FOURTH SECTION

Application no. 60373/11 Jarosław KOŚCIELAK against Poland lodged on 14 September 2011

STATEMENT OF FACTS

The applicant, Mr Jarosław Kościelak , is a Polish national, who was born in 1974 and lives in Pozna ń .

A. The circumstances of the case

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

At the relevant time the applicant was detained in Pozna Å„ Remand Centre. He was serving a two-year prison sentence.

On 26 June 2011 the applicant ’ s father died.

On 27 June 2011 the applicant ’ s lawyer lodged on his behalf an application for leave from prison to attend the funeral, which was scheduled for 7 July 2011 at 2 p.m .

The applicant submits that he supported the application with documents certifying that his mother, who was diagnosed with breast cancer at that time, was to be admitted to hospital on 7 July 2011 in the morning for a chemotherapy treatment and could not attend the funeral.

By virtue of a decision of 5 July 2011 the Penitentiary Judge of the Pozna ń Regional Court ( sędzia penitencjarny ), allowed the applicant a compassionate leave to attend the funeral, under prison officers ’ escort . The reasons given for the decision were as follows:

“ The request shall be granted. Due to humanitarian grounds the convicted person should be allowed to attend the funeral of his father, who was undoubtedly a close person to him. As there are no penitentiary grounds which would contradict the grant of compassionate leave, it was decided as above .”

The decision was served on the applicant on 7 July 2011 in the morning.

On the same date the applicant lodged an appeal against the decision. He repeated his request for a compassionate leave without escort of police officers. He argued that he had applied for leave because his mother could not attend and prepare the funeral due to her illness. He was his father ’ s only child and he wanted to participate in the funeral and the preparations thereto. He further argued that his behavior in prison was good and that the grant of leave would facilitate his rehabilitation.

The applicant decided not to attend the funeral under the prison officers ’ escort. He considered that his appearance with handcuffs and chains and under an escort of uniformed and armed officers would disturb the ceremony.

The applicant ’ s appeal was delivered to the Pozna ń Regional Court ( S ą d Okr ę gowy ) on 11 July 2011. Subsequently, as the applicant had meanwhile been transported to Kraków Remand Centre, the appeal was referred to the Kraków Regional Court. The relevant courts became involved in the so-called “jurisdiction dispute” ( spór kompetencyjny ) on which one of them should decide on the appeal.

Finally, on 28 October 2011 the Kraków Court of Appeal ( S ą d Apelacyjny ) found that the Pozna ń Regional Court was competent to examine the applicant ’ s appeal.

On 21 December 2011 the Pozna ń Regional Court upheld the impugned decision. It found that the applicant failed to demonstrate that the penitentiary judge ’ s decision was unlawful. It further observed that, in his appeal, the applicant had merely expressed his dissatisfaction with the decision that he should attend the funeral under escort.

B. Relevant domestic law

Article 141a of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:

“ 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 ) ”.

Section 19 § 1 of the Law on Prison Service ( Ustawa o służbie więziennej ) of 9 April 2010 (as applic able at the material time) listed va rious coercive measures that could be used by prison officers including handcuffs and joine d shackles ( prowadnice ) .

COMPLAINT

The applicant complains, inv oking Articles 9 and 17 of the Convention, that he was not allowed to attend his father ’ s funeral without the prison officers ’ escort . He further alleges that the decision to grant him leave under escort deprived him of an effective possibility to participate in the funeral, due to the disproportionately severe and humiliating safety measures imposed.

QUESTIONS TO THE PARTIES

Has there been an interference with the appli cant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention , on account of the decision to grant him leave to his father ’ s funeral under prison officers ’ escort ? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?