FIRST SECTION

DECISION

Application no. 18451/16 Michał Adrian STOLARCZYK against Poland

The European Court of Human Rights (First Section), sitting on 12 October 2021 as a Committee composed of:

Péter Paczolay, President, Alena Poláčková, Gilberto Felici, judges, and Attila Teplán, Acting Deputy Section Registrar,

Having regard to the above application lodged on 26 April 2016,

Having regard the decision to give notice to the Polish Government (“the Government”) of the complaint under Article 8 of the Convention concerning refusal to grant the applicant compassionate leave in order to attend his grandmother’s funeral and to declare inadmissible the remainder of the application,

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 Michał Adrian Stolarczyk, is a Polish national who was born in 1988 and lives in Sulęcin. He was represented before the Court by Mr M. Kałużny , a lawyer practising in Gorzów Wielkopolski.

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

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

4 . Since 5 March 2013, the applicant has been serving three prison sentences for fraud and failure to pay family maintenance. His sentences were due to come to an end on 9 June 2020. At the relevant time he was detained in Goleniów Prison.

5 . In 2015 he was granted occasional leave from prison on three occasions, received awards for good behaviour in prison and took part in rehabilitation programmes, including cultural and educational activities taking place outside the prison. However, he was also disciplined twice for fights with other prisoners and improper behaviour and – as a consequence of this behaviour – on 13 November 2015 he was moved from a semi-open prison to a closed facility.

6. On 23 January 2016 the applicant’s grandmother died. The applicant submitted that he had had a very close relationship with her as she had raised him after the death of his mother, persuaded him to surrender to the authorities and subsequently, despite her progressing illness, visited and called him regularly in prison.

7 . On 25 January 2016 the applicant applied for compassionate leave to attend the ceremony of “the last farewell” for his grandmother before the cremation of her body and the funeral. His request was accompanied by a death certificate and information concerning the date of the funeral. On the same day, the Governor of Goleniów Prison informed the applicant that he could attend the funeral, planned for 27 January 2016, under prison guard escort. The decision was based on the negative criminological prognosis formulated by the prison’s social worker. According to the applicant, he was informed that he would have to wear his prison clothes and handcuffs to attend the funeral.

8. On 26 January 2016 the applicant appealed against this decision to the Szczecin Regional Court – Penitentiary Division ( Sąd Okręgowy – Wydział Penitencjarny i Nadzoru nad Wykonywaniem Orzeczeń ). He argued that the conditions imposed on his attending the funeral were undignified and harmful to him and his family.

9. On 26 January 2016 the ceremony of the “last farewell” to the applicant’s grandmother’s body took place in the funeral home. On 27 January 2016 the funeral took place. The applicant decided not to attend, since he believed that his appearance in prison clothes, wearing handcuffs and under an escort of prison officers would be disrespectful to the memory of his grandmother.

10. On 22 March 2016 the Szczecin Regional Court – Penitentiary Division upheld the decision of the Governor of Goleniów Prison. The domestic court indicated that, having taken into consideration the applicant’s behaviour in prison and the length of his sentence, it was not guaranteed that he would use his leave according to its purpose and return on time. It also held that the decision to allow the applicant to attend his grandmother’s funeral under escort struck the right balance between respect for the applicant’s dignity and his family life and the need to secure protection of legal order, in particular preventing the applicant’s absconding.

11 . The applicant also complained to the Ombudsman ( Rzecznik Praw Obywatelskich ). On 24 April 2017 the Office of the Ombudsman informed him that it had investigated his case and found no violation of his rights. The letter stated in particular that the Ombudsman had requested information about the applicant’s case from the prison authorities and had been informed by the Head of the Szczecin Regional Unit of the Prison Guard ( Dyrektor Okręgowej Służby Więziennej w Szczecinie ) that the applicant had received details concerning his transfer to his grandmother’s funeral on 25 January 2016. It stated that the prison administration had decided that he was to wear prison clothes during the transfer, for security reasons. As explained by the prison authorities, this would make it easier to identify the applicant in the crowd in case he attempted to flee. The letter also indicated that the use of handcuffs during the prison transfer was provided for by the domestic law.

12. A detailed description of the relevant domestic law concerning general rules governing granting compassionate leave to prisoners is set out in the Court’s judgment in the case of Giszczak v. Poland (no. 40195/08, §§ 19-21, 29 November 2011).

COMPLAINT

13. The applicant complained under Article 8 of the Convention that the decision not to grant him compassionate leave to attend the ceremony of the “last farewell” before the cremation of his grandmother’s body and her funeral violated his right to respect for his family life.

