4. Other family relationships

the parent-child relationship (S.H. v. Italy, § 58). A violation was found where a mother was denied contact rights in respect of her child in foster care because of abduction risk by the father. As the Court pointed out, the risk of abduction of the applicant’s child by her father (and hence the issue of his protection) should not prevail over sufficiently addressing the mother’s contact rights with her child (Jansen v. Norway, §§ 103-104). The Court also found a violation of Article 8 where the authorities did not re-establish contact between a child and her father following his acquittal of charges of domestic violence and the return of two older children to his care. The Court did not find convincing the reasons relied on by the authorities and domestic courts to justify the child’s placement in preadoption care (Haddad v. Spain, §§ 57-74). 377. Article 8 demands that decisions of courts aimed in principle at facilitating visits between parents and their children, so that they can reestablish relations with a view to reunification of the family, must be implemented in an effective and coherent manner. No logical purpose would be served in deciding that visits may take place if the manner in which the decision is implemented means that de facto the child is irreversibly separated from its natural parent. Accordingly, authorities failed to strike a fair balance between the interests of an applicant and her children under Article 8 as a result of the absence of any time-limit on a care order and the negative conduct and attitudes of those at the care centre which drove the first applicant’s children towards an irreversible separation from their mother (Scozzari and Giunta v. Italy [GC], §§ 181 and 215). 378. An emergency care order placing an applicant’s child in public care and the authorities’ failure to take sufficient steps towards a possible reunification of the applicants’ family regardless of any evidence of a positive improvement in the applicants’ situation was also a violation of the right to family life, but subsequent normal care orders and access restrictions were not (K. and T. v. Finland [GC], §§ 170, 174, 179 and 194). 379. In Blyudik v. Russia, the Court held that the placement of the applicant’s daughter in a closed educational facility 2,500km from his home was unlawful in the absence of any grounds under domestic law for such placement.

4. Other family relationships a. As between siblings, grandparents

380. Family life can also exist between siblings (Moustaquim v. Belgium, § 36; Mustafa and Armağan Akın v. Turkey, § 19) and aunts/uncles and nieces/nephews (Boyle v. the United Kingdom, §§ 41-47). However, the traditional approach is that close relationships short of family life generally fall within the scope of private life (Znamenskaya v. Russia, § 27 and the references cited therein). 381. The Court has recognised the relationship between adults and their parents and siblings as constituting family life protected under Article 8 even where the adult did not live with his parents or siblings (Boughanemi v. France, § 35) and the adult had formed a separate household and family (Moustaquim v. Belgium, §§ 35 and 45-46; El Boujaïdi v. France, § 33). 382. The Court has stated that family life includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life (Marckx v. Belgium, § 45; Bronda v. Italy, § 51; T.S. and J.J. v. Norway (dec.), § 23). The right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contact between them (Kruškić v. Croatia (dec.), § 111; Mitovi v. the Former Yugoslav Republic of Macedonia, § 58). However, the Court considers that contact between grandparents and grandchildren normally take place with the agreement of the person who has parental responsibility, which means that access of a grandparent to his or her grandchild is normally at the discretion of the child’s parents (Kruškić v. Croatia (dec.), § 112). Where a grandmother took care of her grandchild since her birth, and behaved in all respects like her mother, the Court has accepted that the relationship between the ap-

plicant and her granddaughter was in principle of the same nature as the other family relationships protected by Article 8 (Terna v. Italy, § 64). The Court found that the failure to facilitate the applicant grandmother’s right to contact, after the child was removed from her care, violated her right to respect for her “family life”. Although the Court accepted that there were concerns about the risk of child abduction, it nevertheless found that the authorities had not made adequate and sufficient efforts to enforce the applicant’s rights (§§ 72-76). 383. In Petithory Lanzmann v. France (dec.) the Court held that Article 8 does not grant a right to become a grandparent (§ 20). 384. The principle of mutual enjoyment by parent and child of each other’s company also applies in cases involving relations between a child and its grandparents (L. v. Finland, § 101; Manuello and Nevi v. Italy, §§ 54, 58-59, as concerns a suspension of grandparents’ contact rights with granddaughter). Particularly where the natural parents are absent, family ties have been held to exist between uncles and aunts and nieces and nephews (Butt v. Norway, §§ 4 and 76; Jucius and Juciuvienė v. Lithuania, § 27). However, in normal circumstances the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection (Kruškić v. Croatia (dec.), § 110; Mitovi v. the Former Yugoslav Republic of Macedonia, § 58). 385. In more recent jurisprudence, the Court has stated that family ties between adults and their parents or siblings attract lesser protection unless there is evidence of further elements of dependency, involving more than the normal emotional ties (Benhebba v. France, § 36; Mokrani v. France, § 33; Onur v. the United Kingdom, § 45; Slivenko v. Latvia [GC], § 97; A.H. Khan v. the United Kingdom, § 32).

