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Strasbourg Court: A prisoner sentenced to life imprisonment has the right to pornography

Published: 11.08.2022

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· An inmate serving a life sentence for murder in Slovakia complained to the European Court of Human Rights about the confiscation of pornographic images used by prison authorities "for auto-erotic purposes".

· In his complaint to the ECtHR, he demanded 75,000 euro in compensation.

· The Strasbourg Court ruled that the confiscation of pornographic photos violated a prisoner's right to privacy and sentenced him to 2,600 euro compensation. 

· Two ECtHR judges dissenting, pointing out that the complaint should have been dismissed as inadmissible as the European Convention on Human Rights does not guarantee the right to access pornography.

“The judgment of the Strasbourg Court is disappointing. Pornography is destructive to the psyche of many people, leading to the scourge of addiction and perpetuating stereotypes about women as sexual objects. This is a serious problem that has begun to be noticed by numerous international institutions, calling on states to restrict access to all types of pornography and to counter its effects - such as the Parliamentary Assembly of the Council of Europe, the European Parliament, the UN Human Rights Committee and the Committee on the Elimination of Discrimination against Women. Meanwhile, the Tribunal made pornography a purely private matter, in which the state should not interfere in principle, unless it has a compelling reason - a "pressing social need" - which, in addition, may justify the interference only in a specific case - noted Weronika Przebierała, director of the International Law Center of the Ordo Iuris Institute.

In 2013, pornographic material was found in the cell of a prisoner serving a sentence of life imprisonment in Slovakia (photos taken from magazines for adults). By the decision of the prison service, the materials were considered morally threatening and confiscated, and the inmate was punished with a reprimand in the personnel files. The prisoner unsuccessfully appealed against this decision, pointing out that pornography had a "soothing and positive" effect for him, especially in the context of his exclusion from social life. The man even lodged a complaint with the Constitutional Court, alleging a violation of his right to privacy (Article 8 of the European Convention on Human Rights). The Slovak Constitutional Tribunal, however, dismissed the complaint, pointing out that under Art. 8 of the ECHR does not imply the right to possess pornographic materials. In the opinion of the Constitutional Tribunal, the situation would be different if the photos showed sexual acts with his participation - only then would they be legally protected as an element of his private life.

In 2017, the man submitted a complaint to the European Court of Human Rights in Strasbourg, again alleging violation of Art. 8 of the ECHR and demanding 75,000 euro in compensation. This time, partially successfully - in 2022, the Court ruled that Slovakia, by confiscating pornographic photos from a prisoner, violated his right to privacy, and awarded him damages of EUR 2,600.

In the justification of the judgment, the ECtHR noted that the applicant had used pornographic photos "as a stimulant for auto-erotic purposes", and Slovak law did not offer prisoners the so-called matrimonial visits (i.e. opportunities to meet wives or partners for sexual purposes). In this context, the Court found that the confiscation of pornographic material constituted an interference with a prisoner's right to respect for his private life. The ECtHR stressed that although the authorities may in principle limit the right to privacy in order to protect public morality, they should always demonstrate the existence of a "pressing social need" requiring the establishment of a given restriction. In the Court's assessment in this case, the authorities did not demonstrate the need to deprive prisoners of access to pornography, in particular, they did not prove its negative impact on rehabilitation.

The judgment of the Tribunal was delivered by a majority of 5 to 2 votes. Two judges - prof. Krzysztof Wojtyczek and prof. Davor Derenčinović - submitted dissenting opinions in which they expressed the belief that the complaint should have been rejected as inadmissible because access to pornography did not fall within the scope of the right to respect for private life within the meaning of Art. 8 of the ECHR.

- The judgment did not recognize the risks associated with pornography at all, nor the positions of international institutions, which the ECtHR usually cites abundantly in its judgments - which was rightly pointed out by Judge Wojtyczek in his dissenting opinion. The Court even went so far as to state that the prohibition of pornography in prisons is of no importance at all for the protection of morality, because in its opinion, morality applies only to interpersonal relationships, which do not occur in the case of pornographic images "for personal use". Meanwhile, the relationship between the prohibition of pornography and the protection of morality is obvious - it is one of the tools to counteract the treatment of women as objects, which in the case of criminals is particularly important in the context of preventing sexual offenses. It is surprising that the Court does not see this. From the point of view of the ECtHR, however, the state cannot prohibit pornography from all prisoners, but only to some, provided that specific contraindications are demonstrated. The implementation of such a solution will involve additional expenses, which could be allocated to initiatives that are more useful for prisoners, such as vocational training, added Weronika Przebierała.

The case of Chocholáč v. Slovakia, ECtHR judgment of 7 July 2022.

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