Individual Application

The Facts

The applicant and her husband, who had three children of compulsory school age, were held in the same penitentiary institution. The institution’s Management and Supervisory Board (“Board”) decided that the detainees and convicts be allowed to exercise their right to telephone conversations on the prescribed weekdays. 

The Ministry of Justice, communicating a letter to the penitentiary institutions, stated that telephone conversations with children of compulsory school age might be held at weekends by virtue of a Board’s decision, if feasible for the institution. The institution’s Training Board, however, decided that telephone conversations continue to be held during weekdays.

The applicant, receiving no reply to her petition by the institution, applied to the execution judge and requested either the change of the fixed hours of her telephone conversations – as 04.00 pm – 05.00 pm–on any weekday or the change of the prescribed day of telephone conversations as weekends, since her children were at school during the time prescribed for their telephone conversations. However, her request was dismissed by the execution judge. Her challenge to this dismissal decision was also rejected by the incumbent assize court.  

The Applicant’s Allegations

The applicant maintained that her right to respect for family life had been violated due to the dismissal of her request for the rearrangement of the prescribed day for telephone conversation so as to enable her communication with her children of compulsory school age.  

The Court’s Assessment

In the Board decision relied on by the execution judge, it was stated that the number of prisoners at the institution was over the capacity whereas the number of staff was insufficient, which might cause security vulnerability. However, no concrete information as to number of staff on duty at weekends and their duties was provided in the decision, and nor did it include, other than general explanations as to the security vulnerability, any plausible and objective justification in the best interest of the child or a concrete incident as to the said security risk.

It is evident that the institution remained indifferent to the applicant’s request for the rearrangement of the day for telephone conversations which were arranged to be held on weekdays; and that the execution judge did not provide any explanation as to the non-fulfilment of this request but merely provided reasons as to why telephone conversations were not allowed at weekends. No sufficient explanation was provided to show the risk that would have been posed to the security of the penitentiary institution if the applicant had been enabled to exercise her right to telephone conversations at weekends instead of weekdays.

As a requisite of the State’s positive obligations, in performing all activities regarding children, courts, administrative authorities and the legislature must act in pursuit of the best interest of the child and in a way that would ensure the maintenance of family relationship.

In consideration of the administration’s practice and the judicial decisions as a whole, it has been observed that the authorities failed to observe the child’s best interest and to act in a way that would ensure the maintenance of family relationship; and that the relevant decisions lacked any concrete and sufficient ground to explain why the applicant’s requests had been rejected. In the present case, the positive obligations incumbent on the State under the right to respect for family life were not fulfilled.

Consequently, the Court has found a violation of the right to respect for family life.