European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 14260/09
by Krystian WADIELAC
against Poland

The European Court of Human Rights (Fourth Section), sitting on  25 May 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 26 January 2009,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Krystian Wadielac, is a Polish national who was born in 1964 and lives in Racibórz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

At the relevant time the applicant was approaching three years and two months of his three-and-a-half-year prison sentence in the Gliwice Detention Centre.

On 1 December 2008 the applicant's mother died.

In the morning of 4 December 2008 the applicant received a letter from the Zabrze Family Centre (Miejski Ośrodek Pomocy Rodzinie) which read as follows:

“The Zabrze Family Centre informs you that on 1 December 2008 your mother Ewa Wiadelac died. She was receiving an old-age pension from the Social Security Board. Therefore, you, as the only son, are under an obligation to organise the funeral. You are also eligible to receive the funeral allowance (zasiłek pogrzebowy).With regard to the fact that you are detained, we would like to inform you that it is possible, with your consent, to entrust the organisation of the funeral to the undertakers.”

Around noon the same day the applicant wrote a statement that he did not agree to entrust the organisation of the funeral to the undertakers and requested the penitentiary judge of the Gliwice Regional Court (Sędzia Penitencjarny Sądu Okręgowego) to grant him compassionate leave to organise and attend the funeral of his mother. His request was sent by fax to the Regional Court.

On 4 December 2008 the undertaker's representative appeared at the detention centre. He sought the applicant's consent to entrust the funeral arrangements to him. The applicant refused.

On 11 December 2008 the penitentiary judge refused the applicant's request as pointless, finding that the funeral had taken place on 5 December 2008.

Subsequently, the applicant requested leave to deal with his late mother's apartment.

On 22 December 2008 the applicant was granted the leave requested, for thirty hours.

B.  Relevant domestic law

Article 141a of the 1997 Code of Execution of Criminal Sentences, in so far as relevant, reads as follows:

“§1 In cases which are 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 prison officers or other responsible persons (osoby godnej zaufania).

§3 The permission referred to above for a person detained during judicial proceedings ... requires a decision of approval given by the authority at the disposal of which the detainee remains.”

COMPLAINTS

The applicant complained that the refusal to grant him leave to attend his mother's funeral had amounted to degrading treatment contrary to Article 3 of the Convention. In the applicant's view, the refusal also violated his late mother's right under Article 9 because she had been buried like a homeless person, in the clothes she had been wearing in hospital.

The applicant also raised a complaint under Article 13 of the Convention that his complaint had been left without reply for several days.

He also complained under Article 11, without further explanation.

THE LAW

On 24 March 2010 the Court received the following declaration signed by the applicant:

“I, Krystian Wadielac, note that the Government of Poland are prepared to pay me the sum of PLN 6,000 (six thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.

I accept the proposal and waive any further claims against Poland in respect of the facts giving raise to this application. I declare that this constitutes a final resolution of the case.”

On 30 April 2010 the Court received the following declaration from the Government:

“I, Jakub Wołąsiewicz, Agent of the Government, declare that the Government of Poland offer to pay PLN 6,000 (six thousand Polish zlotys) to Mr. Krystian Wadielac with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Nicolas Bratza
Registrar President