Herczegfalvy v Austria (Article 10 and in-cell TVs and radios)

In recent weeks PAS has received a number of enquiries relating to Herczegfalvy v Austria (app No. 10533/83). In particular, a number of prisoners are contacting us in the belief that this case shows that prison authorities who remove an in-cell television or radio engage and breach Article 10 of the ECHR.

Having considered the judgment I disagree. The applicant in this case was held firstly as a prisoner, and then as a patient in an Austrian mental health facility. Whilst there he was subject to the domestic Hospitals Law, Section 51(1)of which is very broadly written and implies that any restriction is possible on a patient. The applicant’s challenge was to the ambit of this law, and was not specifically directed to the question of whether it was legal to remove an in-cell television or radio.

The applicant complained about a multitude of things, one of which was the removal of his television. He claimed that the restrictions on his access to information breached Article 10.It is true to say that the court held that there was a breach of Article 10, but it did not engage in any detailed discussion. Instead, the court held that because Section 51(1) was too broad, it appeared disproportionate and arbitrary, and as the removal of the TV was justified under Section 51(1) it followed that the Austrian Government had made an unjustified violation of the applicant's article 10 rights. However, the court did not engage with the question generally, and did not answer the question of whether the removal of an in-cell television or radio would be a breach of Article 10. As such Herczegfalvy cannot be used an authority for that proposition.

For queries relating to this, please contact Ian Brownhill:

(ian.brownhill@ prisonersadvice.org.uk)