 6 months of his detention.

 

57. In this regard it has to be noted that all the physicians examining the applicant shared the opinion that it would be beneficial for the applicant to be placed in a spacious cell and be allowed open air exercise more frequently than it is minimally prescribed by the prison rules. This was stated

• in the pulmonological opinion issued by the central hospital of the penitentiary administration on 17 September 2010 (see p. 4 of Annex 2 of the Government’s observations: “2010.09.17-i pulmonológiai szakvélemény szerint »lehetőség szerint nagy légterű  elhelyezés, szabadlevegőn tartózkodás«”),
• the 27 September 2010 opinion of the forensic medical expert appointed by the prosecution (see Annex A/III/5 of the 20 April 2011 submission: “Hagyó Miklós számára […] a szokásosnál gyakoribb friss levegős sétáltatás és a testmozgás lehetőségének biztosítási indokolt, szoros fül-orr-gégészeti és belgyógyászati orvosi felügyelet mellett”), and
• by the Metropolitan Penitentiary Institution’s own physician, dr. ... (see p. 4 of Annex 2 of the Government’s observations: “[a]z asthma  bronchialeban szenvedő vagy COPD-s betegek részére a friss levegő jótékony hatású. Javasolt minél több szabadlevegőn tartózkodás, amit az intézet biztosítani tud”).

 

58. It can therefore be stated that the applicant’s specific needs were of such nature that there was wide ranging medical consensus about them among physicians who are fully independent from the applicant. In spite of this fact it took the penitentiary administration 4 months to move the applicant into another cell, and 6 months to allow him to spend more time on open air.

 

59. In this regard it has to be emphasised that – while the Government’s legal analysis is silent about the period before November 2010 – the applicant called attention to the problems stemming from his placement already on 24 August 2010 (see p. 24 of Annex 1 attached to the Government’s observations) and described in detail how his detention conditions are not adequate for his health status on 1 September 2010. In his 1 September request (see p. 1 of Annex 2 of the Government’s observations) he explicitly mentioned – among other things – his need for more open air exercise, the overcrowding in his cell and the physical conditions of the cell (“festés, penész, falak”). On this occasion ... rejected the request (referring to the overcrowding: “a kért többletidőt a zsúfoltságra tekintettel biztosítani nem tudjuk”), although at this point in time the applicant’s health status had already become very grave (which is substantiated by the fact that only two weeks later in the central penitentiary hospital it was established that his state had significantly exacerbated since June).

 

60. With regard to the penitentiary personnel’s 17 November 2010 decision maintaining that the applicant should not provided with additional open air time, it must be emphasised again that (i) the improvement of the applicant’s pulmonological status was only minor (see above, under § 13); (ii) irrespective of any improvement or exacerbation the suggestion put forth by both the central hospital’s personnel and the appointed forensic expert (namely that prolonged open air exercise is beneficial for and therefore should be granted to the applicant) was still valid; and (iii) the forensic medical expert’s opinion (attached as A/III/5 to the submission of 20 April 2011) stating that the lack of proper care “would constitute a circumstance endangering [the applicant’s] health and limb, and may even lead to the development of a life threatening medical condition” (egészséget, illetőleg a testi épséget veszélyeztető körülményt jelentene és akár életet veszélyeztető kórállapot kialakulását is eredményezheti) had been available for over a month when the head educator decided that no additional open air time was necessary for the applicant.

 

61. Finally, it needs to be pointed out that – in line with what is set forth above under § 16 – not even the “greater” cell space provided for the applicant from 21 November 2010 was meeting the international (or the Hungarian) standards. In the first place, it must to be noted that – despite his known health problems –  the applicant was held together with three other persons in the first five months of his detention (from May until November with the exception of the 3 weeks he spent in Tököl), which – if the net surface is taken into consideration when counting the moving space (as is required by the Hungarian law) – meant approximately 1 square meter per inmate (but even if the gross surface was counted in, the space per inmate would still be below the 4 square meters prescribed by the Hungarian regulations). When the applicant shared his cell with two other persons, the (net) moving space per inmate was cca. 1.3 square meters.

