FOURTH SECTION
DECISION
Application no. 26938/05
by Bogdan KRYM
against Poland
The European Court of Human Rights (Fourth Section), sitting on 7 October 2008 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 regard to the above application lodged on 27 June 2005,
Having regard to the declaration submitted by the respondent Government on 21 February 2008 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Bogdan Krym, is a Polish national who was born in 1960 and lives in Prostyń. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 June 2005 the applicant, who at that time was serving a term of imprisonment in Białystok prison, was informed that his mother had died on 20 June 2005. The applicant immediately made an application for leave to attend his mother's funeral (the date of the funeral has not been supplied).
On 21 June 2005 the Białystok Prison Deputy Governor refused the request. The Governor considered that there was no guarantee that the applicant would observe the rules of public order. From documents concerning the applicant's criminal record and background (wywiad środowiskowy) it emerged that the applicant was an aggressive and argumentative person and had threatened his neighbours with beating them and setting fire to their property. The Governor also found that the applicant had committed his recent offence during conditional release and concluded that he was an “incorrigible recidivist who did not care about being punished” and that he had “shown disrespect for social order and had a negative attitude to the rules binding on all citizens and contained in the code of criminal proceedings”.
On the same day the applicant appealed to the Białystok Regional Court.
On the same day, 21 June 2005, the Białystok Regional Court upheld the decision of the Białystok Prison Deputy Governor. The court held that, according to Article 7 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy), the applicant had a right to appeal against a decision given in breach of the law. The court did not find any such breach in the Governor's decision. It further noted that “the circumstances invoked, although important, could not be regarded as circumstances referred to in Article 141a § 1 of the Code of Execution of Criminal Sentences, given the poor prospects of the applicant's rehabilitation (negatywna prognoza kryminologiczna), as shown by his previous lifestyle, especially the nature of the offences of which he was convicted.
Neither the Białystok Prison Deputy Governor nor the Białystok Regional Court referred to the actual reason for the applicant's request in their decisions. Likewise, they did not consider the possibility of the applicant's attending his mother's funeral under police escort.
It is to be noted that earlier in 2005 the applicant had requested compassionate leave on account of the serious illness of his father, who died shortly afterwards. The prison authorities refused his request. However, by a letter of 11 October 2005 the applicant limited his complaints to the refusal to allow him to attend his mother's funeral.
B. Relevant domestic law
Article 141a § 1 of the 1997 Code of Execution of Criminal Sentences reads 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 five days, if necessary under the escort of prison officers or other responsible persons (osoby godnej zaufania).”
COMPLAINT
The applicant complained that the refusal to grant him leave to attend his mother's funeral amounted to degrading treatment contrary to Article 3 of the Convention. In the applicant's view, the refusal also violated Article 9 because, as a practising Catholic, he regarded a funeral “as a ritual”.
THE LAW
A. Refusal to grant the applicant compassionate leave
The applicant complained that the refusal to grant him leave to attend his mother's funeral amounted to degrading treatment contrary to Articles 3 and 9 of the Convention. Since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government (Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998‑I, § 44). On that account it communicated the application under Article 8 of the Convention which provides as follows:
Article 8
“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.”
By a letter dated 7 February 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“...the Government hereby wish to express – by way of unilateral declaration – their acknowledgement that the refusal to allow the applicant to attend the funeral of his mother was not compatible with his right to respect for his family life, guaranteed by Article 8 of the Convention.
Consequently, the Government are prepared to pay the applicant 6,000 Polish zlotys (PLN) as just satisfaction, which they consider to be reasonable in the light of the Court's case-law...
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government would respectfully suggest that the above declaration be accepted by the Court as 'any other reason' justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention...”
In a letter of 14 March 2008 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also notes that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed – which is consistent with the amount awarded in a similar case (Płoski v. Poland, no. 26761/95, 12 November 2002) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c).
Moreover, in light of the above considerations, and in particular given the case-law on the topic (see Płoski, cited above), the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy