FOURTH SECTION

DECISION

Application no . 49980/11 Marek ROGALA against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 December 2016 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy S ection Registrar ,

Having regard to the above application lodged on 25 July 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 Marek Rogala, is a Polish national who was born in 1961 and is detained in Rybnik.

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

A. The circumstances of the case

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

4. The applicant was serving a fifteen-year prison sentence for homicide. On 28 April 2011 his sister died.

5. At 1.50 p.m. on 29 April 2011 a telegram was received by the Radom Detention Centre, where the applicant was detained, informing him of his sister ’ s death and that the funeral would be taking place at 2 p.m. the next day.

6. According to the Government, prison officer A.F. personally informed the applicant of the telegram on 29 April 2011 and advised him to apply for compassionate leave to attend the funeral. The applicant however did not express any interest in applying for compassionate leave. A.F. made a note of his conversation with the applicant in his file.

7. The applicant submitted that he had not been informed of the telegram before officially receiving it a few days later.

8. The applicant received the telegram on 2 May 2011.

9. On 30 May 2011 the applicant wrote to the Minister of Justice, complaining that there had been an undue delay in delivering the telegram to him. On 7 July 2011 a prison inspector from the Radom Detention Centre replied to his letter, stating that the applicant had in fact been informed of the telegram on the day of its arrival and of the possibility of applying for compassionate leave to attend the funeral. The telegram itself had not been forwarded to him until 2 May 2011 because his probation officer had been absent for the bank holiday weekend.

10. On 10 June 2011 the applicant asked the Radom District Prosecutor to open a criminal investigation into the matter.

11. On 15 June 2011 the Radom District Prosecutor refused to institute proceedings, finding that there was no indication that an offence had been committed. The prosecutor established that even if the applicant had applied for compassionate leave on 29 April 2011, it would not have been possible for the prison authorities to organise his presence at the funeral at such short notice. The authorities would have had no time to organise escorted leave and the applicant would not have been permitted unsupervised leave. The matter of whether or not he had been informed in time of the telegram was without any practical significance as even with the best intentions of the authorities, his presence at the funeral would not have been possible. In view of those findings, the prosecutor considered that it had actually been for the prison authorities to clarify when the applicant had been informed of the telegram and, if there had been a delay, to explain why it had occurred. The prosecutor concluded that the applicant had not suffered any damage.

12. The applicant challenged the prosecutor ’ s decision before the courts. On 7 September 2011 the Radom District Court dismissed his appeal, upholding the District Prosecutor ’ s decision.

13. In the meantime, on 14 July 2011, the applicant made another complaint to the prison authorities. On 26 August 2011 the Regional Inspectorate of Prisons in Warsaw replied to his letter, reiterating the findings made previously, namely that he had been personally informed by a prison officer of the telegram, had not filed a request for compassionate leave and had not made any complaints about the matter before 30 May 2011.

B. Relevant domestic law

14. The relevant part of Article 141a of the 1997 Code of Execution of Criminal Sentences 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 a prison officer or in the company of another trustworthy person ( osoba godna zaufania ).”

COMPLAINT

15. The applicant complained under Article 8 of the Convention that there had been an undue delay in serving him with the telegram announcing the death of his sister, thus preventing him from attending her funeral.

THE LAW

16. The applicant ’ s complaint related to the late forwarding to him of a telegram as a result of which he was prevented from applying for leave from prison to attend his sister ’ 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.”

17. The Government contested that argument and considered that the application was manifestly ill-founded. They argued that the applicant had not used the opportunity to apply for compassionate leave prior to the funeral. It had been clearly established by the domestic authorities that he had been informed by a prison officer of the telegram and the funeral taking place. This would have allowed the domestic authorities to examine the possibility of granting him leave from prison. The Government stressed that although the applicant had been immediately informed of the possibility of applying for compassionate leave, the telegram itself had not been officially forwarded to him until after his probation officer had returned from leave. Lastly, the Government noted that the funeral had been due to take place two days after the death of the applicant ’ s sister and only one day after his family had sent him the telegram. The domestic authorities had not been responsible for the late arrival of the telegram announcing the death of the applicant ’ s sister.

18. The Court has already found that refusing leave to attend a relative ’ s funeral constitutes an interference with the right to respect for family life (see Płoski v. Poland , no. 26761/95, § 32, 12 November 2002).

19. Turning to the circumstances of the instant case, the Court firstly notes that the applicant did not apply for compassionate leave from prison to attend the funeral of his sister. The parties differ as to the reason for that. The applicant stated that he had not been informed of the death of his sister until 2 May 2011, two days after the funeral had taken place. The Government contested that statement and argued that the applicant had been immediately informed by a prison officer but had not been interested in applying for leave and attending the funeral. The Court takes note of the evidence provided by the Government in the form of a reply from the Radom Remand Centre and a note made by prison officer A.F. Both documents confirm that the applicant was informed of his sister ’ s death on the same day as the telegram, and of the possibility of applying for leave from prison. The applicant did not question the veracity of those documents. Moreover, the Court notes that he provided no explanation as to why, having received the telegram on 2 May 2011, he only decided to complain of a breach of his rights on 30 May 2011 (see paragraph 9 above). The Court therefore does not find it established that it was the authorities ’ actions or omissions that deprived him of the opportunity to apply for compassionate leave to attend the funeral of his sister.

20. Furthermore, the Court finds it significant that in the particular circumstances of the case the authorities would have had a very limited time to examine his request, had he made it immediately after the telegram had been received by the remand centre. The prison authorities would have had only twenty-four hours before the planned funeral to give a decision and arrange a police escort, assign police officers to accompany the applicant and organise transport. The Court agrees with the regional prosecutor that the domestic authorities would not have had sufficient time to organise escorted leave in order to allow the applicant to attend the funeral (see paragraph 11 above). As noted by the prosecutor, the applicant would not have been permitted unsupervised leave. In this connection, the Court reiterates that a decision to allow leave from prison to attend a funeral under police escort does not in principle exceed the margin of appreciation left to the respondent State (see Kosiński v. Poland , no. 20488/11, §§ 19-24, 9 February 2016).

21. The time constraint within which the domestic authorities would have been forced to act in the present case was a result of the delay with which the applicant ’ s family informed him of his sister ’ s demise and of the date of her funeral (see, mutatis mutandis , Kubiak v . Poland , no. 2900/11, § 27, 21 April 2015).

22. Therefore, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of Article 8 of the Convention.

23. 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 12 January 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President