{"id":21287,"date":"2023-10-12T15:19:54","date_gmt":"2023-10-12T15:19:54","guid":{"rendered":"https:\/\/laweuro.com\/?p=21287"},"modified":"2023-10-12T16:48:42","modified_gmt":"2023-10-12T16:48:42","slug":"case-of-tako-and-visztne-zambo-v-hungary-82939-17-and-27166-19","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21287","title":{"rendered":"CASE OF TAKO AND VISZTNE ZAMBO v. HUNGARY – 82939\/17 and 27166\/19"},"content":{"rendered":"

The case concerns the applicants\u2019 complaint under Article 8 of the Convention about the physical separation from their relative with a glass partition during their visits to him in prison. In view of the foregoing, the Court concludes that the restrictions imposed by the authorities on the applicants\u2019 visiting rights did not strike a fair balance between the requirements of the regime in place for \u201chigh\u2011security inmates\u201d on the one hand, and the applicants\u2019 Convention right to respect for their family life on the other. Accordingly, there has been a violation of Article 8 of the Convention.<\/span><\/p>\n

\n

FIRST SECTION
\nCASE OF TAK\u00d3 AND VISZTN\u00c9 Z\u00c1MB\u00d3 v. HUNGARY<\/strong>
\n(Applications nos. 82939\/17 and 27166\/19)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n12 October 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Tak\u00f3 and Visztn\u00e9 Z\u00e1mb\u00f3 v. Hungary,<\/strong><\/p>\n

The European Court of Human Rights (First Section), sitting as a Committee composed of:
\nGilberto Felici, President,
\nP\u00e9ter Paczolay,
\nRaffaele Sabato, judges,
\nand Liv Tigerstedt, Deputy Section Registrar,
\nHaving regard to:
\nthe applications (nos. 82939\/17 and 27166\/19) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d), the first on 4\u00a0December 2017 by Ms Ildik\u00f3 Tak\u00f3 (\u201cthe first applicant\u201d), a Hungarian national born in P\u00e1pa and represented by Ms\u00a0E.\u00a0Kadl\u00f3t, a lawyer practising in Budapest, and the second on 15 May 2019 by Ms\u00a0M\u00e1ria\u00a0Visztn\u00e9 Z\u00e1mb\u00f3 (\u201cthe second applicant\u201d), a Hungarian national born in Nagygyim\u00f3t and represented by Mr A. K\u00e1d\u00e1r, a lawyer practising in Budapest;<\/p>\n

the decision to give notice of the complaints under Article 8 of the Convention to the Hungarian Government (\u201cthe Government\u201d) represented by their Agent, Mr Z. Tall\u00f3di, of the Ministry of Justice and to declare inadmissible the remainder of the applications;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 19 September 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The case concerns the applicants\u2019 complaint under Article 8 of the Convention about the physical separation from their relative with a glass partition during their visits to him in prison.<\/p>\n

2. The first applicant, Ms Tak\u00f3, is the wife of P.S. and the second applicant, Ms\u00a0Visztn\u00e9 Z\u00e1mb\u00f3, is the mother of P.S. As of 17 June 2014, P.S. was placed in pre\u2011trial detention in Budapest Prison, classified as a \u201chigh-security inmate\u201d.<\/p>\n

3. Until 2017 the applicants were able to visit P.S. without physical separation. In 2017 the Hungarian Prison Service Headquarters issued an internal instruction that visitors and inmates were not allowed to have any physical contact and had to communicate through a glass partition. The applicants could visit P.S. in a high-security booth.<\/p>\n

4. On 16 November 2017 the commander of Budapest Prison requested the Budapest High Court to assess whether it was necessary to maintain the applicants\u2019 visits in a high-security booth, not allowing for any physical contact between them and P.S. According to the opinion of the Budapest High Court issued on 20 November 2017, such restriction was not necessary. However, the restrictive measure was not lifted.<\/p>\n

5. The first applicant\u2019s complaint about the measure was dismissed by the Public Prosecutor\u2019s Office. Her request for review lodged with the Chief Prosecutor\u2019s Office yielded no results either. In its reply of 10 November 2017, the Chief Prosecutor\u2019s Office stated that the measure had been lawful.<\/p>\n

6. The second applicant lodged a similar complaint, which was dismissed on 8 February 2019. No further remedy lay against the decisions of the Chief Prosecutor\u2019s Office.<\/p>\n

7. The applicants complained of a violation of Article 8 of the Convention on account of their separation from their relative by a glass partition during their visits to him.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/strong><\/p>\n

