Communicated on 27 May 2017
FIRST SECTION
Application no. 38799/11
Mariusz DZIKOWSKI
against Poland
lodged on 22 December 2011
STATEMENT OF FACTS
The applicant, Mr Mariusz Dzikowski, is a Polish national who was born in 1987 and lives in Biała Rawska.
A. The circumstances of the case
At the time of the events in question the applicant was serving a prison sentence in Radom Detention Centre.
On 16 August 2011 the applicant asked the penitentiary judge at Radom Regional Court (Sąd Okręgowy) to grant him compassionate leave from prison in order to conclude a religious (Islamic) marriage.
On 14 September 2011 the penitentiary judge refused his request. The decision read as follows:
“The circumstances specified in the application do not warrant granting compassionate leave from prison under Article 141a § 2 of the Code of Execution of Criminal Sentences.”
The applicant appealed against that decision.
On 2 November 2011 the Radom Regional Court dismissed the applicant’s appeal. The decision read, in so far as relevant, as follows:
“The applicant’s appeal is groundless ... In the court’s opinion, the [penitentiary judge’s] decision is correct and properly reasoned. Under Article 141a § 1 of the Code of Execution of Criminal Sentences a convicted person may only be granted permission to leave prison for a period not exceeding five days in situations which are of particular importance to him/her.
A convicted person serving a prison sentence is subject to certain limitations concerned with penitentiary isolation, such as for example a limitation of his ability to undertake actions in the personal sphere, including concluding a marriage.
In the court’s opinion, concluding a religious (Islamic) marriage is not the kind of particularly important situation (“szczególnie ważna okoliczność”) that would justify granting short‑term leave from prison.”
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 ważne) 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
The applicant complains under Articles 8 and 9 of the Convention about the refusal to grant him leave from prison in order to conclude a religious (Islamic) 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?
3. Was the planned religious marriage a manifestation of the applicant’s freedom of religion within the meaning of Article 9 § 1 of the Convention?
4. In the affirmative, has there been an interference with the applicant’s freedom of religion, within the meaning of this provision?
5. If so, was that interference prescribed by law and necessary in terms of Article 9 § 2 of the Convention?
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