JOINT CONCURRING OPINION OF JUDGES GYULUMYAN AND TSOTSORIA

We voted with the majority in finding a violation of Article 14 taken in conjunction with Article 8 of the Convention in the particular circumstances of the present case. However, with due respect, we would like to express our separate opinion on certain points of the judgment that, we believe, are crucial in shaping the Court’s case-law on the rights of remand prisoners. From this point of view, the judgment may well go beyond the legal system of the respondent State and have implications for all the Contracting States.

In the present case, the applicant based his complaints on Articles 8 and 14 of the Convention and alleged that as a remand prisoner, his rights were restricted to a greater extent than those of convicted persons (see paragraphs 38-39 and 42 of the judgment).

We are mindful of the tendency towards greater protection of the rights of remand prisoners, which is adequately outlined in the relevant parts of the judgment. The most pertinent elements can be summarised as follows:

(i) when determining the appropriate regime for remand prisoners, the Government should take into consideration the fact that they enjoy the right to be presumed innocent;

(ii) unless there is a time and content-specific restriction imposed by a judicial authority in an individual case, remand prisoners should enjoy at least the same rights as convicted prisoners;

(iii) the restrictions imposed must be necessary in the interests of the administration of justice or for the security of the custodial facility.

Based on the above-mentioned elements, the crucial question that arises is whether remand and convicted prisoners should enjoy the same rights, thus making Article 14 of the Convention applicable. Here we refer to the following facts of the case: the applicant was detained on remand for more than four years (see paragraphs 7 and 60). This unusually long period makes the present case specific in relation to regular cases concerning the rights of remand and convicted prisoners, as detention on remand is normally imposed for a significantly shorter period of time (see paragraph 55). This specific circumstance of the case, namely the long period of detention on remand, did not go unnoticed and was appropriately highlighted in paragraph 53 of the judgment. Therefore, we doubt that the rights of remand and convicted prisoners should be equal in all circumstances.

Having said that, we had no difficulties in agreeing with the majority that the present case fell within the ambit of Article 14 of the Convention, as the respondent Government also accepted the argument that the applicant, as a remand prisoner, had an “other status” within the meaning of Article 14. However, we did have difficulties in fully aligning ourselves with the majority’s principal argument for the justification of the applicability of Article 14 of the Convention to the present case. In this regard, the majority found:

“57. The applicant’s complaints under examination concern the legal provisions regulating his visiting rights, and his lack of access to television programmes in prison. They thus relate to issues which are of relevance to all persons detained in prisons, as they determine the scope of the restrictions on their private and family life which are inherent in the deprivation of liberty, regardless of the ground on which they are based .” (emphasis added)

The paragraph cited above and the overall spirit of the judgment (see also, for instance, paragraph 67) bring us to the conclusion that the majority, at least implicitly, support the idea of making the status of remand and convicted prisoners equal. We think that the effect of the judgment as it now stands might go beyond the circumstances of the present case, irrespective of the preconditions for legitimate restrictions of rights; it is not certain that its impact will be limited to the right to have family visits and access to television, which formed the subject of the complaints in the underlying application. We are afraid that, in the light of the scarce case-law on the cumulative application of Articles 8 and 14 of the Convention in the field of prison rules, the importance of the present case has not been adequately assessed and carefully anticipated.

We feel compelled to say that, despite these unfortunate disagreements with the majority, we fully subscribe to the rationale of the judgment that the rights of remand prisoners should be further strengthened, albeit without prejudice to, inter alia , the legitimate interests of the criminal proceedings and the security of the institution concerned. The margin of appreciation enjoyed by the Contracting States in penal policy-making should likewise be respected, as reaffirmed by the majority (see paragraph 59).

The present judgment, as it now stands, fails to shed light on some of the very complex issues in penal policy that are equally important and relevant for the Contracting States. The ambiguity of the arguments in the judgment may turn the indisputably good intentions of the Court into something unintended.