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CASE OF CHOCHOLÁČ v. SLOVAKIA
CASE OF CHOCHOLÁČ v. SLOVAKIA
JUDGMENT
STRASBOURG
7 July 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
CHOCHOLÁČ v. SLOVAKIA JUDGMENT
INTRODUCTION
1. The case concerns a rule pursuant to which inmates serving prison
sentences are banned from possessing adult material because it is considered
to be a threat to morality. It mainly raises issues under Article 8 of the
Convention.
THE FACTS
2. The applicant was born in 1989 and is serving a life sentence in
Leopoldov prison for murder.
3. Having been granted legal aid, the applicant was represented before the
Court by Mr T. Bicko, a lawyer practising in Považská Bystrica.
4. The Government were represented by their Agent, Ms M. Bálintová.
5. The facts of the case may be summarised as follows.
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I. INCIDENT
11. In his defence, the applicant emphasised that the pictures depicted
heterosexual adult intercourse, that this was in accordance with nature, and
that he had freely opted for that orientation. The pictures were intended for
his own use, had been pasted in a magazine that belonged to him and were
a part of his private life. They had a soothing and positive impact on him,
especially as he was excluded from social life. The fact that somebody found
the pictures offensive did not mean that their possession should be
punishable. A threat to morality had to be seen in the light of the prevailing
environment – in his case, the life prisoners’ section of the prison, where
homosexuality was prevalent but was not countered, and – as the applicant
argued – it was even supported by the prison authorities. Being of
heterosexual orientation, the applicant considered that he had been
discriminated against, and contended that he had not breached any law.
12. On 10 May 2013 the applicant was found guilty of a disciplinary
offence. He appealed against that decision, but his appeal was dismissed on
17 May 2013. His arguments were noted but given no response, as the
material in question was proscribed, and its possession was illegal. In view
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of the circumstances, it was decided that the appropriate sanction was that of
a reprimand under section 52(3)(a) of the EPSA.
13. Following repeated requests by the applicant in which he essentially
reiterated the above arguments, the decision was reviewed and upheld by two
levels of the Public Prosecution Service, the final decision being delivered by
means of a communication of 27 May 2015. The decision found that the
pictures were pornographic and as such threatened morality, and that they
were accordingly proscribed. The applicant must have known this, as he had
attempted to conceal them.
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with the execution of a prison sentence. An interference with such rights and
freedoms was to be examined in the light of the Convention requirements.
The questions to be answered were whether the provisions in question
guaranteed the right to be allowed to possess pornographic material and, if
so, whether the interference with that right was justified.
19. Within the given context, pornography was to be understood as
defined in the Criminal Code (see paragraph 30 below).
20. No pornography involving children, disrespect towards human
beings, violence, zoophilia or other pathological sexual practices within the
meaning of the applicable legal definition (see also paragraph 31 below) was
protected as a matter of principle. Any other type of pornography had to be
considered with regard to its specific audience and context and the aims
sought by its dissemination. Three “other” types of pornography could thus
be distinguished: (i) that which was intended to be displayed on a limited
basis or excluded within a given context; (ii) that which could be displayed
without limits; and (iii) that in respect of which the position depended on the
concrete circumstances.
21. Such “other” pornography could fall within the remit of private life
under Article 8 of the Convention only if it depicted the person concerned or
a scene from his or her intimate sphere, which was not the situation in the
applicant’s case.
22. The matter was accordingly to be viewed with regard to the freedom
to receive information under Article 10 of the Convention. The withdrawal
of the material in question from the applicant’s possession and the
disciplinary sanction imposed on him had amounted to an interference with
that freedom. Its legal basis was section 40(i) of the EPSA and it pursued the
aims of the protection of morals, the prevention of disorder and the protection
of the rights and freedoms of others.
23. As to the necessity of the interference, the legal provision in question
was cast in absolute terms and allowed for no balancing of individual
interests. It was true that the prison context was specific in that it involved
complete isolation from, and thereby a total exclusion of intimate contact
with, the opposite sex. Pornography could thus serve as a stimulus for
auto-erotic satisfaction. It could, however, also prompt sexual and violent
offences.
24. The actual impact of pornography within the prison context in general
terms was a question to be answered by experts and the Constitutional Court
had no power to deal with it in response to an individual complaint.
