Varnas v Luthania,  ECHR, Application no 42615/06 (9 July 2013)
The European Court of Human Rights held that Lithuanian laws concerning the rights of persons on remand to receive conjugal visits were discriminatory when compared to the same right of convicted persons serving a custodial sentence. The Court therefore found a violation of article 14 (prohibition on discrimination), in conjunction with article 8 (right to family life), of the European Convention of Human Rights.
In March 2004, the Applicant was arrested on suspicion of belonging to a criminal association and placed on remand during the pre-trial investigation, where he remained for over two years. In June 2006 the Applicant was convicted and sentenced to 12 years’ imprisonment (reduced to six years on appeal) and in September of the same year he was transferred to a correctional facility to commence serving his sentence. In June 2007, a second criminal investigation was brought against the Applicant and he was again placed on remand, this time until February 2008. In October 2009 he was sentenced to five years imprisonment in relation to the second set of criminal charges.
During the periods of time the Applicant was held on remand, he was not permitted to receive conjugal visits from his wife, despite repeated requests. In comparison, convicted persons serving a custodial sentence were permitted to receive conjugal visits.
The Applicant brought three main complaints before the Court:
- The length of his pre-trial detention was excessive and disproportionate, and thus in violation of article 5 of the Convention (right to liberty and security of person);
- His inability to receive conjugal visits while on remand violated article 8 of the Convention along, and in conjunction with article 14; and
- The deplorable conditions of his pre-trial detention at the remand prison violated the Convention.
The Court held that only the second complaint was admissible. In relation to the remaining claims, the Court held that the Applicant had either failed to exhaust domestic remedies, or that they were unfounded.
The Applicant argued that his inability to receive conjugal visits from his wife while on remand caused him mental and physical suffering so severe it amounted to torture. The inability to maintain a social and physical connection with his wife also violated article 8 of the Convention (right to family life) as it “denied [him] the possibility of having children and risked breaking up his marriage and the loss of family happiness.”
Moreover, the Applicant argued that denying persons on remand conjugal visits, but not persons serving a custodial sentence, meant a person whose guilt had not yet been established by a court faced harsher restrictions than someone already convicted. He argued this amounted to punishment without conviction and was contrary to the presumption of innocence.
Lithuania argued that pre-trial detention necessarily entails restriction of the accused person’s private and family life. However, it argued that denying persons on remand conjugal visits did not violate the Convention because this interference with the prisoner’s Convention rights was “prescribed by law”. Moreover, there was a legitimate aim for distinguishing between persons on remand and convicted persons: the stricter restrictions for persons on remand are necessary to ensure the person does not obstruct the pre-trial investigation, abscond or commit further crimes.
The Court noted that article 14 (prohibition on discrimination) does not exist independently, but only has effect in relation to other Convention rights. Since the Applicant’s claim fell within the ambit of article 8, article 14 was applicable in this case, regardless of whether it found a violation of the Applicant’s article 8 rights.
Article 14 provides that the “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
The Court found that being remanded in custody fell within the notion of “other status” within the meaning of Article 14.
The Court also noted that “for an issue to arise under article 14, there must be a difference in treatment of persons in analogous, or relevantly similar, situations”. It held that the situation of a person on remand was sufficiently similar to that of a convicted prisoner.
Taking into consideration that it generally allows Member States some discretion as to how they interpret Convention rights (through the “Margin of Appreciation Doctrine”) in relation to prisoners and penal policy, the Court held that the difference in treatment in this case was discriminatory because it was not justified in the circumstances. The Court held that the legitimate aim of ensuring the integrity of a criminal investigation could be attained through less oppressive means, such as not applying the prohibition on conjugal visits to all persons on remand as a blanket rule. The Lithuanian government was not entitled to rely solely on legal norms for justification without reference as to why such restrictions might be necessary in each individual case. The circumstances of the Applicant’s case did not justify a complete prohibition of conjugal visits. While recognising the severity of the charges against the Applicant, his wife was neither a co-accused nor a witness. Consequently, the Court found Lithuania in violation of article 14 in conjunction with article 8 of the Convention.
Having found this breach, the Court did not deem it necessary to consider whether there had been a violation of article 8 alone.
This decision raises interesting questions in the context of the European Convention about the right of a prisoner to conjugal visitation. However the decision is unlikely to have any direct impact on Australian contexts as federal and state anti-discrimination laws do not contain equivalent provisions to the “other status” protection in the Convention, but rather prohibit discrimination on the basis of defined attributes such as race, sex and age.
The decision is available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122173
Astrid Andersson and Rohan Phelps are Graduates at DLA Piper Australia.