 

62. These placement conditions were obviously inadequate for the applicant (with regard to whom the central penitentiary hospital’s own physician stated that placement in a large air spaced cell would be desirable), and were also in contrast with the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), which considers 4 m2 living space per inmate as an acceptable minimum standard in multi-occupancy cells (see also: Szél v. Hungary, application no. 30221/06, § 18).

 

63. Based on the above, the applicant submits that the conditions of his detention were not adequate for his health status about which the prison administration (both the medical and the penitentiary staff) was duly informed. The deficiencies in his placement contributed greatly to the exacerbation of his symptoms and his rapid and extreme weight loss. Therefore, the Hungarian penitentiary authorities violated their obligation under Article 3 to “protect the physical well-being of persons deprived of their liberty” (Malenko v. Ukraine, § 53).

 

64. Issues not touched upon by the Government’s observations: While the Government’s observations offer arguments concerning the measures taken by the penitentiary administration in relation to placement and open air exercise, they are silent about the delays of the other Hungarian authorities in dealing with the applicant’s health problems.

 

65. As it was set forth in the submission of 20 April 2011, the applicant’s defence counsel indicated that the applicant’s health was weak and requested the appointment of a forensic medical expert as early as the applicant’s first interrogation on 14 May 2010 (see Annex A/III/10 of the 20 April 2011 submission). Since the authorities did not respond, the counsel repeated this request at the applicant’s 30 June 2010 interrogation (Annex A/III/11 of the same submission), and – since no reply was given – he put forth the request for the appointment of the expert in writing on 14 July 2010 (Annex A/III/12 of the same submission), since by this time the applicant had lost over 20 kilograms. Despite the visible signs of the applicant’s health problems, the repeated requests and the counsel’s written motion, the forensic medical expert was only appointed on 2 September 2010 (see Annex C/12), he examined the applicant on 13 September and prepared his opinion by 27 September 2010, i.e. over 4 months after the first request was filed.

 

66. Similar – although shorter – delay occurred with respect to the examination by the prosecutor responsible for the lawfulness of detention. Although the applicant’s defence counsel filed a request for the applicant’s urgent hearing with the penitentiary supervision unit of the Metropolitan Chief Public Prosecutor’s Office on 3 September 2010 (Annex A/III/14 of the 20 April 2011 submission), the hearing took place only on 25 October 2010, after the counsel complained at the competent unit of the Chief Public Prosecutor’s Office on 12 October 2010.

 

67. The Government’s observations are also silent about the applicant’s complaints concerning the inadequate quality of nutrition. The applicant’s submission of 20 April 2011 mentions that the applicant complained to both the medical personnel (see the documentation of the applicant’s 15 September 2010 medical examination attached to the 20 April 2011 submission as Annex A/III/15) and the prosecutor supervising the lawfulness of detention (see Annex A/III/17 of that submission) about this issue. Although the applicant’s constant weight loss was obvious and the authorities were made adequately aware of this fact, they did not take the minimally expectable measures to protect the applicant against further loss of weight. For instance – as the applicant mentioned to the prosecutor supervising the lawfulness of detention, and as it was also referred to in his submission of 20 April 2011 (see p. 7.) – despite his weight loss and the fact that due to financial reasons no sufficient amount of the product replacing bread (Ham-let) could be provided to him, his request for receiving an additional food package was rejected (see also Annex C/12 of the present submission).

 

68. Furthermore, as it was set forth above, the courts deciding on the applicant’s detention did not take into consideration the applicant’s health conditions when assessing the necessity of the deprivation of his liberty and the possibility of applying less stringent measures.

 

69. Based on the above, the applicant is of the view that not only through the omissions of the penitentiary authorities, but also through the delays and failures of the above mentioned authorities did the Hungarian State violate its obligation under Article 3 to protect the detained applicant’s physical well-being.

 

Article 8

 

70. §§ 30-32 of the Government’s observations: In its report on its 2005 visit to Hungary (see: http://www.cpt.coe.int/documents/hun/2006-20-inf-eng.pdf, § 112), the CPT pointed out that the one hour per month visit entitlement was insufficient: “There have been no changes to the rules governing prisoners’ access to the outside world since the CPT’s previous visit. In particular, despite the Committee’s long-standing recommendation, the visit entitlement of at least one hour per month had not been increased. [...] The CPT must stress once again that the minimum rule of one hour of visit time per month [...] is not sufficient to enable prisoners to maintain good contact with members of their family and friends. The Committee calls upon the Hungarian authorities to increase the visiting entitlement substantially.”

