Information Note on the Court’s case-law 264
Judgment 7.7.2022 [Section I]
Respect for private life
General and indiscriminate ban on prisoner possession of pornographic material not permitting proportionality assessment in an individual case: violation
Facts – The applicant is serving a life sentence in prison. After a routine search, pictures from adult magazines and depicting “classic” adult heterosexual intercourse were found in his possession. The material was found to be pornographic and, as such, a threat to morality within the meaning of the Execution of Prison Sentences Act. The material was taken away from the applicant and he was found guilty of a disciplinary offence, for which he received a reprimand. He appealed unsuccessfully and his constitutional complaint was also dismissed
Law – Article 8:
(a) Applicability and interference – It was uncontested that the applicant had held printed material capable of being used as a stimulant for auto-eroticism in his private sphere for that purpose. The case accordingly involved no issue of any positive obligations in relation to it in general or in concreto. The Court noted that the possession of such material was not normally against the law in the respondent State. However, in the applicant’s specific situation it had been forbidden. Moreover, the fact that the prison system concerned allowed for no conjugal visits formed a part of the context in which the impugned restriction on the applicant’s ability to lead sexual life had to be viewed.
In those circumstances, the facts of the present case fell within the material scope of the right to respect for private life under Article 8. The seizure of the material from the applicant and the reprimand he had received for its possession had accordingly constituted an interference with that right.
(b) Justification for the interference – The interference had been in accordance with the law. The Court expressed some doubt as to the whether the disputed measure had in fact pursued any of the legitimate aims put forward by the Government (protection of morals, the prevention of disorder and the protection of the rights and freedoms of others) but did not find it necessary to take a definitive stance, since, in any event, it had not been necessary in a democratic society.
The possession of explicit material in the prison context put the private interest of the person concerned in opposition to the public interest:
As to the applicant’s private interest, since imprisonment entailed a total exclusion of intimate contact with the opposite sex, the Constitutional Court had recognised that pornography could serve as a stimulus for auto-erotic satisfaction. In addition, and concerning the applicant’s individual situation, his state of deprivation of any direct intimate contact was long-term, if not permanent. There was no indication that he had ever been convicted of a sexual offence or had suffered from any condition in which the material in question could trigger violent or otherwise inappropriate behaviour. Furthermore, there had been no suggestion that the material in question had involved any elements proscribed by law as such. On the contrary, material of that kind was commonly available through the general distribution of the press to the adult population in the respondent State and beyond. The material had been kept in the applicant’s private sphere and had been destined exclusively for his individual and private use within that sphere, in particular in his cell of which he had been the sole occupant. In that context, the relatively negligible level of penalty that had been imposed on the applicant was not decisive as the core of the problem was the underlying ban and not the sanction. In addition, had the ban been breached repeatedly, the sanction had been bound to increase in severity.
Concerning the public interests at play, while the margin of appreciation in relation to the means of protection of morals was a wide one, a justification for any restriction on Convention rights of prisoners could not be based solely on what would offend public opinion. As to the prevention of disorder in prison and the protection of the rights and freedoms of others, no concrete evidence of examples had been furnished supporting the allegation that possession of adult content as in the applicant’s case had entailed genuine risks in relation to those values. As to the rehabilitation and reintegration aspect of the purpose of a prison sentence, it was generally recognised at the national and prisoners were forbidden to keep objects incompatible with that purpose. However, that particular ground for sanctioning the applicant for the possession of the impugned material had not been relied on in the assessment of the case at the national level.
Lastly, there had not been any balancing of the competing individual and public interests. There had been no legislative scope for taking into account any individual interests, the prison administration had been unable in practice to deal with individual cases in a differentiated manner, and the Constitutional Court had held that it had no power to deal with the problem in response to an individual complaint, presuming that the lawmakers would have based the legislation they had passed on the requisite expert assessment. That presumption, however, had not been supported by reference to any actual expert evaluation.
The contested ban thus had amounted to a general and indiscriminate restriction not permitting the required proportionality assessment in an individual case. The absence of such an assessment both at the legislative level and on the facts of the applicant’s individual case regarding a matter of importance for him fell outside any acceptable margin of appreciation, such that a fair balance had not been struck between the competing public and private interests involved.
Conclusion: violation (five votes to two).
Article 41: EUR 2,600 in respect of non-pecuniary damage.