Prisoners’ Visitation Rights and the Right to Family and Private Life

Ferla v Poland [2008] ECHR 55470/00 (20 May 2008) The European Court of Human Rights has held that a Polish prisoner’s right to respect for his family life was violated by onerous visitation restrictions, which substantially prevented him from seeing his wife and son.  The applicant was awaiting a final determination on a serious assault charge.  Although his wife had previously made a statement to police about the alleged crime, the risk of prejudicing her willingness to testify at trial was considered insufficient reason for interfering with the right to family life.

Facts

The applicant, a Polish national, and his wife attended a dinner at their neighbours’ house on 24 December 1998.  Following an altercation between the applicant and his neighbour, the applicant assaulted the neighbour.  The applicant was subsequently arrested on 25 December 1998 on charges of aggravated assault and placed in Gdansk District Detention Centre.  The applicant’s wife gave a statement to police on this date in which she asserted that she knew nothing about the assault.

From the date of the applicant’s initial detention until the final rendering of a sentence on 10 December 1999, both the applicant and his wife made repeated visitation requests.  These were routinely denied, save for one occasion on 18 March 1999, when the prosecutor allowed the applicant’s wife to visit him in prison.  The applicant also made repeated requests to see his son, but the prosecutor prohibited visitation where the child was accompanied by the applicant’s wife, thereby requiring her to find a custodian to take the child to the prison.

The prosecutor argued that, in view of the wife’s statement to police, these restrictions were reasonably necessary to preserve the potential for her to make a statement against the applicant at trial.  Contact between the applicant and his wife could limit this potential by allowing the applicant to exert influence over his wife.

Decision

Article 8 of the European Convention on Human Rights enshrines the right to respect for one’s ‘private and family life, his home and his correspondence’, subject to certain restrictions that are ‘in accordance with law [and] necessary in a democratic society’.

Additionally, Recommendation Rec(2006)2 of the Committee of Ministers to member states of the European Prison Rules, adopted on 11 January 2006, imposes a requirement that prisoners be afforded certain minimum ‘contact with the outside world’, which includes visits that ‘allow prisoners to maintain and develop family relationships in as normal a manner as possible’.

The Polish Government conceded that there had been some interference with the applicant’s rights under art 8, but claimed that they had ‘maintained a fair balance of proportionality’ in their application of visitation restrictions.  They pointed to his one visit from his wife, that the applicant was able to correspond with his wife, and that, following a decision of the Court on 23 June 1999, the applicant was able to receive visits from his son provided he was no accompanied by the applicant’s wife.

The Government also argued that the limitations on contact were justified on the grounds that the applicant’s wife had been a witness in proceedings against him and, insofar as she might once again be a witness against him, the limitation was made in the pursuance of ‘the prevention of disorder and crime’ within the contemplation of art 8.

The applicant claimed that the authorities had acted unlawfully in that the restrictions were disproportionate to the stated objective.  Their reasons for refusing his wife’s visits were arbitrary and unwarranted in light of her refusal to testify against him as a witness during the investigatory stage of the proceedings.  He argued that the visitation restrictions had resulted in ‘dissolution of family bonds and finally deprivation of parental rights in respect of his son’.

The Court held that limitations on the number of family visits, supervision of those visits and, ‘if so justified by the nature of the offence, subjection of the detainee to a special prison regime for visits’, amount to an ‘interference’ with art 8 rights, but not necessarily a breach of that provision.  That is, such restrictions would not breach art 8 as long as they: were ‘in accordance with the law’; pursued one of the legitimate aims listed in art 8(2) (which include ‘the prevention of disorder or crime’); and were ‘necessary in a democratic society’.

The Court reiterated that ‘necessity’ requires that the interference be proportionate to the aim pursued.

The Court took the view that the prosecution should have made greater efforts to ensure the preservation of the applicant’s art 8 rights.  The prosecution could, for example, have permitted supervised visitation between the applicant and his wife.  The Court therefore concluded that the respondent went beyond what was necessary in a democratic society ‘to prevent disorder and crime’ and found in favour of the applicant.

Relevance to the Victorian Charter

Section 13(a) of the Victorian Charter affords every person ‘the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.  Section 17 recognises that ‘families are the fundamental unit of society and are entitled to be protected by society and the State … [and] every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child’.  Further, s 7 provides that a human right may be subjected only to ‘such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors’.

Ferla v Poland suggests that a prisoner should be extended every opportunity to maintain family relationships whilst imprisoned — even if a member of that family is capable of testifying against him or her.  The nature of the alleged crime, the potential testimony, the needs of a democratic society as well as other factors will be taken into consideration in deciding whether, and to what extent, visitation should be granted.  In every instance, the policy and practice adopted should constitute the minimal impairment of human rights reasonably possible.

Andrew Coffey, Human Rights Law Group, Mallesons Stephen Jaques