 

71. However, the applicant’s complaint is not directed against the scarcity of family visits in general (so those parts of the Government’s argumentation which concern this issue are irrelevant for the present case), but against the ban on visits from his common-law wife in the last three months of his detention and the denial of extra phone calls to his daughter.

 

72. § 33 of the Government’s observations: As to the first issue, the applicant wishes to call the Court’s attention to two factual mistakes in the way the Government interprets his submissions.

 

73. Firstly, the Government claims that the applicant himself had submitted in his application that the regular rules related to the control of visits do not apply to visits by representatives. This is factually wrong, as in his 20 April 2011 submission the applicant only stated that the legal framework is ambiguous, since while from Decree 44/2007 of the Ministry of Justice this conclusion can be drawn, the Code of Criminal Procedure prescribes that persons other than the defence counsel may not consult the detainee without supervision. The applicant concluded that he and his common-law wife – who had followed the orders of the penitentiary staff – could not have been expected to sense if the visits were not according to the rules.  (“E második mondatból – argumentum a contrario – pedig éppen az következik, hogy a meghatalmazás aláírását követően a fogvatartott és a képviselő ellenőrzés nélkül is beszélhet, hiszen az ellenőrzés csak a meghatalmazás aláírásáig van előírva. Igaz, hogy a büntetőeljárási  43. § (3) bekezdése ezzel ellentétes szabályozást tartalmaz [„A fogva lévő terhelt jogosult arra, hogy […] b) a hozzátartozójával vagy […] más személlyel szóban, személyesen felügyelet mellett, írásban ellenőrzés mellett érintkezzék.”], de a jogban járatlan személyek számára – figyelembe véve a bv.-parancsnok hiányos tájékoztatását is – ez nem lehetett egyértelmű.”)  

 

74. The Government’s observations are also factually wrong in stating that the applicant had alleged that in its decision the public prosecutor’s office had referred to the prison personnel’s negligence. The applicant quoted word-by-word the reasoning of the prosecutor’s decision (see p. 9 of the 20 April 2011 application: “a Központi Nyomozó Főügyészség 2010. november 9-én határozatot hozott (A/IV/10), amelyben a kérelmező és élettársa személyes és telefonos kapcsolattartását megtilotta. A határozat arra hivatkozott, hogy ... „több alkalommal is sikeresen az élettársként őt megillető jogosultságokat meghaladó módon – ellenőrzés nélkül – törekedett kapcsolatot tartani a […] gyanúsítottal. Mindezek alapján feltehető, hogy […a] bűncselekmények bizonyításának meghiúsítása, illetőleg a bűncselekményekből származó vagyonrészek elrejtése érdekében a fogva lévő terhelttel bűnös kapcsolattartásra törekszik.”), and stated as part of his own argumentation that he and his wife should not have been sanctioned for any potential omission by the prison personnel (“Ők az általuk elvárható magatartást tanúsítva, a felügyelet munkatársainak minden utasítását hiánytalanul betarttva, a rendelkezésükre bocsátott eszközöket igénybe véve és a bv.-személyzet által kijelölt módon kommunikálva érintkeztek egymással. Nyilvánvaló, hogy a büntetés-végrehajtási intézet tagjainak esetleges mulasztása nem róható a terhükre.”)

 

75. Having said that, it has to be re-emphasised that in the course of the procedure launched against the applicant in relation to the allegedly false authorisation, it was confirmed that there had been no unsupervised visits between the applicant and his wife and that they had not tried to circumvent the rules applicable to visits.

