In the case of Z.H. v. Hungary,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Ineta Ziemele,
President,
Danutė Jočienė,
Isabelle Berro-Lefèvre,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 9 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28973/11) against the Republic of 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 Z. H. (“the
applicant”), on 19 November 2011.
The applicant, who had been granted legal aid,
was represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi,
Agent, Ministry of Public Administration and Justice.
The applicant alleged, in particular, that on
account of his disabilities, he could not benefit from proper information about
the reasons for his arrest, in breach of Article 5 § 2, and his subsequent
incarceration amounted to inhuman and degrading treatment, an infringement of
Article 3 of the Convention.
On 13 February 2012 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
On 7 June 2012 the Mental Disability Advocacy Center
(MDAC), a non-governmental organisation with its seat in Budapest, was granted
leave to intervene in the proceedings as third party (Rule 44 § 3 of the Rules
of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1987 and lives in the village of A. in eastern Hungary.
The applicant is innately deaf and dumb and has medium-grade
intellectual disability. He is illiterate.
According to the bill of indictment preferred in
the case, on 10 April 2011 the applicant - a multiple recidivist offender with
the most recent conviction dating from 2 November 2009 - mugged a passer-by in
Gyüre. He was then halted for an identity check by officers of the
Vásárosnamény Police Department. He attempted to escape but was apprehended while
still in possession of the stolen item. He was committed to the police station.
Since the applicant was perceived to use a sort of
sign language, a sign-language interpreter was appointed for him at once. Later
in the day he was interrogated as a suspect of robbery. No lawyer was present.
The Government submitted that the applicant had understood
the charges brought against him but made no complaint about it and admitted the
commission of the offence by signing the minutes of the interrogation. The
applicant denied this, arguing that the sign language used by him and the one
used by the interpreter were different and thus no comprehension had been
possible between them.
The applicant’s signature on the minutes in question consists
of his scribbled nickname, hardly legible.
Between 10 April and 4 July 2011 the applicant
was detained on remand on the charge of mugging at Szabolcs-Szatmár-Bereg
County Prison.
The applicant maintained that the conditions of
detention were inapt to his condition and that he had been molested, sexually
and otherwise, by the other inmates. The Government argued that special
measures had been put in place to address the applicant’s situation (in
particular, the prison governor issued an instruction to that effect on 23 May
2011) - an assertion of which the efficacy has been disputed by the applicant (for
details, see paragraphs 25 and 26 below).
On 4 July 2011 the applicant was released from
detention and placed under house arrest. The Vásárosnamény District Court,
having noted that he did not know any sign language and was able to communicate
only with his mother, was of the view that the time spent by the applicant in
detention had be to be reduced to a minimum.
Meanwhile, on 20 June 2011 the applicant was
indicted for robbery. His mental condition was noted by the prosecution. A
public defence counsel and a sign-language interpreter were appointed for him.
While detained, the applicant was examined by a
forensic psychiatrist. On 30 June 2011 the expert gave the opinion that the
applicant’s faculties were to a large extent reduced and that he should be
placed under partial guardianship. This was done by the Vásárosnamény District
Court on 27 September 2011. The court noted that the applicant’s IQ was
39, he was deaf and dumb, he had medium-grade intellectual disability, he could
not count and did not know sign language; the only person with whom he could
communicate was his mother.
The criminal proceedings conducted against the
applicant are still pending.
The applicant submitted the testimonies of a Mr
F. and a Mr R. who were present when Mr Karsai met with the applicant on 6 May
2012 to discuss his representation before the Court. According to these
testimonies, the applicant communicated using a peculiar sign-language-like
method, essentially only intelligible to his mother, which appeared to be
completely different from the standard sign language.
II. RELEVANT DOMESTIC LAW
Act no. XIX of 1998 on the Code of Criminal
Procedure provides as follows:
Section 129
“(2) A defendant’s pre-trial detention may be
ordered in proceedings conducted for a criminal offence punishable by
imprisonment and only if:
a) the defendant has escaped or absconded from the
reach of the court, the prosecutor or the investigating authority or attempted to
do so, or if other proceedings for an intentional criminal offence punishable
by imprisonment has been instituted against him during the procedure,
b) due to the risk of his escape or absconding or
for other reasons it can reasonably be assumed that his attendance at the
procedural acts cannot be ensured otherwise,
c) it can reasonably be assumed that if left at large
he would frustrate, obstruct or jeopardise the taking of evidence, especially
by influencing or intimidating the witnesses, or by destroying, falsifying or concealing
physical evidence or documents,
d) it can reasonably be assumed that if left at large
he would accomplish the attempted or prepared criminal offence, or would commit
another criminal offence punishable by imprisonment.”
III. RELEVANT INTERNATIONAL TEXTS
The United
Nations Convention on the Rights of Persons with Disabilities
contains the following provisions:
Article 2 - Definitions
“For the purposes of the present Convention:
...
“Reasonable accommodation” means necessary and appropriate
modification and adjustments not imposing a disproportionate or undue burden,
where needed in a particular case, to ensure to persons with disabilities the
enjoyment or exercise on an equal basis with others of all human rights and
fundamental freedoms; ...”
Article 13 - Access to justice
“1. States Parties shall ensure effective access to justice for
persons with disabilities on an equal basis with others, including through the
provision of procedural and age-appropriate accommodations, in order to
facilitate their effective role as direct and indirect participants, including
as witnesses, in all legal proceedings, including at investigative and other
preliminary stages.”
Article 14 - Liberty and security of the person
“2. States Parties shall ensure that if persons with
disabilities are deprived of their liberty through any process, they are, on an
equal basis with others, entitled to guarantees in accordance with
international human rights law and shall be treated in compliance with the
objectives and principles of the present Convention, including by provision of
reasonable accommodation.”
The Interim Report of the Special Rapporteur on
the question of torture and other cruel, inhuman or degrading treatment or
punishment, submitted on 28 July 2008 by the Office of the United Nations High
Commissioner for Human Rights to the 63rd session of the General Assembly of
the UN (A/63/175), contains the following passages:
“The Special Rapporteur draws the attention of the General
Assembly to the situation of persons with disabilities, who are frequently
subjected to neglect, severe forms of restraint and seclusion, as well as
physical, mental and sexual violence. He is concerned that such practices,
perpetrated in public institutions, as well as in the private sphere, remain
invisible and are not recognized as torture or other cruel, inhuman or
degrading treatment or punishment.” [summary]
“Persons with disabilities are often segregated from society in
institutions, including prisons, social care centres, orphanages and mental
health institutions. They are deprived of their liberty for long periods of
time including what may amount to a lifelong experience, either against their
will or without their free and informed consent. Inside these institutions,
persons with disabilities are frequently subjected to unspeakable indignities,
neglect, severe forms of restraint and seclusion, as well as physical, mental
and sexual violence. The lack of reasonable accommodation in detention
facilities may increase the risk of exposure to neglect, violence, abuse,
torture and ill-treatment.” [paragraph 38]
“Persons with disabilities often find themselves in ...
situations [of powerlessness], for instance when they are deprived of their
liberty in prisons or other places ... In a given context, the particular
disability of an individual may render him or her more likely to be in a
dependant situation and make him or her an easier target of abuse ...”
[paragraph 50]
“States have the further obligation to ensure that treatment or
conditions in detention do not directly or indirectly discriminate against
persons with disabilities. If such discriminatory treatment inflicts severe
pain or suffering, it may constitute torture or other form of ill-treatment. ...”
[paragraph 53]
“The Special Rapporteur notes that under article 14, paragraph
2, of the [Convention on the Rights of Persons with Disabilities], States have
the obligation to ensure that persons deprived of their liberty are entitled to
‘provision of reasonable accommodation’. This implies an obligation to make
appropriate modifications in the procedures and physical facilities of
detention centres ... to ensure that persons with disabilities enjoy the same rights
and fundamental freedoms as others, when such adjustments do not impose
disproportionate or undue burden. The denial or lack of reasonable
accommodation for persons with disabilities may create detention ... conditions
that amount to ill-treatment and torture.” [paragraph 54]
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that his detention
amounted to inhuman and degrading treatment, in breach of Article 3, on account
of the fact that he was mentally disabled, deaf and dumb.
