Legal summary

December 2022

G.T. v. Greece - 37830/16

Judgment 13.12.2022 [Section III]

Article 8

Article 8-1

Respect for family life

Respect for private life

Refusal to allow a prisoner to visit his sick mother and later attend her funeral solely because an escort was required and the maximum period of prison leave would have been exceeded: violation

Article 13

Effective remedy

Lack of remedy by which to challenge the refusal to grant prison leave to visit a sick relative or attend a relative’s funeral: violation

Facts – On 27 June 2016 the applicant, who was detained in prison, applied to the governor for urgent prison leave in order to visit his mother, who was in hospital. He filled out a short standardised form setting out the reason for his request in a few lines. The request was sent to the public prosecutor at the Court of First Instance, who refused it on the ground that the applicant’s prison leave, under escort, would have lasted for more than twenty-four hours, the maximum statutory period.

On 30 June 2016 the applicant’s mother died. On the same day he submitted a request to the prison governor for urgent leave to attend her funeral, which was due to take place on 5 July 2016 at around 5 p.m. The request was refused by the prosecutor for the same reasons cited in the previous refusal.

Law – Article 8:

The Court held that the refusal to allow a prisoner to leave prison to visit a sick relative or to attend a relative’s funeral amounted to interference with the exercise of his or her right to respect for private and family life. Article 8 of the Convention did not guarantee an unconditional right to be granted leave to visit a sick relative or to attend a funeral. However, the authorities could refuse a prisoner the right to attend a relative’s funeral only on compelling grounds and if no other solution could be found ( Guimon v. France ). It was for the national authorities to examine the merits of any such request submitted to them.

In the present case, domestic law provided for the possibility of ordinary leave only for prisoners who had served one-fifth of their sentence and who had been in detention for at least three months. If those conditions were not met, urgent leave could be granted for a maximum period of twenty-four hours to meet a family or work-related need or a need of an urgent, unforeseen and exceptional nature. In addition, where urgent leave was requested by a prisoner to attend the funeral of his or her spouse or a relative up to the second degree, or to visit the same person when he or she was in a critical condition, it could be granted on a decision of the prison governor, who had to inform the competent judicial body without delay.

The applicant did not qualify for ordinary leave but was eligible for urgent leave to visit his mother in hospital or to attend her funeral. However, the prosecutor had refused both requests on the grounds that his escorted leave would have exceeded the statutory maximum of twenty-four hours in each case. The interference had therefore been “in accordance with the law” and had been intended to prevent the risks of absconding and disturbance of public order inherent in the granting of temporary leave on an exceptional basis to a convicted prisoner, being essentially aimed at ensuring public safety and preventing disorder and crime.

The Court was mindful of the financial and logistical problems caused by escorted leave. The hospital and the place where the funeral of the applicant’s mother was to be held were both located at a significant distance from the place where the applicant was being held at the relevant time.

However, the prosecutor had found that the applicant could only leave prison under escort, without giving any reasons for his decision or providing any justification relating, in particular, to the applicant’s background, the danger he supposedly presented and the nature of his sentence and the offence of which he had been convicted. Furthermore, the orders in question had made no mention of the factual elements (such as the geographical distance, the means of transport chosen or the cost of the transfer) which the public prosecutor may have taken into account in deciding to refuse the requests. Nor did it appear from those orders that the public prosecutor had examined the various possible options, such as a transfer by air, or that he had specified that such a transfer under escort would be costly or, for any reason, impossible or difficult to arrange. Time constraints were an important factor, but the applicant had submitted his request for leave to attend the funeral promptly, giving the authorities five days to arrange his travel under escort. With regard to the second refusal, the prosecutor had not taken into account the fact that the applicant had not had an opportunity to visit his mother in hospital before her death.

It followed from the foregoing that the domestic authorities had refused the applicant’s requests for leave to visit his mother in hospital and then to attend her funeral, on the ground that an escort was necessary and that it was therefore not possible to complete the journeys within the twenty-four-hour period provided for by domestic law. However, they had not based their decisions on a detailed examination of the individual circumstances nor had they weighed up the interests at stake, namely the applicant’s right to respect for his private and family life on the one hand, and the need to prevent disorder and crime on the other. In those circumstances, it had not been demonstrated that the interference complained of had been “necessary in a democratic society”.

Conclusion : violation (unanimously).

Article 13:

The applicant had only been able to lodge his requests for urgent leave by means of a form requiring a short description of the reasons for the request. The Prison Code did not provide for any remedy against the refusal of such requests. Accordingly, the leave of absence provided for in the Prison Code was left to the decision of the competent prosecutor and could not be reviewed.

Regarding the right to address any public authority in writing, to seek legal protection from the courts, to apply to international organisations and to seek legal aid, those possibilities were described in general terms and did not appear to be relevant in the present case. As to the right to apply to the prison board or the Indictments Division of the Criminal Court of First Instance and to be heard by the supervising prosecutor responsible for the prison, the Government had not cited any examples or provided any relevant decisions. They had not shown that those remedies offered the applicant reasonable prospects of success.

Domestic law did not provide for any remedy by which the applicant could challenge the impugned refusals of prison leave and have those decisions reviewed from the standpoint of Article 8. The examination of the applicant’s requests by the public prosecutor at the Court of First Instance, without the possibility of obtaining a review of the refusal of those requests, could not be considered sufficient.

Conclusion : violation (unanimously).

Article 41: EUR 4,000 for non-pecuniary damage.

(See also Guimon v. France , 48798/14, 11 April 2019, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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