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FOURTH
SECTION
CASE OF GISZCZAK v. POLAND
(Application
no. 40195/08)
JUDGMENT
STRASBOURG
29
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Giszczak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40195/08)
against the Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Polish national, Mr Grzegorz Giszczak (“the applicant”),
on 13 August 2008.
2. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign
Affairs.
3. The
applicant alleged, in particular, that his right to respect for his
family life had been infringed.
- On
11 May 2009 the President of the Fourth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in
Chmielow.
- The
applicant has been serving a thirteen years’ sentence of
imprisonment. At the relevant time he was detained in the Tarnowskie
Góry Prison and he had already served nearly six years of his
sentence.
- On 21 April 2008 his 11 year-old daughter was hit by a
bus and, because of her serious injuries, was admitted to the
intensive-care unit. The applicant was informed that she had fallen
into a coma and her condition was very serious.
- On
28 April 2008 he made an application for compassionate leave to visit
his dying daughter in the hospital. On 29 April 2009 his mother made
an application for compassionate leave on behalf of the applicant. On
30 April 2008 the Penitentiary Judge of the Gliwice
Regional Court requested an opinion from the Tarnowskie Góry
Prison on the applicant’s prospects for rehabilitation.
- On
5 May 2008 the Penitentiary Judge received a negative opinion about
the applicant. It stated in particular that the applicant was active
in the prison subculture, was rude towards the prison officers, had
been convicted of a serious crime (incitement to murder) and had a
long prison sentence to serve.
- On
7 May 2008 the Penitentiary Judge of the Gliwice Regional Court
refused the leave request because of the poor prospects of the
applicant’s rehabilitation. The order was delivered to the
applicant on 12 May 2008.
- The
applicant lodged an appeal with the Gliwice Regional Penitentiary
Court on the same day.
- On
16 May 2008 the applicant’s daughter died.
- On
19 May 2008 the Penitentiary Judge of the Gliwice Regional Court
allowed the applicant to attend his daughter’s funeral on
21 May 2008, under police escort.
- On
20 May 2008 the Director of the Detention Centre informed the
applicant orally about the permission. The applicant asked to be able
to wear a suit and handcuffs. He also requested that the escorting
officers should wear plain clothes. He submits that his request was
denied and therefore he decided not to attend the funeral, since he
believed his appearance with handcuffs and chains on hands and legs
and under an escort of uniformed and armed officers would create a
disturbance during the ceremony. He maintains that his sister had
been likewise informed by the Director of the Detention Centre that
the applicant would have to wear his prison clothes and would have to
have joined shackles (hand-cuffs and fetters
joined together with chains).
- The
Government submitted that the applicant must have misunderstood the
Director as he clearly could have attended the funeral in plain
clothes and handcuffed.
- The
written decision was served on the applicant on 26 May 2008, after
the funeral had already taken place. The decision only specified that
the applicant was allowed to attend his daughter’s funeral
under escort. It did not mention whether he would have to wear
joined shackles or whether he could wear plain clothes.
- On
12 June 2008 the Gliwice Regional Penitentiary Court upheld the
decision of 7 May 2008 repeating the reasoning given by the
Penitentiary Judge.
- The
applicant further states that earlier in 2007 his request for
compassionate leave to attend his father’s funeral had been
refused.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
141a § 1 of the Code of Execution of Criminal Sentences reads as
follows:
“In cases which are especially
important for a convicted
person, he or she may be granted permission to leave prison for a
period not exceeding five days, if necessary under the escort of
prison officers or other responsible persons (osoby godnej
zaufania).”
- Section
35 of the Rules for Execution of Imprisonment (Regulamin
wykonywania kary pozbawienia wolnosci) provides that when on
leave from prison, the convict shall wear his own clothes.
- Section
19 § 1 of the Law on Prison Service (Ustawa o służbie
więziennej) of 1996 (as applicable at the material time)
lists various coercive measures that can be used by prison guards
including joined shackles (“prowadnice”).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
(REFUSAL OF HOSPITAL VISIT)
- The
applicant invoking Article 3 of the Convention
complained about a refusal to allow him to visit his seriously
injured daughter in the hospital and the delay in examining his
appeal against this decision. The complaint falls to be examined
under Article 8 (see, Lind v. Russia, no. 25664/05, §
88, 6 December 2007), which in so far as relevant provides:
“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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant submitted that he had been refused the
opportunity to bid farewell to his dying daughter in the hospital. In
addition, his appeal against this decision was considered one month
after his daughter’s death. This delay in his opinion amounted
to “mental torture”.
- The
Government admitted that the refusal to allow the applicant leave to
visit his seriously injured daughter in the hospital might have been
incompatible with the right to respect for his private and family
life.
2. The Court’s assessment
- The
Court reiterates that any interference with an individual’s
right to respect for his private and family life will constitute a
breach of Article 8, unless it was “in accordance with the
law”, pursued a legitimate aim or aims under paragraph 2, and
was “necessary in a democratic society” in the sense that
it was proportionate to the aims sought to be achieved (see, among
other authorities, Elsholz v. Germany [GC], no. 25735/94,
§ 45, ECHR 2000-VIII).
- The
Court has already found that the refusal of leave to visit an ailing
relative or to attend a relative’s funeral constituted an
interference with the right to respect for family life (see Płoski
v. Poland, no. 26761/95, § 32, 12 November 2002).
Accordingly, in the present case the refusal to release the
applicant, even if only under escort, so that he could see his dying
daughter in hospital interfered with his right under Article 8 of the
Convention.
