Last Updated on April 21, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 29037/15
Jarosław KARBOWNICZEK
against Poland
The European Court of Human Rights (First Section), sitting on 3 March 2020 as a Committee composed of:
Aleš Pejchal, President,
Tim Eicke,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 28 May 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr JarosławKarbowniczek, is a Polish national, who was born in 1979 and is detained in Kłodzko.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
I. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The criminal proceedings against the applicant and his sister
4. On 27 July 2005 the applicant was detained on remand on suspicion of various charges, in particular, battery, destruction of property and uttering threats.
5. On 9 March 2006 an act of indictment against the applicant and four co-accused, including his sister M.K., was lodged with the Wałbrzych District Court. The applicant was charged with eleven offences and M.K. was charged with inciting a witness to give false testimony in the applicant’s favour.
6. On 3 July 2007 the Walbrzych District Court convicted the applicant as charged and sentenced him to eight years’ imprisonment. M.K. was convicted and sentenced to one year of imprisonment, suspended on probation. The applicant and the prosecutor appealed. The judgment against M.K. was not challenged and became final.
7. On 21 December 2007 the Świdnica Regional Court (SądOkręgowy) quashed the judgment in respect of the applicant and remitted the case.
8. On 14 August 2008 the applicant’s detention on remand was lifted.
9. On 18 October 2010 the Walbrzych District Court again convicted the applicant of multiple offences and sentenced him to six years’ imprisonment. The applicant and the prosecutor appealed.
10. On 22 March 2011 the Świdnica Regional Court partly quashed the judgment as regards two offences. It upheld the remainder of the judgment, increasing the applicant’s sentence to seven years’ imprisonment.
11. On 30 March 2012 the Walbrzych District Court convicted the applicant of two remaining offences and sentenced him to four years’ imprisonment. This judgment became final on 14 September 2012.
B. The application for compassionate leave
12. On 27 February 2008 the applicant’s father died. At that time the applicant was detained in Wałbrzych Remand Centre.
13. On 28 February 2008 at 12 noon the applicant’s sister M.K. lodged an application with the Wałbrzych District Court (SądRejonowy) requesting to grant the applicant compassionate leave to attend his father’s funeral on 29 February 2008 under her supervision as a trustworthy person (osobagodnazaufania). A copy of the death certificate and a letter confirming the date and place of the funeral were attached to the application.
14. On 29 February 2008 the Wałbrzych District Court’s judge, applying Article 141a § 3 of the Code of Execution of Criminal Sentences refused the application. The judge stated that the applicant had been accused of committing many offences and there was a likelihood that he would be sentenced to a severe penalty. Moreover, he had already tried to escape from a convoy escorting him to a hearing and the general assessment of his behaviour in the remand centre had been negative. Due to this and other reasons the applicant was classified as a “dangerous detainee”. In consequence, the judge considered that the applicant could not be trusted to return from compassionate leave. The judge also noted that the applicant had not lodged the application for leave himself, instead, it had been lodged by a member of his family. The decision was served on the applicant on the same day. The applicant did not appeal.
The civil proceedings
15. On 26 August 2013 the applicant lodged a civil claim for payment of 25,000 Polish zlotys (PLN) against the State Treasury. He claimed that the refusal to allow him to participate in his father’s funeral, even under convoy, had violated his right to family life. The applicant emphasised his attachment to his father, who had helped him despite his mistakes. He also stated that he had been able to see his family only once a month and for that reason the application for compassionate leave had been lodged by his sister. Lastly, he pointed out that the detention on remand had been lifted approximately six months later, so there had been no real risk of him absconding.
16. On 12 September 2014 the Wałbrzych District Court dismissed the applicant’s claim. The court held that the applicant had not proved that the refusal to attend his father’s funeral had caused him any damage. The court also considered that the authorities had given a correct and sufficient justification for the decision of 29 February 2008 refusing compassionate leave.
17. The applicant lodged an appeal against the judgment. He argued that it had been the State’s duty to transport him to the funeral, even if an escorting convoy would have been needed, and that when his father died he had been no longer classified as a “dangerous detainee”.