Article 3 reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The Government
The Government submitted that the applicant had
given no indication to the prison authorities of any assault against him or of
the alleged inappropriateness of the detention conditions. They noted that the
governor of Szabolcs-Szatmár-Bereg County Prison had issued a special
instruction addressing the treatment of the applicant.
In the Government’s view, during his detention the
applicant could express himself and communicate with the prison personnel
despite the fact that he did not use a hearing aid and is illiterate. They also
submitted that special arrangements had been made to accommodate his needs: he
had been placed in a cell shared with a relative, located in an “open” section
of the prison, next to the service place of the unit warden so that he could
immediately indicate his problems. Furthermore, to facilitate communication
with the applicant, the prison warden was regularly in contact with the
applicant’s mother and a sign-language interpreter was made available during
the prison admission procedure, the visits and on the occasions when the
applicant received official documents. Fellow inmates assisted the applicant in
writing letters and the warden paid special attention to the forwarding of his
letters, to prevent any abuse.
(b) The applicant
The applicant submitted that his detention gave
rise to a violation of Article 3 of the Convention as it was inapt to his
conditions. He further claimed that he had been mobbed and sexually assaulted
by other inmates. He explained that, due to his intellectual impairment and
general inability to communicate, he was not in a position to complain of any
assault or give indication of the inappropriateness of his circumstances, and that
it was unreasonable to expect him to do so. He also noted that the visits of
his mother, limited to two occasions per month, were not sufficient to address
his problems and his communication needs occurring in detention. With regard to
the governor’s special instruction, the applicant asserted that it was unsuitable
to deal with the situation of a deaf and dumb, intellectually disabled and
illiterate person.
(c) The third party
The Mental Disability Advocacy Center submitted that persons with disabilities were particularly vulnerable to torture and
ill-treatment, including sexual abuse, in prison and other detention settings. Making
reference inter alia to the relevant provisions of the UN Convention on
the Rights of Persons with Disabilities (see paragraph 19 above), they argued
that the prevention of ill-treatment of detainees with disabilities must
include the provision of “reasonable accommodations” on an individualised
basis.
2. The Court’s assessment
(a) General principles
The Court reiterates that ill-treatment must
attain a minimum level of severity if it is to fall within the scope of Article
3. The assessment of this minimum level of severity is relative; it depends on
all the circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and state of
health of the victim. In considering whether treatment is “degrading” within
the meaning of Article 3, one of the factors which the Court will take
into account is the question whether its object was to humiliate and debase the
person concerned, although the absence of any such purpose cannot conclusively
rule out a finding of violation of Article 3 (see among many other authorities Price
v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Peers v.
Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III; and Engel v.
Hungary, no. 46857/06, § 26, 20 May
2010).
Moreover, where the authorities decide to detain
a person with disabilities, they should demonstrate special care in
guaranteeing such conditions as correspond to the person’s individual needs
resulting from his disability (see mutatis mutandis Jasinskis v. Latvia,
no. 45744/08, § 59, 21 December 2010; Price v. the United Kingdom,
op.cit., § 30). States have an obligation to take particular measures which
provide effective protection of vulnerable persons and include reasonable steps
to prevent ill-treatment of which the authorities had or ought to have had
knowledge (see Z and Others v. the United Kingdom [GC], no.
29392/95, § 73, ECHR 2001-V). Any interference with the rights of persons
belonging to particularly vulnerable groups - such as those with mental
disorders - is required to be subject to strict scrutiny, and only very weighty
reasons could justify any restriction (see Alajos Kiss v. Hungary, no.
38832/06, § 42, 20 May 2010).
(b) Application of those principles to the present
case
In the instant application, the Court observes
that Mr Z.H. - deaf and dumb, suffering from intellectual disability,
illiterate and unable to avail himself of the official sign language - was
detained at Szabolcs-Szatmár-Bereg County Prison for a period
lasting almost three months (see paragraph 11 above). It notes the Government’s
submission according to which special measures, incarnated by an instruction
issued by the prison governor, were put in place to address his situation, as
of 23 May 2011 (see paragraph 12 above). However, it is unclear to what extent
these measures concerned the phase of the applicant’s detention occurring prior
to this date, that is, between 10 April and 23 May 2011.
