Kurkowski_polandECHR2013
ECHR Article 8-1
Respect for family life
Unjustified physical separation of detainee from visiting family members: violation
Facts – The applicant was detained on remand between December 2004 and October 2006. During that period, on one occasion the authorities rejected his request to have an additional family visit without justifying their decision. On three further occasions the applicant’s contact with his family was restricted and he was separated from them by a Perspex partition.
Law – Article 8: As regards the refusal of the applicant’s request for a family visit, the Court noted that the relevant authority had absolute discretion in granting permission for family visits in prison. The applicable law provided no details as regards the conditions for granting permission or the possibility of appealing against a decision refusing permission. Consequently, the refusal of permission for the family visit had not been in accordance with the law.
As regards the physical separation from his visiting family members by the Perspex partition, the Court accepted that such a measure might in certain circumstances be compatible with Article 8. However, in the applicant’s case the Government had offered no explanation why such a measure had been necessary on three specific occasions but had not been imposed during any of the other twenty-nine visits. Moreover, no arguments had been adduced regarding the necessity or legitimacy of the aim pursued by the measure. The lack of a coherent pattern of application of the impugned measure led the Court to conclude that it had been applied in an arbitrary and random manner.
Conclusion: violation (unanimously).
The Court further concluded that there had been no violation of Article 3 (prison overcrowding) or of Article 5 ss 3 of the Convention (length of pre-trial detention).
Article 41: EUR 1,500 in respect of non-pecuniary damage.
36228/06 – Legal Summary, [2013] ECHR 475
Bailii
European Convention on Human Rights
Human Rights, Prisons, Family
Updated: 12 November 2021; Ref: scu.510782
