Resolution CM/ResDH(2013)65 Giszczak case against Poland Execution of the judgment of the European Court of Human Rights

(Application No. 40195/08, judgment of 29/11/2011, final on 29/02/2012)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)54E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

A ction report [1]

Information about the measures to comply with the judgment in the case of

Giszczak against Poland

Case description

Giszczak, Application No. 40195/08, judgment of 29/11/2011 , final on 29/02/2012

This case concerns the refusals of the applicant ’ s requests for compassionate leave to visit his dying daughter in hospital and the failure to provide a timely and adequate reply to the applicant ’ s request for leave to attend her funeral. Because of those two reasons the Court found violation of Article 8 § 1 of the Convention.

The applicant made an application for compassionate leave to visit his dying daughter in the hospital. However the Penitentiary Judge of the Gliwice Regional Court refused the leave request because of the poor prospects of the applicant ’ s rehabilitation. On 16 May 2008, the applicant ’ s daughter died. Upon the applicant ’ s request on 19 May 2008, the Penitentiary Judge of the Gliwice Regional Court allowed the applicant to attend his daughter ’ s funeral on 21 May 2008, under police escort.

On 20 May 2008 the Director of the Detention Centre informed the applicant orally about the permission. The applicant asked to be able to wear a suit and handcuffs. He also requested that the escorting officers should wear plain clothes. He submitted that his request was denied and therefore he decided not to attend the funeral.

The written decision was served on the applicant on 26 May 2008, after the funeral had already taken place. The decision only specified that the applicant was allowed to attend his daughter ’ s funeral under escort. It did not mention whether he would have to wear joined shackles or whether he could wear plain clothes.

The Court concluded that, in the particular circumstances of the present case, the refusal of leave to visit the applicant ’ s dying daughter in the hospital, was not “necessary in a democratic society” as it did not correspond to a pressing social need and was not proportionate to the legitimate aims pursued. Therefore the Court found the violation of Article 8 of the Convention.

The Court pointed out that before the funeral the applicant had only been orally informed about the decision by the Director of the Detention Centre. Although the applicant was at all times very concerned about creating a disturbance during the ceremony if he appeared in prison clothes and chains, he was not given clear information as regards the particular conditions of his attendance at the funeral.

The Court observed that the fact that the applicant had not been informed in time, and in a clear and unequivocal manner about the conditions of his compassionate leave to attend his daughter ’ s funeral eventually resulted in his refusal to attend it for fear of causing too much disturbance.

The Court concluded that, in the particular circumstances of the present case, the failure to provide timely and adequate reply to the applicant ’ s request to attend the funeral of his daughter under special conditions must be seen as incompatible with his rights under Article 8 of the Convention.

I. Payment of just satisfaction and individual measures

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

-

2 000 EUR

Paid on 18/04/2012

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

In these circumstances, no other individual measure appears necessary .

II. General measures

The violation found by the Court in the present case resulted from the authorities ’ failure to protect the applicant ’ s private life.

In this context, it should be noted that the Court ’ s judgment was translated into Polish and published on the website of the Ministry of Justice (www.ms.gov.pl) and sent out to competent authorities such as Central Board of Penitentiary Service. Subsequently the Central Board of Penitentiary Service placed Polish translation of the judgment on its intranet website and sent to all Regional Heads of Penitentiary Service a circular with request to disseminate it among staff of all penitentiary units in Poland in order to act in conformity with the Court ’ s judgment.

In addition, in 2011, a special publication has been prepared which contains the analysis of the Court ’ s case law in leading cases concerning Poland – “Human rights standards under the European Convention on Human Rights” ( Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka ). The publication also contains the analysis of the standards related to Article 8 of the Convention. It has been disseminated free of charge among all judges and prosecutors. Moreover a new publication “European Court of Human Rights standards on granting of compassionate leaves to the persons deprived of their liberty” was placed on the Ministry of Justice ’ s website.

Finally it should be mentioned that on 1 January 2012 the law on compassionate leave was changed. Currently in force, Art. 141a § 1 of the Executive Criminal Code provides for clearly a possibility of granting a prisoner a leave under escort of the officer of the Prison Service, trustworthy person or he/she can leave penitentiary unit alone in order to visit sick family member or attend a funeral. Moreover new provisions provide for a possibility of lodging a complaint on the decision of the head of penitentiary unit.

In these circumstances, no other general measure appears necessary .

III. Conclusions of the respondent State

The government considers that further individual measures are not necessary in the present case and that the general measures adopted, in particular publication and dissemination of the judgment of the European Court of Human Rights, will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 8 paragraph 1 of the Convention.

[1] Information submitted by the Polish authorities on 16 January 2013.