Communicated on 27 May 2017

FIRST SECTION

Application no. 37309/10 Pawe Å‚ WASIK against Poland lodged on 15 June 2010

STATEMENT OF FACTS

The applicant, Mr Pawe ł Wasik , is a Polish national who was born in 1982 and is serving a prison sentence in Wo łó w .

A. The circumstances of the case

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

In June 2010 the applicant asked the penitentiary judge of Wroc Å‚ aw Regional Court to grant him compassionate leave from prison in order to conclude a civil marriage with his partner, M.M. The ceremony was scheduled to take place at Wroc Å‚ aw Public Registry Office on 3 March 2010.

On 25 February 2010 the penitentiary judge refused the request. The decision read as follows:

“ None of the grounds specified by Article 141a § 2 of the Code of Execution of Criminal Sentences are present.”

The applicant appealed against that decision.

On 3 March 2010 the applicant married M.M. in a ceremony held in prison. The applicant submits that he was not allowed to take photographs of the ceremony and was also refused a conjugal visit after the marriage.

On 7 May 2010 the Wroc Å‚ aw Regional Court dismissed an appeal by the applicant against the decision of 25 February 2010. The relevant part of the decision read as follows:

“Under Article 7 of the Code of Execution of Criminal Sentences [“the Code”] a convicted person may challenge only the lawfulness of a decision given by an authority specified in Article 2 section 3-6 of the Code [a judge, a penitentiary judge, a director of a prison or detention centre , a regional director or the Director General of the Prison Service or a court probation officer].

Because the applicant in his complaint does not contest the lawfulness of the penitentiary judge ’ s decision - and such unlawfulness has not been observed ex officio by the [Regional] Court – but only discusses the assessment of fact made by the penitentiary judge, the requirements specified in Article 7 have not been met.”

B. Relevant domestic law and practice

1. The Code of Execution of Criminal Sentences

( a ) Appeals

Article 7, paragraphs 1 and 2, of the Code of Execution of Criminal Sentences provides that a detained person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a prison director or a director of a detention centre , a regional director or the Director General of the Prison Service, or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court.

The remainder of Article 7 of the Code reads as follows:

“3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably , it shall refer it, together with the case file and without undue delay, to the competent court.

4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ...

5. After examining the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court ’ s decision shall not be subject to an interlocutory appeal.”

( b) Compassionate leave

Article 141a of the 1997 Code of Execution of Criminal Sentences (“the Code”), as applicable at the material time, read as follows:

“1. In situations which are of particular importance ( wypadki szczególnie wa ż ne ) 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 ).

2. With respect to prisoners detained in a closed-type institution, permission under par. 1 is granted by a penitentiary judge or in urgent situations by the director of the penitentiary institution.”

On 1 January 2012 this provision was amended. Compassionate leave is now granted by the director of the penitentiary institution and Article 141a expressly refers to “seeing a seriously ill relative, attending a relative ’ s funeral or other situations of particular importance to the convicted person”.

2. European Prison Rules

A Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of compassionate leave from prison that may be relevant in the context of the present case.

Rule 24.7 reads:

“Whenever circumstances allow, the prisoner should be authorised to leave prison either under escort or alone in order to visit a sick relative, attend a funeral or for other humanitarian reasons.”

COMPLAINT

Without invoking any provisions of the Convention, the applicant complains about the refusal to grant him leave from prison in order to conclude a civil marriage.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention? Reference is made to the manner in which the penitentiary judge dealt with the applicant ’ s application for compassionate leave from prison in order to conclude a marriage.

2. Has there been a violation of the applicant ’ s right to marry, contrary to Article 12 of the Convention?