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• Judicial practice regarding the compensation for personal injuries caused by the circumstances of penal institutions, violating the fundamental rights of convicts and detainees of other dues

  49-62

  Botond Nagy

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  316

  The studied topic is the judicial practice regarding the compensation for personal injuries caused by the circumstances of penal institutions, which violate the fundamental rights of convicts and detainees of other dues. Dual research questions have been posed because of the characteristics of the covered topic. The first one is related to civil law and is about demandants’, defendants’ and courts’ attitudes and tendencies relating to the topic in question. The second question, inseparably stemming from the previous one, is from the field of penal execution: what kind of traits can be abstracted from the judicial decisions when it comes to the condition of Hungarian penal institutions.  To answer these, empirical methodology must be applied. Accordingly, I examined 91 judicial decisions from 2014 to 2020. Thus, this study depicts the entirety of the relevant time range, meaning that the demandants’, defendants’ and courts’ characteristics are introduced in their arc of development, rather than pointwisely. In my study I delineate the demandants’ actions firstly: their claims, their supposedly violated rights and the ontological phenomena causing harm. Secondly, as displaying the defendants’ statements of defence, I specify the legal arguments brought on in order to support the claim that the penal institutions caused no harm to those held captive, or that they cannot be obliged to pay compensation. Afterwards, I examine the judicial practice. Firstly, I write about the ways courts treat the claims of ascertainment, namely whether or not the rights of those who are captivated were violated. Subsequently, I portray the claims of detain, about which I illustrate the relevant regime of liability and its partial requirements. Then I write about the matrix of the compensation for personal injury and the indemnification for the prison circumstances, the relation and the delimitation of the two. Finally, I answer the research questions. I draw an ideal model about the first question, in which the parties adduce correctly and make fair judgements.  By these the demandants can make sure that the violation of their rights is ascertained and that they are given compensation.  By following the model, the defendant can achieve the lowest amount of compensation possible, while the court can make the correct decision from a dogmatic point of view. As for the penal executive question, I give suggestions to solve the problem of the circumstances of penal institutions violating fundamental rights.