FOURTH SECTION

CASE OF KOSIŃSKI v. POLAND

(Application no. 20488/11)

JUDGMENT

STRASBOURG

9 February 2016

This judgment is final but it may be subject to editorial revision.

In the case of Kosiński v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a sitting as a Committee composed of:
	Nona Tsotsoria, President,
	Krzysztof Wojtyczek,
	Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 19 January 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20488/11) 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 Mariusz Krzysztof Kosiński (“the applicant”), on 21 March 2011.
2.  The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.
3.  The applicant complained under Article 8 of the Convention about the restrictions placed on his attendance at his grandmother’s funeral.
4.  On 2 April 2013 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1983 and is detained in Sztum.
6.  At the time of the events in question, the applicant was serving a prison sentence in the Barczewo prison.
7.  On 8 January 2011 the applicant’s grandmother died. On 10 January 2011 the applicant lodged a request with the Director of Prison and the Penitentiary judge for leave to attend her funeral which was to take place on 12 January 2011. Together with his application he submitted a statement from his sister E.K. who confirmed that she would personally collect the applicant from prison and bring him back after the funeral.
8.  On 11 January 2011 the Penitentiary judge of the Olsztyn Regional Court (Sędzia Penitencjarny Sądu Okręgowego w Olsztynie) allowed the applicant to attend the funeral under prison officers’ escort. The reasoning of the decision read as follows:
“In view of [the applicant’s] multiple convictions and his long term of imprisonment there is no guarantee that he will return to prison”
9.  The applicant refused to attend the funeral, since he believed his appearance under escort of uniformed officers would create a disturbance during the ceremony.
10.  On the same day the applicant lodged an appeal with the Olsztyn Regional Court (Sąd Okręgowy) complaining that the compassionate leave was granted under escort and also that he was only allowed to participate in the funeral (not the preceding church service).
11.  On 3 February 2011 the Olsztyn Regional Court upheld the Penitentiary judge’s decision and dismissed the appeal. The court stressed that the applicant had been allowed to participate in the funeral under prison officers’ escort. It further noted that the applicant was a habitual offender sentenced to a long term of imprisonment therefore there was no positive criminological prognosis and no guarantee that he would have returned to prison after the ceremony.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
12.  Article 141a of the 1997 Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:
“1.  In cases which are 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).”
THE LAW
Article III.	ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
13.  The applicant complained that the restrictions placed on his attendance at the funeral of his grandmother violated 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.”
Section 3.01	A.  Admissibility
14.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The parties’ arguments
15.  The applicant submitted that he had been refused permission to attend the funeral of his grandmother without the escort of prison guards.
16.  The Government firstly noted that the applicant had been allowed to attend the funeral. They agreed that there was an interference with his rights, which was prescribed by law and pursued a legitimate aim for the prevention of disorder or crime. They stressed that there had been no positive criminological prognosis as the applicant was a habitual offender sentenced to a long term of imprisonment and he could have tried to escape if no precautions had been taken. Consequently, the interference was also “necessary in a democratic society”.
17.  Lastly, they maintained that it had been the applicant’s choice and his own decision not to attend the funeral.
(b)	2.  The Court’s assessment
18.  The Court reiterates 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). At the same time 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).
19.  Turning to the circumstances of the present case the Court firstly notes that it was not disputed by the parties that the restrictions placed on the applicant’s attendance at his grandmother’s funeral constituted an interference with his right to respect for his private and family life. The Court is also satisfied that the interference, which was based on Article 141a 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” (see Płoski, cited above, §§ 32‑34). It thus remains to be determined whether it was “necessary in a democratic society”.
20.  The Court observes that in the present case contrary to similar Polish cases (see Płoski, cited above, and Czarnowski v. Poland, no. 28586/03, 20 January 2009) the applicant was granted a compassionate leave to attend his grandmother’s burial. The applicant’s complaint, as in the case of Banaszkowski (see Banaszkowski v. Poland, Committee, no. 40950/12, 25 March 2014) is directed against the restrictions placed on that right, namely the police escort.
21.  In this connection the Court observes that the applicant was convicted of many offences and at the relevant time was serving a long‑term prison sentence (see paragraphs 6 and 8 above). The penitentiary judge explained the need for the police escort by referring to the lack of positive criminological prognosis and a risk that the applicant might not return to prison after the ceremony (see paragraph 8 above). The Court notes that this decision was reviewed on appeal by the Olsztyn Regional Court which found that the judge had taken into account all the relevant factors and that his ruling could not be faulted (see paragraph 11 above).
22.  The Court accepts that in the circumstances of the present case the risks associated with the applicant’s release from prison could reasonably be considered high and the domestic authorities were justified in finding that his return to prison could not be guaranteed.
23.  In addition, it appears that apart from the police escort the authorities did not require any particular conditions of the applicant’s attendance at the funeral (a contrario, Giszczak v. Poland, no. 40195/08, § 38, 29 November 2011).
24.  The Court concludes that, in the particular circumstances of the present case, the authorities’ decision did not exceed the margin of appreciation left to the respondent State and was “necessary in a democratic society” as it corresponded to a pressing social need and was proportionate to the legitimate aims pursued. Accordingly, there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Nona Tsotsoria
	Deputy Registrar	President