18. On 22 January 2015 the Świdnica Regional Court dismissed his appeal. That court agreed with the reasons given by the district court. It further reiterated that the right to compassionate leave under Article 8 of the Convention had not been absolute. In the present case the refusal was lawful and aimed to protect the public and prevent disorder and crime.
C. Relevant domestic law and practice
19. The relevant provisions of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:
Article 141a:
“1. In cases of particular importance 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 a prison officer or in the company of another trustworthy person (osobagodnazaufania ).”
COMPLAINT
20. The applicant complained under Article 8 of the Convention that he had not been allowed to attend his father’s funeral.
THE LAW
21. The Government raised a preliminary objection of non-compliance with the six-month time-limit. They argued that the period started running on 29 February 2008 when the decision refusing the applicant permission to participate in the funeral had been issued. Alternatively, the Government argued that the interference in question had fulfilled the conditions laid down in Article 8 § 2 of the Convention and the application should be declared manifestly ill-founded.
22. The applicant did not comment on the Government’s observations. He did not submit any arguments on the admissibility and merits of the case. In general, he upheld his original application.
23. The Court does not find it necessary to examine the Government’s objection on failure to comply with the six-month time-limit, the present case being in any event manifestly ill-founded, for the following reasons.
24. 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 of the Convention, 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).
25. The Court observes 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 v. Poland, no.26761/95, § 38, 12 November 2002). At the same time the Court emphasises that, even if a detainee by the very nature of his situation must be subjected to various limitations of his rights and freedoms, every such limitation must nevertheless be justifiable as necessary in a democratic society. It is the duty of the State to demonstrate that such necessity really existed (ibid § 35).
26. Turning to the circumstances of the instant case, the Court firstly notes that it was not disputed by the parties that the refusal to allow the applicant to attend his father’s funeral constituted interference with his right to respect for his family life. The Court is also satisfied that the interference, which was based on Article 141a 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” (see Kosiński v Poland, (dec.) no. 20488/11, § 19, 9 February 2016. It thus remains to be determined whether it was “necessary in a democratic society”.
27. In this connection the Court observes that the applicant was indicted for a series of violent offences and was qualified by a prison commission as a “dangerous detainee”. In the decision refusing the request for compassionate leave the judge referred to the applicant’s negative behaviour in prison and his previous attempt to escape while being transported to a hearing. The Court therefore accepts that in the circumstances of the present case the risks associated with the applicant’s release from prison could reasonably be considered high and the domestic authorities were justified in finding that his return to prison could not be guaranteed (see Czarnowski v. Poland, no.28586/03, § 29, 20 January 2009, and Rostkowski v. Poland, (dec.) no. 58935/11, § 24, 8 November 2016).
28. The Court considers that the request for compassionate leave lodged in the applicant’s case was examined diligently and speedily. The decision of 29 February 2008 was well reasoned and had assessed the application for compassionate leave on the merits (compare and contrast Płoski, cited above, §§ 36-39).
29. Furthermore, the Court considers of particular importance the fact that in the instant case the request for compassionate leave was made by the applicant’s sister and not by the applicant himself. It does not appear that following his father’s death the applicant himself had informed the domestic judge of his wish to attend the funeral or had made any argument pertaining to the importance of his attendance, or had otherwise supported his sister’s request. The domestic authorities were therefore uncertain whether the matter had been of particular importance to the applicant and therefore whether the main condition for granting him compassionate leave had been met. In the proceedings before the Court the applicant did not advance any argument as to why he had failed to lodge the request himself as had been the case in all other cases so far examined against Poland (see for instance Płoski, cited above). In the absence of the applicant’s submission on the admissibility and merits of the case the Court considers that he failed to substantiate his complaint that the authorities’ refusal to grant him compassionate leave had amounted to a violation of his right to respect for his private and family life.
30. The Court concludes that the applicant failed to substantiate his complaint that the refusal to allow him the compassionate leave had exceeded the margin of appreciation left to the respondent State. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 March 2020.
Renata Degener Aleš Pejchal
Deputy Registrar President
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