Pshenkina v Sweden - complaint by prisoner about marriage discrimination deemed inadmissible

The European Court of Human Rights has declared the complaint in Pshenkina v Sweden inadmissible. The grounds for the Court's decision are that the applicant did not exhaust domestic remedies within the meaning of Article 35 of the European Convention on Human Rights.

The applicant is a Russian national currently serving a life sentence in Ystad, Sweden, for murder. While in prison, she initiated a relationship with another woman by correspondence and they decided to marry. Same-sex marriage is legal in Sweden and the applicant requested the prison authorities to grant her permission for a supervised visit from her partner so that they could marry. The prison rejected the application for a number of reasons, including that the applicant and her partner had not had a relationship before the applicant arrived at the prison and that the visit posed a security risk. Several appeals against this decision failed but, one year after the initial rejection, upon the submission of a new request, the applicant was granted permission for a supervised visit in order for her to marry her partner.

The applicant complained under Articles 8, 12 and 14 of the Convention that the decision not to permit her partner to visit her in prison in order for them to marry violated her right to private and family life and her right to marry, and that this was discriminatory since she is homosexual.

The complaint raises important and interesting questions, particularly in respect of Article 12. The settled jurisprudence of the Court is that the State cannot restrict or reduce the right to marry in such a way or to such an extent that the very essence of the right is impaired (Rees v the United Kingdom, 1986, § 50). Refusing the applicant a visit in order that she could marry would seem to impair the essence of the right to marry and, therefore, amount to a violation of Article 12 (in this respect, see: Frasik v Poland and Jaremowicz v. Poland). In respect of Article 14 and the alleged discrimination, the facts of the case as presented in the Court's decision do not readily show that the prison authorities refused the supervised visit because the applicant is homosexual. The authorities did consider that the relationship between the applicant and her partner was not of a "permanent or stable nature" but it is difficult to determine whether, in reaching this conclusion, they had been influenced by the applicant's sexual orientation.

In any case, the Court considered none of these issues because it held that the applicant had not sought to resolve her complaint through the domestic courts. The Court reiterated that "States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system" and that "the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights".

This does, of course, raise the perennial question of whether it is appropriate to apply these standards to a person serving a life sentence of imprisonment, who may not have the resources or capacity to access the domestic remedies available to free citizens.