FOURTH SECTION

DECISION

Application no . 58259/13 Daniel JANISZEWSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 24 March 2015 as a Committee composed of:

Ledi Bianku, President, Paul Mahoney, Krzysztof Wojtyczek, judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 3 September 2013 ,

Having regard to the declaration submitted by the respondent Government on 20 November 2014 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Daniel Janiszewski , is a Polish national, who was born in 1984 and is currently detained in Warsaw Remand Centre .

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

The application had been communicated to the Government .

A. The circumstances of the case

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

On 12 August 2013 the applicant was arrested by the police.

The applic ant was brought before the Wars aw Praga – Północ District Prosecutor ( Prokurator Prokuratury Rejonowej ) who charged him with robbery.

Subsequently, he was remanded in custody in the same criminal proceedings. He was detained in Warsaw– Białołęka Remand Centre.

On 25 August 2013 the applicant ’ s father died.

On 28 August 2013 the applicant made an application for leave from prison to attend the funeral of his father, which was scheduled for 29 August 2013.

On the same date the Governor of Wa rsaw – Białołęka Remand Centre requested permission from the Warsaw Praga – Północ District Prosecutor to grant the applicant leave under Article 141a of the Code of Execution of Criminal Sentences . The request was accompanied by the applicant ’ s application for leave.

On 28 August 2013, in the afternoon, the District Prosecutor refused the permission to grant the applicant leave. The prosecutor made a handwritten note on the governor ’ s request “permission refused” (“ nie wyrażam zgody ”).

The refusal was notified on the penitentiary authorities by fax. The applicant was informed orally about this refusal by a prison officer. He has not been served with a written and reasoned decision concerning his application for leave.

B. Relevant domestic law

The relevant provisions of the Code of Execution of Criminal Sentences read 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 ( osoba godna zaufania ) . ”

Article 217d:

“Granting leave described in Article 141a § 1 to a person detained on remand requires obtaining permission from the authority at whose disposal the detainee remains. ”

COMPLAINT

The applicant complained , invoking Articles 8 and 9 of the Convention, that he had not been allowed by the prison authorities to attend his father ’ s funeral.

THE LAW

The applicant complained about the refusal of leave from prison to attend his father ’ s funeral . The Court considers that this complaint falls to be examined under Article 8 of the Convention , which , in so far as relevant , provides:

“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.”

After the failure of attempts to reach a friendly settlement, by a letter of 19 November 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the applica tion in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the refusal to grant the applicant compassionate leave to attend the funeral of his father was not compatible with Article 8 of the Convention .

Having regard to the applicant ’ s distress he allegedly suffered as a result of the refusal to grant the applicant compassionate leave to attend the funeral of his father the Government declare that they offer to pay the applicant the amount of PLN 8,000 (eight thousand Polish zlotys), which is to cover any and all pecu niary and non ‑ pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant, which they consider to be reasonable in the present circumstances of the case. The above sum will be payable within three months from the date of notification of the decision taken by the Court p ursuant 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 peri od, the Government undertake to pay simple interest on it, from 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 Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ... ”

By letter of 15 December 2014 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration . He opposed the striking out of the case .

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to o ne of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that , in certain circumstances, it may strike o ut an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court examine d carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI ; WAZA Spółka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ) , no. 28953/03 , 18 September 2007 ).

The Court has established in a number of cases brought against Poland its practice concerning complaints about the violation of detainees ’ right to respect for private and family life on account of the refusal of compassionate leave from prison (see, for example, Płoski v. Poland , no. 26761/95, §§ 32-39, 12 November 2002; Czarnowski v. Poland , no. 2858 6/03, §§ 25-33, 20 January 2009; Giszczak v. Poland , no. 40195/08, §§ 36-41, 29 November 2011 ; Watros v. Poland ( dec. ), no. 13384/10, §§ 28-39, 31 January 2012 ; and Pielak v. Poland ( dec. ), no. 9409/09, 25 September 2012 ).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examinat ion of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examinat ion of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 16 April 2015 .

Fatoş Aracı Ledi Bianku Deputy Registrar President