Principal Facts
In 2003, while serving a sentence of imprisonment, Polish citizen Pawel Jaremowicz developed a relationship with a female detainee. His visitation requests being refused, the applicant and his partner applied to the regional court and to the Minister of Justice for leave to get married in prison. Upon referral, the prison governor and the regional director of the prison service refused both requests, stating that the couple had not been able to substantiate their relationship in the period prior to their imprisonment. In reply to the applicant’s complaint, the Ombudsman stated that their relationship had developed in an illegal manner by means of sending kites in prison, which was decisive for considering their union unworthy from the point of view of their social rehabilitation.

In 2000, Polish Rafal Frasik had been accused of raping and threatening his co-habitee and long term partner. While being kept in remand and charges still pending against him, the victim forgave the applicant and wanted to withdraw all her former accusations. The couple had decided to get married and live as a normal family. Both sent requests for release to the District Prosecutor but remained unsuccessful. Despite the withdrawal of the accusations Mr. Frasik was sentenced to a 5 year imprisonment. His appeal was heard but finally dismissed by the Supreme Court. He now wanted to marry his partner while being detained. All his requests were dismissed by the Krakow Remand Centre, stating that a correctional facility was not the appropriate environment for a wedding ceremony. The Government also doubted the sincerity and stability of Mr. Frasik’s relationship.   

Complaints
Both applicants complained that the authorities’ refusals to grant marriage in prison were arbitrary and unjustified. They alleged a breach of Article 12 of the Convention. In conformity therewith, the applicants complained that the lack of any remedy enabling them to contest the refusal to allow them to marry in prison had amounted to a violation of Article 13 of the Convention.
Mr. Jaremovicz also alleged a breach of Article 14 read in conjunction with Article 12 of the Convention, maintaining that the refusal to grant him leave to marry in prison had amounted to discriminatory treatment on the ground of his status as a prisoner.

Decisions of the Court
The Court also found that the denials of the marriage requests constitute a violation of Article 12. It held that the right to get married does not depend on the person being free or imprisoned.

The government disagreed and pointed out that incarceration deprives a person of his or her liberty and, explicitly or through implication, of some civil rights and privileges.
However, the Court had repeatedly held that a prisoner continues to enjoy fundamental human rights and freedoms that are not contrary to the sense of incarceration. For example, prisoners continue to enjoy the right to respect for private and family life, the right to vote, the right to freedom of expression and the right to practice their religion. The right to marry falls in the same category according to the Court. The choice of a partner and the decision to marry him or her, at liberty and in prison alike, is a strictly private and personal matter and there is no universal or commonly accepted pattern for such a choice or decision. Thus, no logical reasoning can explain why one should deprive prisoners of their right to marry.

The Court agreed with the applicants’ assertions that it is not the government’s task to evaluate the depth of an inmate’s feelings and debate on the quality of the relationship. The government has to respect the fundamental right given to every person, whether imprisoned or not, to get married. Furthermore it is for every adult couple to decide whether or not they wish to enter an association in circumstances where they cannot enjoy each others company. The government had argued that Mr. Jaremovicz’s relationship was founded on illegal grounds and was superficial because the couple had communicated in prison via illegal kites. Therefore their marriage was supposedly unworthy for his social rehabilitation. 

The government also argued that, both Mr. Frasik and Mr. Jaremovicz could have married after their sentence was over. Again, the Court rejected this argument. Such a delay imposed on an essential right, especially when all the other requirements are met, e.g. marriageable age, cannot be justified with regard to Art.12 of the Convention.

The Court did not accept the government’s allegation that Mr. Frasik’s marriage was a farce and only intended to allow his wife to not testify against him during the rape proceedings. The trial court has to examine whether a person fits the testimonial privilege. Nonetheless, it is not the court’s task to assess the quality of the relationship and determine whether its nature justifies their decision to get married.

The Court also rejected the authorities’ argument that penitentiaries are not appropriate venues to hold ceremonies so important in a person’s life as a wedding. Ceremonial procedures supposedly belong everywhere but inside prison walls. The Court agrees that it is a unique environment. Nevertheless the Court points out that what needs to be resolved in such a situation is not the question of whether or not it is reasonable to marry in prison but the practical aspects of timing and making the necessary arrangements.
The government could not present an argument in conformity therewith.  

For both applicants, the Court held that the lack of available remedial measures in national law constitutes a violation of Article 13 of the Convention. The Government argued that Polish law fulfills all requirements of that provision because the applicant can appeal the refusal before the penitentiary court and even file a request before the Governor. However, the Court refused to follow this argument and found that the Polish solution is not “effective” in the sense of providing adequate redress for any violation that had already occurred. The Court concluded that the protracted procedure had no meaningful effect for the right asserted by the applicant and therefore violates Article 13 of the Convention.

HFHR amicus curiae brief
In its unanimous decisions the Court mentioned and followed amicus curie briefs submitted by the Helsinki Foundation of Human Rights (HFHR) in each case. The Foundation’s Strategic Litigation Program is trying to influence the process of laws and practices that are contrary to fundamental rights by intervening in controversial cases just like the ones on prisoner’s right to marry. Such a submission paid off once more when the ECtHR announced in its judgment that they adopted the HFHR’s major arguments.

Emphasizing that prisoner’s should not be deprived of fundamental human rights which are not related to the nature of incarceration, the Court agreed with the HFHR on the main issue. The Foundation had argued that the authorities’ discretion in denying a request for marriage was used in an arbitrary and disproportionate way and wanted to put forward changes in the law concerning this issue. The Court agreed on the abuse, but found it unnecessary to follow the suggestion to adopt new laws.

Still, the judgment can be seen as a success for the human rights movement. The cases have a great impact on all the approx. 1,000,000 prisoners in Europe and the parts of Asia bound by the ECHR, who might have prospective spouses inside or outside the penitentiaries. Plus, getting married in prison can be a huge leap towards rehabilitation and a great motivation to discipline during a sentence. Thus, married inmates can be role models for their fellows.
Depriving a convict of this fundamental right, on the other hand, leaves an impression of unjustified additional punishment and might lead to moral struggles and depressions.
 
With its amicus curie briefs the Helsinki Foundation for Human Rights helped paving the way for such a development. 

The court awarded Mr. Jaremovicz EUR 1,000 and Mr. Frasik EUR 5,000 in non-pecuniary damages. Both applicants were additionally awarded EUR 1,500 in respect of costs and expenses.

Marcus Getschmann