{"id":16024,"date":"2021-12-13T13:30:10","date_gmt":"2021-12-13T12:30:10","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=16024"},"modified":"2021-12-14T09:44:18","modified_gmt":"2021-12-14T08:44:18","slug":"love-is-taboo","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/love-is-taboo\/","title":{"rendered":"Love Is Taboo"},"content":{"rendered":"

Prison inmates are inherently subject to far-reaching interferences with their civil rights and liberties. Still, states increasingly tend to exceed their legal boundaries by imposing additional restrictions on them. Consequently, prisoners\u2019 rights are an often-debated topic<\/a> before the European Court of Human Rights. While the European Convention of Human Rights (ECHR) has proven to offer quite comprehensive protection against such interferences, a proposed bill<\/a> by the Danish government could set a particularly far-reaching European precedent of disproportionate restrictions. By restricting online, phone and letter contacts<\/a> of long-term inmates to people they already knew before they entered prison during the first ten years of their sentence, the bill targets one of the most intimate spheres of private life: romantic relationships. Provoked by public outcry after a 17-year-old girl publicly confessed her love for murderer Peter Madsen, the bill is set to enter into force next year and aims to prevent jails serving as \u201cdating centres\u201d<\/a>.<\/p>\n

By preventing the prisoners only from building new relationships while allowing them to stay in touch with their established social net, the bill raises questions that go beyond the established jurisprudence of the ECtHR, which so far primarily concerned contact restrictions vis-\u00e0-vis family members.<\/p>\n

Existing ECtHR Jurisprudence<\/strong><\/p>\n

In its most recent judgement on prisoners\u2019 rights in the case of Danilevich v. Russia<\/a> of 19\u00a0October 2021, the ECtHR recalled that \u201cduring their imprisonment individuals continue to enjoy all fundamental rights and freedoms, save for the right to liberty\u201d (\u00a7 45). It is apparent, however, that restrictions on prisoners\u2019 liberty go hand in hand with restrictions of their private and family life under Article 8 ECHR. Danilevich, for example, was only entitled to two short-term visits per year and to telephone contact with his family in exceptional circumstances (\u00a7\u00a7 22, 24). The Court had already ruled several times that measures limiting prisoners\u2019 contacts to their family or other close persons fall within the scope of Art. 8 ECHR, the right to respect for one\u2019s private and family life, and must be justified (Kungurov v. Russia,<\/a> \u00a7 16).<\/p>\n

States typically have no difficulty substantiating that their measures pursue one of the legitimate aims enumerated in Article 8(2) ECHR, i.e. public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. The pertinent question therefore usually is whether the restrictions were \u201cnecessary in a democratic society\u201d, Article 8(2) ECtHR. According to the established jurisprudence of the Court, this is the case when an interference is \u201crelevant, sufficient and proportionate to pursue the legitimate aim\u201c (Z v. Finland<\/a>, \u00a7 94). Although states enjoy a certain margin of discretion when invoking justifications, they must demonstrate the existence of a pressing social need behind the interference (Piechowicz v. Poland,<\/a> \u00a7 212).<\/p>\n

Thus, although the ECtHR has confirmed that restrictions on the prisoner\u2019s ability to maintain contact with the outside world are not per se<\/em> incompatible with the Convention when based on legitimate grounds (Kyriacou Tsiakkourmas and Others v. Turkey<\/a>, \u00a7 303), such measures are subject to a strict proportionality test. Hereby, \u201cthe increasing relative importance of the rehabilitative aim of imprisonment\u201d must be kept in mind (Khoroshenko v. Russia<\/a>, \u00a7 121). Finally, in Danilevich, the Court held that \u201cno additional restrictions should be imposed on life-sentenced prisoners as compared to other prisoners when it concerns the possibilities for them to maintain meaningful contact with their families and other close persons\u201d (\u00a7 60) and accordingly found a violation of Article 8 ECHR.<\/p>\n

Altogether, the ECtHR\u2019s jurisprudence offers prisoners quite extensive protection against contact limitations, especially in relation to their family or other close relatives.<\/p>\n

Jurisprudential Uncertainties<\/strong><\/p>\n

Concerning new contacts outside the family, however, existing jurisprudence prima vista<\/em> offers less protection. Firstly, prisoners can only invoke Article 8 ECHR with regard to their private life \u2013 the provision\u2019s protection of family life presupposes the existence of a family (Pini and Others v. Romania<\/a>, \u00a7 143). Additionally, the existing family-focused jurisprudence of the ECtHR indicates that maintaining family relations enjoys greater protection than the establishment of new contacts. Accordingly, the proportionality test applied to measures restricting prisoners\u2019 ability to enter new relationships is less strict. Secondly, the court tends to grant States a rather generous margin of discretion, for instance, when it denied prisoners a conventional right to receive conjugal visits (Dickson v. the United Kingdom<\/a>, \u00a781). These variables must be taken into account when assessing the ECHR-compatibility of contact limitations such as in the planned Danish law.<\/p>\n