Accordingly, it could not but trust in the rationality of the lawmakers in
having passed the legislation in question on the basis of sufficient expert
evaluation. These matters had to be examined and assessed at a central level
and the administration of a given prison was not equipped to assess the likely
impact of pornography on inmates in individual cases. The lawmakers’
absolute preference for the above legitimate aims therefore had to be accepted
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32. A specific form of the offence under Article 372 deals with making
pornography accessible to children.
33. As to pathological sexual practices, their promotion or public support,
approval or substantial downplaying constitutes an offence under Article 373.
34. In 2014 the Director General of the Prison and Court Guard Service
conducted an information campaign, distributing among all prison facilities
in Slovakia an opinion on, inter alia, the interpretation of the term “printed
material which threatens morality”. It distinguished between pornography
and mere erotica. The former was to encompass magazines or books
portraying figures whose principal aim was to activate the strong instinctual
behaviour of the reader; the latter was to include daily press, magazines and
books depicting the naked body for artistic, commercial or educational
purposes. The assessment was in concreto to be made by each prison’s
educational officer (pedagóg).
THE LAW
A. Admissibility
36. The Court notes that the complaint is neither manifestly ill-founded
nor inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.
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B. Merits
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Article 8 of the Convention. The seizure of the contested material from the
applicant and the reprimand he received for its possession accordingly
constituted an interference with that right.
58. The legal basis for the interference in the present case was
section 40(i) of the EPSA, and no reproach can be made in respect of it under
the criteria established by the Court’s case-law (see, among many other
authorities, Khoroshenko v. Russia [GC], no. 41418/04, § 110, ECHR 2015,
and the cases cited therein). It was therefore in accordance with the law for
the purposes of the Convention.
59. The enumeration of the exceptions to the right to respect for private
life, as listed in Article 8 § 2, is exhaustive and their definition is restrictive.
For it to be compatible with the Convention, a limitation of that right must
pursue an aim that can be linked to one of those listed in that provision (see
S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014 (extracts)).
60. In the present case, concordantly with the Constitutional Court, the
Government relied on the aims of the protection of morals, the prevention of
disorder and the protection of the rights and freedoms of others.
61. In that connection, the Court notes first of all that the legal provision
on the basis of which the interference was carried out only seeks to protect
morality, but not order or the rights or freedoms of others, and that the
reliance by the Constitutional Court and the Government (see paragraphs 22
and 31 above) on the notions of order and the rights or freedoms of others
has been purely abstract and without any link to the facts of this case at all.
As to the law that has been applied in this case, the use of the general term of
morality as well as the aid to its interpretation by reference to criminal-law
provisions which all presuppose the transmission of inappropriate material to
others may be seen as indicative of the interest in protecting morality in the
general sense.
62. On the facts, the applicant was given a disciplinary sanction for
possession of the material at issue, which he kept purely for his private ends,
and at no stage has there been any suggestion that it was intended or likely to
be transmitted to any other person. Therefore, to the extent that the notions of
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morality, order and the rights and freedoms of others presuppose the
involvement of a third party, they do not appear to be relevant to the facts of
the present case.
63. However, the Court does not find it necessary to take a definitive
stance as to whether the disputed measure in fact pursued any of the indicated
legitimate aims because it considers that, in any event, it was not necessary
in a democratic society, for the reasons set out below (see Biržietis
v. Lithuania, no. 49304/09, § 54, 14 June 2016).
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(c) Conclusion
78. There has accordingly been a violation of Article 8 of the Convention.
A. Damage
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83. The applicant also claimed EUR 850 for the costs and expenses
incurred before the Court.
84. The Government argued that that claim was unsupported by any
evidence.
85. The Court notes that the amount of the claim has been paid to the
applicant by way of legal aid (see paragraph 3 above). There is accordingly
no call for the Court to make any additional award in that regard.
2. Holds, by five votes to two, that there has been a violation of Article 8 of
the Convention;
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M.B.
R.D.
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10.5.3 promote and provide counselling and support services for compulsive users of
pornography.”