 

76. It needs to be noted that in his submission of 20 April 2011, the applicant emphasised that both in the Metropolitan Penitentiary Institution and the Central Hospital he and his wife had assumed that they were being supervised during the visits, and only from the ban did they came to the conclusion that this might not have been the case. (“A Fővárosi Büntetés-végrehajtási Intézetben a kérelmezőt és élettársát plexi-fal választotta el egymástól, és egy – a beszélgetés külső ellenőrzésére alkalmas – telefonkészüléken keresztül beszéltek egymással. [...] A Büntetés-végrehajtás Központi Kórházában a büntetésvégrehajtási állomány tagja nem volt jelen a beszélő alkalmával, ugyanakkor mivel a beszélőre rendkívül kis, üvegfalú helyiségben került sor, nyitott ajtónál, közvetlenül a nevelői szoba mellett és kis távolságra a kapusok fülkéjétől, a kérelmezőben és élettársában nem is merült fel, hogy ellenőrzés nélkül volnának.”)

 

77. However, in the course of the criminal procedure it became clear that their original assumption – that they were being monitored – was correct: as it was described in detail under § 6 above, the wardens of the respective penitentiary institutions stated that all of the visits by the applicant’s common-law wife had taken place under supervision (see Annexes C/6 and C/7). The applicant wishes to emphasise the rather alarming fact this was actually known to the prosecution when the decision banning visits from the applicant’s common-law wife was delivered, since the information was provided to the prosecution by the wardens – via fax – on 21 October 2010, whereas the prosecution’s decision is dated 9 November.  

 

78. Therefore, since the factual basis of the limitation of the applicant’s Article 8 rights (namely the banning of visits from and phone calls to his common-law wife) was completely missing (as proven by the letters of the wardens and also the final and binding decision of the Hungarian court), it may not be regarded as a legitimate limitation of the applicant’s rights under Article 8.

 

79. It needs to be noted that even if we hypothetically assumed that the applicant and his common-law wife were trying to circumvent the regulations, it is obvious that a less restrictive solution could have been applied to guarantee the success of the criminal procedure: namely the monitoring of the meetings and phone conversations of the applicant and his wife. Therefore, even if the prosecution’s decision had had a legitimate basis (which it clearly had not), the restriction would not have been proportionate to the aim to be achieved. In this regard the applicant wishes to refer to the case of Kucera v Slovakia (application no. 48666/99, § 130) in which the detained applicant’s wife was a co-accused in the case, and still the Court stated that while “there was a legitimate need to prevent the applicant from hampering the investigation, for example by exchanging information with his co-accused including his wife, [...t]he Court is not persuaded, however, that the interference complained of was indispensable for achieving that aim. In particular, there is no indication that allowing the applicant to meet with his wife under special visiting arrangements including, for example, supervision by an official would have jeopardised the ongoing investigation into the criminal case.”

 

80. In the light of the above, the applicant submits that – in the absence of any legitimate reason – the ban on his common-law wife to visit and phone him in the last three months of his detention amounted to the violation of his rights under Article 8.

 

81. § 34 of the Government’s observations: The Government disregards the fact that the applicant’s daughter was only 11 years old at the time of the applicant’s detention.

 

82. In this regard the applicant has to resubmit what he already set forth in his submission of 20 April 2011. In the case of an 11-year-old child the possibility of – even unlimited – correspondence does not offer an adequate alternative to phone conversations due to the child’s psychological needs and limitations in her written communication.

 

83. The fact that working inmates of the same penitentiary institution are granted with 5 minutes of telephone usage on every day of the week (see p. 4 of Annex 3 of the Government’s observations), convincingly proves that the logistical capacity of the prison facility would have made it possible to grant more frequent phone entitlement to the applicant, even if the frequency and length he asked for could not be provided for him.

 

84. The fact that such a differentiation is made between non-working and working inmates (one group can make phone calls three times for a total of 30 minutes per week, while the other seven times for a total of 35 minutes per week) in itself refutes the Government’s argument that the detainees’ right to equal treatment made the rejection of the applicant’s requests for additional phone calls necessary. The institution does differentiate between inmates (e.g. on the basis of whether an inmate works or not) when deciding on the degree of entitlements. It is obvious that the health condition of the applicant’s daughter (which prevented her from visiting the applicant in person) and her age (which made correspondence difficult and not fully adequate for her) were specific factors that would have justified a certain extent of differentiation to the advantage of the applicant (using an analogy: if for instance a close relative of an inmate gets to hospital with a serious illness, the inmate’s request for a short term leave will obviously not be rejected on the basis that other inmates are not allowed to leave the prison).

