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FOURTH
SECTION
CASE OF CZARNOWSKI v. POLAND
(Application
no. 28586/03)
JUDGMENT
STRASBOURG
20
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Czarnowski v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28586/03) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Edward Czarnowski
(“the applicant”), on 18 August 2003.
- The
Polish Government (“the Government”) were represented by
their Agent Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- In
addition, third-party comments were received from the Helsinki
Foundation for Human Rights (Warsaw, Poland), which had been given
leave by the President to intervene in the written procedure (Article
36 § 2 of the Convention and Rule 44 § 2).
- The
applicant alleged that the refusal to allow him to attend the funeral
of his father was in breach of Article 8 of the Convention.
- On
6 July 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1963 and lives in
Siemirowice.
- On 7 April 2000 the Wejherowo District Court (Sąd
Rejonowy) convicted the applicant of domestic violence and
sentenced him to a one year period of imprisonment
suspended on probation for 4 years. The court found that between June
1998 and October 1999 the applicant had ill treated his
girlfriend in that he had beaten her and abused her verbally.
- It
appears that the applicant breached the terms of his probation and on
20 September 2002 the Wejherowo District Court ordered that
his sentence be enforced. On 2 April 2003 he started to serve
it in the Wejherowo Detention Centre.
- On
18 July 2003 the applicant's father died. The applicant submits that
he immediately asked the prison authorities for leave to attend
his father's funeral. On 20 July the applicant's girlfriend
delivered him his father's death certificate.
- On
21 July 2003, a Monday, the applicant made a formal application for
leave to attend the funeral, which was to be held on 22 July
2003.
- On
21 July 2003 the Penitentiary Judge of the Gdańsk Regional Court
(Sędzia Sądu Okręgowego Wydziału
Penitencjarnego) refused the leave request. The reasons
given for the judge's decision were as follows:
“The convicted person's application cannot be
allowed. The grounds relied on [by the applicant] to
justify allowing him to leave the prison cannot be considered
especially important.
Consequently, since the conditions specified in Article
141 § 4 of [the Code of Execution of Criminal Sentences]
had not been fulfilled, it has been decided as above.”
- The
decision also included an instruction on the possibility to lodge an
appeal against the decision with the Gdańsk Penitentiary Court
within 7 days of the date of notification of the decision.
- The
decision was notified to the applicant on 22 July 2003. The applicant
did not appeal against it as the funeral had already taken place and
he considered that his request to leave prison had become without
purpose.
II. RELEVANT DOMESTIC LAW
- Article 141 § 4 of the 1997 Code of Execution of
Criminal Sentences, as in force at the material time, read as
follows:
“In cases which are especially important for a
convicted person, he or she may be granted permission to leave
prison for a period not exceeding 5 days, if necessary under the
escort of prison officers or other responsible persons (osoby
godnej zaufania). As regards convicted persons detained in closed
prison facilities such leave may be granted by a Penitentiary Judge
and in urgent cases by the Director of the Prison.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the refusal to grant him compassionate
leave from prison for the purpose of attending the funeral of his
father amounted to a breach of Article 8 of the Convention, which
reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
- The
Government contested that argument.
A. Admissibility
- The
Government raised a preliminary objection submitting that the
applicant had failed to exhaust domestic remedies. They maintained,
firstly, that it had been open to the applicant to appeal against the
decision of 21 July 2003. Secondly, the Government argued
that the applicant should have brought an action under Article 24
in conjunction with Article 448 of the Civil Code. These
provisions would have allowed him to assert that by failing to grant
him leave from prison the authorities had breached his personal
rights protected by the Civil Code and claim non-pecuniary damages.
- The
applicant did not comment on this matter.
- The Court observes that Article 35 of the Convention,
which sets out the rule on exhaustion of domestic remedies, provides
for a distribution of the burden of proof. It is incumbent on
the Government claiming non exhaustion to satisfy the Court that
the remedy was an effective one available in theory and in practice
at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success (see Selmouni v. France [GC], no. 25803/94, § 76,
ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, §
15, ECHR 2002-VIII).
- The
Court notes that the Government's objection that the applicant should
have lodged civil proceedings for compensation for breach of his
personal rights is confined to a mere assertion and there are no
further arguments or domestic court decisions indicating that, at the
relevant time, recourse to such an action in the circumstances of the
applicant's case would have offered any reasonable prospects of
success.
Secondly,
the Court sees no reason to conclude that an appeal against the
decision of 21 June 2003, notified to the applicant on the day of the
funeral, could be considered an effective remedy capable of offering
him redress in respect of his complaint.
For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' arguments
- The
applicant complained that the authorities' refusal to grant him
permission to leave the prison in order to attend his father's
funeral caused him suffering and humiliation. He submitted that he
had already served over 3 months of his one-year prison
sentence. During his detention he had often been commended on his
good behaviour and had remained in contact with his family and
relatives. The applicant maintained that those circumstances should
have been taken into consideration when deciding on whether to grant
him leave to attend his father's funeral.
- The
Government submitted that the applicant had been convicted
of domestic violence and subsequently breached the terms of his
probation. Moreover, another set of proceedings was pending against
the applicant in which he had been charged with driving while
under the influence of alcohol. The Government also submitted
that the applicant had lodged his request late, only on 21 July 2003
although he had learned about his father's death on 20 July 2003.
This had left the authorities only limited time to deal with it.