THE LAW

14 . The Government stressed that the applicant had not been denied the effective possibility to attend the funeral of his grandmother. They further submitted that neither the decision issued by the Governor of Goleniów Prison (see paragraph 7 above) nor any other decision of the domestic authorities had specified that the applicant would be obliged to wear prison clothes. Considering the length of the applicant’s sentence and his inadequate behaviour in prison (see paragraph 5 above), his return to prison would not have been guaranteed if no precautions had been taken during the funeral.

15. The applicant submitted that he was deprived of his right to attend the ceremony of the “last farewell” for his grandmother before the cremation of her body and the funeral. He noted that the decisions of the domestic authorities, as well as the Government’s submissions to the Court, related only to the funeral and had not taken into consideration the fact that funeral ceremonies lasted two days and consisted of two ceremonies, both of which had been attended by his family. He further argued that he had been informed that – contrary to the submissions by the Government (see paragraph 14 above) – he had been informed that he would have to attend the ceremony handcuffed and in prison clothes.

16. The applicant argued that the decision to allow him to attend the funeral only under prison guard escort, in prison clothes and handcuffed was disproportionate.

17. The Court reiterates 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; Kanalas v. Romania , no. 20323/14, § 66, 6 December 2016; and Vetsev v. Bulgaria , no. 54558/15, § 22, 2 May 2019). 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 (see Płoski , cited above, § 35).

18. Turning to the circumstances of the present case the Court firstly notes that the interference, which was based on Article 141a § 1 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”. It thus remains to be determined whether it was “necessary in a democratic society”.

19. The Court observes that the applicant was serving three prison sentences, which in total amounted to over seven years’ imprisonment, and had a history of disciplinary offences, including a fight with another inmate. On 25 January 2016 he was granted compassionate leave to attend his grandmother’s funeral under prison guard escort. The Court notes that the decision of the Governor of Goleniów Prison did not refer to the ceremony of the “last farewell” for the applicant’s grandmother before the cremation of her body. However, the applicant did not substantiate that he had informed the prison authorities about the date of this ceremony and its significance to him. On the contrary, his request for compassionate leave gave solely the date of the funeral (namely 27 January 2016) and the information that the applicant wished to be granted compassionate leave from 25 to 29 January 2016, without further specifying any events other than the funeral that were to take place during this period. Consequently, the Court considers that the decision of 25 January 2016 cannot be considered as incompletely answering the applicant’s request in respect of the ceremony of the “last farewell” for his grandmother.

20. With reference to the funeral of the applicant’ grandmother the Court notes that, in the present case, contrary to similar Polish cases (see Płoski , cited above, and Czarnowski v. Poland , no. 28586/03, 20 January 2009), the applicant was granted compassionate leave to attend his grandmother’s burial. The applicant’s complaint, as in the case of Giszczak (see Giszczak v. Poland , no. 40195/08, 29 November 2011; see also Banaszkowski v. Poland , [Committee] no. 40950/12, 25 March 2014, § 23 and Kosiński v. Poland , [Committee] no. 20488/11, 9 February 2016, § 20) is directed against the restrictions placed on that right, namely the prison guard escort and the obligation to wear prison clothes during the ceremony.

21. The applicant submitted that he had been informed that, when attending the funeral, he would have to wear prison clothes. The Government contested this argument. In this respect the Court notes that the applicant’s version of events is substantiated by information provided by the Head of the Szczecin Regional Unit of the Prison Guard upon the request of the Ombudsman, which stated that the applicant was to wear prison clothes in order to facilitate his identification in the crowd in case of any attempt to escape (see paragraph 11 above). The Court, however, also notes that in his appeal against the decision of the Governor of Goleniów Prison the applicant questioned primarily the refusal to grant him four days’ leave and the requirement of the prison guard escort when attending the funeral, and not the particular issue of the clothes he would have been obliged to wear. It therefore seems that his decision not to attend the funeral of his grandmother resulted primarily from an unwillingness to appear at the ceremony under prison guard escort.

22. In this connection the Court observes that the applicant was convicted of several offences and at the relevant time was serving a long‑term prison sentence (see paragraph 4 above). The prison authorities and domestic court explained the need for the prison guard escort by referring to the lack of positive criminological prognosis and a risk that the applicant might not return to prison after the ceremony (see paragraph 7 above). Accordingly, the domestic authorities carried out the balancing between the two competing interests, that is, between, on the one hand, the applicant’s right to respect for his family life and, on the other, the protection of public safety and the prevention of disorder or crime (see, mutatis mutandis , Császy v. Hungary , no. 14447/11, § 20, 21 October 2014).

23. The Court accepts that, in the circumstances of the present case, the risks associated with the applicant’s funeral leave could reasonably be considered high and the domestic authorities were justified in finding that his return to prison could not be guaranteed. Thus, the grant of compassionate leave under prison guard escort appears to have been warranted.

24. 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.

25. 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 18 November 2021.

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Attila Teplán Péter Paczolay Acting Deputy Registrar President