CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 4 mars 2025

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HUNGARY (Application no. 54953/21)             JUDGMENT   STRASBOURG 4 March 2025   This judgment is final but it may be subject to editorial revision. In the case of Rigó v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Jovan Ilievski , President ,   Péter Paczolay,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   54953/21) against Hungary lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 November 2021 by a   Hungarian national, Mr Mátyás Rigó (“the applicant”), who was born in 1974, lives in Budapest and was represented by Mr B. T. Tóth, a lawyer practising in Budapest; the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice; the parties’ observations; Having deliberated in private on 4 February 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the refusal of the applicant’s request for leave from prison to attend the funerals of his close relatives. The applicant relies on Article   8 of the Convention. 2.     Between 21   July 2017 and 17   July 2021, the applicant served his prison sentence for robbery, assault and extortion in the Tököl National Penitentiary Institution. 3.     On 29   April 2021 the applicant filed a request with the prison governor seeking extraordinary leave of absence to attend the funeral of his mother scheduled for 4   May 2021. The request was rejected on 5   May 2021, stating that due to the Covid-19 pandemic the request could not be granted. 4.     On 1   June 2021 the applicant filed another request for leave to attend the funeral of his brother, scheduled for 3   June 2021. The request was rejected on 4   June 2021. The decision stated that the applicant’s conduct in prison was exemplary, and he worked and participated in other activities. However, the applicant insisted on submitting his request although he had been informed that due to the measures taken in connection with the pandemic, leaves from prison had been suspended. 5.     The applicant complained that the authorities had failed to give an adequate decision justifying the refusal of his request for leave to attend the funerals of his close relatives. He relied on Article   8 of the Convention. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 6.     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. 7.     The Government observed that, in application of section 237 (4) (ba) of Act no. LVIII of 2020 on the Transitional Rules relating to the Termination of the State of Danger and on Epidemiological Preparedness, the National Commander of the Penitentiary Service had issued operational plan no. V and VI, restricting certain forms of contact in prisons, including leave and extraordinary leave. Permission for exceptional leave could only be granted by the National Commander. Furthermore, the applicant had filed his request belatedly on both occasions. 8.     The applicant contested the reliance on the pandemic for the restrictions on extraordinary leave. He pointed out that he had been vaccinated in March   2021 and that measures restricting contact due to the COVID-19 pandemic had been gradually lifted as of April 2021. For example, as of 1   May   2021 restaurants had been reopened, as of 23   May 2021 weddings for more than two hundred persons and public gatherings for more than five hundred persons had been allowed and as of 21   May 2021 hospital visits had become possible again. Furthermore, he could only file his requests for leave once he had learned about the death of his family members. 9.     The general principles regarding the protection of the right to respect for private and family life in the context of requests for leave from detention to attend a close relative’s funeral have been summarised in   Császy v.   Hungary (no. 14447/11, §§ 15-22, 21 October 2014), Kanalas v. Romania (no.   20323/14, §§ 53-67, 6 December 2016) and G.T. v. Greece (no.   37830/16, §§ 68-74, 13   December 2022). In particular, Article 8 of the Convention does not guarantee a detained person an unconditional right to leave to attend the funeral of a relative. However, taking into account the seriousness of what is at stake when refusing an individual the right to attend the funeral of a close relative, the domestic authorities may refuse attendance only for compelling reasons and if no alternative solution could have been found (see G.T. v. Greece , cited above, § 69 with further references). 10.     Moreover, the Court has previously held that healthcare policy matters come in principle within the margin of appreciation of the national authorities, who are best placed to assess priorities, the use of resources and social needs. The Court has had occasion to state that the margin of appreciation afforded to the States in the field of healthcare must be a wide one (see Central Unitaria de Traballadores/as v. Spain , no.   49363/20, §   78, 17   October 2024). Equally, the respondent State’s margin of appreciation will usually be wide if it is required to strike a balance between competing private and public interests or Convention rights (see   Vavřička and Others v.   the   Czech Republic   [GC], nos.   47621/13 and 5 others, § 274, 8   April 2021, and Evans v.   the United Kingdom   [GC], no.   6339/05, §   77, ECHR 2007 ‑ I). 