FIRST SECTION

DECISION

Application no . 60813/11 Tomasz RADYM against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 June 2017 as a Committee composed of:

Aleš Pejchal , President, Krzysztof Wojtyczek, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 2 September 2011,

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 Tomasz Radym , is a Polish national who was born in 1968 and lives in Chrzanów . He was represented before the Court by Mr J. Kohler, a lawyer practising in Katowice.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska , of the Ministry of Foreign Affairs.

3. The applicant complained under Article 8 of Convention about the restrictions placed on his attendance at his son ’ s funeral.

4. On 27 August 2014 the application was communicated to the Government.

A. The circumstances of the case

5. The applicant was born in 1968 and lives in Chrzanów .

6 . On 3 June 2009 he was charged with two counts of drug trafficking. On the same date the Katowice- Wschód District Court remanded him in custody as there was a reasonable suspicion that he had committed the offence in question.

7 . On an unspecified date in 2009 the applicant was charged with a further offence of participating in an organised criminal group.

8. The applicant ’ s detention was subsequently extended by the Katowice Regional Court and the Katowice Court of Appeal.

9. On 26 May 2011 the Katowice Court of Appeal extended the applicant ’ s pre- trial detention until 30 August 2011.

10 . That decision was upheld by the Katowice Court of Appeal on 6 July 2011. The court noted that during the whole period of the applicant ’ s detention he was simultaneously serving prison sentences imposed in separate sets of criminal proceedings against him. In view of the fact that he was at that time serving a cumulative prison sentence of 8 years and 6 months which was due to end on 31 March 2015, the court considered that the reasonableness of his detention should be re-examined as soon as the trial court had heard evidence from him.

11. On 29 July 2011 the applicant ’ s 17-year old son died in the Netherlands. His body was scheduled to be transported home on 1 August 2011. At that time the applicant was being detained in Cieszyn Prison.

12. On 8 August 2011 the applicant ’ s mother applied on behalf of the applicant for leave from prison to attend the funeral, which was to take place on 10 August 2011.

13 . On 9 August 2011 the Penitentiary Judge ( sędzia penitencjarny ) of the Bielsko-Bia ł a Regional Court, relying, among other things, on Article 141 (a) of the 1997 Code of Execution of Criminal Sentences, granted the applicant compassionate leave to attend the funeral, under the escort of prison officers.

14. The applicant was told about the decision by a prison officer.

15. On 10 August 2011, the date of the funeral, the applicant was informed by prison officers of the specific conditions for his attendance. He was told that he would have to wear handcuffs and shackles on his hands and legs and would be under the escort of three uniformed prison officers, fully armed with guns and truncheons. He was also informed that he could not accompany his wife and daughter during the funeral procession and would have to remain in the escort car until it arrived.

16. On the same date the applicant informed the authorities that he had decided not to attend the funeral because of the conditions for his attendance.

17. His detention was lifted on 11 August 2011.

18 . The decision of the penitentiary judge was served on him on 13 September 2011.

19. He did not appeal against that decision.

B. Relevant domestic law

20. The relevant domestic law concerning compassionate leave from prison is set out in the Court ’ s judgment in the case of Giszczak v. Poland (no. 40195/08 , §§ 19-21 , 29 November 2011) .

COMPLAINT

21. The applicant complained under Article 8 of the Convention that the restrictions placed on his attendance at his son ’ s funeral had violated his right to respect for his private and family life.

THE LAW

22. The applicant ’ s complaint related to the restrictions placed on his attendance at his son ’ s funeral. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

23. The Government noted at the outset that the applicant had been allowed to attend the funeral. They further agreed that there had been an interference with his rights, which had been in accordance with the law and had pursued a legitimate aim for the prevention of disorder or crime. They stressed that at that time the applicant had been serving a cumulative prison sentence of 8 years and 6 months due to end on 31 March 2015 and had also been charged with drug trafficking and participating in an organised criminal group. Consequently, in their view, the interference had been “necessary in a democratic society”.

24. The applicant submitted that he had been refused permission to attend his son ’ s funeral without a prison escort.

25. The Court has already found that refusing a person leave to attend a relative ’ s funeral or visit an ailing relative constitutes an interference with the right to respect for his or her family life (see Płoski v. Poland , no. 26761/95, § 32, 12 November 2002 , and Giszczak v. Poland , no. 40195/08 , § 27, 29 November 2011 ). However, it has also found that a decision by the authorities to only allow leave from prison under a police escort does not exceed the margin of appreciation left to the respondent State (see Kosiński v. Poland , no. 20488/11, §§ 19- 24, 9 February 2016).

26. The Court notes that Article 8 of the Convention does not guarantee a detained person an unconditional right to leave to attend any event important to him or her. It is up to the domestic authorities to assess each request on its merits. The Court ’ s scrutiny is limited to considering 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).

27. Turning to the circumstances of the present case, the Court firstly notes that it was not disputed by the parties that the restrictions placed on the applicant ’ s attendance at his son ’ s funeral 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 PÅ‚oski , cited above, §§ 32 ‑ 34). It thus remains to be determined whether it was “necessary in a democratic society”.

28. The Court observes that in the present case, contrary to similar Polish cases ( P ł oski cited above, Czarnowski v. Poland , no. 28586/03, 20 January 2009), the applicant was granted compassionate leave to attend his son ’ s funeral. His complaint, as in the cases of Banaszkowski v. Poland (no. 40950/12, 25 March 2014) and Kosi ń ski (cited above) is directed against the restrictions placed on that right, namely a prison escort.

29. In this connection the Court notes that the applicant was convicted of drug trafficking and participating in an organised criminal group (see paragraphs 6 and 7 above). Moreover, at the relevant time he was serving a long ‑ term prison sentence (see paragraph 10 above). Consequently, the Court accepts that in the circumstances of the present case the risks associated with his release from prison could reasonably be considered high (contrast with Czarnowski , cited above, § 29).

30. Furthermore, it is to be noted that in the present case the application for leave from prison was not lodged until 8 August 2011, two days before the funeral, even though the applicant ’ s son had died on 29 July 2011. Despite that, the State authorities handled the applicant ’ s request for leave diligently and speedily: the decision of the penitentiary judge was issued on 9 August 2011 (see paragraph 13 above).

31. The Court concludes that, in the particular circumstances of the present case, the authorities ’ decision 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.

32. For the above reasons, this complaint 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 20 July 2017 .

Renata Degener Aleš Pejchal Deputy Registrar Presiden t