- The
Court is satisfied that the interference had a lawful basis, notably
141a § 1 of the Code of Execution of Criminal Sentences. The
interference also pursued “a legitimate aim” within the
meaning of paragraph 2 of Article 8 of the Convention, that of
protecting public safety and preventing disorder or crime (see
Płoski, cited above, § 34). It remains
to be determined whether it was “necessary in a democratic
society”.
- In
this respect, the Court firstly observes that the applicant’s
11 year old daughter was injured in a traffic accident. She was
admitted to the intensive-care unit and her condition was very
serious. The domestic authorities justified the refusal to
temporarily release the applicant by reference to his allegedly rude
behaviour in prison and the gravity of the offence of which he had
been convicted (incitement to murder). The Court considers that these
reasons are not persuasive. All these concerns could easily have been
addressed by an escorted leave.
- The
Court also notes that the Government admitted that the refusal of
compassionate leave to the applicant might have been incompatible
with the right to respect for his private and family life.
- The
Court concludes that, in the particular circumstances of the present
case, the refusal of leave to visit the applicant’s dying
daughter in the hospital, was not “necessary in a democratic
society” as it did not correspond to a pressing social need and
was not proportionate to the legitimate aims pursued. There has
therefore been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (THE
APPLICANT’S DAUGHTER’S FUNERAL)
- The
applicant contended that the refusal to allow him to attend the
funeral of his daughter in plain clothes also violated Article 8 of
the Convention.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
applicant submitted that he had been refused
permission to attend the funeral of his daughter in plain clothes and
to be escorted by prison guards wearing plain clothes.
- The
Government maintained that the imposition of special conditions
relating to the applicant’s attendance at the funeral of his
daughter did not deprive him of the effective possibility of
attending the funeral. They submitted that the applicant could have
attended the funeral in plain clothes. This issue was regulated by
law and the Director of the Detention Centre could not have decided
otherwise. The applicant and his sister must have misunderstood the
Director. They further stressed that the applicant was young and very
strong and therefore he would have had to wear handcuffs without,
however, having to be restrained by joined shackles (“prowadnice”).
They agreed that there was an interference with the applicant’s
rights, which was prescribed by law and pursued a legitimate aim for
the prevention of disorder or crime. They were of the opinion that
the applicant could have tried to escape if no precautions were taken
during the funeral of his daughter.
2. The Court’s assessment
- The
Court reiterates that Article 8 of the Convention does not guarantee
a detained person an unconditional right to leave prison in order to
attend the funeral of a relative. It is up to the domestic
authorities to assess each request on its merits. Its scrutiny
is limited to consideration of the impugned measures in the
context of the applicant’s Convention rights, taking into
account the margin of appreciation left to the Contracting States
(see Płoski cited above § 38).
- Turning
to the circumstances of the present case the Court firstly notes that
the interference, which was based on section 19 § 1 of the Law
on Prison Service and Article 141 § 4 of the 1997 Code
of Execution of Criminal Sentences, was “in accordance
with the law” and could be considered to be in the interests of
“public safety” or “for the prevention of disorder
or crime”.
- The
Court observes that the applicant has been serving a thirteen years’
sentence of imprisonment. He was convicted of incitement to murder.
On 19 June 2008 the Penitentiary Judge of the Gliwice Regional Court
granted the applicant compassionate leave to attend his daughter’s
burial. However, this decision was served on him only on 26 June
2008, that is, 4 days after the funeral had taken place. In
addition, it was not very precise (see paragraph 16 above). The Court
points out that before the funeral the applicant had only been orally
informed about the decision by the Director of the Detention Centre.
Although the applicant was at all times very concerned about creating
a disturbance during the ceremony if he appeared in prison clothes
and chains, he was not given clear information as regards the
particular conditions of his attendance at the funeral (see
paragraphs 14, 15, 34 and 35 above).
- The
Court observes that the fact that the applicant had not been informed
in time, and in a clear and unequivocal manner about the conditions
of his compassionate leave to attend his daughter’s funeral
eventually resulted in his refusal to attend it for fear of causing
too much disturbance.
- The Court concludes that, in the particular
circumstances of the present case, the failure to provide timely and
adequate reply to the applicant’s request to attend the funeral
of his daughter under special conditions must be seen as incompatible
with his rights under Article 8 of the Convention.
- There has, accordingly, been a violation of Article 8
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (THE
APPLICANT’S FATHER’S FUNERAL)
- The
applicant further complained of the fact that he
was refused compassionate leave to attend his father’s funeral.
- The
Court notes that the applicant failed to substantiate this complaint.
- Consequently,
the Court finds that the above complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect
of non pecuniary damage.
- The
Government submitted that the claim was excessive and irrelevant.
Alternatively, they invited the Court to rule that the finding of a
violation constituted in itself sufficient just satisfaction for any
non pecuniary damage sustained by the applicant.
- The
Court considers that, in the circumstances of this particular case
the applicant should be awarded the sum of EUR 2,000 for
non pecuniary damage.
B. Costs and expenses
- The applicant did not seek to be reimbursed for costs
and expenses incurred in the proceedings before the Court.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaints concerning
the refusals of the applicant’s requests for compassionate
leave to visit his dying daughter in hospital and the failure to
provide a timely and adequate reply to the applicant’s request
for leave to attend her funeral and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
8 § 1 of the Convention in respect of the refusal of the
applicant’s request to visit his dying daughter in hospital;
- Holds that there has been a violation of Article
8 § 1 of the Convention in respect of the failure to provide a
timely and adequate reply to the applicant’s request for
compassionate leave to attend the funeral of his daughter;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 2,000 (two thousand euros), to be
converted into Polish zlotys at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 29 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór
Björgvinsson
Registrar President