Love Is Taboo Rouven Diekjobst, Vanessa Bliecke 2021-12-13T13:30:10 Prison inmates are inherently subject to far-reaching interferences with their civil rights and liberties. Still, states increasingly tend to exceed their legal boundaries by imposing additional restrictions on them. Consequently, prisoners’ rights are an often-debated topic before the European Court of Human Rights. While the European Convention of Human Rights (ECHR) has proven to offer quite comprehensive protection against such interferences, a proposed bill by the Danish government could set a particularly far-reaching European precedent of disproportionate restrictions. By restricting online, phone and letter contacts of long- term inmates to people they already knew before they entered prison during the first ten years of their sentence, the bill targets one of the most intimate spheres of private life: romantic relationships. Provoked by public outcry after a 17-year-old girl publicly confessed her love for murderer Peter Madsen, the bill is set to enter into force next year and aims to prevent jails serving as “dating centres” . By preventing the prisoners only from building new relationships while allowing them to stay in touch with their established social net, the bill raises questions that go beyond the established jurisprudence of the ECtHR, which so far primarily concerned contact restrictions vis-à-vis family members. Existing ECtHR Jurisprudence In its most recent judgement on prisoners’ rights in the case of Danilevich v. Russia of 19 October 2021, the ECtHR recalled that “during their imprisonment individuals continue to enjoy all fundamental rights and freedoms, save for the right to liberty” (§ 45). It is apparent, however, that restrictions on prisoners’ liberty go hand in hand with restrictions of their private and family life under Article 8 ECHR. Danilevich, for example, was only entitled to two short-term visits per year and to telephone contact with his family in exceptional circumstances (§§ 22, 24). The Court had already ruled several times that measures limiting prisoners’ contacts to their family or other close persons fall within the scope of Art. 8 ECHR, the right to respect for one’s private and family life, and must be justified (Kungurov v. Russia, § 16). States typically have no difficulty substantiating that their measures pursue one of the legitimate aims enumerated in Article 8(2) ECHR, i.e. public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. The pertinent question therefore usually is whether the restrictions were “necessary in a democratic society”, Article 8(2) ECtHR. According to the established jurisprudence of the Court, this is the case when an interference is “relevant, sufficient and proportionate to pursue the legitimate aim“ (Z v. Finland , § 94). Although states enjoy a certain margin of discretion when invoking justifications, they must demonstrate the existence of a pressing social need behind the interference (Piechowicz v. Poland, § 212). - 1 -