CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 12 octobre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD9DA4929 { margin-top:72pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sF5C1637F { margin-top:24pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .sA4B8EC36 { width:154.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }       FIRST SECTION CASE OF TAKÓ AND VISZTNÉ ZÁMBÓ v. HUNGARY (Applications nos. 82939/17 and 27166/19)         JUDGMENT   STRASBOURG 12 October 2023         This judgment is final but it may be subject to editorial revision.   In the case of Takó and Visztné Zámbó v. Hungary, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Gilberto Felici , President ,   Péter Paczolay,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the 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 (“the Convention”), the first on 4   December 2017 by Ms Ildikó Takó (“the first applicant”), a Hungarian national born in Pápa and represented by Ms   E.   Kadlót, a lawyer practising in Budapest, and the second on 15 May 2019 by Ms   Mária   Visztné Zámbó (“the second applicant”), a Hungarian national born in Nagygyimót and represented by Mr A. Kádár, a lawyer practising in Budapest; the decision to give notice of the complaints under Article 8 of the Convention to the Hungarian Government (“the Government”) represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 19 September 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicants’ 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. 2.     The first applicant, Ms Takó, is the wife of P.S. and the second applicant, Ms   Visztné Zámbó, is the mother of P.S. As of 17 June 2014, P.S. was placed in pre ‑ trial detention in Budapest Prison, classified as a “high-security inmate”. 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. 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’ 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. 5.     The first applicant’s complaint about the measure was dismissed by the Public Prosecutor’s Office. Her request for review lodged with the Chief Prosecutor’s Office yielded no results either. In its reply of 10 November 2017, the Chief Prosecutor’s Office stated that the measure had been lawful. 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’s Office. 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. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 8.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 9.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 10.     There is no dispute that the impugned measure constituted an interference with the applicants’ “family life”, that it was “in accordance with the law” and that it pursued the legitimate aims of preventing disorder and crime and protecting the health and rights of others. 11.     The general principles concerning prisoners’ right to respect for their family life and restrictions to prisoners’ visiting rights have been summarised in Khoroshenko v. Russia   ([GC], no.   41418/04, §§ 106 and 123-26, ECHR   2015). 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   cannot be considered necessary in the absence of any established security risk (ibid, § 125; see also Lorsé and Others v. the Netherlands , no. 52750/99, §§ 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   Andrey Smirnov v. Russia , no. 43149/10, § 54, 13 February 2018, and Korablevy and Others v. Russia [Committee], nos. 32627/17 and 2 others, § 11, 15   September 2022; see also, mutatis mutandis ,   Pavlova v. Russi a , no.   8578/12, § 24, 18 February 2020). 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 “high ‑ security inmate”, which justified a more restrictive detention regime. This in turn necessarily entailed limitations on the applicants’ contact with him. 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.’s own conduct and personal characteristics representing a security risk. Moreover, there is no indication that open family visits and the applicants’ direct contact with P.S. would have jeopardised prison security, or that P.S. intended to use his family members to that end. 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’ contact with P.S. 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. 16.     In the Court’s view, this shows not merely the lack of a consistent pattern in the authorities’ 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’ contact with P.S. 17.     In view of the foregoing, the Court concludes that the restrictions imposed by the authorities on the applicants’ visiting rights did not strike a fair balance between the requirements of the regime in place for “high ‑ security inmates” on the one hand, and the applicants’ Convention right to respect for their family life on the other. 18.     Accordingly, there has been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19.     The applicants claimed 10,000 euros (EUR) each, in respect of non ‑ pecuniary damage and EUR 3,600 plus value-added tax, each, in respect of costs and expenses incurred before the Court. 20.     The Court finds that the applicants must have sustained some non ‑ pecuniary 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. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 8 of the Convention; Holds (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 § 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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; (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; Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 12 October 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Liv Tigerstedt   Gilberto Felici   Deputy Registrar   President