European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

Varnas v. Lithuania - 42615/06

Judgment 9.7.2013 See: [2013] ECHR 647 [Section II]

Article 14

Discrimination

Other status

Unjustified difference in treatment of remand prisoners compared to convicted prisoners as regards conjugal visits: violation

 

Facts - In his application to the European Court, the applicant, who was held more than three years in pre-trial detention, complained that he had been denied conjugal visits with his wife, despite repeated requests, while convicted prisoners were allowed such visits.

Law - Article 14 in conjunction with Article 8: At the relevant time, the duration of visits for remand prisoners, such as the applicant, was shorter (two hours) than that which the law allowed in respect of a convicted person (four hours). Above all, remand prisoners had no right to conjugal visits at all, while convicted prisoner scould receive long-term visits, including conjugal visits, lasting up to forty-eight hours once every three months, on special separate premises without surveillance. Moreover, the frequency of visits and the type of contact (short-term or conjugal) to which convicted prisoners were entitled differed according to the security level both of the prisoner and of the facility in which he was being held. In contrast, the restrictions on the visiting rights of remand prisoners were applicable generally, regardless of the reasons for their detention and the related security considerations. However, International instruments such as the International Covenant on Civil and Political Rights and the European Prison Rules of 1987* stressed the need to respect the remand prisoner’s status as a person who was to be presumed innocent, while the European Prison Rules 2006 provided that unless there was 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. That approach was supported by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its report on its visit to Lithuania, which considered that any restriction on a remand prisoner’s right to receive visits should be based on the requirements of the investigation or security considerations, applied for a limited period and be the least severe possible. In that regard the Court had already had occasion to hold that, inasmuch as it concerned restrictions on visiting rights, the aim of protecting the legitimate interests of an investigation could also be attained by other means, such as the setting up of different categories of detention, or restrictions adapted to the individual case.

As to the reasonableness of the justification for the difference in treatment between remand prisoners and convicted prisoners, security considerations relating to any criminal family links were absent in the instant case. The applicant’s wife was neither a witness nor a co-accused and there was no indication that she had been involved in criminal activities. Accordingly, the Court was not persuaded that there was any particular reason to prevent conjugal visits. The Government, like the Lithuanian administrative courts, had in essence relied on the relevant statutory provisions, without any reference as to why the restrictions had been necessary and justified in the applicant’s specific situation. Lastly, although the applicant had received short-term visits and so had not lost all contact with his wife, the physical contact available during those visits appeared to have been especially limited, as the couple had been separated by wire netting, except for a 20 centimetre gap used for passing food. Such limited physical interaction had further been compounded by the fact that they had been under the constant observation of a guard. The particularly long period of the applicant’s pre-trial detention (two years) had reduced his family life to a degree that could not be justified by the inherent limitations involved in detention. The remand prison authorities’ refusal to grant the applicant a conjugal visit had also been based on a lack of appropriate facilities. However, that reason could not withstand the Court’s scrutiny. The authorities had therefore failed to provide reasonable and objective justification for the difference in treatment of remand prisoners compared to convicted prisoners and had thus acted in a discriminatory manner.

Conclusion: violation (unanimously).

Article 41: EUR 6,000 in respect of non-pecuniary damage.

(See also Laduna v. Slovakia, no. 31827/02, 13 December 2011, Information Note 147)

* Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe on the European Prison Rules adopted on 12 February 1987, replaced with Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe on the European Prison Rules adopted on 11 January 2006.

 

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