CASE OF BIRŽIETIS v. LITHUANIA – Application no. 49304/09 (2016)

Chamber Judgement

14 June 2016

• Violation of Article 8

1. The Facts

On November 2006 the applicant began serving a prison sentence at the Marijampolė Correctional Facility. In prison, he wanted to grow a beard for health reasons. He had been diagnosed with tongue cancer and he had undergone radiation treatment. Therefore, shaving irritated his skin. However, the prison rules forbid possibility to let the facial hair grow.

In 2007, the applicant submitted two separate requests to the Prison department but both of the requests were denied due to a medical report stating that no traces of irritation had been found on the applicant’s skin.

The applicant submitted a complaint to the Vilnius Regional Administrative Court, which upheld applicant’s complain. However, later  the Supreme Administrative Court overturned the first-instance judgment

1. The Court’s assessment

The Court acknowledges that beard while in prison fall in the scope of the Article 8 of the Convention. However, restriction to the article might be justified if the restriction fulfils the conditions set in Article 8 (2). The paragraph states that restrictions:

• must be made in accordance with the law;
• must have a legitimate aim (the paragraph offers an exhaustive list of legitimate aims);
• must be necessary in democratic society.

The Court found that the prohibition on the applicant having a beard in prison was “in accordance with the law”, as the term “law” refers to not to laws set by parliament, but also to rules and regulations set by other authorities, such as prisons.  

Secondly, the Court notes that for it to be compatible with the Convention, a limitation of that right must pursue an aim that can be linked to one of those listed in that provision. The court observes that the Government fails to give explanation how allowing the applicant (or other prisoners) to grow a beard could lead to disorder and crime in the prison. The Court also considerers that hygienic reasons are not justified aim. 

Thirdly, the Court reiterates that the notion of “necessity” implies that the interference with an individual’s right to respect for his or her private life must be proportionate to the legitimate aims pursued. The Court particularly notes the absolute nature of the disputed prohibition is troubling. It considers that the Government did not demonstrate that the absolute prohibition on growing a beard was proportionate.

The Court considers that the applicant’s decision on whether or not to grow a beard was related to the expression of his personality and individual identity, protected by Article 8 of the Convention, and that the Government has failed to demonstrate the existence of a pressing social need to justify an absolute prohibition on him growing a beard while he was in prison.

The Court holds, by six votes to one, that there has been a violation of Article 8 of the Convention.

• Reparations

The Court considers that in the circumstances of the case the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant

The applicant did not submit a claim for costs and expenses incurred before the domestic courts and the Court. Accordingly, the Court makes no award under this head.