In any case, the Court is not convinced that even
the aggregate of the measures referred to by the Government - namely, the
applicant’s incarceration together with a relative in a cell close to the
warden’s office, the involvement of other inmates and the applicant’s mother in
handling the situation and the facilitation of his correspondence (see
paragraph 25 above) - was sufficient to remove the applicant’s treatment from
the scope of Article 3.
Given that the applicant undoubtedly belongs to a particularly
vulnerable group (see paragraphs 20 and 29 in fine above) and that as
such he should have benefited from reasonable steps on the side of the authorities
to prevent situations likely to result in inhuman and degrading treatment, the
Court considers that it was incumbent on the Government to prove that the
authorities took the requisite measures. This redistribution of the burden of
proof is analogous to the manner in which the Court examines situations where
an individual is taken into police custody in good health but is found to be
injured at the time of release, so that it is incumbent on the State to provide
a plausible explanation of how those injuries were caused, failing which a
clear issue arises under Article 3 of the Convention (see among many other
authorities Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
In the present circumstances, however, the Court
notes that the Government have failed to meet this burden of proof in a
satisfactory manner, especially in respect of the initial period of the
detention.
The Court considers in particular that the inevitable feeling
of isolation and helplessness flowing from the applicant’s disabilities,
coupled with the presumable lack of comprehension of his own situation and of that
of the prison order¸ must have caused the applicant to experience anguish and
inferiority attaining the threshold of inhuman and degrading treatment,
especially in the face of the fact that he had been severed from the only
person (his mother) with whom he could effectively communicate. Moreover, while
the applicant’s allegations about being molested by other inmates have not been
supported by evidence, the Court would add that had this been the case, the
applicant would have faced significant difficulties in bringing such incidents
to the wardens’ attention, which may have resulted in fear and the feeling of
being exposed to abuse.
The Court also observes that the District Court eventually
released the applicant for quite similar considerations.
In sum, the Court cannot but conclude that -
despite the authorities laudable but belated efforts to address his situation -
the applicant’s incarceration without the requisite measures taken within a
reasonable time must have resulted in a situation amounting to inhuman and
degrading treatment, in breach of Article 3 of the Convention, on account of
his multiple disabilities.
There has accordingly been a breach of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
The applicant also submitted that, due to his
condition, the procedure followed by the authorities on his arrest fell short
of the requirements of Article 5 § 2 of the Convention, which provides as
follows:
“Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of any charge
against him.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(a) The Government
The Government submitted that the applicant’s
pre-trial detention had been in conformity with the requirements of Article 5 §
2 of the Convention. They argued that all the guarantees envisaged by the
Convention had been applied, including the requisite consideration dedicated to
the applicant’s disability and special conditions.
As to the question whether the applicant had
been informed, in a language which he had understood, of the reasons for his
arrest, the Government noted that the applicant had been interrogated in the
presence of a sign-language interpreter and, in their opinion, he had understood
the charge against him. They also stressed that he had made no complaint about
the procedure and had signed the minutes of the interrogation.
(b) The applicant
The applicant submitted that, when arrested, he had
not been informed, in a language which he had understood, of the reasons for
his arrest and the charges against him. Relying essentially on the decisions of
the Vásárosnamény District Court dated 4 July and 27 September 2011 (see
paragraphs 13 and 15 above), the applicant contested the Government’s
submission that he understood the official sign language. In support of this
argument, he further submitted two witness testimonies stating that he used a
special method of communication different from the official sign language (see
paragraph 17 above). He stressed that he was only able to communicate with his
mother using a special type of sign-language. He explained that his signature
on the minutes of the interrogation could not be considered valid, given that he
was deaf, dumb and illiterate. He argued that, taking into consideration his
intellectual disability, he should have been assisted by a lawyer or a person
authorised to act on his behalf, so that he could understand the grounds for
his arrest.
(c) The third party
The Mental Disability Advocacy Center submitted that, when interpreting the guarantees enshrined in Article 5 § 2 of the
Convention, the provisions of the UN Convention on the Rights of Persons with
Disabilities should be taken into account. They argued that this instrument
required States to provide reasonable accommodations to persons with
disabilities in order to ensure their effective access to justice. They
explained that, in the present case, reasonable accommodation would have
required the presence of a person who could have effectively communicated with
the applicant and assisted him during the interrogation.
