FOURTH SECTION

CASE OF KUBIAK v. POLAND

(Application no. 2900/11)

JUDGMENT

STRASBOURG

21 April 2015

This judgment is final but it may be subject to editorial revision.

In the case of Kubiak v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	George Nicolaou, President,
	Ledi Bianku,
	Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2900/11) 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 Wiktor Kubiak (“the applicant”), on 3 January 2011.
2.  The applicant was represented by Mr P. Rał, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3.  On 27 November 2013 the application was communicated to the Government.
4.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1989 and is currently detained in Garbalin Prison.
6.  On an unspecified date before 2010 the applicant was convicted of homicide and sentenced to imprisonment. The term of his imprisonment was to end in 2016.
7.  At the relevant time he was detained in Włocławek Prison.
8.  On 23 December 2010 the applicant’s grandmother died.
9.  On 29 December 2010 in the morning the applicant received a telegram from his relatives informing him of the death of his grandmother and of the date of her funeral. The funeral was scheduled to take place on 30 December 2010 at 12 noon in Zgierz, a town located at a distance of approximately 100 kilometers from Włocławek.
10.  On the same day the applicant made an application for leave from prison to attend his grandmother’s funeral. His application was transmitted by the penitentiary authorities to the Włocławek Regional Court via fax at 2.46 p.m. It read, in so far as relevant, as follows:
“I kindly ask the Regional Court to grant me leave to attend the funeral of my grandmother. She was very close to me, she was the person who had raised me. Thank you very much for considering my request.”
11.  By a decision of 30 December 2010 the Penitentiary Judge of the Włocławek Regional Court (sędzia penitencjarny), refused the applicant’s request. The reasons given for the decision were as follows:
“... the convicted person’s application for compassionate leave under Article 141a § 1 of the Code of Execution of Criminal Sentences was refused due to the nature of the committed offence, negative opinion about the convicted (negatywna opinia środowiskowa) and the remote date foreseen for the completion of his sentence.”
12.  The decision was notified in writing to the applicant on 31 December 2010. The applicant did not appeal against it as the funeral had already taken place and he considered that this would be purposeless.
II.  RELEVANT DOMESTIC LAW
13.  Article 141a of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:
“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 (osoba godna zaufania )”.
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
14.  The applicant complained that he had not been allowed to attend his grandmother’s funeral. The Court considers that this complaint falls to be examined under Article 8 of the Convention, which reads as follows:
“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.”
15.  The Government contested that argument.
A.  Admissibility
16.  The Court notes that the application 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’ submissions
(a)  The applicant
17.  The applicant submitted that the refusal to grant him compassionate leave was in breach of Article 8 of the Convention. He emphasised that, in accordance with the Court’s case‑law, even if a detainee must be subjected to various limitations of his rights and freedoms, each of these limitations must be justifiable as necessary in a democratic society. It was the duty of the State to demonstrate that such necessity really existed in the applicant’s case. The applicant considered that the Government failed to demonstrate such necessity. The refusal of leave was based mainly on the gravity of the committed offence and the penitentiary authorities failed to take into account the progress of the applicant’s rehabilitation. He further considered that the authorities should have acted with greater expediency, having regard to the urgency of the situation.
(b)  The Government
18.  The Government agreed that the refusal to grant the applicant leave to attend his grandmother’s funeral amounted to an interference with his right to respect for his private and family life. They argued, however, that this interference had been in accordance with the law, as it was based on Article 141a of the Code of Execution of Criminal Sentences and pursued a legitimate aim of protecting public safety and preventing disorder or crime.
19.  In the Government’s opinion the interference with the applicant’s right to respect for his private and family life was also necessary in a democratic society. They submitted that the authorities had based their decision on a negative opinion about the applicant. According to this opinion, the applicant had on many occasions exhibited negative behaviour in prison and had committed acts of self‑mutilation. They emphasised that the applicant had been convicted of homicide and sentenced to long‑term imprisonment which was to end in 2016.
20.  They also stressed that the State authorities could not be held responsible for the late arrival of the telegram informing the applicant of the death of his grandmother. The prison authorities had served the telegram on the applicant immediately after its arrival on 29 December 2010 in the morning. The applicant’s request for leave was transmitted to the Włocławek Regional Court without delay, in the afternoon of the same day. The penitentiary judge examined the applicant’s request on 30 December 2010, when the funeral was scheduled to be held. The Government argued that all reasonable efforts had been made to deal with the applicant’s request promptly and without delay.
2.  The Court’s assessment
21.  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).
22.  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).
23.  Turning to the circumstances of the present case, the Court firstly notes that it was not disputed by the parties that the refusal to allow the applicant to attend the funeral of his grandmother constituted an interference with his right to respect for his private and 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 Płoski, cited above, §§ 32‑34). It thus remains to be determined whether it was “necessary in a democratic society”.
24.  In this connection the Court observes that the applicant had been convicted of homicide and at the material time he was serving a long‑term prison sentence. His term of imprisonment was to end in 2016, that is after some six years from the date of the events in question (see paragraph 6 above). In the decision refusing the applicant’s request for leave, the penitentiary judge also referred to the applicant’s negative behaviour in prison, as confirmed by the negative opinion issued by the penitentiary authorities about him (see paragraph 11 above). 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 (cf. Płoski, cited above, § 36, and Czarnowski v. Poland, no. 28586/03, § 29 , 20 January 2009).
25.  However, taking into account the seriousness of what was at stake, namely refusing an individual the right to attend the funeral of his close relative, even if there had been compelling reasons for the refusal of leave from prison, the respondent State could have refused the applicant attendance only if no alternative solution – like escorted leave – could have been found (see, mutatis mutandis, Płoski, cited above, § 38).
26.  The Court notes that the decision refusing the applicant’s request for leave did not give any explicit consideration to the possibility of facilitating and securing his stay outside the prison by means of escorted leave. However, the Court considers that in the present case the domestic authorities cannot be faulted for this omission (see, a contrario, Płoski, cited above, § 36, and Giszczak v. Poland, no. 40195/08, § 29, 29 November 2011). The Court is aware that, by nature, escorted leaves require some organisational and logistical preparations and a realistic time frame for the domestic authorities to act. It notes in that respect that the applicant’s request for leave from prison was examined by the penitentiary judge on 30 December 2010. The funeral of the applicant’s grandmother was to take place on the same day at 12 noon in a town located at a distance of approximately 100 kilometers from the prison where the applicant was detained (see paragraphs 9‑11 above). It cannot therefore be said that the domestic authorities had sufficient time to organise an escorted leave in order to allow the applicant to attend the funeral.
27.  Furthermore, the Court finds it significant that in the present case the time constraints under which the domestic authorities had to act were not a result of the inherent urgency of the situation or of their own failure to act expeditiously but rather of the delay of the applicant’s relatives in informing him about the funeral. Although the applicant’s grandmother died on 23 December 2010, he received a telegram informing him of this fact and about the date of the funeral only on 29 December 2010 in the morning. In contrast, the State authorities handled the applicant’s request for leave diligently and speedily: the prison authorities transmitted it to the Regional Court at 2.46 p.m. on the same day and the penitentiary judge examined it promptly the next day.
28.  The Court concludes that, in the particular circumstances of the present case, the refusal of leave to attend the funeral of the applicant’s grandmother did not exceed the margin of appreciation left to the respondent State and was “necessary in a democratic society” as it corresponded to a pressing social need and was proportionate to the legitimate aims pursued (cf. Płoski, cited above, § 39). Accordingly, there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 21 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	George Nicolaou
	Deputy Registrar	President