CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 16 décembre 2020

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He was represented before the Court by Mr   D.A. Karsai, a lawyer practising in Budapest. 2.     The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant submitted that he was a member of the Roman Catholic Church. 5.     On 15   October 2013 he concluded a marriage in a civil ceremony with a woman, born in 1983, who is serving a life sentence at Kalocsa Prison for aggravated murder. 6.     Prior to the wedding, on 17 September 2013 the applicant addressed a   letter to the Prison Governor requesting a wedding according to the rites of the Hungarian Reformed Church ( református egyházi szertartás ). 7.     It appears that since then the applicant has maintained contact with his wife as a regular visitor to Kalocsa Prison. 8.     The applicant’s wife can be released on parole in 2045 at the earliest. The applicant submitted that his wife could have certain types of temporary absence from the prison in 2028 at the earliest, at the age of 45. Relevant domestic law 9.     Act no. CCXL of 2013 on the Enforcement of Punishments, Measures, Certain Coercive Measures and Confinement for Regulatory Offences (henceforth: “Bvtv.”) provides: Decision of the organ responsible for enforcement (“enforcement organ”) and the filing of a complaint Section 20 “(1) In matters related to the enforcement of the sentence of a post-conviction inmate or to the detention of an inmate detained on other grounds, an action or decision shall, unless otherwise provided under this Act, be taken by the head of the organisational unit of the enforcement organ where enforcement is taking place.” Section 21 “(1) A complaint about a measure or decision or omission of the enforcement organ may be filed to the head of the enforcement organ. In cases specified in this Act, post-conviction inmates and inmates detained on other legal grounds may seek judicial review of a decision or may file a court action against a decision. (2) A complaint may be filed by a post-conviction inmate, an inmate detained on other legal grounds, a counsel, the statutory representative of a juvenile, the statutory representative, the spouse or the common-law spouse of a person subjected to involuntary treatment, or a contact person whose contact with the inmate is affected by the measure or decision or omission.” Judicial review Section 24 “(1) Where this Act provides for, judicial review of the enforcement organ’s decision may be sought in a request addressed to the penitentiary judge. A request for judicial review may, unless otherwise provided in this Act, be filed by a post-conviction inmate, an inmate detained on other legal grounds, a counsel, the statutory representative of a juvenile or the statutory representative, the spouse or the common-law spouse of a person subjected to involuntary treatment. Where such entitlement cannot be established from the documents, it shall be credibly proved.” Rules governing the enforcement of sentences of imprisonment Section 100 “(2) For convicts, save for life imprisoners without eligibility for parole, serving a   sentence under strict regime conditions, a) a prison furlough may, exceptionally, be permitted, whose duration will be counted in the duration of the sentence of imprisonment.” Interruption Section 116 “(1) For important reasons, in particular on account of a convict’s personal or family circumstances or health status, the enforcement of a sentence of imprisonment may be interrupted ex officio or upon request. Decision on such interruptions shall be taken a) by the governor, in respect of interruptions not exceeding thirty days in a calendar year, b) by the national commander, in respect of interruptions lasting from thirty days to ninety days in a calendar year, c) the minister responsible for the enforcement of sentences, in respect of interruptions lasting for a period longer than that mentioned in point b).” Convict rights flowing from a penitentiary legal relationship Section 122 “A convict is entitled to f) file a public-interest announcement, a complaint, a request or a legal statement to the penitentiary institution or to its supervisory organs or to a body independent from the penitentiary service, g) avail of a legal remedy, ...” Convict rights flowing from penitentiary legal relationship Section 126 “(1) In penitentiary institutions the free choice and free change of conscientious and religious conviction and the exercise of religion shall be secured for all convicts.” Requests, complaints, and other legal remedies Section 141 “(1) In matters related to their detention, convicts may file written requests to the authorised officers of the penitentiary service. (2) Convicts may request to be heard in person by the prison governor or by the head of the relevant organisational unit of the prison. Convicts may also turn, in writing, directly to the prison governor. ...” Receiving visitors outside the penitentiary institution Section 178 “(1) Permission for receiving a visitor outside the penitentiary institution may be given to a convict for minimum two hours per occasion, in line with the provisions governing the prison regime and sub-regime under which the convict is serving his sentence of imprisonment. (2) Permission for receiving a visitor outside the penitentiary institution may be given to a convict who has already served at least one third of his sentence but minimum one year in a maximum security prison, minimum six months in a medium security prison, and minimum three months in a minimum security prison or in a   transitory unit.” Leave of absence Section 179 (1) Permission for leave of absence may be given to a convict having served at least one third of his sentence but minimum one year in a maximum security prison, minimum six months in a medium security prison and minimum three months in a   minimum security prison or in a transitory unit. (2) The length of the leave of absence may not exceed twenty-four hours. For   a   leave of absence the governor of the penitentiary institution may permit to provide for the convict spending-money to be credited against the convict’s deposited money. (3) Leave of absence may be granted primarily for maintaining family ties and social relationships, for participating in education or training or for facilitating the securing of post-release employment and housing. ...” Prison furlough Section 180 (1) Prison furlough may only be granted to a convict having served at least one third of his sentence but minimum one year in a maximum security prison, minimum six months in a medium security prison and minimum three months in a minimum security prison. (2) The annual length of the prison furlough is maximum five days in a maximum security prison, maximum ten days in a medium security prison and maximum fifteen days in a minimum security prison and in a transitory unit. ...” 10.     Decree no. 16/2014. (XII.19.) of the Minister of Justice on the Detailed Rules of the Enforcement of Imprisonments, Confinements, Pre-trial Detentions and Custodies Imposed for Unpaid Fines provides: 54. Conclusion of a marriage in a penitentiary institution Section 88 “(1) A request for the conclusion of a marriage in the penitentiary institution may be filed by the convict or the person with whom the convict wishes to enter into marriage. The penitentiary institution shall immediately transmit the request to the marriage registrar. (2) Where the convict wishes to have religious marriage ceremony in line with the rites of his own Church, the request shall also be transmitted to the religious community at issue. (3) The penitentiary institution shall contact the marriage registrar and, in cases specified under subsection (2), the religious community in order to find a suitable date and time.” COMPLAINTS 11.     The applicant complained that he was unable to have a valid, that is to say, consummated Catholic marriage for the sole reason that his wife was a convicted felon. He further complained about the couple’s inability to procreate. He relied on Articles 2, 8, 9 and 12 of the Convention. THE LAW 12.     The applicant submitted that, with his wife in jail, they could not consummate their marriage and were unable to procreate. He invoked Articles 2, 8, 9 and 12 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos.   37685/10 and 22768/12, §§ 114 and 126, 20   March 2018), considers that this complaint falls to be examined under Articles 8, 9 and 12 only, which read as follows: Article 8 “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 9 “1.     Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.     Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Article 12 “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 13.     The Government submitted that the applicant and/or his wife could have applied – even repeatedly – for prison furlough, leave of absence, outside reception of visitor or interruption of the sentence, under sections 180, 179, 178, 116 of the Bvtv., respectively. Any of these would have enabled the couple to consummate the marriage; moreover, a complaint procedure was available – both to the applicant and the inmate – against any refusal of such applications, under section 122 of the Bvtv. Furthermore, judicial review by the penitentiary judge was also at their disposal. 14.     As regards the marriage itself, the Government submitted that the applicant or the inmate had not applied for a Catholic wedding. Their marriage was a civil one, whose validity was not dependent on consummation. In any event, for the Government, the Convention could not be interpreted as guaranteeing an unconditional right to procreation. The   Government noted that the couple had not applied for any measure allowing assisted reproduction, either. 15.     The applicant submitted that he had approached the prison authorities before the wedding, requesting a ceremony according to rites of the Hungarian Reformed Church. He attached a copy of his letter to the   Governor as evidence; and argued that, against this background, he was expecting that the prison authorities would arrange for a Catholic wedding. 16.     Moreover, he argued that the legal possibilities enumerated by the   Government were of a discretionary character and mostly available to the inmate rather than to him. He further asserted that the failure to arrange for a Catholic wedding and the impossibility of consummation (notably,   because of the unavailability of conjugal visits) amounted to an unlawful and unjustified interference with his rights under Articles 8, 9 and 12 of the Convention. 17.     The Court observes at the outset that the applicant asked for a   wedding according to the rites of the Hungarian Reformed Church, rather than a Catholic one. In these circumstances, the Court considers that he cannot complain of the absence of a Catholic wedding or the consequences, from a Catholic perspective, of the non-consummation of the marriage. It   follows that the applicant’s complaints about the validity of his marriage for the Catholic faith, belonging under Articles 9 and 12 of the Convention, are manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. 18.     Moreover, to the extent that the issue of procreation raises an issue under Article 8 of the Convention, the Court observes the availability of applying for prison furlough, leave of absence, outside reception of visitor or interruption of the sentence under the domestic law. The Court attaches little importance to whether those applications could be filed by the applicant, his wife or both, inasmuch as the crux of the complaint at hand is the couple’s alleged inability to procreate and these measures may enable the couple to have conjugal meetings. 19.     It is true that some of these possibilities will only be available once the applicant’s wife has served one third of her sentence (apparently, in 2028) when she will be 45, a biological age less than ideal for procreation. The Court nevertheless notes that an interruption of the sentence under section 116 of the Bvtv. may in principle be possible earlier than that, the condition of one third of the sentence served being absent in the law. Although an application for interruption of the sentence may well be discretionary in character, the Court cannot but note that the applicant and/or his wife have never availed themselves of this possibility. Had they done so, the domestic authorities would have been afforded an opportunity to consider the matter. 20.     In sum, although the applicant and his wife had at their disposition remedies that would have enabled them to pursue the issue of intimate meetings before the prison authorities, they failed to do so. In these circumstances, the Court concludes that the applicant cannot complain about this matter (see, mutatis mutandis , Štajcar v. Croatia (dec.), no. 46279/99, 20   January 2000) and this part of the application is also manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected under Article 35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 21 January 2021.   Renata Degener   Alena Poláčková   Deputy Registrar   President