CASE OF VARNAS v. LITHUANIA – Application no._42615/06 (2013)

Facts: The case concerned the applicant’s complaint that he had been denied conjugal visits from his wife, despite repeated requests, while convicted prisoners were allowed such visits.

In March 2004, the applicant was placed in pre-trial detention, where he spent more than two years until, in June 2006, he was convicted of a number of offences, including theft of high-value property, and sentenced to six years’ imprisonment. While he was serving his sentence, he was again placed in pre-trial detention in June 2007, when a second criminal investigation was brought against him. In a judgment upheld in October 2009 he was convicted on another two counts of theft committed by an organized group and sentenced to five years’ imprisonment.

Issue: The case was brought to the Court to decide whether there is a violation of Article 14 (Prohibition of discrimination) in conjunction with Article 8 (Right to respect for private and family life) of the Convention.

Holdings: Yes, there had been a violation of Article 14 (Prohibition of discrimination) in conjunction with Article 8 (Right to respect for private and family life) of the Convention.

Court’s Rationale: The Court noticed that the duration of visits for remand prisoners, such as the applicant, was shorter than that which the law allowed in respect of a convicted person. Above all, remand prisoners had no right to conjugal visits at all, while convicted prisoners could receive long-term visits, including conjugal visits, lasting up to forty-eight hours once every three months, on special separate premises, and without surveillance.

Moreover, the frequency of visits and the type of contact (short-term or conjugal) to which convicted prisoners were entitled differed according to the security level both of the prisoner and of the facility in which he was being held. In contrast, the restrictions on the visiting rights of remand prisoners were applicable generally, regardless of the reasons for their detention and the related security considerations. However, international instruments such as the International Covenant on Civil and Political Rights and the European Prison Rules of 1987 stressed the need to respect the remand prisoner’s status as a person who was to be presumed innocent, while the European Prison Rules of 2006 provided that, unless there was a specific reason to the contrary, untried prisoners should receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners. In that regard the Court had already had occasion to hold that, inasmuch as it concerned restrictions on visiting rights, the aim of protecting the legitimate interests of an investigation could also be attained by other means, such as the setting up of different categories of detention, or restrictions adapted to the individual case.

As to the reasonableness of the justification for the difference in treatment between remand prisoners and convicted prisoners, security considerations relating to any criminal family links were absent in this particular case. The applicant’s wife was neither a witness nor a co-accused and there was no indication that she had been involved in criminal activities. Accordingly, the Court was not persuaded that there was any particular reason to prevent conjugal visits. The Government, like the Lithuanian administrative courts, had in essence relied on the relevant statutory provisions, without any reference as to why the restrictions had been necessary and justified in the applicant’s specific situation.

Lastly, although the applicant had received short-term visits and so had not lost all contact with his wife, the physical contact available during those visits appeared to have been especially limited, as the couple had been separated by wire netting. Such limited physical interaction had further been compounded by the fact that they had been under the constant observation of a guard.

The particularly long period of the applicant’s pre-trial detention (two years) had reduced his family life to a degree that could not be justified by the inherent limitations involved in detention. The refusal of the remand prison authorities to grant the applicant a conjugal visit had also been based on a lack of appropriate facilities. However, that reason could not withstand the Court’s scrutiny. The authorities had therefore failed to provide reasonable and objective justification for the difference in treatment of remand prisoners compared to convicted prisoners and had thus acted in a discriminatory manner.

Just satisfaction: The court held that Lithuania was to pay the applicant 6,000 Euros in respect of non-pecuniary damages.

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