CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 5 janvier 2010

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Poland (application no 22933/02)   Jaremowicz v. Poland (no 24023/03)     REFUSAL TO ALLOW PRISON INMATES TO MARRY BREACHED THE CONVENTION   Unanimously:   Violations of Articles 12 (right to marry) and 13 (right to an effective remedy) of the European Convention on Human Rights in both cases ; and Violation of Article 5§4 (right to liberty and security) in Frasik v. Poland     Principal facts   The applicants, Rafał Frasik and Paweł Jaremowicz are two Polish nationals. Mr Frasik lives in Krakow and Mr Jaremowicz is currently detained in Wołów Prison. They were both serving prison sentences - Mr Frasik for rape and for threatening his long-term partner I.K., and Mr Jaremowicz for attempted burglary, when they asked, in April 2001 and June 2003 respectively, the competent courts to allow them to marry in prison.   Their requests were refused.   Mr Frasik was detained in September 2000 following a complaint by I.K. who submitted that he had raped and battered her. Starting in December 2000 and January 2001, both he and I.K. asked several times, unsuccessfully, the prosecutor that Mr Frasik be released under police supervision as they had been reconciled as a couple and wanted to marry and live together. In July 2001, the trial court refused Mr Frasik’s request to marry I.K. in prison and sentenced him, in November 2001, to a term in prison for rape and uttering threats. Following his cassation appeal, the Supreme Court held in a judgment in 2003 that although the refusal to let Mr Frasik marry in prison clearly violated Article 12 of the European Convention on Human Rights, it did not have an effect on his conviction and therefore could not be quashed.   Mr Jaremowicz asked in June 2003 the prison administration to be allowed visits by a certain M.H., a young woman he had met in the prison the previous year. In June 2003 both he and M.H. asked the competent regional court a permission to marry in prison. The court refused on the grounds that they had become “acquainted illegally in prison” and in any event their relationship had represented nothing but “a very superficial and unworthy contact” given that they had mostly communicated by means of sending kites and writing messages on their hands, often without seeing each other. On an unspecified date in November 2003 the prison governor issued a certificate addressed to the civil status office confirming that Mr Jaremowicz had obtained leave to marry M.H. in prison.   Complaints, procedure and composition of the Court   Relying in particular on Article 12, both applicants complained that the refusals to marry were arbitrary and unjustified.   Mr Frasik also complained about having been detained for too long awaiting trial and about his appeals against that detention not having been examined quickly; he relied on Article 5 §§ 3 and 4.   The applications were lodged with the European Court of Human Rights on 10 September 2001 (Mr Frasik) and 10 July 2003 (Mr Jaremowicz).   The judgments were given by a Chamber of seven judges, composed as follows:   Nicolas Bratza (United Kingdom), President , Lech Garlicki (Poland), Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), Päivi Hirvelä (Finland), Ledi Bianku (Albania), Nebojša Vučinić (Montenegro), judges ,   and Fatoş Aracı , Deputy Section Registrar .   Decision of the Court   Right to marry   The Court first noted that the exercise of   the right to marry was not conditioned upon whether a person was free or in prison. While imprisonment deprived people of their liberty and certain civil rights and privileges that did not mean that those detained could not marry. As provided for in the European Prison Rules, restrictions placed on persons in detention had to be the minimum necessary and proportionate to the legitimate objective for which they had been imposed.   The Polish authorities had not justified their refusal to allow the applicants to marry with considerations such as existing danger to security in prison or the prevention of crime and disorder. Instead, their assessment had been limited to the nature and quality of the applicants’ relationships both of which had been found by the authorities unsuitable for marriage. The Court emphasised in this respect that the choice of partner and the decision to marry them, at liberty and in detention alike, was a strictly private and personal matter. Except for overriding security considerations the authorities were not allowed, under Article 12, to interfere with a prisoner’s decision to marry with a person of their choice, especially - as had been the situation in the present cases - on the grounds that the relationships were not acceptable to the authorities and deviated from prevailing social conventions and norms.   The Court did not accept the argument of the Polish Government that Mr Fraski had been at liberty to marry after his release and that Mr that Jaremowicz had been allowed to marry five months after he had asked the authorities, or that he too could have married after his release. It emphasised that a delay imposed before entering into a marriage to persons of full age and otherwise fulfilling the conditions for marriage under the national law, could not be considered justified under Article 12. The refusals had resulted in impairing the very essence of the applicants’ right to marry, and there had, therefore, been a violation of that Article in both cases.   Right to an effective remedy   As regards the case of Mr Frasik, the Government had admitted that there had been no procedure through which the applicant could challenge effectively the decision denying him his right to marry in detention.   In respect of Mr Jaremowicz, although he could and had indeed challenged the initial refusal by the prison authorities before the penitentiary court, the procedure had lasted for nearly five months without a decision being given and, consequently, it had had no meaningful effect. The belated permission Mr Jaremowicz had been granted had not offered the redress required by Article 13 either.   The Court concluded that there had been a violation of this Article in both cases.   Detention   The Court found that the Polish authorities had concluded sufficiently promptly the investigation and the first instance court proceedings, and therefore it rejected Mr Frasik’s complaint that his detention had been excessive an in breach of Article 5§3.   The Court further noted that his appeal against the decision prolonging his detention had been examined by the domestic court 46 days after it had been lodged and 11 days after the contested decision had expired, thus having rendered its examination purposeless. This delayed examination could not be considered sufficiently speedy as required by Article 5 § 4 and therefore there had been a violation of that Article.   Just satisfaction   Under Article 41 (just satisfaction), the Court awarded Mr Frasik 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,500 for costs and expenses. It also awarded Mr Jaremowicz EUR 1,000 in respect of non-pecuniary damage and EUR 1,500 for costs and expenses, less EUR 850 received under the Court’s legal-aid scheme.   ***   (The judgments are available only in English). This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.