Monday 20 January 2020

Guest Post on Hungary's Suspension of Pilot Judgment Implementation

It is my pleasure to present another guest post by professor Renata Uitz of Central European University in Budapest. Her comments go into the decision of the Hungarian government of a few days ago of suspending the effect of the pilot judgment of Varga and others about prison conditions contrary to Article 3 ECHR. All the more remarkable as Hungary's record on implementation on this particular issue had seemed rather positive until now. 

Hirst Meets Burdov in Hungary’s New Year Resolution: The Hungarian Government Suspends the Enforcement of a Pilot Judgment 

Renata Uitz

On 18 January 2020, a secretary of state in the Ministry of Justice announced the adoption of a Government resolution that suspends the payment of compensation for inmates facing inhuman and degrading detention conditions in Hungarian prisons. According to the official statement the suspension is meant as a first step in eradicating the abuse of EU law (sic) and Hungarian law through what was labeled as the „prison business” in Hungary. Accordingly, the Hungarian government will review the application of the law that put in place a compensation for inhuman prison conditions. As to the scale of said „prison business:” according to the secretary of state some 12.000 lawsuits have been commenced so far and the amounts of compensation paid reach HUF 10 billion (approx. EUR 30 million) so far.

Background: The Exemplary Execution of a Pilot Judgment

The act of parliament that is at the center of the controversy was adopted to the enforce the pilot judgment of the European Court of Human Rights (ECtHR) in Varga and others v. Hungary (10 March 2015). In its judgment, the Court noted that „the Government did not dispute the facts as submitted by the applicants concerning the actual dimension and occupancy of the cells in which they were held during their detentions.” (para. 79). It further noted that „in some cells of these applicants, the lavatory was separated from the living area only by a curtain, the living quarters were infested with insects and had no adequate ventilation or sleeping facilities; and detainees had very limited access to the shower and could spend little time away from their cells. The Government did not refute either the allegations made by the applicants on these points or the findings of the various bodies which had visited the detention facilities where the applicants were detained.” (para. 90).

The ECtHR was sufficiently concerned about the state of detention – and the case load this generated – that when issuing a pilot judgment, the Court did not adjourn the examination of similar pending cases: “[r]ather, the Court finds that continuing to process all conditions of detention cases in the usual manner will remind the respondent State on a regular basis of its obligation under the Convention and in particular resulting from this judgment.” (para. 116, emphasis added)

One of the applicants in the case was represented by the Hungarian Helsinki Committee, a well-recognized human rights watchdog organization. The Helsinki Committee remained closely involved with the implementation, inter alia, using formal follow-up opportunities in the execution process on the European level. In the execution phase the pilot judgment in Varga and others was handled together with István Gábor Kovács group of cases.

The real victory in the case happened when the Hungarian government complied with the pilot judgment: in addition to expanding the use of house arrest and ‘reintegration custody’ (monitoring at home) on 25 October 2016 the Hungarian Parliament passed Act No. CX of 2016 which entered into force on 1 January 2017 to put in place a new preventive and compensatory system. It reflects the scale of overcrowding in prisons that according to the data available in the Committee of Ministers’ execution database in half a year over 2.000 requests were filed for the preventive remedy and over 5.000 for compensation. Thereupon HUF 153.510.900 (approx. EUR 497.040) was paid in compensation under the new law. Once the Committee of Ministers certified the effectiveness of the compensation mechanism, the ECtHR stopped accepting stock standard overcrowding complaints (see Domján v. Hungary, decision of November 14, 2017 (inadmissible).

The execution of the pilot judgment on prison overcrowding was a strong card up the sleeves of the Hungarian government when it came under scrutiny for the state of the rule of law in Hungary. The focus is usually on Baka v. Hungary (Judgment of June 23, 2016 [GC]), and the refusal of the government to adopt general measures that would counter the chilling effect of the government’s prior actions on Hungarian judges to criticise in public the reform of the Hungarian judiciary. By contrast, the Hungarian government’s stellar performance with executing Varga and Others was well documented within the Council of Europe for even the harshest European critics.

But now, it is the compensation system for inhuman and degrading detention conditions that has recently come under attack from the highest levels of the Hungarian government.

The New Year Brings a New Resolution

On 9 January 2020 Prime Minister Orban himself noted the impossible situation that results from the Hungarian’ government having to pay millions to convicted criminals at an international press conference due to the judgment of the Court of Justice of the EU (sic). The press conference was mostly covered in the press on account of PM Orbán’s criticism of a Hungarian court’s judgment ordering compensation to Roma victims of school segregation; the image of prisoners not worthy of taxpayer support was added almost as a by-the-by. In the coming days several senior civil servants made comments about the „prison business.” On 15 January 2020 the secretary of state for the Prime Minister’s Cabinet added that the Government plans to investigate in the European Parliament and Council of Europe whether detainees should be entitled to compensation at all. This statement may have sounded reassuring to some European political actors (although it is unclear what the European Parliament may have to do with the enforcement of ECtHR judgments), even though it openly calls for questioning the wisdom expressed in the judgments of the ECtHR in defense of Convention rights.

Then on Friday, 17 January 2020, PM Orban said in his weekly radio interview to a friendly journalist on Hungarian state radio: "’a group of clever, well-known lawyers’ realised that the European regulations about torture are so loose and absurd that with reference to them ‘one can run a lucrative business’." He added that "he expects ‘these fair lawyers’ to turn to the European Court, and based on his experience of European judges, they also believe that it is a genuine problem that ‘prison cells are not sunny enough’. However, it is still better to highlight the absurdity of a rule than ‘to fork out like a fool,’ he said." 

PM Orbán’s comments in his radio interview were primarily triggered by the resolution of the European Parliament (2020/2513(RSP)) passed the day before, finding that „the reports and statements by the Commission and international bodies, such as the UN, OSCE and the Council of Europe, indicate that the situation in both Poland and Hungary has deteriorated since the triggering of Article 7(1) TEU” (i.e. the EU’s rule of law preventive mechanism to safeguard the rule of law against a clear risk of a serious breach). In particular, PM Orbán attributed the formal condemnation to the betrayal of the European People’s Party and the operation of the Soros network, noting that “the world’s number one oligarch ‘controls political activities via a mafia-like network and exerts influence on European politics’.”

As is well-familiar, the ‘Soros network’ is a shorthand that includes human rights watchdogs that represent clients before the ECtHR. To give a sense of the atmosphere in the wake of the PM’s remarks, on Sunday at a memorial for victims of forced labor a retired Calvinist army pastor claimed that the Helsinki Committee had smuggled cockroaches into Hungarian prison in match boxes so that it could provide evidence of deplorable prison conditions. In its response denying the smuggling operation the Helsinki Committee reminded that the army pastor is known for blessing the flag of the Hungarian Guard, an extreme right wing paramilitary organisation. The memorial for the victims of forced labor was also attended by another secretary of state (this time for the Ministry of Human Resources), adding weight to the august gathering.

What is Next?

The Hungarian government’s suspension of the statutory remedy provided by courts for inhuman and degrading treatment in detention violates the most basic guarantees of the rule of law.

The likelihood of success of a challenge against a Government resolution before the Hungarian Constitutional Court is slim not only because the Constitutional Court is packed, but also because the avenues of access to the Court against a Government resolution are limited against such a measure. Without a judicial decision in a concrete case, a constitutional complain may be submitted against a legal norm in abstract terms as an exception (Article 26(2) of the Act on the Constitutional Court). In practice, the examination of such exceptional constitutional complains rarely ever reaches the merits according to the inhouse statistics of the Constitutional Court.

In January 2020, the Hungarian government did more than suspend the execution of a pilot judgment: it suspended the effective domestic remedy for inhuman and degrading treatment in Hungarian detention facilities. This move is likely to drive detainees to the ECtHR - as before Varga and Others. If the Hungarian Government’s statistics are accurate, the number of potential cases are in the thousands.

It is particularly alarming that the Hungarian Government’s blatant defiance of the Court, the rule of law and the European human rights regime more generally follows a familiar recipe and happens at the expense of detainees’ rights -- à la Hirst. To add insult to injury, it is estimated that up to a third of Hungarian detainees are in pre-trial detention, and are not serving a sentence imposed by a final judgment.

These applicants have a strong case not only on account of the prison overcrowding and the prevailing inhuman and degrading conditions in Hungarian detention facilities, but also because the ECtHR frowns upon the systemic non-enforcement of judicial decisions (Burdov (no. 2.) v Russia, judgment of 15 January 2009). When the systemic non-enforcement of judicial decisions is based on a discretionary decision relaying open political considerations, the applicant’s case is all the stronger, as it violation of a basic tenet of the European public order, the rule of law. In the words of the ECtHR (in Aliyev v. Azerbaijan, Judgment of 10 September 2018, para. 225):

“the Convention is a constitutional instrument of European public order, the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle. This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member, refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 which provides that “every Member of the Council of Europe must accept the principle of the rule of law .”