Still a Human Rights Dead End <\/strong><\/p>\n

Despite these uncertainties, the existing jurisprudence of the ECtHR suffices to render interferences such as envisaged by the Danish bill incompatible with the ECHR. Firstly, there can be no doubt that such limitations interfere with Article 8 ECHR, which encompasses the right of each individual to approach others to establish and develop relationships (\u201cprivate social life\u201d, B\u0103rbulescu v. Romania<\/a>, \u00a7 70). Therefore, limitations on extra-family contacts must be justified, too.<\/p>\n

Secondly, it is highly doubtful whether measures that aim solely at the prevention of romantic relationships pursue a legitimate aim. Notably, the Danish Minister of Justice recalled<\/a> \u201cdisgusting examples\u201d when introducing the bill, which indicates that Denmark acted in the interest of public morals \u2013 one of the legitimate aims enumerated in Art. 8 ECHR. While States frequently<\/a> (and often successfully) rely on the justification ground of public morals and despite the (problematically) broad margin of discretion granted to the states to determine public morals (M\u00fcller and Others v. Switzerland<\/a>, \u00a7 35), the ECtHR has clearly condemned restrictions made on a prisoners\u2019 choice of partner solely based on public morals in the context of the right to marry, Article 12 ECHR. It confirmed that interferences with prisoners\u2019 right to marry a person of their choice were impermissible when based solely on arguments as what \u201cmight offend public opinion\u201d, highlighting \u201ctolerance and broadmindedness\u201d as \u201challmarks\u201d of a democratic society (Frasik v. Poland<\/a>, \u00a7 93). Consequently, the interest of \u201cpublic morals\u201d can arguably not justify interferences with the prisoner\u2019s ability to build romantic relationships.<\/p>\n

Thirdly, even if \u201cpublic morals\u201d serve as a legitimate aim, it seems hardly possible for the Danish interference to comply with the strict proportionality standards mentioned above. The bill has a broad and rather inflexible scope of application (imposing contact bans on all life-sentenced prisoners for an inflexible period of ten years) and contains almost no effective exceptions (they are put in such vague language that they can offer only weak protection to prisoners). Moreover, by making restrictions the rule as opposed to the exception, the bill fails to meet the most basic human rights requirement of an individual case-by-case examination.<\/p>\n

Finally, the well-established ECtHR jurisprudence on the purpose of punitive imprisonment offers the strongest argument against such contact limitations. By severely reducing the ability to interact with the outside world, such measures neglect what has become a \u201cmandatory factor that the member States need to take into account in designing their penal policies\u201d (Khoroshenko v. Russia<\/a>, \u00a7 121): rehabilitation and reintegration of prisoners into society. When pursuing punitive aims, states must strike a \u201cproper balance between the punishment and rehabilitation of prisoners\u201d (\u00a7 121). The ECtHR also highlighted that it was important to \u201ccompensate for the desocialising effects of imprisonment in a positive and proactive way\u201d (\u00a7 144). To ensure successful reintegration, it is not only mandatory to maintain relations outside the prison, but also to retain the ability to form new relations with others. To that end, emotionally profound and romantic relationships can be a particularly supportive factor and can enhance positive development for prospective reintegration. Additionally, due consideration must be given to the fact that prisoners without a consolidated pre-jail social environment would be left nearly entirely isolated from the outside world. Contact limitations, especially those targeting romantic relationships, counteract the aim of reintegration into society. They further stigmatize prisoners and utterly neglect their dignity.<\/p>\n

Conclusion<\/strong><\/p>\n

Detainees, especially long-term prisoners, are in a precarious situation: they are deprived of their liberty, rather isolated, and reliant on the authorities\u2019 assistance to reintegrate into society. Therefore, it is an alarming trend that such assistance is oftentimes systematically neglected in Europe. A silver lining is that the existing jurisprudence of the ECtHR stipulates quite extensive protection for the prisoners. One can be optimistic that the judges of the ECtHR would have in mind their jurisprudence on tolerance and broadmindedness as hallmarks of a democratic society, should a measure comparable to the Danish bill ever end up in their courtroom. In the 21st\u00a0century, there is simply no room for limitations on romantic relationships and the choice of partner based on public morals \u2013 neither in legislation nor in jurisprudence, neither in prisons, nor outside.<\/p>\n

 <\/p>\n

The \u201cBofaxe\u201d series appears as part of a\u00a0<\/em>collaboration<\/em><\/u><\/a>\u00a0between the\u00a0<\/em>IFHV<\/em><\/u><\/a>\u00a0and V\u00f6lkerrechtsblog.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Prison inmates are inherently subject to far-reaching interferences with their civil rights and liberties. Still, states increasingly tend to exceed their legal boundaries by imposing additional restrictions on them. Consequently, prisoners\u2019 rights are an often-debated topic before the European Court of Human Rights. While the European Convention of Human Rights (ECHR) has proven to offer […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6666,5173],"article-categories":[5108],"doi":[],"class_list":["post-16024","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-rouven-diekjobst","authors-vanessa-bliecke","article-categories-bofaxe"],"acf":{"subline":"On Recent Developments Concerning Prisoners\u2019 Rights under the ECHR"},"meta_box":{"doi":"10.17176\/20211213-184102-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/16024","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=16024"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/16024\/revisions"}],"predecessor-version":[{"id":16027,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/16024\/revisions\/16027"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=16024"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=16024"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=16024"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=16024"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=16024"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=16024"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}