I correctly predicted that there was a violation of human rights in PINTÉR v. HUNGARY.

Judgment

FOURTH SECTION
CASE OF PINTÉR v. HUNGARY
(Application no. 39638/15)

JUDGMENT
STRASBOURG
26 May 2020

This judgment is final but it may be subject to editorial revision. In the case of Pintér v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Branko Lubarda, President,Carlo Ranzoni,Péter Paczolay, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application 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 Csaba József Pintér (“the applicant”), on 1 August 2015;
the decision to give notice to the Hungarian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 5 May 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
The case concerns the authorities’ refusal to grant leave to the applicant, who was in prison, to pay a last visit to his terminally ill father. THE FACTS
1. The applicant was born in 1973 and lived in Budapest. He was represented by Ms B. Pohárnok, a lawyer practising in Budapest and acting on behalf of the Hungarian Helsinki Committee. 2. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice. 3. On 9 September 2017 the applicant died. His mother, Ms József Jánosné Pintér, a Hungarian national who was born in 1954 and lives in Eger, submitted that she intended to pursue the proceedings in the applicant’s stead. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Between 2 December 2014 and 15 March 2015 the applicant was in detention in Baracska Prison on account of thirteen regulatory (traffic) offences for which he had not paid the fines. As a result, the penalty had been converted to imprisonment. 6. On 13 January 2015 the applicant filed a request with the prison governor seeking extraordinary leave of absence for three days in order to visit his father, who was terminally ill with cancer. The prison administration acknowledged receipt of the request on 19 January 2015. In the request, which was supported by medical documents diagnosing the applicant’s father with terminal-stage metastatic pancreas cancer, the applicant explained that he intended to pay a last visit to his father at his home, to where the father had been discharged from hospital in view of his impending death. The applicant explained that he wished to see his father unescorted, without handcuffs, and promised to return to the prison of his own accord. 7. On 13 February 2015 the Veszprém District Court asked the prison to make the applicant available to stand trial in another case, concerning charges of fraud, on 26 February 2015. On that date, the applicant was convicted and sentenced to two years and four months’ imprisonment. The sentence was to commence on 16 March 2015. 8. Meanwhile, the statutory thirty-day time-limit for the examination of the applicant’s request expired on 22 February 2015. On that day the applicant was informed that his father had died earlier the same day. No formal decision was ever given on his request for leave. An internal memorandum from the prison administration dated 30 January 2015 shows that the request had not been approved because the applicant had insisted on visiting his father unescorted. Other internal documents of the prison administration submitted by the Government demonstrate that the relevant officers would have supported the applicant’s request only if he had agreed to go under escort. RELEVANT LEGAL FRAMEWORK
9. Act no. CCXL of 2013 on the Execution of Punishments, Measures, Certain Coercive Measures and Confinement for Infractions (“the Act”) provides as follows:
Section 20
“(3) If the head of an organisational unit of the penitentiary institution acts upon a request, he or she must take measures or decide within thirty days, unless the given matter requires extraordinary arrangement. In justified cases the given deadline to adjudge the request may be extended in writing once, by up to an additional 30 days, according to subsection (1). The applicant must be informed about the extension in writing.”
Section 21
“(1) A complaint against any measures or decision of the penitentiary institution may be submitted to its head. In cases defined in this Act the convict or any person detained on any other legal basis may submit a request for judicial review, or bring an action before a court.”
Section 123
“(1) On the basis of permission issued by the governor of the penitentiary institution, convicted prisoners may – with or without an escort – visit a seriously ill close relative or attend the funeral of a close relative. (2) In issuing the permission referred to in subsection (1) above, the governor of the institution may order the use of devices restricting movement and, in exceptional cases, may refuse permission to visit, attend a funeral or pay respects.”
Section 141
“(4) The decision on approving the request may also be notified to the prisoner orally. (5) The merits of the decision and the date of notification must be entered in the records and the written decision must simultaneously be handed over to the convicted prisoner or person detained under any other legal basis.”
THE LAW
10. The applicant complained that the authorities had failed to give a proper and adequate decision justifying on legal grounds the refusal of his request for leave to visit his terminally ill father. He relied on Articles 8 and 13 of the Convention. 11. Following the applicant’s death, his mother informed the Court of her intention to pursue the application. The Court normally permits the next-of-kin to pursue an application, provided he or she has a legitimate interest, where the original applicant died after lodging the application with the Court. Having regard to the subject matter of the application and all the elements in its possession, the Court considers that the applicant’s mother has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016). 12. The Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the application raises an issue under Article 8 of the Convention alone, which provides 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.”
13. The Government conceded that no formal decision had been given on the applicant’s request, but submitted, without further developing this argument, that he should have lodged a complaint under section 21(1) of the Act, failing which he had not exhausted the available domestic remedies. The applicant disagreed. 14. The Court notes that the statutory thirty-day time-limit for the examination of the applicant’s request expired on 22 February 2015, without a formal decision having been produced by the authorities. It was only then that the applicant could reasonably be expected to have availed himself of the right to file a complaint. However, on the very same day his father had died and the request – and consequently, any ensuing complaint – had ceased at once to be relevant. In these circumstances, the Court considers that the application cannot be rejected for non-exhaustion of domestic remedies. 15. The Court further notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 16. The Government submitted that the applicant’s right to family life had not been violated, in particular because he would have been granted leave to pay the visit in question had he agreed to go under escort. 17. The applicant submitted that the interference with the right to respect for his family life had been unjustified and devoid of legal basis. 18. The Court reiterates that any interference with an individual’s right to respect for his private and family life will constitute a breach of Article 8, unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2, and was “necessary in a democratic society”. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aims pursued. In determining whether an interference was “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the Contracting States. Furthermore, the Court cannot confine itself to considering the impugned facts in isolation, but must apply an objective standard and look at them in the light of the case as a whole (see Császy v. Hungary, no. 14447/11, §§ 15-16, 21 October 2014). 19. In the present case, the Court observes that the prison authorities’ conduct amounted to a denial of permission for the applicant to visit his dying father. It considers that this undoubtedly constituted an interference with his right to respect for his family life; and will first examine whether that interference was “in accordance with the law”. 20. As regards the legal basis, the Court notes that the applicant should have been entitled to a formal decision under section 141(5) of the Act. However, no such decision was issued, in blatant disregard of the law. 21. Moreover, in the absence of a formal decision, the observance of the requirements of section 123 of the Act also seems doubtful: in particular, it cannot be ascertained whether the prison authorities relied on any “extraordinary circumstances” justifying the refusal (see subsection (2)); what the reasons were that militated for an escorted visit (see subsection (1)) as the only viable option in the case; or why the authorities had not considered the use of devices restricting movement (see subsection (2)) as an alternative to escort. 22. The foregoing considerations are sufficient for the Court to conclude that the interference was not “in accordance with the law”. It is therefore not necessary to embark on an examination as to whether it pursued a legitimate aim or was necessary in a democratic society. 23. There has accordingly been a violation of Article 8 of the Convention. 24. 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.”
25. The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage. 26. The Government contested this claim. 27. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on the basis of equity, the full sum claimed, that is to say, EUR 3,000. 28. The applicant also claimed EUR 5,220 for the costs and expenses incurred before the Court. This sum corresponds to 40 hours of legal work billable by his lawyer at an hourly rate of EUR 130, plus EUR 20 in clerical costs. 29. The Government contested this claim. 30. 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 were 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 EUR 3,000 to cover all costs incurred, plus any tax that may be chargeable to the applicant. 31. 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,
(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 3,000 (three 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;
Done in English, and notified in writing on 26 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Branko LubardaDeputy RegistrarPresident