CEDH · CASELAW;CLIN;ENG — 5 janvier 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 126 January 2010 Frasik v. Poland - 22933/02 Judgment 5.1.2010 [Section IV] Article 12 Marry Refusal to allow a prisoner to marry in prison: violation   Facts – In September 2000 the applicant was detained following a complaint by a woman who alleged that he had raped and battered her. They had been in a relationship that had lasted some four years but had terminated several months previously. From December 2000 onwards, they had made several unsuccessful requests to the prosecutor for the applicant to be released under police supervision as they had become reconciled and wanted to marry. At the opening of the trial the victim requested the court to absolve her from testifying against the applicant. In 2001 the trial court refused the applicant’s request to be allowed to marry in prison as it wished to prevent the victim from exercising her marital right not to testify against him. The judge also considered that the remand centre was not an appropriate place for holding a marriage ceremony and that the sincerity of the couple’s intentions was open to doubt given that they had not “officialised their life” before. The applicant was subsequently sentenced to a term in prison for rape and uttering threats. His conviction was upheld on appeal and by the Supreme Court. The latter held, inter alia , that the refusal to let the applicant marry in prison clearly violated Article   12 of the Convention. Law – Article 12: The Court saw no reason for the trial court to have questioned whether the quality of the parties’ relationship was of such a nature as to justify their decision to get married or whether the chosen time and venue were suitable. The choice of a partner and the decision to marry, at liberty and in detention alike, was a strictly private and personal matter. Under Article   12 the authorities’ role was to ensure that the right to marry was exercised “in accordance with the national laws” (which had themselves to be compatible with the Convention) but they were not allowed to interfere with a detainee’s decision to establish a marital relationship with a person of his or her choice. What needed to be solved was not the question of whether or not it was reasonable for a detainee to marry in prison but the practical aspects. Apart from this, the authorities could not restrict the right to marry, unless there were important considerations such as prison security or the prevention of crime and disorder. In the present case it was the trial court’s conviction that the marriage would adversely affect the process of taking evidence against the applicant which had justified the imposition of a ban on his right to marry during the trial. The ban, however, had no legal basis since under Polish law the fact that one of the future spouses was an accused in criminal proceedings and the other a victim was not a legal or factual impediment to contracting a marriage. If the applicant had not been held in detention, there would have been no means of preventing him from marrying in the civil-status office at any time during the trial. Nor would the genuineness of his feelings have been debated by the civil-status authorities before the solemnisation of the relationship. In consequence, the Court could not but fully endorse the Supreme Court’s assessment that the interference with the applicant’s right to marry had been disproportionate and arbitrary. The Court did not accept the Government’s argument that the applicant had retained the possibility of marrying the victim in the future and that this could alleviate the consequences of the ban. A delay imposed before entering into a marriage in respect of persons of full age and otherwise fulfilling the conditions for marriage under the national law could not be considered justified under Article   12. Polish law left to the relevant authorities complete discretion when deciding a detainee’s request for leave to marry. No specific provision of the national law dealt with marriage in detention but, in the Court’s view, Article   12 did not require the State to introduce separate laws or specific rules on the marriage of prisoners as detention was not a legal obstacle to marriage. Nor was there any difference in legal status in respect of the eligibility of persons at liberty and persons detained to marry. In the applicant’s case, the Convention breach had been caused not by the absence of detailed rules on marriage in detention, but by the lack of restraint displayed by the national judge in exercising her discretion and by her failure to strike a fair balance between the various public and individual interests at stake in a manner compatible with the Convention. Even if the trial court had acted as it had in order to ensure the orderly conduct of the trial – which was the legitimate interest – it had lost sight of the need to weigh in the balance respect for the applicant’s fundamental Convention right. As a result, the measure applied had impaired the very essence of the applicant’s right to marry. Conclusion : violation (unanimously). Article 13: The Government had acknowledged that there had been no procedure whereby the applicant could appeal against or otherwise challenge the decision denying him his right to marry in detention. Conclusion : violation (unanimously). The Court also found a violation of Article   5 §   4. Article 41: EUR 5,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes