THIRD SECTION
CASE OF VOOL AND TOOMIK v. ESTONIA
(Applications nos. 7613/18 and 12222/18)
 
 
 
JUDGMENT
 
Art 14 (+ Art 8) • Discrimination • Family life • Domestic court’s failure to reasonably justify prohibition of applicants receiving long-term visits while in detention on remand, even after all other additional restrictions on contact and communication had been lifted, and despite such visits being generally authorised for convicted prisoners
STRASBOURG
29 March 2022
FINAL
 
29/06/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vool and Toomik v. Estonia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 Darian Pavli,
 Andreas Zünd,
 Frédéric Krenc,
 Mikhail Lobov, judges,
 Meeli Kaur, ad hoc judge,
 Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 7613/18 and 12222/18) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Estonian nationals, Mr Tarko Vool and Mr Janek Toomik (“the applicants”), on 31 January 2018 and on 5 March 2018 respectively;
the decision of the President of the Section to appoint Ms Meeli Kaur to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court), Mr Peeter Roosma, the judge elected in respect of Estonia, having withdrawn from sitting in the case (Rule 28 § 3);
the decision to give notice of the complaints under Article 14 in conjunction with Article 8 of the Convention to the Estonian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 8 March 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a statutory ban on remand prisoners receiving long-term family visits, despite such visits being generally authorised for convicted prisoners. THE FACTS
2. The applicants Mr Tarko Vool (hereinafter “the first applicant”) and Mr Janek Toomik (hereinafter “the second applicant”) were born in 1988 and 1971 respectively and live in Võru and Jõgeva respectively. The applicants were represented by Mr M. Põbo, a lawyer practising in Pärnu, and Mr A. Tubin, a lawyer practising in Tartu, respectively. 3. The Government were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The facts concerning the first applicantRemand in custody and the reasons for applying the measure

5. The first applicant was suspected of extortion and of being a member of a criminal organisation. He was remanded in custody on 16 April 2014. The Harju County Court found that there was a reasonable suspicion that he had committed the above-mentioned offences and that, if released, he might continue committing criminal offences. The court also noted that the applicant’s detention was in the interests of elucidating all the relevant circumstances of the criminal case and ensuring its proper conduct. The Tallinn Court of Appeal, referring, inter alia, to the applicant’s previous criminal record, upheld that decision. The Tallinn Court of Appeal added that although the applicant had a cohabiting partner, this had hitherto not prevented him from engaging in criminal activities and that the court was not convinced that it would do so in the future if the applicant was released. The Supreme Court refused to examine the appeal on points of law. 6. On 22 August 2014 the Harju County Court dismissed an application by the first applicant to substitute the holding in custody with electronic monitoring, finding that electronic monitoring would not enable the monitoring of the first applicant’s activities, so it would not prevent the risk of him committing new criminal offences. On 27 October 2014 the same court, relying on essentially the same reasoning, also dismissed the applicant’s subsequent request for replacing the detention with electronic monitoring. 7. On 30 September 2014 the Harju County Court extended the term of holding the first applicant in custody, finding that sufficient grounds existed to believe that, being a member of a criminal organisation, he had continued his membership of that organisation even after becoming subject to criminal proceedings. The court noted that committing offences against the administration of justice (influencing witnesses to give false statements) could also not be ruled out considering the first applicant’s previous criminal record of violent crimes, his attitude and his position in the criminal hierarchy. 8. On 30 October 2014, 28 November 2014, 19 December 2014 and 19 January 2015 the Harju County Court, in the context of regular assessments of the continued justification for detaining the applicant, held that holding the applicant in custody was still justified on the same grounds as before. 9. On 19 March 2015 the Harju County Court committed the first applicant to trial. It dismissed his application to substitute the detention with electronic monitoring, on the grounds of preventing the applicant from committing further criminal offences. The Tallinn Court of Appeal upheld the ruling. The Supreme Court refused to examine an appeal on points of law. 10. The Harju County Court, relying on the same grounds as above, confirmed the continued justification for the first applicant’s detention in decisions of 18 September 2015 and 14 March 2016. The latter decision was upheld by the Tallinn Court of Appeal and by the Supreme Court. 11. On 15 August 2016 the Harju County Court again committed the first applicant to trial (now in the context of plea bargain proceedings) and maintained his remand in custody. 12. On 7 September 2016 the Harju County Court convicted him of being a member of a criminal organisation and of repeated extortion in a group and sentenced him to imprisonment. The judgment took effect on 1 November 2016 and the first applicant became entitled to long-term visits with his cohabiting partner under the Imprisonment Act (vangistusseadus). 13. The domestic courts admitted in several of the above-mentioned decisions that the applicant’s detention interfered with his human rights, mostly referring to his right to liberty. On none of the occasions of assessing the grounds for the first applicant’s continued detention did the domestic courts assess specifically the impact that the pre-trial detention would have on the applicant’s private and family life owing to his not being able to have long-term visits. Visits and communication while in detention on remand
14. Article 1431 of the Code of Criminal Procedure (kriminaalmenetluse seadustik), titled “Additional restrictions applied to persons whose personal liberty has been restricted” (vabaduspiiranguga isikule kohaldatavad lisapiirangud) authorises the prosecutor’s office to restrict or totally revoke, inter alia, the suspect’s or the accused’s  right to short or long-term visits and the right to correspondence or use of the telephone in the interests of the conduct of the criminal proceedings (see paragraph 53 below, hereinafter referred to as “additional restrictions”). 15. On 16 April 2014 the Office of the Prosecutor General, relying on Article 1431 of the Code of Criminal Procedure, ordered the complete isolation of the first applicant from other remand prisoners and persons serving a sentence, and the restriction of his right to visits and prison leave and the right to correspondence and the use of the telephone. The prosecutor’s office found that without imposing complete control over the first applicant’s contacts it would have been impossible to effectively prevent his communication with persons who were either members of the same criminal organisation or had access to important evidence relevant to the investigation of the case. The prosecutor’s office also found that even when communicating with his family, the first applicant could pass on information and threats that could influence persons to conceal the truth about the criminal offences. 16. On 9 September 2014 the Office of the Prosecutor General partly lifted the additional restrictions, granting an application by the first applicant, to enable short-term visits, correspondence and telephone calls with his cohabiting partner, mother and brother. The prosecutor’s office noted that there were grounds to believe that the first applicant’s communication with the above-mentioned persons would not undermine the criminal investigation. The prosecutor’s office rejected an application for the authorisation of long-term visits, noting that there was a restriction which emanated directly from the Imprisonment Act, and hence the prosecutor’s office could not decide on that matter. 17. On 24 September 2014 the Office of the Prosecutor General lifted the ban on the applicant’s communication with other remand prisoners and convicted prisoners, save for persons detained in the context of the same criminal proceedings. 18. On 5 November 2014 the Office of the Prosecutor General lifted the additional restrictions on contact and communication completely, noting that there were grounds to believe that the first applicant’s communication with other persons would not hinder the criminal proceedings. 19. From 9 September 2014 to 1 November 2016 the first applicant was allowed fifty-one short-term visits, thirty-two of which were with his cohabiting partner, and eight with his brother. Short-term visits in Tallinn Prison were for a duration of seventy minutes. 20. In addition, he was able to make telephone calls, including to his cohabitant, mother and brother. He made 351 telephone calls. 21. He also had the opportunity for correspondence. He communicated by letter with his cohabiting partner, mother and brother. He received nineteen parcels, nine of which were from his cohabiting partner and two from his brother. Judicial review of the ban on long-term visits
22. After 23 February 2015 the first applicant applied to Tallinn Prison on several occasions to be enabled long-term visits with his cohabiting partner. The prison refused, relying on section 94(5) of the Imprisonment Act. He lodged a complaint against the refusal with the Tallinn Administrative Court. 23. On 18 March 2016 the Tallinn Administrative Court dismissed his complaint. The court referred to section 94(5) of the Imprisonment Act and found that – in the particular circumstances of the first applicant’s case (given his personality, the charges against him and the state of the proceedings) – it could not be considered unconstitutional. The court referred to the Supreme Court’s judgment of 4 April 2011 in case no. 3-4-1-9-10, in which the court had held that the statutory restriction in question had been established with a view to preventing absconding from criminal proceedings and committing further offences, including destroying, altering and falsifying evidence and influencing witnesses. The first applicant appealed against that judgment. 24. On 30 June 2016 the Tallinn Court of Appeal overturned the Tallinn Administrative Court’s judgment; refused to apply section 94(5) of the Imprisonment Act as unconstitutional, submitting the issue of constitutionality to the Supreme Court for review; and granted the first applicant’s complaint in part. The court referred, inter alia, to the fact that the Office of the Prosecutor General had already some time ago lifted the restrictions on contact and communication that had previously been imposed on the first applicant. 25. On 16 November 2016 in case no. 3-4-1-2-16 (which concerned one other person besides the first applicant), the Supreme Court refused to declare section 94(5) of the Imprisonment Act unconstitutional. The Supreme Court stressed that in the context of the given proceedings it could only assess the constitutionality of the provision in question in respect of the specific detainees and in the light of their specific circumstances. The Supreme Court came to the conclusion that the prohibition on having long-term visits had been proportionate with respect to the first applicant. It noted that, as they were unsupervised, long-term visits between remand prisoners and their family members could entail the risk that the latter would be convinced to contribute to the manipulation of witnesses and victims and to the destruction of evidence. With respect to the first applicant, the court – considering in particular that the criminal organisation in question had organised support for the next of kin of its members – found that the risk of obstructing the administration of justice could not be ruled out by the mere fact that his cohabiting partner was neither a witness nor a co-accused in the criminal proceedings and did not have any other connection to the criminal activities as far as the court was aware. The court, moreover, emphasised that threats and violence could be considered a characteristic modus operandi of the members of the criminal organisation, whose activities also included extortion, and that there was a probable risk of it being used to unduly influence criminal proceedings. The court also referred to the fact that it would not be legally possible to compel the first applicant’s next of kin to testify to the obstruction of the proceedings. 26. Although the danger of negatively influencing the criminal proceedings lessened as the proceedings progressed, the risk could not be ruled out, as new witnesses could also be heard (or old witnesses be reheard) at the appellate stage of the proceedings or the case could be remitted to a lower-instance court. 27. The Supreme Court did not agree with the statement that the domestic law provided no margin to weigh competing interests of guaranteeing the effectiveness of the criminal proceedings, on the one hand, and the protection of the detainee’s family life, on the other hand. That weighing up had taken place at the stage when it had been decided to remand the first applicant in custody and later when the continued justification for detention had been reviewed. Given the purpose of the detention and that of the prohibition of long-term visits, that weighing up had to take place in the context of the criminal proceedings. The prisons did not have the competence to assess the risk that each remand prisoner could pose to the ongoing criminal proceedings. 28. As regards the remand prisoners being treated differently from the convicted prisoners, the Supreme Court found this difference in treatment to be justified given that latter could no longer undermine the ongoing criminal proceedings in their respect. 29. On 1 August 2017 the Supreme Court overturned the Tallinn Court of Appeal’s judgment of 30 June 2016 and upheld the Tallinn Administrative Court’s judgment of 18 March 2016. The facts concerning the second applicantRemand in custody and the reasons for applying the measure

