By Hungarian Helsinki Committee
The average number of detainees in Hungary has been constantly rising until 2014. By 2014, the average overcrowding rate had reached 141% but overcrowding in certain institutions reached 200%, making the Hungarian prison system one of the most crowded in Europe. Overcrowding was (and still is) often accompanied by further unsatisfactory detention conditions: for example, toilets separated from the rest of the cell by only a textile curtain, or the presence of bedbugs.
In a pilot judgment delivered on 10 March 2015 in the Varga and Others v. Hungary case, the European Court of Human Rights (ECtHR) concluded not only that the detention conditions of the applicants in the case – including the inadequate moving space per person – amounted to inhuman or degrading treatment, but also that overcrowding of prisons constituted a structural problem in the country. In addition, the ECtHR found a violation of Article 13 of the European Convention on Human Rights, read in conjunction with Article 3, on account of the absence of an effective remedy to complain about the detention conditions. The Court ordered that Hungary should, within six months, produce “a time frame in which to make appropriate arrangements and to put in practice preventive and compensatory remedies in respect of alleged violations of Article 3 of the Convention.” In short, Hungary must develop a plan to reduce prison overcrowding.
The Hungarian Government submitted an action plan for implementing the judgment to the Committee of Ministers (CoM) of the Council of Europe in December 2015. The Hungarian Helsinki Committee (HHC) is of the view, however, that the measures outlined in the action plan are insufficient to comply with the requirements included in the pilot judgment and fail to address systemic deficiencies. For instance, in contrast to recommendations laid out by the Court in the pilot judgment, the Government’s action plan indicates that it intends to solve the problem of overcrowding almost exclusively by building more prisons, rather than reducing the number of existing detainees.
The HCC’s concerns, which were also presented at one of the regular briefings organized by the European Implementation Network (EIN) and the Open Society Justice Initiative (OSJI) to the member states’ representatives to the Council of Europe in February 2016, were reinforced by the CoM’s decision of March 2016. While the Committee welcomed some of the Government’s measures (e.g., the introduction of the “reintegration custody,” which means release in the last six months of imprisonment while monitored with an electronic device, available for certain categories of convicts), it encouraged Hungary to intensify its efforts to promote alternative non-custodial punitive measures and to minimise the recourse to pre-trial detention. It also invited Hungary to submit information on its planned sui generis compensatory remedy. Finally, the CoM noted with regret that it received no information as regards the putting in place of a preventive remedy in respect of alleged violations of Article 3 of the Convention on account of inhuman and degrading conditions of detention, as the pilot judgment had ordered.
The CoM invited Hungary to provide an updated action plan, which the Government did in July 2016, and a related law was adopted in October 2016, introducing a sui generis compensatory remedy and widening the reintegration custody’s scope of applicability. However, the solution introduced remains far from ideal, as the HHC also signalled in the course of the legislative process. Two concerns in particular should be noted:
· The law does not include any preventive remedy, even though the introduction of such a remedy was requested by both the pilot judgment and the CoM.
· The detailed procedural rules for the sui generis compensatory remedy entail the risk that it will not be able to serve as an effective domestic remedy, while putting a huge extra burden on penitentiary staff and penitentiary judges. (For example, detainees are required to submit complaints before they could request compensation, but the complaint must be repeated after every three-month period if the conditions do not improve. Furthermore, the highest possible compensation that may be granted under the new rules is hardly over 50% of the average damages granted by the ECtHR.)
The CoM is yet to deliver a decision on the latest steps of the Hungarian Government concerning the implementation of the pilot judgment. Meanwhile, on 8 November 2016, the ECtHR suspended the examination of the 6,800 applications pending before it concerning conditions of detention in Hungary in light of the new law adopted.
Meanwhile, one year after the ECtHR’s pilot judgment became final, the implementation of Varga, and the issue of prison overcrowding generally, are still not adequately settled in Hungary, with the average overcrowding rate remaining higher than 150% in certain penitentiaries.