In Vetsev v Bulgaria [2019] ECHR 325 [in French], the applicant had been arrested and was being held in pre-trial detention. Some eight months after his arrest and detention he was informed that his brother had died and he applied to the court for leave to attend the funeral. The court initially authorised his transfer under escort, but the regional security service of the Ministry of Justice stated that, under the current law, it could only provide transport under escort for detainees for court appearances. So the domestic court set aside its order and refused to grant Mr Vetsev’s request.

Relying on Article 8 ECHR (respect for private and family life), Mr Vetsev complained about the refusal to grant him leave to attend his brother’s funeral while he was in pre-trial detention.

Judgment

The Court reiterated its previous finding that a refusal to allow a detainee to leave prison in order to attend the funeral of a relative was an interference with his or her Article 8 rights. It also reiterated its previous rulings that Article 8 did not guarantee a detained person an unconditional right to parole to attend a funeral of a relative and that it was for the national authorities to examine the merits of each request. Nonetheless, in assessing the necessity of such a measure, the Court had previously held that the relevant factors included the detainee’s dangerousness and his or her conduct, the nature of the offence in question, the guarantees of a return to prison and the possibility of alternative solutions in order to meet the detainee’s request.

The Court noted that the domestic law provided for the possibility of granting leave only in the case of prisoners who had been sentenced, and that travel under escort was limited to transfers between judicial institutions – which implied that someone in pre-trial detention could not be given escorted parole in order to attend a relative’s funeral. So the Bulgarian authorities had refused Mr Vetsev’s request on the ground that no such possibility was foreseen in domestic law, without basing their decision on a detailed individual examination of his request and without weighing up his right to respect for his private and family life against the need to prevent disorder or crime.

In consequence, the Court considered that it had not been shown that the interference in Mr Vetsev’s right to private and family life had been necessary in a democratic society. It followed that there had been a violation of Article 8.

Comment

As we previously noted, in Guimon v France [2019] ECHR 291 it was held that the refusal to grant compassionate parole to a member of the Basque separatist organisation ETA who had been sentenced to 17 years’ imprisonment for terrorist offences had not violated her rights under Article 8. In that case, the Court concluded that the domestic courts had carried out a proper balancing exercise between Ms Guimon’s right to respect for her family life and the interests of public safety and the State had not exceeded its margin of appreciation. But in the case of Mr Vetsev, he had not been convicted of any offence and the domestic law made no provision for escorted parole for unconvicted prisoners.