30. The second applicant was suspected of handling a large quantity of narcotic drugs. He was remanded in custody on 14 December 2011. The Tartu County Court found that, given his numerous earlier criminal convictions in Estonia and in other countries, the risk of committing new criminal offences was high and that stopping his criminal conduct was possible only by remanding him in custody. 31. On 11 June 2012 the Tartu County Court extended the term of holding him in custody, finding that there was a risk that he would continue to commit criminal offences, namely drug-related offences, and a risk of his absconding. The Tartu Court of Appeal upheld the ruling, adding that the need to bring the second applicant to trial and to prevent the commission of further offences outweighed the interference with his right to private and family life. The Tartu Court of Appeal noted that the second applicant’s family life had suffered because of his own previous criminal record and drug use. 32. On 17 July 2012 the Tartu County Court committed the second applicant for trial and dismissed his application to replace detention with electronic monitoring. The court refused to lift the additional restrictions on contact and communication (see paragraph 36 below) with his family members, reasoning that until some additional witnesses had been cross-examined there existed a risk of the second applicant attempting to influence them. The second applicant appealed against the decision to maintain the additional restrictions in force (see paragraph 37 below). 33. On 4 December 2012 the Tartu County Court considered that his continued detention was justified for the same reasons as before and dismissed an application to replace the detention with electronic monitoring. The court noted that the second applicant’s criminal record indicated that having a family had not encouraged him to lead a law-abiding life. The court admitted that being detained interfered with his family life and right to liberty but considered it justified in the given circumstances. 34. On 10 May 2013 the Tartu County Court convicted him of unlawful handling of large quantities of narcotic drugs and sentenced him to imprisonment. The court did not lift the pre-trial detention. 35. On 16 December 2013 the Tartu Court of Appeal upheld the first-instance judgment, but lifted all the restrictions on communication (see paragraph 38 below). On 6 June 2014 the Supreme Court dismissed an appeal by the second applicant on points of law and his conviction entered into force, following which he became entitled to apply for long-term visits under the Imprisonment Act. Visits and communication while in detention on remand
36. On 14 December 2011, relying on §1431 of the Code of Criminal Procedure (see paragraphs 14 above and 53 below) the prosecutor’s office prohibited the second applicant’s short-term and long-term visits, as well as the right to correspondence and the use of the telephone between him and his next of kin. The prosecutor’s office found that the additional restrictions were necessary to prevent him from spreading information about the course of the criminal proceedings and influencing potential witnesses. On 17 July 2012 the Tartu County Court upheld the finding of the prosecutor’s office. 37. On 22 August 2012, when deciding on the appeal against the decision of the Tartu County Court of 17 July 2012 (see paragraph 32 above), the Tartu Court of Appeal allowed the second applicant to correspond with his cohabiting partner, mother and children, to use the telephone, and to have short-term visits, reasoning that by this time the need for additional restrictions had significantly diminished. 38. By a judgment of 16 December 2013, the Tartu Court of Appeal lifted all the restrictions on communication, allowing him all visits, correspondence and the right to use the telephone. The court found that by that stage the objectives pursued by the initial restrictions had been achieved – the circle of persons either linked to the offences or having information about them had been identified and the direct examination of personal evidence in the proceedings had ended. 39. From 4 September 2012 to 6 June 2014 the second applicant was allowed short-term visits with his family on forty-six occasions. He was allowed short-term visits with his cohabiting partner on thirty-five occasions and with his daughter on eight occasions. He was able to communicate with his family by writing letters and making telephone calls, and he also received parcels from them. 40. The second applicant had a long-term meeting with his cohabiting partner on 23 September 2014. Judicial review of the ban on long-term visits
