EHRM, 13-12-2011, nr. 31827/02

The 1987 European Prison Rules (Recommendation No. R (87) 3 were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987. In Part V they contained a number of basic principles concerning untried prisoners, including the following:

On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2. It noted that the 1987 Rules ‘needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe’.

The 2006 Rules contain, the following principles concerning untried prisoners, inter alia:

The Court has held that detention, similarly to any other measure depriving a person of his or her liberty, entails inherent limitations on private and family life. Restrictions such as limitations on the number of family visits and the supervision of those visits constitute an interference with a detained person's rights under Article 8 but are not, of themselves, in breach of that provision (see, among other authorities, Bogusław Krawczak v. Poland, no. 24205/06, §§ 107–108, 31 May 2011, and Moiseyev v. Russia, no. 62936/00, §§ 207–208, 9 October 2008).

The fact that the applicant was unable to watch television programmes while in detention might, in the circumstances, bear on his private life as protected under Article 8, which includes a right to maintain relationships with the outside world and also a right to personal development (see Uzun v. Germany, no. 35623/05, § 43, 2 September 2010). Such an activity can also be regarded as important for maintaining the mental stability of a person who, like the applicant, has been detained on remand for a long period of time. The Court has held that the preservation of mental stability is an indispensable precondition to the effective enjoyment of the right to respect for one's private life (see, mutatis mutandis, Dolenec v. Croatia, no. 25282/06, § 57, 26 November 2009). The above considerations do not imply, however, that lack of access to television broadcasts in prison is in itself contrary to Article 8.

The Court thus accepts that, among the facts complained of by the applicant and falling within the scope of the present application as determined by the admissibility decision (see also paragraph 39 above), those concerning family visits and his alleged lack of access to television broadcasts interfered with his right under Article 8 to respect for his private and family life. In accordance with the Court's decision on the admissibility, the interference and the alleged discriminatory treatment of the applicant in that context will be examined exclusively to the extent that they resulted from the laws applicable at the relevant time.

Being a person detained on remand may be regarded as placing the individual in a distinct legal situation, which even though it may be imposed involuntarily and generally for a temporary period, is inextricably bound up with the individual's personal circumstances and existence. The Court is therefore satisfied, and it has not been disputed between the parties, that by the fact of being detained on remand the applicant fell within the notion of ‘other status’ within the meaning of Article 14 of the Convention (see, mutatis mutandis, Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008, and Clift v. the United Kingdom, no. 7205/07, §§ 55–63, 13 July 2010).

In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007—IV). The requirement to demonstrate an ‘analogous position’ does not require that the comparator groups be identical. The fact that the applicant's situation is not fully analogous to that of convicted prisoners and that there are differences between the various groups based on the purpose of their deprivation of liberty does not preclude the application of Article 14. It must be shown that, having regard to the particular nature of his complaint, the applicant was in a relevantly similar situation to others treated differently (see Clift, cited above, § 66).

The applicant's complaints under examination concern the legal provisions regulating his visiting rights, and his lack of access to television programmes in prison. They thus relate to issues which are of relevance to all persons detained in prisons, as they determine the scope of the restrictions on their private and family life which are inherent in the deprivation of liberty, regardless of the ground on which they are based.

The Court therefore considers that, as regards the facts in issue, the applicant can claim to be in a relevantly similar situation to convicted persons.

A difference in treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background. The Court has accepted that, in principle, a wide margin of appreciation applies in questions of prisoners and penal policy (see Clift, cited above, § 73, with further references).

As to the facts of the present case, the Court notes that the applicant was detained pending trial from 1 September 2001 to 9 February 2006. During that period, the regime of his detention on remand was governed by the Detention Act 1993. Under section 10(1) and (5), all accused persons detained during investigation and judicial proceedings were entitled to receive visitors once a month for at least thirty minutes. The visits took place without direct contact between the accused and the visitor. Other arrangements were within the discretionary power of the prison governor (see paragraph 15 above). However, it does not appear from the documents submitted that such arrangements had been frequently made in general or in respect of the applicant in particular.

During the same period the statutory duration of visits to convicted persons was fixed at a minimum of two hours. From 1 September 2001 to 31 December 2005 the frequency at which convicted prisoners could receive visitors was determined according to their prison security level. Visits to convicted persons by their close friends and/or relatives were allowed at least once a fortnight for convicted prisoners at the lowest security level and direct contact was allowed between the visitors and the convicted person in such cases. Visits to convicted prisoners at the medium-security level by their close friends and/or relatives were allowed once a month, and once in six weeks for those at the highest security level. In medium and high-security level prisons, visits were supervised by a prison officer and no direct contact between the convicted person and the visitor was allowed. As from 1 January 2006, the Serving of Prison Sentences Act 2005 entitled convicted persons to meet visitors at least once a month for two hours (see paragraphs 21 and 22 above).