11.     In the present case the prison authorities’ refusal to grant the applicant prison leave in order to attend his mother’s and his brother’s funerals constituted an interference with the applicant’s right to respect for his family life under Article 8 of the Convention (compare, for instance, Kanalas , cited above, §   54, and G.T. v. Greece , cited above, § 68). 12.     It is not disputed that the domestic authorities’ decision in the present case refusing extraordinary leave from prison had a basis in domestic law, namely section 237 (4) (ba) of Act no. LVIII of 2020 on the Transitional Rules relating to the Termination of the State of Danger and on Epidemiological Preparedness. Accordingly, the National Commander of the Penitentiary Service decided to suspend extraordinary leaves. The Court is also ready to accept that the measure served the legitimate aim of protection of health. 13.     The Court further needs to determine whether the refusal of prison leave was “necessary in a democratic society” and whether, in that context, the domestic authorities had balanced the competing interests at stake (compare G.T. v. Greece , cited above, § 75). 14.     The Court first observes that the decisions on the applicant’s request for extraordinary leave were only issued once the funerals of the applicant’s close relatives had already taken place. Moreover, the applicant had not been informed that, exceptionally, he could have asked permission from the National Commander. It is true that the time available to the authorities to take a decision was rather short; nonetheless these procedural shortcomings prevented the applicant from having his requests examined on their merits in due time. 15.     The Court finds it relevant that the limitations on extraordinary leave were put in place within a very specific context, namely a public health emergency. It is not the Court’s role to assess retrospectively whether, at the time of their examination of the applicant’s request, the approach chosen by the domestic authorities could be perceived as overly cautious (see, mutatis mutandis, Central Unitaria de Traballadores/as , cited above, § 94). However, at the time of the rejection of the applicant’s requests, the context and the authorities’ approach to the pandemic appears to have changed, evidenced by a number of restrictive measures concerning contacts and gatherings being lifted. For the Court, this situation would have necessitated an individual assessment of the applicant’s circumstances and in particular the impact of such a restriction on his right to family life and whether any potential sanitary risk could have been counterbalanced by other factors. 16.     Nonetheless, the domestic authorities dealing with the applicant’s case invoked the health crisis in a general manner, without any assessment of the particularities of the applicant’s requests and without providing any specific circumstances that would have represented a health risk for the applicant or for third parties. The authorities did not address the specific parameters of the applicant’s extraordinary leaves or of the funerals he intended to participate in. They did not assess whether any specific form of attending the funerals could have mitigated the potential health-related implications of such leave or whether measures could be taken upon the applicant’s readmission to prison, sufficient to avert the risk of infection. Thus, they reached no finding as to the question whether protection measures could be put in place sufficient in the applicant’s specific circumstances. 17.     The authorities’ reliance on the general ban on extraordinary leaves and on the health crisis also effectively precluded the assessment of the applicant’s interest in attending his close relatives’ funerals altogether. Thus, the context of the health crisis constituted the sole factor taken into account by the domestic authorities when restricting the applicant’s right to family life. 18.     Against the above background the Court considers that the reasons given by the national authorities for refusing the applicant permission for extraordinary leave from prison to attend the funerals of members of his close family are not sufficient to demonstrate that the interference complained of was “necessary in a democratic society”. 19.     There has accordingly been a violation of Article   8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 20.     The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,500 in respect of costs and expenses incurred before the Court. 21.     The Government found these claims excessive. 22.     Having regard to the circumstances of the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR   3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 23.     Having regard to the documents in its possession, the Court considers it reasonable to award the full amount claimed by the applicant in respect of costs and expenses, plus any tax that may be chargeable to him. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 8 of the Convention; Holds (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 1,500 (one thousand five hundred 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 March 2025, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President