41. On 15 April 2014 the second applicant applied to Tartu Prison to be authorised to have a long-term visit with his cohabiting partner. The prison refused, relying on section 94(5) of the Imprisonment Act. Referring to the right to family life and the prohibition of discrimination, the second applicant lodged a claim for the revocation of the refusal, the claim to order the prison to grant a right to long-term visits, and a claim for compensation. 42. On 18 May 2015 the Tartu Administrative Court, noting that in the meantime the applicant’s conviction had entered into force and he had become entitled to long-term visits, granted his claim in part and ordered the prison to pay compensation in the amount of 500 euros. Both the prison and the second applicant appealed. 43. On 28 February 2017 the Tartu Court of Appeal dismissed the second applicant’s appeal and allowed the prison’s appeal. The court, referring, inter alia, to the Supreme Court’s judgment in case no. 3-4-1-2-16 (see paragraph 25 above) found that in view of the circumstances of the case, section 94(5) of the Imprisonment Act, as applied to the specific circumstances of the second applicant and taking into account the severity of the charges against him, was in accordance with the Constitution. The applicant lodged an appeal on points of law. 44. On 31 October 2017 the Supreme Court in case no. 3-14-51567 upheld the judgment, finding that the ban had constituted a proportionate interference with the second applicant’s right to family life in the specific circumstances of his case. The Supreme Court did not reach a separate conclusion with regard to the discrimination claim. The court noted that besides the need to avoid the suspect exerting undue influence on the criminal proceedings, the general need to prevent the further committing of criminal offences could also justify the restrictions on long-term visiting rights. In the case at hand, the prosecutor’s office (when applying additional restrictions) and the courts (when assessing the need for the second applicant’s continued detention) had referred to both of these aims. These elements had been assessed when remanding the applicant in custody as well as later during the proceedings. The Supreme Court found that although the interference with his family life had been intense in view of the long period of his detention in custody, this had been due to the nature of the criminal charges, their severity and his background of repeated convictions. The court added that in view of the nature of the charges, there had also been a plausible risk of undue influence on the criminal proceedings. Although the lifting of the additional restrictions imposed by the prosecutor’s office had indicated that the risk of compromising the criminal proceedings had lessened, it had not ceased to exist (as the case could be remitted to lower-instance courts where it might again be necessary to directly assess evidence). The Supreme Court pointed out that the second applicant’s status as a remand prisoner had ended less than a month after his application for a long-term visit had been dismissed. In its judgment the Supreme Court also noted, referring back to its judgment in case no. 3-4-1-2-16 (see paragraphs 25-27 above), that the proportionality of the interference with a person’s family life was to be assessed already at the stage when deciding to remand the person in pre-trial detention. 45. One judge of the Supreme Court gave a dissenting opinion. He considered it relevant that on 16 December 2013 the Tartu Court of Appeal had lifted all the additional restrictions and the court had thus considered that only the second applicant’s detention as such had been justified. On the basis of that decision, the prohibition of long-term meetings had thus been disproportionate. The judge also noted that the majority had proceeded from a mistaken presumption that the courts had assessed the impact of the prohibition of long-term visits on remand prisoners’ family life when deciding on the pre-trial detention and its continued justification. Later developments
46. On 11 June 2019 the Supreme Court en banc in a constitutional review case no. 5-18-8 (not related to the applicants in the present case) found that – in the particular circumstances of that case – the prohibition on having long-term visits with his next of kin constituted a disproportionate and thus unconstitutional interference with the given applicant’s right to family life. In that case the Supreme Court, inter alia, stated that banning the remand prisoner to have contact with his four-and-half-year-old child (who was neither a victim nor a witness in the proceedings) was not proportionate to the aim of preventing the obstruction of criminal proceedings. In any event there were no reasonable grounds to find that the accused in that case would have attempted to obstruct the ongoing criminal proceedings. The Supreme Court stressed that the factual circumstances of the 2019 case were different from the circumstances that it had had to address in the judgment of 2016 in the case of the first applicant. 