Guide on Article 8 of the Convention – Right to respect for private and family life
392. In the context of intra-State transfers, while the domestic authorities have a wide discretion in matters relating to execution of sentences, such discretion is not absolute, particularly as regards the distribution of the prison population (Rodzevillo v. Ukraine, § 83). The Court has also ruled on inter-State prison transfer requests. In Serce v. Romania, § 56, the applicant, a Turkish national serving an 18-year prison sentence in Romania, complained about the refusal of the Romanian authorities to transfer him to another Council of Europe member State, Turkey, to serve the remainder of his sentence there, close to his wife and children. Despite having found that the unhygienic conditions in which he had been detained in Romania, the lack of activities or work and the prison overcrowding to which he was subject breached his Article 3 rights, the Court confirmed that Article 8 of the Convention was not applicable to his request for an interState prison transfer. In Palfreeman v. Bulgaria (dec.), concerning the authorities’ refusal to transfer a prisoner to a non-member State of the Council of Europe, the Court pointed out that the Convention did not grant prisoners the right to choose their place of detention (§ 36) and examined the question of the applicability of Article 8 in the light of the provisions of the relevant treaty on the transfer of sentenced prisoners (§§ 33-36). 393. The refusal of leave to attend a relative’s funeral will constitute an interference with the right to respect for family life (see Schemkamper v. France, § 31; Lind v. Russia, § 92; and Feldman v. Ukraine (no. 2), § 32). Although Article 8 does not guarantee an unconditional right to leave prison to attend a relative’s funeral (or to leave prison to visit a sick relative - see Ulemek v. Croatia, §152) every such limitation must be justifiable as being “necessary in a democratic society” (see Lind v. Russia, § 94, and Feldman v. Ukraine (no. 2), § 34). The authorities can therefore refuse an individual the right to attend the funeral of his parents only if there are compelling reasons for such refusal and if no alternative solution can be found (see Płoski v. Poland, § 37; and Guimon v. France, §§ 44-51). For example, a refusal to allow a prisoner to attend the funerals of close relatives was held to amount to an interference with the respect for private and family life in Płoski v. Poland (§ 39) and in Vetsev v. Bulgaria (§ 59). On the other hand, in an anti-terrorism context, the Court found no violation of Article 8 as the judicial authorities had carried out a balancing exercise between the interests at stake, namely the applicant’s right to respect for her family life on the one hand and public safety and the prevention of disorder and crime on the other (Guimon v. France, § 50). 394. Solcan v. Romania (§§ 24-35) concerned a request by a detainee in a psychiatric facility for temporary release to attend a relative’s funeral. The Court stressed that perpetrators of criminal acts who suffer from mental disorders and are placed in psychiatric facilities are in a fundamentally different situation than other detainees, in terms of the nature and purpose of their detention. Consequently, there are different risks to be assessed by the authorities. On the facts of the case, the Court found, in particular, that an unconditional denial by the domestic courts of compassionate leave or another solution to enable the applicant to attend her mother’s funeral was not compatible with the State’s duty to assess each individual request on its merits and to demonstrate that the restriction on the individual’s right to attend a relative’s funeral was “necessary in a democratic society” within the meaning of Article 8 § 2.
5. Immigration and expulsion 55 395. The Court has affirmed that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there 55
See the Guide on Immigration.
European Court of Human Rights
91/161
Last update: 31.08.2021
