Communicated on 18 October 2016
FOURTH SECTION
Application no. 61924/15
Sándor LUKÁCS
against Hungary
lodged on 17 February 2016
STATEMENT OF FACTS
The applicant, Mr Sándor Lukács, is a Hungarian national who was born in 1967 and lives in Zsáka.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a former police officer, is a Catholic. On 15 October 2013 he concluded a marriage – both a civil ceremony and, apparently, a Catholic one – with a woman who is serving a long prison sentence at Kalocsa Female Prison for drugging, stabbing and burning to death her previous husband. It appears that since then the applicant has maintained contact with his wife as a regular visitor to Kalocsa Prison.
The applicant’s wife, who was born in 1983, is due to remain in prison until 2045. She can get a temporary absence no sooner than 2028, at the age of 45. Until that eventuality, the legislation on prison rules does not allow the spouses to perform a conjugal act in order to consummate their marriage, either inside or outside prison.
B. Relevant domestic and canon law
Decree no. 16/2014 of 19 December 2014 of the Minister of Justice provides, as relevant:
Section 88
“(1) A request to contract a marriage in prison may be submitted by the prisoner or by the person who the prisoner intends to marry ...
(2) If the prisoner intends to conclude a marriage according to the rite of his or her religion, the request shall also be relayed to the religious community concerned.
...
(5) Following the celebration of the marriage, the prison governor may allow the prisoner to have a conversation [with those allowed to be present at the ceremony] according to the rules on the reception of visitors.”
The Code of Canon Law of the Catholic Church provides, as relevant:
Can. 1061 § 1
“A valid marriage between the baptized is called ratum tantum if it has not been consummated; it is called ratum et consummatum if the spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh.”
Can. 1141
“A marriage that is ratum et consummatum can be dissolved by no human power and by no cause, except death.”
Can. 1142
“For a just cause, the Roman Pontiff can dissolve a non-consummated marriage between baptized persons or between a baptized party and a non-baptized party at the request of both parties or of one of them, even if the other party is unwilling.”
COMPLAINTS
The applicant complains that domestic law does not make it possible to conclude a full marriage according to his religion – that is, valid and consummated – as his civil-law wife is a convicted felon. He relies on Articles 9 and 12 of the Convention for that part of his complaint.
The applicant further complains about the couple’s inability to procreate, given the fact his wife’s fertility will obviously have declined by the time of the earliest possible date for a temporary absence from prison. He relies on Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the application been lodged in compliance with Article 35 § 1 of the Convention?
2. Does the applicant’s claim to the right to conclude a full marriage according to his religion fall under the scope of Article 12 read in the light of Article 9 of the Convention?
3. If so, has there been a violation of the applicant’s right to marry, within the meaning of Article 12 read in the light of Article 9 of the Convention, on account of the fact that domestic legislation does not allow prisoners to perform a conjugal act in the prison?
4. Has there been a violation of the applicant’s right to found a family, contrary to Article 12 of the Convention, read alone or in conjunction with Article 8, on account of the couple’s inability to perform a conjugal act before 2028 at the earliest?
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