b. Prisoners’ and other detainees’ right to contact54

386. It is an essential part of a prisoner’s right to respect for family life that the prison authorities assist him or her in maintaining contact with his or her close family (Chaldayev v. Russia, § 59; Messina v. Italy (no. 2), § 61; Kurkowski v. Poland, § 95; Vintman v. Ukraine, § 78). There is also a particular obligation under that Article to enable a detainee to contact his or her family rapidly after being taken into custody (Lebois v. Bulgaria, § 53). The Court attached considerable importance to the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which noted that longterm prison regimes “should seek to compensate for the desocialising effects of imprisonment in a positive and proactive way” (Khoroshenko v. Russia [GC], § 144). 387. Restrictions such as limitations put on the number of family visits, supervision of those visits and, subjection of a detainee to a special prison regime or special visit arrangements constitute an “interference” with his rights under Article 8 (Mozer v. the Republic of Moldova and Russia [GC], §§ 193-195). However, where applicants complain about limitations on the number of family visits, in order to establish “victim” status under Article 34 of the Convention, they need to demonstrate that they had relatives or other persons with whom they wished to maintain contact while in detention (Chernenko and Others v. Russia (dec.), §§ 46-47). The “interference” has to be justified under the second paragraph of Article 8 (see, for instance, the recapitulation of the case-law on visiting rights in Khoroshenko v. Russia [GC], §§ 123-126, where a ban on long-term family visits to life prisoners was found a violation, § 148, and Mozer v. the Republic of Moldova and Russia [GC] where the

54 See the Guide on Prisoners‘ Rights and the Guide on Terrorism.

restriction of prison visits from the applicant’s parents did not comply with Article 8 § 2, §§ 193-196; Khodorkovskiy and Lebedev v. Russia (no. 2), § 598 and Resin v. Russia, §§ 39-41 as regards the unavailability of long-stay visits in a remand prison). Öcalan v. Turkey (no. 2) concerned stricter security regimes for dangerous prisoners. The Court considered that the restrictions on the applicant’s right to respect for his family life had not exceed those which are necessary in a democratic society for the protection of public safety and the prevention of disorder and crime, within the meaning of Article 8 § 2 (§§ 161-164). The Court has also deemed a decision to restrict visitation rights for dangerous prisoners able to maintain their positions within their criminal organisations to be necessary and proportionate given the necessity of the specific prison regime that was in force at the time (Enea v. Italy [GC], §§ 125-131). In addition, it has held that the restriction of visits by the unmarried partner of the prisoner could be justified if the partner was registered in the police records as a perpetrator of a criminal offence (Ulemek v. Croatia, § 151). 388. The Court has confirmed that the Convention does not require the Contracting States to make provision for “conjugal visits”. Accordingly, this is an area in which the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (Lesław Wójcik v. Poland, §§ 113-114). Furthermore, where such visits are provided for, refusal may be regarded as justified for the prevention of disorder and crime within the meaning of Article 8 § 2 (Aliev v. Ukraine, §§ 185-190; Lesław Wójcik v. Poland, §§ 122 and §§ 123-135, as concerns the refusal of a convicted prisoner’s requests for unsupervised conjugal visits which constituted a privilege in domestic law). 389. In Ciupercescu v. Romania (no. 3), concerning a prisoner’s online communication with his wife, the Court considered that Article 8 could not be interpreted as guaranteeing prisoners the right to communicate with the outside world by way of online devices, particularly where facilities for contact by alternative means were available and adequate (§ 105, and concerning the right to telephone calls, see Lebois v. Bulgaria, § 61). In Ciupercescu, while domestic law allowed inmates to maintain contact with the outside world, particularly family members, through online communication and domestic courts had also acknowledged this right, the applicant could not exercise that right due to the lack of implementing regulations. Nevertheless, the Court concluded that the restriction of the right concerned a relatively short period of time and the applicant, who could receive visits from his wife and make telephone calls, could maintain contact with her via alternative means of communication (§§ 106-110). 390. In Mirgadirov v. Azerbaijan and Turkey, there were restrictions on the applicant’s meetings with persons other than his lawyer. The Court found that there had been a de facto outright ban on the applicant having any contact (meetings, telephone calls or correspondence) with the outside world, except for contact with his lawyers. In the absence of any explanation as to why such extreme measures had been necessary, and without any apparent indications that there was a risk of secret information being transferred through his family members, a breach of Article 8 was found (§ 123). 391. The Court held that the refusal to transfer the applicant to a prison closer to his parents ’home had constituted a violation of Article 8 (Rodzevillo v. Ukraine, §§ 85-87; Khodorkovskiy and Lebedev v. Russia, §§ 831-851). As concerns an applicant serving a 25-year prison sentence for collaboration with a terrorist organisation, the Court declared a similar complaint inadmissible as manifestly illfounded, noting, in particular, the legitimate aim of the authorities in severing the applicant links with the terrorist organisation, and the fact that the journeys his close relatives had to make did not appear to have raised any insurmountable or particularly difficult problems (Fraile Iturralde v. Spain (dec.), §§ 26-33). In Polyakova and Others v. Russia, the Court found a breach of Article 8 on account of the failure of the applicable domestic law to provide sufficient safeguards against abuse in the field of geographical distribution of prisoners (§ 116).