Finally, the Government submitted that following the applicant's
request the Director of the Prison had issued an opinion proposing
that he should not be granted leave. The Government stated:
“the Director pointed out that the applicant had a negative
criminal and social forecast”.
2. Helsinki Foundation for Human Rights
- The
Third Party underlined the importance of temporary leave for the
process of the re-socialisation of prisoners and referred to the
Council of Europe recommendations in this regard. They pointed
to several shortcomings in the application of the legal regulations
governing compassionate leave from prisons. Firstly, the wording of
the domestic law left wide discretion to the State particularly as
regards the classification as to what circumstances could be
regarded as “especially important”. Moreover, the
authorities usually provided very limited reasoning for their
decisions so that prisoners were not sufficiently informed of the
reasons for the refusals. They submitted that a prisoner should not
be obliged to produce a formal death certificate as it normally
took time and delayed the procedure while other arrangements could be
made for the authorities to confirm the prisoner's assertion and
a certificate could be delivered at a later stage.
Moreover, there should be a right to an expeditious appeal against
a decision of the Penitentiary Judge as the 7-day time-limit
could not be considered adequate in cases characterised by urgency.
3. The Court's assessment
- The
Court observes that any interference with an individual's right to
respect for his private and family life will constitute a breach of
Article 8, unless it was “in accordance with the law”,
pursued a legitimate aim or aims under paragraph 2, and was
“necessary in a democratic society” in the sense that it
was proportionate to the aims sought to be achieved (see, among other
authorities, Elsholz v. Germany [GC], no. 25735/94, § 45,
ECHR 2000-VIII).
- The
Court observes 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).
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 (ibid § 35).
- The
notion of necessity implies that the interference corresponds
to a pressing social need and, in particular, that it is
proportionate to the legitimate aims pursued. In determining whether
an interference was “necessary in a democratic society”
the Court will take into account that a margin of
appreciation is left to the Contracting States. Furthermore, the
Court cannot confine itself to considering the impugned facts in
isolation, but must apply an objective standard and look at them in
the light of the case as a whole (see, among other authorities,
Matter v. Slovakia, no. 31534/96, § 66, 5 July
1999).
- Turning
to the circumstances of the present case the Court firstly notes that
the Government failed to submit any arguments relating to the
existence of the interference, its lawfulness and the aim pursued. In
the absence of the parties' comments the Court considers that the
refusal to allow the applicant to attend his father's funeral
constituted an interference with his right to respect for his
private and family life. The interference, which was based on Article
141 § 4 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”.
- Looking
at the circumstances of the events in question in the light of the
case as a whole, and taking into account the margin of appreciation
left to the respondent State, the Court observes that the applicant
was serving a one year prison term. The applicant had been convicted
of domestic violence, his term of imprisonment had been
originally suspended in favour of probation, and there is no
indication that he was a dangerous criminal or that he had acted
in an organised criminal gang. There is no appearance that the
applicant had ever previously been convicted or detained; although
the Government submitted that he had been simultaneously involved in
another set of criminal proceedings for driving while under the
influence of alcohol, they failed to inform the Court if he had
been convicted of the offence. The applicant was thus not a habitual
offender whose return to prison could not be guaranteed.
In particular, there is no evidence that after the courts
decided to enforce his suspended sentence the applicant had failed to
report to the prison or attempted to avoid the penalty. At the
time of the events in question, on 22 July 2003, the
applicant had already served almost four months of his sentence.
Thus, the Prison Director's negative recommendation regarding the
applicant's request referred to by the Government does not seem
to be supported by facts.
- Furthermore,
the Court considers that the domestic authorities dismissed his
application for leave from prison without giving any meritorious
reasons for their assessment that the applicant's situation was not
“especially important” (see paragraph 11 above). In the
absence of such grounds it is difficult for the Court to understand
the reasons for which the Penitentiary Judge dismissed the
applicant's request. The decision gave no considerations to
other measures expressly provided for by law which could have
facilitated and secured the applicant's stay outside the prison such
as the possibility of escorted leave (see Płoski, cited
above, § 36). Finally, it is regrettable that Penitentiary
Judge's decision did not take into account the above-mentioned Płoski
judgment, in which the Court several months earlier had found a
violation of Article 8 of the Convention in circumstances very
similar to those in the instant case.
- Finally,
the Court notes that the Government submitted that the applicant made
his request to the domestic authorities late, only on 21 June 2003,
whereas he had learned about his father's death on 20 June 2003.
However, it appears from the facts of the case that the applicant
obtained a formal death certificate on 20 June 2003, which was a
Sunday. He lodged a formal request on the next day, a Monday, and the
Penitentiary Judge was able to issue his decision on the same day,
thus before the date of the funeral. The Court does not consider that
the applicant was negligent in submitting his request.
- The
Court is aware of the problems of a financial and logistical nature
caused by escorted leaves including the shortage of police and prison
officers. However, taking into account the seriousness of what was at
stake, namely refusing an individual the right to attend the funeral
of his parent, the Court is of the view that the respondent State
could have refused attendance only if there had been compelling
reasons and if no alternative solution – like escorted leave –
could have been found (ibid § 37).
- The
Court concludes that, in the particular circumstances of the present
case, and notwithstanding the margin of appreciation left to the
respondent State, the refusal of leave to attend the funeral of the
applicant's father, 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. There has therefore
been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention.
Done in English, and notified in writing on 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
