Communicated on 12 June 2018
FIRST SECTION
Application no. 51966/16
Iouri KHASMENOUY
against Poland
lodged on 9 August 2016
STATEMENT OF FACTS
The applicant, Mr Iouri Khasmenouy, is a Ukrainian national who was born in 1965 and, according to the most recent information received by the Court, is detained in Strzelce Opolskie prison.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 October 2015 the applicant’s brother died in a hospital in Saint Petersburg.
On 27 October 2015 the applicant made an application for leave to organise and attend his brother’s funeral.
On 26 January 2016 the Gdańsk Regional Court refused to grant him leave. The court found that the applicant had already been granted leave on 5 May 2015 and therefore Section 153 § 3 of the Code of Execution of Criminal Sentences should be applied (see below). It also considered that, since the applicant’s brother had died on 26 October 2015, the funeral had probably already taken place. The court held that the applicant could have organised the funeral via representatives. In any case, if the applicant had been unable to organise the funeral via representatives, the public authorities would have been responsible for his brother’s burial.
The applicant appealed.
On 15 February 2016 the Gdańsk Court of Appeal upheld the challenged decision. The court observed that, according to the applicant’s statements, the deceased had expressed the wish to be buried in his home town in Ukraine. The court expressed doubts as to whether, in the current geopolitical situation, it would be possible to conduct all funeral formalities swiftly in an armed conflict zone. Furthermore, the applicant had failed to prove that his brother had not already been buried and that his body remained in the morgue in the Saint Petersburg hospital. He had also failed to prove his statement that his mother, who lived in Israel, could not fulfil the funeral formalities due to her poor health and advanced age. Finally, the court held that granting leave to the applicant would mean him leaving the Polish territory, and that he might not return to the prison facility.
B. Relevant domestic law
Article 141a § 1 of the 1997 Code of Execution of Criminal Sentences (Kodeks Karny Wykonawczy, “the Code”) reads as follows:
“The prison governor may allow a convicted person to leave prison on his own or escorted by a trustworthy person, for a period not exceeding 5 days, to visit a seriously-ill family member, attend the funeral of a member of his family, or for other matters of special importance to the convicted person.”
Article 153 § 3 of the Code provides:
“If leave has already been granted, further leave may be granted only after twelve months, unless there is a case of mental disease, other serious disease or other unforeseen event”.
COMPLAINT
The applicant complains under Article 8 of the Convention of the domestic courts’ refusal to grant him leave for organising and attending his brother’s funeral.
QUESTION TO THE PARTIES
Was the applicant’s right to respect for his private and family life violated on account of the fact that he was refused leave to attend his brother’s funeral?
Full & Egal Universal Law Academy