Within the framework of the Convention on the Elimination of All Forms
of Discrimination against Women, the Committee on the Elimination of
Discrimination against Women has linked pornography with gender-based
violence:
“These attitudes also contribute to the propagation of pornography and the depiction
and other commercial exploitation of women as sexual objects, rather than as
individuals. This in turn contributes to gender-based violence.” (General
Recommendation No. 19: Violence against Women, 1992, § 12)
The Human Rights Committee has expressed the following view, in the
context of the International Covenant on Civil and Political Rights:
“22. In relation to article 19, States parties should inform the Committee of any laws
or other factors which may impede women from exercising the rights protected under
this provision on an equal basis. As the publication and dissemination of obscene and
pornographic material which portrays women and girls as objects of violence or
degrading or inhuman treatment is likely to promote these kinds of treatment of women
and girls, States parties should provide information about legal measures to restrict the
publication or dissemination of such material.” (CCPR General Comment No. 28:
Article 3 (The Equality of Rights Between Men and Women), 29 March 2000,
CCPR/C/21/Rev.1/Add.10)
The European Parliament has adopted the Resolution of 12 March 2013
on eliminating gender stereotypes in the EU (2012/2116(INI)), which
contains, inter alia, the following assessments and recommendations:
“The European Parliament ...
M. whereas in television programmes, computer games and musical video clips there
is an increasingly noticeable tendency, partly for commercial purposes, to show
provocatively dressed women, in sexual poses, thereby further contributing to gender
stereotyping; whereas the lyrics of songs for young people contain sexually suggestive
content, which often promotes violence against women and girls;
N. whereas young women and men are most affected by pornography’s new cultural
status; whereas the ‘mainstreaming of pornography’, i.e. the current cultural process
whereby pornography is slipping into our everyday lives as an evermore universally
accepted, often idealised, cultural element, manifests itself particularly clearly within
youth culture: from teenage television and lifestyle magazines to music videos and
commercials targeted at the young;
...
12. Calls on the EU to develop awareness campaigns on zero-tolerance across the EU
for sexist insults or degrading images of women and girls in the media; ...”
The adoption of these instruments entails the conclusion that, after a period
marked by a tendency to decriminalise pornography, there is now a growing
international tendency to broaden the scope of criminalisation of
pornography.
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1. In the present judgment, the majority ruled that the application was
admissible and found a violation of Article 8 of the Convention based on an
unjustified interference of the State with the applicant’s privacy rights.
I respectfully disagree with that conclusion because, in my opinion, Article 8
is not applicable in this case. In this connection, I note that the Slovak
Constitutional Court also found Article 8 inapplicable to the present case and
examined the applicant’s constitutional complaint under Article 10 (see
paragraph 17 of the judgment). Furthermore, in this separate opinion
I elaborate on the grounds for finding the application incompatible ratione
materiae with Article 8 of the Convention.
2. The Court has held in many contexts that, for an issue to arise under
Article 8 of the Convention, the impugned situation affecting an applicant’s
private life must reach a certain threshold of severity or seriousness (see
Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina
[GC], no. 17224/11, § 76, 27 June 2017; Denisov v. Ukraine [GC],
no. 76639/11, §§ 112-14, 25 September 2018; Hudorovič and Others
v. Slovenia, nos. 24816/14 and 25140/14, § 115, 10 March 2020; and Behar
and Gutman v. Bulgaria, no. 29335/13, § 67, 16 February 2021). Whether or
not that level of seriousness was attained will depend on the circumstances of
the particular case (see Vučina v. Croatia, no. 58955/13, § 31, 24 September
2019). Once a measure is found to have seriously affected the applicant’s
private life, that conclusion means that the complaint is compatible ratione
materiae with the Convention and that an issue of the “right to respect for
private life” arises. Indeed, the question of applicability and the existence of
an interference with the right to respect for private life are often inextricably
linked (see, mutatis mutandis, Denisov, cited above, § 92). On the other hand,
if the requisite level of seriousness is not attained, the complaint is
inadmissible as incompatible ratione materiae with the Convention (see
Vučina, cited above, § 32).
3. Since this is the first time that the issue of possession of pornographic
material by a prisoner has been addressed from the perspective of Article 8
of the Convention, the criteria determining whether the threshold of that
provision in the given context was reached have not been yet established.
That being so, it is regrettable that the judgment does not contain any analysis
whatsoever in this respect. Relying only on a very general statement that
sexual life falls within the scope of Article 8 of the Convention, the majority
rashly conclude that that provision applies to the facts of the present case
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III. CONCLUSION
8. Given that neither of the criteria for admissibility has been met in this
case, the application should have been considered incompatible ratione
materiae in the context of Article 8.
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