 

85. It also needs to be taken into consideration that the applicant could not use all of his telephone time to speak to his daughter, he also called his other relatives and arranged his on-going business and legal matters (other than the criminal case he was involved in) within the 3 x 10 minutes allowed for him in each week.

 

86. From the facts of the case as presented by the Government, it can also be established that in spite of the applicant’s repeated requests, only twice (on 3 September 2010 and 7 January 2011) did the penitentiary administration allowed extra phone calls for the applicant with his daughter, who – due to her health condition – could not even once visit the applicant while he was remanded. In the applicant’s view, two additional occasions within 9 months is evidently insufficient and is obviously below the degree that could be considered as proportionate and reasonable in light of the penitentiary institution’s personal and material resources and capacities.

 

87. The applicant submits that in the light of the authorities duty to assist detained persons in maintaining “adequate” contacts with their family members, the penitentiary administration’s failure to take into consideration his specific circumstances when deciding on his requests for additional phone calls to his ill daughter constitutes a violation of his rights under Article 8 of the Convention.

 

 

Article 13

 

88. §§ 36-37 of the Government’s observations: In this regard the applicant refers back to what is said under §§ 27 and 35. Firstly, when the applicant’s access to the evidence substantiating his ongoing detention depends on the decision on his related complaint, and when the conditions of his detention directly impacting his quickly deteriorating health condition are dependent on whether the penitentiary authorities comply with the provisions on the handling of complaints, a remedy as protracted as an action for damages under the Civil Code cannot be regarded as sufficiently effective due to the lack of its necessary directness and speediness. 

 

89. Secondly, the authorities’ failure to abide by such rules of procedural nature will certainly be adjudicated in accordance with the jurisprudence on the violation of the right to fair trial that was outlined above, under § 35.

 

90. As it was described there, according to the established jurisprudence of the Hungarian courts, the violation of procedural rights is only established and compensation is only paid if it can be demonstrated that the court intentionally breached the procedural rights and the breach was based on an inherent personal feature of the plaintiff. In terms of the Supreme Court’s decision published under no. BH2008. 12 (and attached as C/10), “within the sphere of the protection of the personality as guaranteed by civil law, human dignity is the totality of the substantial features constituting the personality of a human being [...] and only breaches related to this aspect of the personality trigger the personality protection afforded against the violation of human dignity. The plaintiffs did not claim and consequently did not prove that the defendants violated the procedural rules due to characteristics and features constituting the substance of their [the plaintiffs’] personality, and that the violation of these rules was in direct relation with the plaintiffs’ personality. In the absence of a direct attack on the plaintiffs’ personality, the court may not establish that a violation of their human dignity as enshrined in Article 76 of the Civil Code has taken place.” (A polgári jog által biztosított személyiségvédelem körében az ember személyiségét alkotó lényegi tulajdonságok és ismérvek összessége jelenti az emberi méltóságot és [...] a személyiséget ebben a vonatkozásban ért támadás ad csak alapot az emberi méltóság sérelme miatti, személyiségi jogvédelemre. A felperesek nem állították és ebből eredően nem is bizonyították a perben, hogy személyiségük lényegét alkotó tulajdonságok és ismérvek miatt nem tartották be az alperesek az őket terhelő eljárási szabályokat, azokat kifejezetten személyükre tekintettel sértették meg. A felperesek személye ellen irányuló közvetlen támadás hiányában a Ptk. 76. §-ában védett emberi méltóság megsértésének megállapítására nincs lehetőség.) Based on this standard of proof, in the present case the applicant would not be able enforce his claim stemming from the violation of his right under Article 13 of the Convention, therefore, a civil claim for damages could not have been an effective remedy for him for this reason either.

 

***

 

91. Based on the above, the applicant requests the Honourable Court to establish that the Hungarian authorities violated his rights as detailed in the application and the submission of 20 April 2011.