8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/strong><\/p>\n

9. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

10. There is no dispute that the impugned measure constituted an interference with the applicants\u2019 \u201cfamily life\u201d, that it was \u201cin accordance with the law\u201d and that it pursued the legitimate aims of preventing disorder and crime and protecting the health and rights of others.<\/p>\n

11. The general principles concerning prisoners\u2019 right to respect for their family life and restrictions to prisoners\u2019 visiting rights have been summarised in Khoroshenko v. Russia\u00a0([GC], no.\u00a041418\/04, \u00a7\u00a7 106 and 123-26, ECHR\u00a02015). In particular, the Court has held that the application of various measures, such as the physical separation of a detainee from his visitors by a glass partition may, in certain circumstances, be justified by security considerations but\u00a0cannot be considered necessary in the absence of any established security risk (ibid, \u00a7 125; see also Lors\u00e9 and Others v. the Netherlands, no. 52750\/99, \u00a7\u00a7 83-86, 4 February 2003). Moreover, the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether the limitations are appropriate or indeed necessary in specific cases (see\u00a0Andrey Smirnov v. Russia, no. 43149\/10, \u00a7 54, 13 February 2018, and Korablevy and Others v. Russia [Committee], nos. 32627\/17 and 2 others, \u00a7 11, 15\u00a0September 2022; see also, mutatis mutandis, Pavlova v. Russia, no.\u00a08578\/12, \u00a7 24, 18 February 2020).<\/p>\n

12. The Court notes that the Government relied on security reasons to justify the need to separate the applicants from their relative during their visits. They maintained that, based on his conduct in prison and the gravity of the crimes of which he was accused, P.S. was classified as a \u201chigh\u2011security inmate\u201d, which justified a more restrictive detention regime. This in turn necessarily entailed limitations on the applicants\u2019 contact with him.<\/p>\n

13. However, the Court notes that there is no evidence in the domestic decisions that the measure was applied on the basis of P.S.\u2019s own conduct and personal characteristics representing a security risk. Moreover, there is no indication that open family visits and the applicants\u2019 direct contact with P.S. would have jeopardised prison security, or that P.S. intended to use his family members to that end.<\/p>\n

14. Rather, the domestic authorities confined themselves to a perceived general need to preserve the safety of prisons and introduced an overall ban on physical contact between visitors and detainees. They did not make any attempt to ascertain the nature of the security issues involved specifically in the applicants\u2019 contact with P.S.<\/p>\n

15. In the light of the opinion of the Budapest High Court, it can reasonably be considered that allowing the applicants to meet P.S. without physical separation would not have created a security risk. This conclusion is reinforced by the fact that the applicants were allowed such visits between 2014 and 2017 and it has not been claimed that those visits had created a security risk or that other relevant circumstances had drastically changed in 2017.<\/p>\n

16. In the Court\u2019s view, this shows not merely the lack of a consistent pattern in the authorities\u2019 approach, but it would also appear that the use of the security installation was a matter of routine rather than a reaction to any specific security risks present in the applicants\u2019 contact with P.S.<\/p>\n

17. In view of the foregoing, the Court concludes that the restrictions imposed by the authorities on the applicants\u2019 visiting rights did not strike a fair balance between the requirements of the regime in place for \u201chigh\u2011security inmates\u201d on the one hand, and the applicants\u2019 Convention right to respect for their family life on the other.<\/p>\n

18. Accordingly, there has been a violation of Article 8 of the Convention.<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

19. The applicants claimed 10,000 euros (EUR) each, in respect of non\u2011pecuniary damage and EUR 3,600 plus value-added tax, each, in respect of costs and expenses incurred before the Court.<\/p>\n

20. The Court finds that the applicants must have sustained some non\u2011pecuniary damage which is not sufficiently compensated for by the finding of a violation of the Convention. Making its assessment on an equitable basis, it awards each applicant the sum of EUR 5,000 plus any tax that may be chargeable.<\/p>\n

21. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,600 to each applicant, in respect of costs and expenses incurred during the proceedings before the Court, plus any tax that may be chargeable to the applicants.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Declares the applications admissible;<\/p>\n

3. Holds that there has been a violation of Article 8 of the Convention;<\/p>\n

4. Holds<\/p>\n

(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 \u00a7 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:<\/p>\n

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n

(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;<\/p>\n

5. Dismisses the remainder of the applicants\u2019 claims for just satisfaction.<\/p>\n

Done in English, and notified in writing on 12 October 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Liv Tigerstedt \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Gilberto Felici
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u00a0 \u00a0President<\/p>\n

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The case concerns the applicants\u2019 complaint under Article 8 of the Convention about the physical separation from their relative with a glass partition during their visits to him in prison. In view of the foregoing, the Court concludes that the…<\/p>\n

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