47. The Supreme Court declared section 94(5) of the Imprisonment Act unconstitutional and quashed it ex nunc. The Supreme Court nonetheless accorded retroactive effect to the judgment with respect to “the applicant in the case at hand as well as to persons who, at the time that this judgment takes effect have – following a procedure set out in law – challenged the refusal to grant them long-term visits or who have lodged a claim for damages caused by the refusal to grant them such visits”. 48. The Supreme Court noted that it was already the fourth time that it had had to address the same question. It was therefore in the interests of preventing further similar applications and guaranteeing effective protection of fundamental rights, that it did not limit itself to the circumstances of the given case when analysing the constitutionality of the provision in question. 49. Departing from the approach taken by the Supreme Court in case
no. 3-4-1-2-16 (see paragraph 27 above), the Supreme Court en banc found that the practical operation of section 94(5) of the Imprisonment Act in the context of deciding on someone’s pre-trial detention – in so far as it did not permit the assessment of the prohibition of long-term visits separately from the assessment of (continued) justification for pre-trial detention – interfered disproportionately with the right to family life of some of the remand prisoners and was thus unconstitutional. According to the Supreme Court en banc there were grounds to believe that in the context of such assessments, the public interest in detaining the person in question would in practice always outweigh the restrictions on that person’s right to family life. 50. On the basis of that decision the first and the second applicant submitted applications to reopen their cases. On 28 January 2020 the Supreme Court refused to accept the first applicant’s application to reopen his case. In its summary refusal decision the Supreme Court relied, inter alia, on the provision of domestic law according to which the grounds invoked in support of reopening the case could not have affected the resolution of the case either against or in favour of the first applicant. On 9 June 2020 the Supreme Court refused to reopen the second applicant’s case, finding that the retroactive effect of judgment no. 5-18-8 did not apply to persons, such as the second applicant, who no longer had a case pending before a court at the time that the judgment at issue took effect (see also paragraph 47 above). The Supreme Court pointed out that it had previously found, referring to the second applicant’s circumstances as an example, that in certain cases the application of section 94(5) of the Imprisonment Act might lead to a Constitution-compliant result. RELEVANT LEGAL FRAMEWORK
Relevant domestic lawImprisonment Act

51. Section 25 of the Imprisonment Act, as in force at the relevant time, provided that convicted prisoners were allowed long-term visits (unsupervised visits of 24-72 hours at least every six months) and section 94 provided that long-term visits were not applied to remand prisoners:
Section 25: Long-term visits to prisoners
 “(1) A prisoner shall be allowed to receive long-term visits from his or her spouse, father, mother, grandfather, grandmother, child, grandchild, adoptive parent, adoptive child, stepparent or foster parent, stepchild or foster child, brother or sister. Long-term visits from a cohabiting partner are allowed on the condition that they have common children or at least two years of cohabitation prior to the commencement of serving the sentence. (11) Authorisation for long-term visits will be refused if:
 1) the visits are not in compliance with the objectives of the execution of the imprisonment;
 2) the visits may endanger security or order in the prison;
 3) there is reason to doubt the reputation of the visitor; or
 4) the visit may endanger the health and well-being of the visitor or the prisoner. (2) A long-term visit means that a prisoner and a visitor are allowed to be together without constant supervision in prison premises designated for such purpose during a twenty-four hour period ... a prison service officer may prolong, in justified cases, the long-term visit to a period of up to three days ...”
Section 94: Visits received by remand prisoners
 “(1) A remand prisoner is permitted to receive short-term visits of personal, legal or commercial interest in matters which the remand prisoner cannot conduct through third persons.
... (3) A remand prisoner shall receive visits in the presence of a prison service officer who has the right to interrupt or immediately terminate the visit if that visit could damage the conduct of criminal proceedings.
... (5) The long-term visits provided for in section 25 of this Act shall not be applied to remand prisoners.”
