Overcrowded prisons in Hungary operate at approximately 20 percent over capacity. Currently, there are 18,000 detainees in the 29 prisons of the country and the problems related to prison environment are affecting a very wide range of Hungarian society.
The European Court of Human Rights (hereinafter: ECtHR), after having received applications in large numbers from Hungary in connection with human rights violation flowing from the conditions of detention, obliged the Hungarian Government in its judgement of 10 March 2015 to introduce new remedies capable of eliminating existing grievances and to compensate previously suffered injustices.
Right to compensation for degrading prison circumstances
As a result, since January 2017, everyone, whose fundamental human rights have been violated due to a lack of living space stipulated by law and other inhuman and degrading prison conditions, has the right to claim compensation in Hungary. Currently a new application to the ECtHR may only be lodged successfully after the exhaustion of domestic remedies, mostly if the domestic procedure did not result in compensation in connection with a breach of a right protected by the European Convention on Human Rights. For example, we cannot turn to the ECtHR if the Hungarian court awarded a lower amount of compensation than what the ECtHR had previously awarded in similar cases in the absence of domestic remedies.
There are two important criteria for filing a compensation claim. First, we must inform the prison warden about the current inhuman conditions in a formal complaint as stipulated by Section 144/B of the Act CCXL of 2013 on the Execution of Punishments (hereinafter: Bv. tv.). Secondly, we must file the compensation claim in time, namely, within no more than six months from the termination of the violation.
Conditions of compensation
Our compensation claim may be filed after release, but we must keep in mind that the abovementioned formal written complaint – regarding the violations occurred since January 2017 – must be filed during the detention. This is necessary for enabling the penal institution to order the move of the complainant to a larger cell, or to attempt to mitigate the severity of injustices in other ways, mainly with allowing to spend longer periods outside or in the library. It is almost certain that the complaint will not make a real difference to our lives, but we still have to file it, since without it our compensation claim will be rejected without an examination of the merits.
We also need to bear in mind that the six-month deadline starts from the moment the statutory living space is ensured. It is not only the termination of the custodial sentence that is considered the end of the violation, but any period in which the statutory living space is provided for more than 30 days. This may of course also occur if the convict is placed in the same cell the whole time, but for a period of more than 30 days fewer detainees are being placed in the cell, thus providing a larger living space per person. Therefore, before claiming compensation, it is important to be aware if there was a period during the detention when the living space was more than 4 square metres per detainee in the cell for more than 30 days, since in that case the deadline for submitting the claim for damages may have expired already before the termination.
What is the deadline of the submission of our compensation claim?
The size of living space defined by law is set by a Ministerial decree. When calculating the living space, only the area occupied by the toilet and the sink may be extracted from the floor area – not the other furnishings. The number of people that can be placed in the cell must be determined in a way that in the case of a single occupant at least six square metres, while in the case of joint accommodation, minimum four square metres of living space per person must be provided.
The compensation claim can be submitted after the formal complaint has been filed. The claim must be submitted on a standard form, which can be requested from the prison staff. On this form the name of the penal institution and the exact periods during which the statutory living space was not provided must be listed together with any other circumstances which might be in violation of the prohibition of torture, cruel, inhuman or degrading treatment. Proving the injury caused by the detrimental circumstances is extremely difficult for the detainee.
Finding of facts and the process
It is a common problem that although the detainee describes in the compensation claim that the mattress in his cell was infected with bedbugs, if the penal institution states in its opinion that “the extermination of the insects was in accordance with the regulations”, the court will not find the detainee’s claim justified in the absence of evidence. To avoid this, if any conditions are found to be in violation of the prohibition of torture, cruel, inhuman or degrading treatment, a written complaint must be filed, and the relevant medical records must be obtained and attached to the compensation claim.
The court’s decision on the compensation claim is based on the information provided by the applicant and by the prison. Although it is possible to initiate a hearing of the detainee, it almost never happens. If the judge finds the submitted compensation claim to be justified, he awards an amount of 1,200 to 1,600 HUF per day for the relevant period, depending on the severity of the conditions. Currently the judicial practice regarding the interpretation of the severity of the violation is varied. If we are lucky, the judge considers how much smaller the provided living space was compared to the statutory provision and determines the amount of daily compensation accordingly. For example if only one square metre was provided, the applicant would receive 1,600 HUF per day. However, in most cases a compensation exceeding 1,200 HUF per day is awarded only if certain related aggravating circumstance, such as the inadequate separation of the restroom, has been established also.
The compensation procedure is not the fastest one; it may take a year or two. However, it seems to became more efficient with time. Thousands of applications are being processed by the courts, the prison staff gathers the information on the circumstances of the detention slowly, and if the period of detention is long and more prisons are concerned, the adjudication of the application will be slower.
What is the deadline of the apppeal against the first-instance decision?
We have 8 days to appeal against the court decision from the date of service, and not only the applicant, but the prosecutor may appeal too, requesting the amount of the compensation reduced or even increased. In some cases it caused a serious problem that the applicant (or their legal representative) were not notified of the prosecutor’s appeal, so they were unable to comment on or contest it. This may even raise the issue of unconstitutionality of the final decision in some cases. The payment of the compensation shall be made within sixty days of the delivery of the final decision to the Ministry of Justice (usually after 60 days).
Finally, before submitting a claim for compensation, we must bear it mind that in some cases the amount granted in the indemnification procedure will not be paid to the applicant in whole or in part. The law allows civil claims, indemnities and damages – awarded in judgements ordering the deprivation of liberty during the relevant period -, as well as the amount claimed in the enforcement procedure for the recovery of child allowance to be deducted from the compensation as well.
In summary, for a successful compensation proceeding, we must pay attention to the following:
- fulfil the criteria for submitting a complaint according to the Section 144/B of the Bv. tv.;
- the application must be detailed and supported by evidence;
- the application must be submitted within the deadline, on the form provided for this purpose.