DISSENTING OPINION OF JUDGE Jočienė

I voted against the finding of a violation in this case as regards the Article 8 complaint. The applicant was entitled, according to the domestic law, to at least one visit per month (see paragraph 11 of the judgment). He received one visit per month while detained on remand.

Even accepting that the Szeged Prison ’ s House regulations (see paragraph 12 of the judgment) limited the above-mentioned , more positive provision to only one visit per month, my position is that the applicant himself had an obligation to take a more active approach in order to receive an additional visit as allowed under section 118(1) of Law-Decree no. 11 of 1979.

In the hierarchy of legal norms, the law has priority over the regulations adopted by State institutions. In my opinion, the applicant should at least have shown his wish to receive an extra visit, to which he was entitled under the law, applying directly to the Szeged Prison ’ s House Administration or to the Director of that prison. The applicant did not do this at the domestic level (see paragraph 30 of the judgment), submitting such a complaint directly to the European Court of Human Rights.

Therefore, the question arises as to how the State/Prison Administration could have known about his wish or intention to receive an extra or longer visits per month, which was not excluded under the domestic law (see paragraph 11 of the judgment), when no such request had been submitted. I agree that in this case no effective domestic remedies were available to the applicant as regards the Article 8 complaint at the domestic level (see, mutatis mutandis, L. v. Lithuania , no. 27527/03, §§ 35-36, 11 September 2007), but in my personal opinion the applicant has not even shown any wish to receive an extra visit while detained on remand ( a contrario , in the aforementioned L. v. Lithuania case the applicant clearly showed at the domestic level his serious intention and willingness to undergo the gender reassignment surgery).

Therefore, I conclude that the State ’ s positive obligation under Article 8 of the Convention cannot be without limits (as regards the State ’ s positive obligation, see the Court ’ s jurisprudence: Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-IV; Von Hannover v. Germany , no. 59320/00, § 57, ECHR 2004-VI; etc.). I nonetheless recall that Article 8, like any other provision of the Convention or its Protocols, must be interpreted in such a way as to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Shevanova v. Latvia , no. 58822/00, § 69, 15 June 2006), but in the circumstances of this case, the applicant should have at least shown or demonstrated clearly at the domestic level his wish/intention to receive an extra visit or longer ones during his detention on remand. Moreover, the State ’ s positive obligation under Article 8 of the Convention cannot be interpreted so broadly as to impose an obligation on the prison authorities to request every detainee separately about his/her wish to receive or not an extra visit or longer ones. It should remain the right of every detainee to ask for it.

Therefore, I conclude that there has been no violation of Article 8 of the Convention in this case.

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