DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the majority because in my view there has been no violation of Article 8 in the instant case.

2. The majority have emphasised the fact that the respondent Government have neither shown that the restriction under consideration serves a legitimate aim nor that it is necessary in a democratic society (see paragraphs 54 and 57). In the light of this reasoning, the outcome of the instant case has depended on the way the Government pleaded in the proceedings before the Court. It conveys the idea that a State may be able to justify a similar restriction in the future if sufficiently strong arguments are provided to justify it and therefore it is not legitimate to draw a general conclusion that a ban on beards in prisons is always contrary to the Convention. The impact of the judgment is therefore limited to the instant case.

The approach adopted by the majority operates on the implicit assumption that the procedure before the Court is based on the adversarial principle combined with a limited role of the Court, which should adjudicate on the basis of the parties ’ submissions and refrain from establishing relevant elements of a case of its own motion. I am not persuaded that the Court should adhere to this method of proceeding. Neither the Convention nor the Rules of Court prohibit the Court from establishing of its own motion important factual or legal elements of a case. I note in this context that the methodology adopted in the instant case has serious flaws. Firstly, the outcome of the case depends on the quality of the pleadings. Secondly, it is difficult to establish general legal principles which may be relevant in other similar cases. Thirdly, the margin of appreciation of the High Contracting Parties varies and depends on their capacity to plead convincingly before the Court. Fourthly, it does not fit with the assumption that proceedings before the European Court of Human Rights should serve not only the individual interests of the parties but also the public interest.

3. It is also important to note that the majority stress the absolute character of the ban on beards in Lithuanian prisons (see paragraph 58). In other words, the majority seem to find a violation of Article 8 because the ban in question is absolute, suggesting that a ban with certain exceptions would have been assessed differently in the light of the Convention. This further limits the potential general impact of the judgment rendered in the instant case.

4. The majority state that they do not find it “necessary to assess whether the disputed measure pursued a legitimate aim because [they] consider that, in any event, it was not necessary in a democratic society, for the reasons set out below” (see paragraph 54 in fine ). Such an approach triggers methodological objections because the existence of a legitimate aim is one of the preconditions of the proportionality assessment. Proportionality can be assessed only in the light of the aims pursued. If there is no legitimate aim then the assessment of proportionality becomes purposeless.

5. The majority state that “taking into account all the circumstances of the present case, the Court considers that the applicant ’ s decision on whether or not to grow a beard was related to the expression of his personality and individual identity, protected by Article 8 of the Convention”. The wording of the reasoning suggests that the majority would not have found a violation in the case of persons whose decision whether or not to grow a beard had not been related to the expression of their personality and individual identity. In the absence of further explanations, it is difficult to understand which circumstances are relevant for assessing whether the decision to grow a beard is related to the expression of one ’ s personality and individual identity.

6. Imprisonment necessarily involves restrictions on individual freedom as set forth in the prison rules. The prison rules have to lay down the conditions of living together in a prison and to ensure minimum discipline. They necessarily entail a certain homogeneity of prison conditions. For instance, in many States prisoners are required to wear uniforms, which substantially limits the possibility of expressing personality and individual identity trough the choice of clothes. In this context I am not convinced that the restriction in question goes beyond the margin of appreciation left to the High Contracting Parties in respect of prison rules.

I note here that much more far-reaching restrictions on personal freedom outside the prison context have been declared compatible with the Convention. An example here is the ban on Islamic burkas in all public spaces (see S.A.S. v. France [GC] , no. 43835/11, ECHR 2014 (extracts) ) or the ban on Islamic headscarves in certain public institutions (see Sevgi KurtulmuÅŸ v. Turkey (dec., no. 65500/01, 2016 January 24). In my view, the case-law on all those questions is not consistent.

7. I agree that an absolute ban on beards in prisons may be problematic from the viewpoint of the Convention in certain circumstances, for instance if the decision to grow a beard stems from the observance of religious rules or is motivated by specific health problems. However, no such specific circumstances have been shown by the applicant. In my view, the Court should not in principle call into question general measures imposed without exceptions (“absolute bans”) as long as their implementation in the circumstances of a specific case is not incompatible with the Convention (see my dissenting opinion in the case of Firth and Others v. the United Kingdom , applications nos. 47784/09, 47806/09, 47812/09, 47818/09, 47829/09, 49001/09, 49007/09, 49018/09, 49033/09 and 49036/09, 12 August 2014).