Information Note on the Court’s case-law No. 126
January 2010
Jaremowicz v. Poland - 24023/03
Judgment 5.1.2010 [Section IV]
Article 12
Marry
Refusal to allow a prisoner to marry in prison: violation
Facts – In June 2003 the applicant, who was serving a prison sentence, asked the prison administration to be allowed visits by a female prisoner who had been detained in the same prison but had since been moved to another prison. Both he and the woman asked the regional court for permission to marry in prison, but this was refused on the grounds that they had become “acquainted illegally in prison” and their relationship had been “very superficial” as they had mostly communicated by sending messages, often without visual contact. In November 2003 the prison governor issued a certificate to the civil-status office confirming that the applicant had obtained leave to marry in prison.
Law – Article 12: A requirement for detainees to obtain prior leave in order to marry could not by itself be regarded as contrary to Article 12 – limitations on marital, private and family life were inherent in deprivation of liberty. The authorities had a margin of discretion and had to have regard not only to the personal interest pursued by the prisoner, but equally to the maintenance of good order, safety and security in prison. In the present case, however, the authorities’ refusal was in no way linked to prison security or prevention of disorder but to an assessment of the nature and quality of the applicant’s relationship with his fiancée. Such arguments bore no relation whatsoever to the domestic-law provisions enumerating the grounds on which an authority could refuse an adult permission to marry. Under Polish law it was solely for the civil-status authorities to determine whether there were any legal obstacles to marriage. Detention facilities were not typical places for bringing together future partners but the fact that a bond had developed between a man and a woman during detention did not automatically render their relationship “illegal”, “superficial”, of no rehabilitative value or not deserving of respect. The essence of the right to marry was the formation of a legal union of a man and a woman. It was for them to decide whether they wished to enter into such a relationship in circumstances in which there were objective obstacles to their living together. The choice of a partner and the decision to marry 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. Having regard to the scope of the State’s discretion, the impugned measure could not be justified by any conceivable legitimate aim. The Court did not accept the Government’s argument that the fact that the applicant had obtained leave to marry some five months after his request and, in any event, had retained the possibility of marrying in the future had alleviated the consequences of the initial ban. A delay imposed on persons of full age and otherwise fulfilling the conditions for marriage under the national law could not be considered justified under Article 12. The domestic law left to the relevant authorities complete discretion when deciding a detainee’s request for leave to marry. Although no specific provision of the national law dealt with marriage in detention, 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 to marry of persons at liberty and persons detained. 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 authorities’ failure to strike a fair balance between the various public and individual interests at stake in a manner compatible with the Convention. As a result, the measure applied had impaired the very essence of the applicant’s right to marry.
Conclusion: violation (unanimously).
Article 13: The applicant had been able to challenge the initial refusal before the penitentiary court. However, the procedure had lasted nearly five months and no ruling on his appeal had been given by the time the prison authorities eventually changed their original decision. In consequence, the procedure could not be said to have offered the applicant the requisite relief, that is to say, a prompt decision on the substance of his Convention claim under Article 12. Nor could the belated grant of permission to marry constitute the redress required by this Article.
Conclusion: violation (unanimously).
Article 41: EUR 1,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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