The reasoned rejection of a request of a prisoner convicted of terrorist acts for his transfer to a prison close to his family did not violate the right to respect for his family life


Fraile Iturralde v. Spain 28.05.2019 (no. 66498/17)

see here


A prisoner convicted as a member of a terrorist organization for involvement in a terrorist act has asked to be transferred to a prison closer to his family. Refusal by the national authorities to carry it out. The Court found that the reasons for the refusal to transfer to another prison had been adequately motivated after investigating: (a) his personal situation which showed that he had regular contacts with his family; and (b) the general prison policy, which placed prisoners who have been convicted of terrorist offenses in different facilities in order to avoid security concerns and interconnection with the criminal organization. Thus, it did not find any interference with the right to respect for the family life of the prisoner, and the above refusal was in accordance with the law and proportionate to the circumstances. No infringement of Article 8 of the ECHR.

The ECtHR also considered that the Constitutional Court’s decision, which dismissed his appeal,  did not constitute a disproportionate obstacle to the applicant’s right of access to the court. No violation of Article 6 of the ECHR.


Article 8

Article 6


The applicant, Jorge Fraile Iturralde, is a Spanish national who was born in 1970. He has been serving
a 25-year prison sentence since 1998 for collaboration with a terrorist organisation, the Basque
separatist movement ETA. He has been held in Badajoz Prison since June 2010.

In 2016 the applicant lodged a complaint with the domestic courts about a decision to maintain his
placement in Badajoz Prison under a close custody regime. He complained in particular that the
prison authorities had refused to allow him to serve his sentence nearer to his family’s place of
residence, in Durango. He submitted that the 700 kilometre trip from Durango to Badajoz was
difficult for his wife and five-year-old daughter. His parents, who were advanced in age, were unable
to visit him at all.

His complaints were dismissed the same year after being examined at two levels, namely the Central
Supervision Court at first instance and the Audiencia Nacional on appeal.

The courts found that a departure from the general rule that prisoners should be held in facilities
close to family and friends had been justified by general prison policy on convicted terrorists. This
policy dispersed ETA prisoners over various prisons as a means to sever their links with the terrorist
organisation and avoid security concerns. Concentrating ETA prisoners in certain prisons had led in
the past to the group exercising control over its members in prison and prison staff being targeted.
The courts also took into account the applicant’s disruptive behaviour in prison, for which he had
been disciplined on many occasions, and the fact that he had continued to follow instructions from
the group in prison.

They further found that, according to prison reports, he had in any case been able to regularly
telephone and exchange letters with close relatives and friends, as well as have frequent visits from
his family.

An amparo appeal with the Constitutional Court was declared inadmissible in 2017. Endorsing the
lower courts’ findings, it held that the case did not disclose any appearance of a violation of the
rights subject to such appeals.


Article 8 (right to respect for family life)

The Court reiterated that the European Convention did not grant prisoners the right to choose their
place of detention, and the fact that prisoners were separated from their families was an inevitable
consequence of their imprisonment. It was, however, an essential part of prisoners’ rights that the
authorities assist them in maintaining contact with close family.

In the applicant’s case, the Court found that the decision that he should remain in Badajoz Prison far
from his family had interfered with his right to respect for his family life. However, that interference
had had a basis in domestic law, the General Prison Act and the Prison Regulations, which had been
accessible and foreseeable, and had provided specific safeguards. In particular, those laws provided
for an individual assessment of cases in decisions on prison transfer and any subsequent judicial
review. The Court was therefore satisfied that the interference had been “in accordance with the
law” within the meaning of Article 8 of the Convention.

Furthermore, the Spanish authorities’ justification for refusing a transfer had been legitimate, as it
had aimed to ensure discipline in prisons and to implement their policy in respect of ETA prisoners.
Moreover, the refusal had been based both on an individual assessment of his situation as well as
general prison policy.

In particular, the domestic courts had cited reports, which the applicant did not contest, showing
that he had maintained regular contact with his family. There was no evidence to show that the
journeys his close friends and family had had to make had raised any particularly difficult problems.
As for the prison policy, it had been limited in scope, as it had only applied to those convicted of
terrorist offences, and had taken into account the circumstances at the time, namely that ETA had
not yet disbanded.

In that context, the Court concluded that the limitations on the applicant’s right to respect for his
family life had not been disproportionate to the aim of prevention of disorder and crime and the
protection of the rights and freedoms of others.

The Court therefore rejected the applicant’s complaint under Article 8 as manifestly ill-founded.

Article 6 (access to court)

The Court found that the Constitutional Court’s decision had not been a disproportionate hindrance
to the applicant’s right of access to court. That court’s role and the special features of the
proceedings before it meant that the conditions of admissibility of an appeal on points of law were
stricter than for an ordinary appeal.

In addition, the applicant’s case had already been examined at two levels, without any appearance
of arbitrariness or manifest unreasonableness. It was sufficient for the Constitutional Court, when
declining to admit a complaint, to refer to the legal provisions governing its procedure if the
questions raised were not of fundamental importance or if the appeal had no prospect of success.

The Court therefore also rejected the applicant’s complaint under Article 6 § 1 as manifestly illfounded( editing).


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