2. The Court’s assessment
(a) General principles
The Court reiterates that paragraph 2 of Article
5 contains the elementary safeguard that any person arrested should know why he
is being deprived of his liberty. This provision is an integral part of the
scheme of protection afforded by Article 5: by virtue of paragraph 2, any
person arrested must be told, in simple, non-technical language that he can
understand, the essential legal and factual grounds for his arrest, so as to be
able, if he sees fit, to apply to a court to challenge its lawfulness in
accordance with paragraph 4. Whether the content and promptness of the
information conveyed were sufficient is to be assessed in each case according
to its special features (see Fox, Campbell and Hartley v. the United
Kingdom, 30 August 1990, § 40, Series A no. 182).
Article 5 § 2 neither requires that the necessary information
be given in a particular form, nor that it consists of a complete list of the
charges held against the arrested person (see X. v. Germany, no. 8098/77,
Commission decision of 13 December 1978, Decisions and Reports 16, p. 111).
However, in the Court’s view, if the condition of a person with intellectual
disability is not given due consideration in this process, it cannot be said
that he was provided with the requisite information enabling him to make
effective and intelligent use of the right ensured by Article 5 § 4 to
challenge the lawfulness of detention unless a lawyer or another authorised
person was informed in his stead (see X. v. the United Kingdom, no. 6998/75,
Commission’s report of 16 July 1980, § 111, Series B no. 41).
(b) Application of those principles to the present
case
The applicant was interrogated at the
Vásárosnamény police station in the sole presence of a sign-language
interpreter. As already noted above (see paragraph 30 above), the applicant is
deaf and dumb, illiterate and has an intellectual disability. Moreover, he
cannot communicate by means of the official sign language, an interpreter of
which was present. In these circumstances, the Court is not persuaded that he can
be considered to have obtained the information required to enable him to
challenge his detention - and this notwithstanding the fact that the signature
of his nickname figures on the minutes of the interrogation.
The Court further finds it regrettable that the
authorities did not make any truly “reasonable steps” (cf. Z and Others,
loc.cit.) - a notion quite akin to that of “reasonable accommodation” in
Articles 2, 13 and 14 of the UN Convention on the Rights of Persons with
Disabilities (see paragraph 19 above) - to address the applicant’s condition,
in particular by procuring for him assistance by a lawyer or another suitable
person. For the Court, the police officers interrogating him must have realised
that no meaningful communication was possible in the situation and they should
have sought assistance in the first place from the applicant’s mother (who
could have at least informed the officers about the magnitude of the applicant’s
communication problems) - rather than simply making the applicant sign the
minutes of the interrogation.
The foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of Article 5 § 2
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 5 §
1 that his detention had been unjustified and, under Articles 6 and 13, that
the criminal proceedings conducted against him had been unfair.
The Court notes that the applicant, a multiple recidivist, was
detained on remand on suspicion of mugging and considers that this measure as
such cannot be regarded as unjustified deprivation of liberty, in breach of
Article 5 § 1 (c), quite apart from the previous findings in the context
of Articles 3 and 5 § 2 (see paragraphs 33 and 44 above). This complaint is
therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and
must be rejected, pursuant to Article 35 § 4 of the Convention.
Moreover, the criminal proceedings against the applicant are
still pending and consequently, the complaints concerning their fairness are
premature. This complaint must thus be rejected, pursuant to Article 35 §§ 1
and 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 30,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim.
The Court considers that the applicant must have
suffered some non-pecuniary damage and awards him, on the basis of equity, EUR 16,000
under this head.
B. Costs and expenses
The applicant also claimed EUR 9,000 for the
costs and expenses incurred before the Court. This sum corresponds to 35 hours
of legal work billable by his lawyer at an hourly rate of EUR 200 plus VAT and
includes 110 euros of clerical costs.
The Government contested this claim.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 3,000 covering costs under all heads, from
which amount EUR 850 - the sum which has been awarded to the applicant under
the Council of Europe’s legal-aid scheme - must be deducted.
C. Default interest
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 complaints concerning Articles
3 and 5 § 2 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 2 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 16,000 (sixteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,150 (two thousand one hundred and fifty
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 8 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley
Naismith Ineta Ziemele
Registrar President
