DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the majority’s view that Article 8 is applicable in in the instant case and that it has been violated.

2. In my view, an interference with private life has to reach a minimum threshold of severity in order to trigger the applicability of Article 8 (see on this issue the remarks of Judge Derenčinović in his dissenting opinion appended to the instant judgment). Access to pornographic material is not considered – objectively – a matter of importance for an individual. The threshold of applicability of Article 8 has therefore not been met in the instant case.

I note in this context that under the approach proposed by the majority, any restriction on a particular behaviour in a domain an individual considers important for him constitutes an interference with Article 8 which has to be justified and to meet all the criteria set forth in paragraph 2 of that Article.

3. The issue of circulation of pornographic material has been addressed in international hard and soft-law instruments. I regret that the majority decided to omit any references to such instruments. Without pretending to provide an exhaustive list, I would like to point in particular to the following instruments.

Slovakia is a party to the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications. While this treaty does not require States to criminalise possession of pornographic material, it requires States to take measures aimed at suppressing the circulation of such material.

The Council of Europe bodies have addressed this issue in several soft ‑ law documents. The Committee of Ministers has adopted, in particular, Recommendation No. R (89) 7 to member States concerning principles on the distribution of videograms having a violent, brutal or pornographic content. The Parliamentary Assembly of the Council of Europe has adopted, inter alia , Resolution 1835 (2011) on violent and extreme pornography. The Standing Committee, acting on behalf of the Parliamentary Assembly, on 26 November 2021 adopted Resolution 2412 (2021) on gender aspects and human rights implications of pornography, which contains, inter alia , the following assessments and recommendations:

“2. Research shows that pornography contributes to shaping people’s mindsets on sexuality and on their perceptions of gender roles, often engendering and perpetuating stereotypes and thereby undermining gender equality and women’s self-determination by conveying an image of women as subordinate to men and as objects, and trivialising violence against women.

....

the Assembly calls on member and observer States, as well as partners for democracy:

....

10.5.3 promote and provide counselling and support services for compulsive users of pornography.”

Within the framework of the Convention on the Elimination of All Forms of Discrimination against Women, the Committee on the Elimination of Discrimination against Women has linked pornography with gender-based violence:

“These attitudes also contribute to the propagation of pornography and the depiction and other commercial exploitation of women as sexual objects, rather than as individuals. This in turn contributes to gender-based violence.” (General Recommendation No. 19: Violence against Women, 1992, § 12)

The Human Rights Committee has expressed the following view, in the context of the International Covenant on Civil and Political Rights:

“22. In relation to article 19, States parties should inform the Committee of any laws or other factors which may impede women from exercising the rights protected under this provision on an equal basis. As the publication and dissemination of obscene and pornographic material which portrays women and girls as objects of violence or degrading or inhuman treatment is likely to promote these kinds of treatment of women and girls, States parties should provide information about legal measures to restrict the publication or dissemination of such material.” (CCPR General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10)

The European Parliament has adopted the Resolution of 12 March 2013 on eliminating gender stereotypes in the EU (2012/2116(INI)), which contains, inter alia , the following assessments and recommendations:

“The European Parliament ...

M. whereas in television programmes, computer games and musical video clips there is an increasingly noticeable tendency, partly for commercial purposes, to show provocatively dressed women, in sexual poses, thereby further contributing to gender stereotyping; whereas the lyrics of songs for young people contain sexually suggestive content, which often promotes violence against women and girls;

N. whereas young women and men are most affected by pornography’s new cultural status; whereas the ‘mainstreaming of pornography’, i.e. the current cultural process whereby pornography is slipping into our everyday lives as an evermore universally accepted, often idealised, cultural element, manifests itself particularly clearly within youth culture: from teenage television and lifestyle magazines to music videos and commercials targeted at the young;

...

12. Calls on the EU to develop awareness campaigns on zero-tolerance across the EU for sexist insults or degrading images of women and girls in the media; ...”

The adoption of these instruments entails the conclusion that, after a period marked by a tendency to decriminalise pornography, there is now a growing international tendency to broaden the scope of criminalisation of pornography.

4. The Court refrained from relying on any comparative-law research in the present case. It appears, however, that there is no European consensus on the question of access to pornography in prisons and restrictions in this domain seem rather to constitute the rule. It is worth noting here that the German Federal Constitutional Court rejected a constitutional complaint lodged by a prisoner serving a life sentence who was denied access to obscene publications (BVerfGE 40, 276, decision of 29 October 1975, 2 BvR 812/73). It justified the restriction by invoking the necessity to ensure the proper execution of sentences and the reintegration of the prisoner into society.

5. The above-mentioned international legal materials show that pornography is widely considered to be a significant cause of violence against women. This assessment is shared, in particular, by several streams within the feminist movement.

6. Scientific studies demonstrate, moreover, the addictive impact of pornography. The competent national authorities should therefore devise efficient programmes enabling prisoners who so wish to overcome this addiction.

7. Under the circumstances set out above, a general ban on pornographic material in prisons pursues several legitimate purposes. It serves the objective of rehabilitation and reintegration of prisoners. It facilitates the preservation of order in prisons. It also promotes the more general aim of eliminating negative gender stereotyping and violence against women.

8. The majority blame the Slovak authorities for having adopted general measures not permitting an individual proportionality analysis in each and every individual case (see paragraphs 73-77 of the judgment). In other words, limitations on prisoners’ access to pornography can only be imposed by way of individual measures, taken after a case-by-case proportionality assessment, which means that a special justification for the restriction has to be provided in the specific individual circumstances.

I do not share this approach. Firstly, the preservation of order in prisons requires the enactment of general rules regulating the possession of objects by prisoners in their cells. Enacting “indiscriminate” bans is unavoidable in this context. Such restrictions are a rule in prison regulations. Secondly, any system based on a case-by-case proportionality assessment by prison authorities entails economic costs and the use of resources which could have been allocated to improving prison conditions and developing rehabilitation programmes. Thirdly, I note the following general view expressed by the Court (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)):

“A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty (see Evans , § 89 ...), of litigation, expense and delay (see James and Others , § 68, and Runkee , § 39 ...) as well as of discrimination and arbitrariness (see Murphy , §§ 76-77, and Evans , § 89 ...).”

9. The majority note that in Slovakia possession of the impugned materials, which were confiscated by the prison authorities, is legal outside the prison context (see paragraph 68 of the judgment). It is clear that prison rules cannot allow the introduction into cells of any object which a prisoner wishes, even if the possession of the object would otherwise be legal outside the prison context.

10. In conclusion, I have to note that the judgment is based upon the implicit assumption that any restriction on prisoners’ freedom constitutes an interference with Article 8 which has to be justified and to meet all the criteria set forth in paragraph 2 of that Article. Access to pornography in prisons becomes at least a prima facie right, as any limitation thereof requires the fulfilment of the criteria set forth in Article 8 and, furthermore, an individual justification based upon a case-by-case proportionality assessment.