Code of Criminal Procedure
52. Article 127 provides that when deciding to apply a preventive measure (for example detention, bail, or electronic monitoring), the following aspects have to be taken into account: the probability of absconding from criminal proceedings or from the execution of a court judgment; the risk of the continued commission of criminal offences, or the destruction, alteration or falsification of evidence; the degree of the punishment; the personality of the suspect, accused or convicted offender; his or her state of health and marital status; and other circumstances relevant to the application of preventive measures. 53. Article 1431 concerns additional restrictions that could be imposed on persons whose personal liberty has been restricted. Article 1431 § 1 provides that if there is a sufficient reason to believe that a suspect or accused who is held in custody or is imprisoned or is serving detention may adversely affect the conduct of criminal proceedings by his or her actions, the prosecutor’s office or court may restrict or totally revoke, inter alia, the suspect’s or the accused’s  right to short or long-term visits and the right to correspondence or use of the telephone. Relevant international materials
54. The relevant United Nations standards concerning the rights of detainees in pre-trial detention are described in Varnas v. Lithuania (no. 42615/06, §§ 71-72, 9 July 2013). 55. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules. It was revised and amended by the Committee of Ministers on 1 July 2020. The relevant parts of the European Prison Rules read as follows:
“Part II Conditions of imprisonment
... Contact with the outside world
24.1      Prisoners shall be allowed to communicate as often as possible – by letter, telephone or other forms of communication – with their families, other persons and representatives of outside organisations, and to receive visits from these persons.
24.2      Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
... Part VII Untried prisoners
Contact with the outside world
99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners:
a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional access to other forms of communication ...”
THE LAW
JOINDER OF THE APPLICATIONS
56. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 of the convention
57. The applicants complained that during the period of their detention on remand their rights to long-term visits had been restricted to a greater extent than the rights of convicted persons serving their prison terms. They alleged a breach of Articles 8 and 14 of the Convention, the relevant parts of which provide:
Article 8
“1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The scope of the case
58. The Court notes that in his observations to the Court, after the respondent Government had been given notice of the application concerning the impossibility to have long-term visits during pre-trial detention, the first applicant complained that he had not been allowed to have long-term visits from his cohabiting partner even after he had been convicted. 59. The Government argued that this complaint was not raised in the first applicant’s original application and that he had not exhausted domestic remedies with regard to it, as he had not lodged a relevant appeal on time in the domestic proceedings. 60. The Court reiterates that, as a general rule, it does not examine any new matters raised after the Government have been given notice of the application, unless the new matters are an elaboration on the applicant’s original complaints to the Court (see Khadija Ismayilova v. Azerbaijan (no. 2), no. 30778/15, § 53, 27 February 2020). Because the applicant may subsequently elucidate or elaborate upon his or her initial submissions, the Court must take into account not only the application form but the entirety of his or her submissions in the course of the proceedings before it which may eliminate any initial omissions or obscurities (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 122 and 129, 20 March 2018). 61. In the present case the Court notes that the first applicant’s new complaints are not an elaboration of his original complaints, on which the parties have commented, but constitute new matters which were not covered in the original application sent to the Government. The Court does not therefore find it appropriate to examine these complaints in the present context (see Khadija Ismayilova, cited above, § 54; and Seleznev v. Russia, no. 15591/03, § 56, 26 June 2008). The first applicant had the opportunity to lodge new applications in respect of any other complaints relating to the subsequent events in his case in accordance with the requirements set out in Rule 47 of the Rules of Court. AdmissibilityThe parties’ submissions

62. The Government, referring to the reasons addressed under the “merits” section, argued that the complaints of both applicants were manifestly ill-founded. 63. In addition, the Government submitted that the second applicant’s complaint was either manifestly ill-founded or, alternatively, he had not suffered a significant disadvantage, given the fact that he had applied for a long-term visit two years and four months after he had been remanded in custody and only a couple of months before the end of his status as a prisoner on remand. The Government argued that the second applicant’s conduct attested to the fact that he had not actually wished to have a long-term visit. Lastly, the Government contended that the second applicant’s case was similar to Nazarenko v. Latvia (no. 76843/01, §§ 75-76, 1 February 2007). 64. The applicants disagreed with the Government’s submissions. 65. In response to the Government’s suggestion that he had not wished to have long-term visits, the second applicant alleged that he had initially asked for long-term visits orally, but had accepted the prison’s explanation that long-term visits were not available to remand prisoners. It was only after he learned about the Court’s judgment in Varnas v. Lithuania (no. 42615/06, 9 July 2013) that he lodged the first written application.

Article of the Convention at issue: Article 14
Outcome: violation