a)  Hungary / b)  Constitutional Court / c) / d)  27-10-2014 / e)  32/2014 / f)  On the size of the living space available for a detainee in a prison cell / g)  Magyar Közlöny (Official Gazette), 2014/149 / h) .
Keywords of the systematic thesaurus:
Sources - Categories - Case-law - International case-law - European Court of Human Rights.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Prohibition of torture and inhuman and degrading treatment.
Keywords of the alphabetical index:
Living space, prison cell.
The provision on the size of personal living space in prison cells where more detainees are accommodated together, conflicts with international treaties and is unconstitutional.
I. A judge of the Budapest-Capital Regional Court initiated the review of Section 137.1 of Decree 6/1996 (VII. 12.) IM of the Minister of Justice on the Rules of Executing Imprisonment and Pre-trial Detention. According to the challenged provision, the size of prison cells shall be determined so that . if possible each detainee gets six cubic meters of space. Male detainees get three-square meters while female and juvenile detainees get three-and-a-half square meters of space.
The judge argued that the provision violated the prohibition of inhuman and degrading treatment ensured by Article 3 ECHR. The judge referred to the relevant decisions of the European Court of Human Rights, which ordered the Hungarian state to pay compensations for subjecting prisoners to inhumane and degrading treatment (Szél v. Hungary, Kovács István Gábor v. Hungary, Hagyó v. Hungary).
In the case of Fehér v. Hungary, the Court confirmed that prisoners must be ensured at least three square metres of space in their cells. Sándor Fehér, who had been convicted on robbery charges, turned to the Strasbourg Court because he was kept for more than two years in a cell of about seven square metres along with three other prisoners, leaving only 1.7 square metres of space per person.
II. The Constitutional Court held that it follows from the prohibition of inhuman or degrading treatment I which is regulated not only in the European Convention on Human Rights, but also in the Fundamental Law of Hungary – that the personal living space for more than one detainee in the same prison cell must reach the minimal extent in every case. Thus, their placement in the assigned penal institution shall be ensured without the violation of their human dignity. The requirement mentioned above is unconditional, which means that the minimal extent of the living space for the detainees shall be defined in a mandatory way by a legal regulation.
The Constitutional Court declared, in its decision, that the challenged regulation did not meet the requirement regulated in the European Convention on Human Rights and the Fundamental Law. It violated the prohibition of inhuman or degrading treatment or punishment because the minimal size of prison cells was not determined in a mandatory way. Thus, this regulation allowed the accommodation of detainees in such prison cells where the minimal living space was not ensured.
Consequently the Constitutional Court annulled the challenged provision as of 31 March 2015. The reason for the pro futuro annulment is that the current regulation resulted in less violation of the rule of law than the lack of the regulation. However, the lawmaker has appropriate time to adopt a new legal regulation in accordance with the European Convention on Human Rights and the Fundamental Law.
III. Judges István Balsai, Egon Dienes-Oehm, Imre Juhász, Barnabás Lenkovics, Béla Pokol, László Salamon and András Zs. Varga judges attached dissenting opinion to the decision.
European Court of Human Rights:
- Szél v. Hungary, no. 30221/06, 07.06.2011;
- Kovács István Gábor v. Hungary, no. 15707/10, 17.01.2012;
- Hagyó v. Hungary, no. 52624/10, 23.04.2013;
- Fehér v. Hungary, no. 69095/10, 02.07.2013.