CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 décembre 2001

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Palm ,   Mr   J. Makarczyk ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mr   J. Casadevall ,   Mr   R. Maruste , judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 27 July 1994 and registered on   20   March   1995, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the partial decision of 9 December 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Wacław Płoski, is a Polish [Note1] national, who was born in 1949 and lives in Wrocław, Poland. He was represented before the Court by Mrs Bogdana   Słupska-Uczkiewicz, a lawyer practising in Wrocław. The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki, 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. 1.     Refusals of leave to attend the funerals of the applicant’s parents On 22 February 1994 the applicant was arrested by the police. On 24 February 1994 the applicant was brought before the Wrocław District Prosecutor ( Prokurator Rejonowy ) who charged him with larceny and detained on remand. On 31 March 1994 the Wrocław Prison Hospital Medical Panel issued a medical certificate stating that the applicant’s state of health did not call for his hospitalisation and that he could remain in a prison. It also stated that further detention would not pose any risk to the applicant’s health and that he could take part in the court proceedings. On 2 July 1994 the applicant’s mother died. On 3 July 1994 the applicant made an application for leave to attend the funeral of his mother. The application was in the following terms: “I kindly ask you to grant me leave, on the basis of the telegram received on 3.7.94, [to attend] the funeral of my mother Płoska Stefania, address Bełchatów 67-400, Osiedle Dolnośląskie, Blok 225 – who died, which is confirmed by the telegram [informing] that her funeral will take place on 5.07.1994. I very kindly ask you to grant me leave – I would like to pay last respects to my mother, a beloved person whom I lost. I ask you to agree to my request – I thank you very much for that.” The application was accompanied by the statement of a prison officer who supported the applicant’s request. On 4 July 1994 the Wrocław-Śródmieście District Court refused the permission to grant the applicant leave considering that he “was a habitual offender who did not guarantee his return to the prison.” On 5 July 1994 the Penitentiary Judge rejected the applicant’s application for leave to attend the funeral of his mother. The judge’s decision was worded as follows: “Further to the application of 3.07.1994 for leave in an urgent case I hereby inform you that, after analysing the case, I have not found grounds for granting such leave because there are no urgent conditions ( przesłanki losowe ) provided by Art. 59 §   1 of the Code of the Enforcement of Sentences. I should inform you that the Wrocław-Śródmieście District Court on 4.07.94 (...) refused the permission to grant the leave in an urgent case.” On 3 August 1994 the applicant’s father died. On 6 August 1994 the applicant made an application for leave to attend the funeral of his father. The application was in the following terms: “I kindly ask you to grant me urgent leave because my father Wacław Płoski has died. The funeral will take place on 8.08.1994 and I would like to attend it and to pay last respects to him. I should add that this is yet another death because in July 94 my mother died and I did not attend her funeral. Now my dad has died, so that I have been left without parents and I would like to bid farewell and attend my dad’s funeral. I   declare that I will return from leave on time and I will not breach the trust. I ask you to agree to my request and I thank you for that.” The application was accompanied by the statement of a prison officer who confirmed that the applicant’s “behaviour was beyond reproach” and that he “stayed in touch with his wife and children.” On 8 August 1994 the Wrocław-Śródmieście District Court refused the permission to grant the applicant leave. The court gave the following reasons for its decision: “The charges against the accused involve the significant danger to society. The accused Wacław Płoski is a habitual offender within the meaning of Article 60   §   2 of the Criminal Code. In the court’s view, he does not guarantee his return to the Detention Center. It should be pointed out that the next hearing has been fixed for 11   August 1994. For these reasons the above decision has been made.” On 9 August 1994 the Penitentiary Judge refused the applicant’s application for leave to attend the funeral of his father. The judge’s decision was worded as follows: “Further to the application of 6.08.1994 for leave in an urgent case I hereby inform you that, after analysing the case, I have not found grounds for granting such leave because there are no urgent conditions provided by Art. 59 §   1 of the Code of the Enforcement of Sentences – permission refused by the Wrocław-Śródmieście District Court.” In a letter of 17 January 1995 the applicant requested the President of the Wrocław Regional Court ( Sąd Wojewódzki ) to provide him with a written explanation of reasons for which he had not been allowed to attend, either alone or under police escort, the funerals of his mother and father. On 31   January 1995 the Legal Secretary of the Wrocław Regional Court advised the applicant that his requests for leave had been rejected because he had been a recidivist posing a risk of absconding. On 26 May 1995 the applicant was convicted of larceny and received a prison term. On 27 February 1996 the applicant was released from prison. 2.     