FOURTH SECTION

CASE OF Á.R. v. HUNGARY

(Application no. 20440/15)

JUDGMENT

STRASBOURG

17 October 2017

This judgment is final but it may be subject to editorial revision.

In the case of Á.R. v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Faris Vehabović, President,
	Carlo Ranzoni,
	Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 26 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20440/15) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Á.R. (“the applicant”), on 14 April 2015. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).
2.  The applicant was represented by Mr T. Fazekas, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.
3.  On 30 March 2016 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1978 and lives in Forráskút. At the time of lodging the application, he was detained at Márianosztra Prison.
5.  On 29 January 2014 the applicant was convicted of possession of narcotics and sentenced to five years’ imprisonment. On appeal, on 14 October 2014 the Budapest Court of Appeal upheld the judgment.
6.  The applicant began serving his sentence at Szeged Prison on 15 January 2015 and was transferred to Márianosztra Prison on 26 January 2015. He was released on parole on 8 September 2015.
7.  While the applicant was held at Szeged Prison, the per capita space available to him was about 3.2 sq. m; the gross ground surface of the cell was 16 sq. m for five occupants but included the in-cell sanitary facility. He was allowed to spend one hour per day in the open air and could take part in various sports and other activities, thus reducing the time spent in the cell. He was provided with basic standard meals and was able to take a shower twice a week.
8.  At Márianosztra Prison, the per capita cell space available to the applicant was about 2.67 sq. m; the gross ground surface of the cell was 8 sq. m for three occupants but included the in-cell sanitary facility. Only between 26 and 29 January and 11 and 15 May 2015 he was held in a cell where a wall separated the toilet from the rest of the space. He could take a shower twice a week and pursue certain free-time activities. At his request, he was provided with vegetarian meals but very often consisting only of soya beans.
9.  The applicant submitted that he suffered from epilepsy and a personality disorder. In his own submissions he stated that prior to his conviction he had cultivated and consumed cannabis partly because it alleviated his symptoms.
10.  As regards the medical care in prison, the Government submitted that, during the first examination at Szeged Prison, the applicant had stated that he suffered from epilepsy without presenting any relevant documentation. The doctor referred him for a psychiatric examination, which took place on 22 January 2015; but the applicant refused the treatment prescribed by the specialist.
11.  During his first medical examination at Márianosztra Prison, the doctor noted that the applicant’s aptitude for work could be assessed only after external medical records concerning his illness had been obtained.
12.  The applicant suffered an epileptic seizure on 24 April 2015, whilst in his cell. Following medication, his condition improved but he refused the neurological examination recommended by the doctor and any further treatment. He suffered further fits on 4 May and 8 July 2015, following which a neurologist prescribed him anti-epileptic drugs, but he agreed to take them only after suffering yet another seizure.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
13.  The applicant alleged that Hungarian law did not permit the medical use of cannabis-based products. He submitted that he suffered from a condition which could be treated or alleviated by use of such medicines, but the possession and use of cannabis was illegal. He relied on Article 8 of the Convention, which reads as follows:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
14.  The applicant submitted in particular that the existing legal framework for requesting cannabis-based products in Hungary had a chilling effect on doctors who might otherwise seek to prescribe such treatment for their patients.
15.  The Government contested these views.
16.  The parties’ respective arguments are outlined in the very similar case of A.M. and A.K. v. Hungary ((dec.), nos. 21320/15 and 35837/15, §§ 22 to 37, 4 April 2017).
17.  The Court points out that, in the A.M. and A.K. decision (see §§ 44 to 53 of the decision cited above), it has previously declared inadmissible complaints which were essentially the same as the present one.
18.  For the same reasons, this complaint is also manifestly ill‑founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
19.  The applicant further complained that the material conditions of his detention had been in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 3.01	A.  Admissibility
20.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.
Section 3.02	B.  Merits
21.  The applicant claimed in particular that he had been held in small and inadequate cells, where the toilet was separated from the rest of the cell only by a curtain, that he had been able to take showers only infrequently and that the food had been poor and lacking in variety.
22.  The Government conceded that the applicant had been allocated less than 3 sq. m of personal space during his detention at Márianosztra Prison. However, they argued that the remainder of his complaints was unsubstantiated.
23.  The Court refers to the principles established in its case-law regarding inadequate prison conditions (see, as a recent authority, Muršić v. Croatia [GC], no. 7334/13, 20 October 2016). It reiterates in particular that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq. m in multi‑occupancy accommodation. The said presumption may be rebutted by the cumulative effects of detention; however, it will be difficult to rebut it in the context of a flagrant or prolonged failure to provide 3 sq. m of personal space (see Muršić, cited above, §§ 124-125).
24.  The Court has already found a violation in respect of issues similar to those in the present case in Varga and Others v. Hungary (nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015). Having examined all the material submitted to it, the Court has not found any fact or convincing argument capable of persuading it to reach a different conclusion in the present application. Taking account of its case-law on the subject, the Court considers that the applicant’s conditions of imprisonment at Márianosztra Prison – which lasted 222 days, from 26 January to 8 September 2015 (see paragraph 6 above) – were inadequate.
25.  There has accordingly been a breach of Article 3 in respect of the detention at Márianosztra Prison.
26.  By contrast, this was not the case during the short period spent at Szeged Prison, where the personal space exceeded 3 sq. m, with certain opportunities to spend time outside the cell (see paragraph 7 above).
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
27.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
28.  The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage.
29.  The Government contested this claim.
30.  The Court considers that the applicant must have suffered some non‑pecuniary damage on account of the distress sustained and awards him, on an equitable basis, EUR 3,000 under this head.
Section 4.02	B.  Costs and expenses
31.  The applicant also claimed EUR 8,686 for the costs and expenses incurred before the Court, corresponding to 39 hours of legal work billable by his lawyer.
32.  The Government contested this claim.
33.  In the light of the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 1,000.
Section 4.03	C.  Default interest
34.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 3 admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention at Márianosztra Prison;

3.  Holds that there has been no violation of Article 3 of the Convention in respect of the applicant’s conditions of detention at Szeged Prison;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Andrea Tamietti	Faris Vehabović
	Deputy Registrar	President