 

 

Part III. Claim for just satisfaction

 

92. As pecuniary damage, the applicant claims EUR 35,140. As demonstrated by the applicant’s tax statements attached as C/14 and C/15, the applicant’s income resulting from employment and other employment-like activities (“nem önálló tevékenység”) was HUF 15,343,930 (cca. EUR 54,800) in 2008 and HUF 10,893,848 (cca. EUR 38,900) in 2009. (Other incomes indicated in the tax statements – such as income from renting out real estate and dividend from company – are not included in the calculation, as they can also be realized while one is in pre-trial detention). This means that the applicant’s average annual income from employment was EUR 46,850 before his pre-trial detention was ordered. Due to his pre-trial detention the applicant was deprived of the possibility of performing income generating activities for approximately 9 months (from 14 May 2010 until 23 February 2011), i.e. 75% of a full year. Therefore, the applicant claims as pecuniary damage the 75% of his average annual income before the commencement of his pre-trial detention, i.e. EUR 35,140.

 

93. The applicant claims non-pecuniary damages in the amount of EUR 22,000 on account of the emotional distress resulting from the unjustified deprivation of his liberty, from the illegitimate limitations of his right to family life and the feeling of powerlessness stemming from the authorities’ failure to respond to his remedial attempts, and on account of the physical suffering caused by the conditions of his detention and the exacerbation of his health condition resulting in the inflammation of his numerous illnesses. The applicant’s claim is based on the jurisprudence of the Court (among others the case of Darvas v. Hungary – EUR 5,000 non-pecuniary damages for the violation of Article 5(1) through unjustified pre-trial detention; the case of Szél v. Hungary – EUR 12,000 for the violation of Article 3 resulting from the inhuman and degrading detention conditions; the case of Ferla v. Poland /application no. 55470/00/ – EUR 1,500 for the violation of Article 8 stemming from the disproportionate limitation of the applicant’s meetings with his wife, etc.) and the fact that in the present case the cumulative effect of the violations has to be taken into account as an aggravating factor.

 

94. The applicant claims EUR 9,800 as legal costs in the Convention proceedings. He submits that based on his agreement with his counsel (who works for a human rights NGO, and takes the case in this framework) he is only obliged to pay the costs of legal representation if the case is successful and just satisfaction, along with reimbursement of legal costs is granted. Therefore, he is only billed if the case is closed successfully. EUR 9,792 is the counsel's fee, the remaining EUR 208 is to cover postal, copying and telephone costs. The time sheet of the counsel is attached as Annex C/16, the remaining expenses may not be verified separately due to their nature or because they will only be incurred in the future (e.g. mailing the observations to the Court).

 

95. Altogether the applicant claims EUR 66,940 as just satisfaction for the violation he suffered due to his ill-treatment 

 

Budapest, 29 October 2012

                       

 

           

                                                                                                                  András Kádár

                                                                                                          Counsel for the applicant

 

Annexes

 

C/1: Decision no. 6.B.35649/2011/11. of the Pest Central District Court acquitting the applicant from the charge of the falsification of private documents

C/2: Withdrawal of the prosecution’s appeal

C/3: News article covering the falsification case with quotation from the prosecution’s spokesperson and the verbal reasons presented by the judge when promulgating the acquittal

C/4: Request by the Central Investigations Prosecutor’s Office for information from the warden of the Metropolitan Penitentiary Institution on visits between the applicant and his common-law wife (20 October 2010)

C/5: Request by the Central Investigations Prosecutor’s Office for information from the warden of the Central Hospital of the Penitentiary Administration on visits between the applicant and his common-law wife (20 October 2010)

C/6: Reply by the warden of the Metropolitan Penitentiary Institution to the Central Investigations Prosecutor’s Office (21 October 2010)

C/7: Reply by warden of the Central Hospital of the Penitentiary Administration the Central Investigations Prosecutor’s Office (21 October 2010)

C/8: Summons sent to the applicant in the libel case he launched against …

C/9: The 19 November 2010 appeal of the applicant’s defence counsel

C/10: The Supreme Court’s decision published under no. BH2008. 12

C/11: Excerpt from the applicant’s 14 September 2010 confrontation with Zsolt Balogh

C/12: Appointment of forensic medical expert

C/13: Applicant’s request for additional food package and refusal to grant the request

C/14: Applicant’s 2008 tax statement

C/15: Applicant’s 2009 tax statement

C/16: Counsel’s time sheet