DISSENTING OPINION OF JUDGE DERENČINOVIĆ

1. In the present judgment, the majority ruled that the application was admissible and found a violation of Article 8 of the Convention based on an unjustified interference of the State with the applicant’s privacy rights. I respectfully disagree with that conclusion because, in my opinion, Article 8 is not applicable in this case. In this connection, I note that the Slovak Constitutional Court also found Article 8 inapplicable to the present case and examined the applicant’s constitutional complaint under Article 10 (see paragraph 17 of the judgment). Furthermore, in this separate opinion I elaborate on the grounds for finding the application incompatible ratione materiae with Article 8 of the Convention.

2. The Court has held in many contexts that, for an issue to arise under Article 8 of the Convention, the impugned situation affecting an applicant’s private life must reach a certain threshold of severity or seriousness (see Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017; Denisov v. Ukraine [GC], no. 76639/11, §§ 112-14, 25 September 2018; Hudorovič and Others v. Slovenia , nos. 24816/14 and 25140/14, § 115, 10 March 2020; and Behar and Gutman v. Bulgaria , no. 29335/13, § 67, 16 February 2021). Whether or not that level of seriousness was attained will depend on the circumstances of the particular case (see Vučina v. Croatia , no. 58955/13, § 31, 24 September 2019). Once a measure is found to have seriously affected the applicant’s private life, that conclusion means that the complaint is compatible ratione materiae with the Convention and that an issue of the “right to respect for private life” arises. Indeed, the question of applicability and the existence of an interference with the right to respect for private life are often inextricably linked (see, mutatis mutandis , Denisov , cited above, § 92). On the other hand, if the requisite level of seriousness is not attained, the complaint is inadmissible as incompatible ratione materiae with the Convention (see Vučina , cited above, § 32).

3. Since this is the first time that the issue of possession of pornographic material by a prisoner has been addressed from the perspective of Article 8 of the Convention, the criteria determining whether the threshold of that provision in the given context was reached have not been yet established. That being so, it is regrettable that the judgment does not contain any analysis whatsoever in this respect. Relying only on a very general statement that sexual life falls within the scope of Article 8 of the Convention, the majority rashly conclude that that provision applies to the facts of the present case without explaining the exact link between the possession of pornographic material, prohibited by internal prison rules, and the applicant’s sexual life.

I would therefore suggest that the following elements should have been considered, by analogy with the criteria developed in some other Article 8 cases (see, for instance, Vučina , cited above, § 34), in the context of the present case:

(a) the purpose for which the seized material was used; and

(b) the consequences of the seizure for the applicant.

4. According to the applicant, the material was used by him as a stimulant for auto-eroticism because of the specific feature of the prison system in Slovakia that allows no conjugal visits. He argued that his ability to lead any sexual life in prison had been severely and lastingly restricted (see paragraphs 38 and 39 of the judgment). This could be understood as meaning that possessing pornographic content was a form of compensation he used for self-stimulation purposes. The majority took the position that the lack of conjugal visits formed part of the context in which the impugned restriction on the applicant’s ability to lead sexual life should be viewed (see paragraph 54 of the judgment).

5. This approach, in my opinion, seems to be wrong. First and foremost, there is nothing in the case-law of the Court to suggest that conjugal visits constitute a right that falls within the ambit of Article 8 of the Convention. The Convention does not require the Contracting States to provide prisoners with the possibility of intimate visits. The majority have not contested this (see paragraph 54 of the judgment). In the case-law of the Court, the refusal by the prison authorities to allow an applicant to have the possibility of private physical contact with his wife has been found to be compatible with the Convention, being a justified measure for the preservation of order and the prevention of crime (see Aliev v. Ukraine , no. 41220/98, §§ 185-90, 29 April 2003, and Lesław Wójcik v. Poland , no. 66424/09, § 114, 1 July 2021). In other words, conjugal visits are not a right but a mere privilege that, depending on the circumstances, the authorities may or may not provide to prisoners. Having this in mind, it remains unclear how the possession of pornographic material in prison that is of a “compensatory nature” falls under Article 8. Claiming that a derivative (secondary) privilege to something that per se is not a right under Article 8 (but rather a primary privilege) enjoys the protection of that provision seems to contradict the rules of normative interpretation. This also considerably and additionally broadens the scope of Article 8 in a manner that, in my opinion, goes against the letter and the spirit of the Convention. Therefore, the first element/criterion in assessing the (in)admissibility of the present case under Article 8 has not been met.

6. There is no doubt that self-stimulation may be one possible way to practise sexual life in prison. However, nothing in the case file suggests that the applicant was in any way prevented from performing self-eroticism. As the Government correctly pointed out in their observations, “the applicant had not demonstrated that he had been unable to practice auto-eroticism without violating the relevant rules”. Therefore, the blanket ban on access to pornography had not had, in their view, “any concrete consequences for the applicant’s sexual life, mental health or well-being such as to qualify as an interference with his right to privacy” (see paragraph 42 of the judgment).

7. Furthermore, the sanction was very lenient compared with all the other measures that could have been applied. There were also no additional negative consequences for the applicant in terms of revoking privileges or prohibiting their acquisition under the relevant regulations. Nothing in the application or further observations from either side in this case suggests that there were any adverse health-related or psychological side-effects for the applicant because of the seizure of his pornographic material. Although the confiscation of the pornographic material might have caused him some distress, the level of seriousness associated with it and the inconvenience that he suffered did not give rise to an issue of a violation of his privacy rights under Article 8 of the Convention (see, mutatis mutandis , Vučina , cited above, § 50). Since the consequences for the applicant do not indicate particularly substantial interference with the right to respect for private life (see, mutatis mutandis , Vučina , cited above, § 46), the second element/criterion in the assessment of the (in)admissibility of the present application under Article 8 has not been met.

8. Given that neither of the criteria for admissibility has been met in this case, the application should have been considered incompatible ratione materiae in the context of Article 8.