Restrictions of contacts with the applicant’s daughter (a)     The applicant’s submissions On 8 February 1995 the Penitentiary Judge refused the applicant’s request to grant him leave from prison to visit his daughter Małgorzata Żebrowska, who was hospitalised in the Psychiatric Clinic of the Wrocław Medical Academy. The applicant submitted that on 7 July 1995 he had received a telegram concerning the deterioration of the health of his daughter. The applicant asserted that “the content of the telegram was confirmed by a doctor’s stamp” but he could not remember which of his daughters was concerned by the telegram. On 28 August 1995 the applicant received a telegram of 21 August 1995 concerning “a difficult situation of his daughter Małgorzata Żebrowska” The applicant submits that he was not allowed to make a telephone call to his daughter when she was hospitalised. (b)     The Government’s submissions On 3 October 1994 the applicant requested the prison authorities to allow him to telephone his family “on very important family matter” but his request was turned down. On 9 December 1994 the applicant applied for leave to spend Christmas at home but it was rejected by the Penitentiary Judge on 21 December 1994. On 28 January 1995 the applicant applied for leave to visit his daughter in a psychiatric hospital. The applicant’s daughter was an adult and had her own family: a husband and one child. The application was rejected by the Penitentiary Judge on 8 February 1995. On 5 July 1995 the applicant asked the prison authorities to allow him “to telephone his wife on very important family matter concerning the health of his daughter”. The request was allowed. According to the prison records, the applicant had a telephone conversation with his family on 10   July 1995 between 10.26 and 10.36 a.m. In the meantime, on 7 July 1995 the applicant received a telegram purporting to be sent by his wife, informing him that his daughter was “seriously ill”. The telegram also included a statement to the effect that it had been certified by a certain Doctor M.S. living in Wrocław. The prison authorities immediately contacted Doctor M.S., who denied that he had certified the telegram. Moreover, according to the prison records, when asked by the prison authorities whether he had any idea who had sent the telegram, the applicant replied that he did not have “any suspicion concerning the sender of the telegram”. 3.     Alleged censorship of the applicant’s correspondence (a)     The applicant’s submissions The applicant complained under Article 8 and former Article 25 about the censorship of his correspondence. He submitted three letters sent to him by the European Commission of Human Rights on 28 and 31 August 1995 and 5 October 1995. Each letter bears a stamp with a date and an illegible signature. (b)     The Government’s submissions The Government pointed out that none of the letters was stamped with an official stamp confirming that it was censored. Moreover, the applicant did not suffer any prejudice since all three letters were delivered to him immediately without any interference with their contents. B.     Relevant domestic law The relevant provisions of the Code of the Enforcement of Sentences   1969 read as follows: Article 59 § 1: “In urgent cases the Penitentiary Judge may allow the prisoner to leave the prison, if necessary under the escort of prison officers, for a period not exceeding 5 days; ...” Article 88 § 2: “... [T]he leave described in Article   59 may be granted only after a permission has been obtained from the organ at whose disposal the detainee remains.” COMPLAINTS The applicant complained that the refusal to allow him to attend the funerals of his parents was in breach of Article 8. He also complained under Article 8 about the refusal to allow him to contact his hospitalised daughter. The applicant claimed that the censorship of his correspondence resulted in a violation of Article 8 and former [1] Article 25 (presently Article 34). THE LAW 1.     The applicant complained, under Article 8, about the refusal to allow him to attend the funerals of his parents. Article 8, in so far as relevant, provides as follows: “1.     Everyone has the right to respect for his private and family life ... 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 admitted that the rejection of the applications for leave to attend the funerals constituted an interference with the applicant’s right to respect for his family life. However, they asserted that it was an “inherent and unavoidable consequence ... of the detention on remand”. Moreover, the interference was in accordance with the law and was necessary in a democratic society in the interest of public safety and for the prevention of disorder or crime. The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. 2.     The applicant complained that the facts of his case disclosed a further violation of Article 8 arising from the restrictions of contacts with his daughter and the alleged censorship of his correspondence. With respect to the latter complaint, the applicant also invoked former Article 25 of the Convention (presently Article 34). However, in view of the submissions of both parties and after considering the case as a whole, the Court finds in the particular circumstances of the case that these complaints have not been substantiated and do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that the complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 that he was not allowed to attend the funerals of his parents [Note2] ; Declares inadmissible the remainder of the application.   Michael O’Boyle   Nicolas Bratza   Registrar   President [1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1   November 1998. [Note1]   To be checked. [Note2]   Summarise the complaints without necessarily citing the invoked Convention Articles.