Thus, at the relevant time, the duration of visits to persons detained on remand, such as the applicant, was considerably shorter (thirty minutes) than that which the law allowed in respect of convicted persons (two hours).

Moreover, during a substantial part of the relevant period the frequency of visits and the type of contact of convicted persons differed according to the security level of the prison in which they were being held. In particular, in prisons with the lowest security level visits took place, under the Serving of Prison Sentences Act 1965 at least once a fortnight and direct contact between convicted persons and their visitors was allowed. The restrictions on visiting rights of persons detained on remand were applicable in a general manner, regardless of the reasons for their detention and the security considerations related thereto.

Pursuant to section 2(1) of the Detention Act 1993, any restrictions on detained persons' rights must be justified by the purpose of the detention and by the aim of ensuring order, the safety of others and the protection of property in places where accused persons are detained. Paragraph 2 of section 2 permits the restriction only of those rights of detained persons of which they cannot avail themselves in view of the fact that they are detained on remand.

In the Court's view, neither the above provisions, nor the arguments put forward by the Government, provide an objective and reasonable justification for restricting visiting rights of persons detained on remand — who are to be presumed innocent (see paragraph 14 above) — in the above respect and in a general manner, to a greater extent than those of convicted persons. The arrangements in place were criticised by the CPT in its reports on visits to Slovakia which took place in 1995, 2000 and 2005 (see paragraphs 35 and 36 above).

As regards the lack of direct contact with visitors, the Court reiterates that in a different case it has held that a person detained on remand who had been physically separated from his visitors throughout his detention lasting three and a half years was, in the absence of any demonstrated need such as security considerations, not justified under the second paragraph of Article 8 (see Moiseyev, cited above, §§ 258–259). It further notes that, apart from an exception which was at the discretion of the prison governor, at the relevant time the law in force did not entitle persons detained on remand to have direct contact with their visitors regardless of their particular situation.

The Court concurs with the view expressed in the report of 6 December 2001 on the CPT's visit to Slovakia, according to which in certain cases it may be justified, for security-related reasons or to protect the legitimate interests of an investigation, to have particular restrictions on a detained person's visiting rights (see paragraph 35 above, and also Vlasov v. Russia, no. 78146/01, § 123, with further references). That aim can, however, be attained by other means which do not affect all detained persons regardless of whether they are actually required, such as the setting up of different categories of detention, or particular restrictions as may be required by the circumstances of an individual case.

The above considerations are also in line with the relevant international documents. Thus Article 10 § 2(a) the International Covenant on Civil and Political Rights requires, inter alia, that accused persons should, save in exceptional circumstances, be subject to separate treatment appropriate to their status as not convicted persons who enjoy the right to be presumed innocent (see paragraphs 29 and 30 above).

The 1987 European Prison Rules stated that untried prisoners, who are to be presumed innocent until they are found guilty, should be subjected only to such restrictions which are necessary for the penal procedure and the security of the institution (see paragraph 32 above).

Finally, the 2006 European Prison Rules, which were adopted shortly before the applicant's detention on remand ended, provide, in particular, that unless there is a specific reason to the contrary, untried prisoners should receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners. Moreover, there is a possibility of additional visits and other forms of communication (see paragraph 34 above).

The Court observes that the subsequent legislation, namely the 2006 Detention Act, extended the visiting rights of remand prisoners, and it allows for a differentiation between them with a view to ensuring that the restrictions imposed corresponded to an objective need (see paragraph 17 above). This cannot, however, affect the position in the present case.

In view of the above, the Court concludes that the restrictions on visits to the applicant by his family members during his detention on remand constituted a disproportionate measure, contrary to his rights under Article 14 in conjunction with Article 8 of the Convention.

As regards the lack of access to television broadcasts, the law which governed detention on remand at the relevant time did not provide for such a possibility. By contrast, at the time when the applicant was detained on remand, convicted persons had the right and were able to collectively watch television programmes in special rooms in prison (see paragraphs 26, 27 and 47 above).

In the absence of any relevant arguments put forward by the Government the Court finds no objective justification for such a difference in treatment between persons detained on remand and convicted prisoners. It attaches weight to the fact that being able to follow television broadcasts was considered to be a part of the cultural and educational activities organised for convicted persons, whereas such activities were not provided for in the law applicable to persons detained on remand. This was also criticised by the CPT.

It is true that the General Prison Administration issued instructions in 2003 allowing detained persons to have their own television sets in their cells. This does not affect the position in the present case, as such a possibility was open only to persons who could afford the costs involved and, in any event, it was not technically feasible in the prison wing where the applicant was being held.

There has therefore been a violation of Article 14 in conjunction with Article 8 of the Convention.