Is Refusal to Attend a Funeral a Breach of the Right to a Private and Family Life for Prisoners?

Czarnowski v Poland [2009] ECHR 28586/035 (20 January 2009) The Applicant, Mr Edward Czarnowski, lodged an application with the European Court of Human Rights against Poland for breach of art 8 of the European Convention on Human Rights.  Art 8 provides:

'Everyone has the right to respect for his private and family life...

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 applicant is a Polish national who was charged and convicted of domestic violence for physical and verbal abuse of his girlfriend between June 1998 and October 1999.  In 2000, a District Court in Poland sentenced the applicant to a one-year period of imprisonment suspended on probation for four years.  It appears that, in 2002, the applicant breached the terms of his probation and as a result his sentence was enforced.  He commenced serving his prison term in April 2003.

On 18 July 2003, the applicant's father died.  On 20 July, the applicant's girlfriend delivered him his father's death certificate.  On 21 July, the applicant made a formal application for leave to attend his father's funeral, which was to be held on 22 July.  The relevant domestic law of Poland provides that 'in cases which are especially important for a convicted person, he or she may be granted permission to leave prison... if necessary under the escort of prison officers or other responsible persons.'

On the same day that the application for leave was lodged, the Penitentiary Judge of the local Regional Court refused it, on the basis that 'the grounds relied on [by the applicant] to justify allowing him to leave the prison cannot be considered especially important.'  The judge did not elaborate.  The decision was notified to the applicant the following day.  The applicant did not exercise his right to appeal the decision as the funeral had already taken place and thus he considered such an appeal to be without purpose.

The applicant submitted that the authorities' refusal to allow him to attend his father's funeral caused him suffering and humiliation.  He submitted that he had already served more than three months of his 12 month sentence, during which time he had often been commended on his good behaviour.  He had also maintained contact with his family and relatives during his imprisonment and, in his submission, all these circumstances should have been taken in to consideration when determining his application for leave to attend his father's funeral.

The Government submitted that the applicant had been convicted of domestic violence and had breached the terms of his probation.  They further submitted that the applicant had lodged his formal request for leave late, that is on 21 July rather than when he first learned of his father's death on 20 July, which left the authorities with only limited time to respond.  The Government also submitted that its refusal to grant leave to the applicant was influenced and/or supported by an opinion provided by the Director of the Prison in which he recommended that leave not be granted and allegedly stated that the applicant had a 'negative criminal and social forecast'.

The President of the Court also granted leave for submissions to be made by a third party, the Helsinki Foundation for Human Rights.  HFHR underscored the importance of temporary leave for the purpose of re-socialisation of prisoners and pointed out a number of shortcomings surrounding regulation of compassionate leave for prisoners, in particular the wide discretion left to the State in determining what constitutes 'especially important' circumstances, the lack of reasoning provided by the State for its determination, the requirement to produce a death certificate and the absence of a right to an adequately expedited appeal.


The Court noted that any interference with one's right to respect for his private and family life will constitute a breach of art 8 unless it was in accordance with the law, pursued a legitimate aim or aims under paragraph 2 and was 'necessary in a democratic society' in the sense that it was proportionate to the aims sought to be achieved (at 25).  The Court emphasised that even if a detainee by definition must be subjected to limitations of his rights and freedoms, every such limitation must be justifiable as necessary in democratic society.  Necessity, the Court stated, implies that the interference with one's rights corresponds to a pressing social need and is proportionate to the legitimate aims pursued.

In the absence of any submissions to the contrary, the Court found that the domestic authorities' refusal to allow the applicant to attend his father's funeral constituted an interference with his right to respect for his private and family life.  The Court noted that such interference was 'in accordance with the law' of Poland and could be considered to be in the interests 'public safety' or 'for the prevention of disorder or crime'.  The question for the Court was thus whether or not this interference was proportionate to the aim of protecting the public and/or preventing disorder or crime and thus could be described as necessary in a democratic society.

The Court observed the nature of the applicant's crime and the severity of his sentence.  It noted that there was no indication that the applicant was a dangerous criminal or part of an organised crime gang and no evidence that the applicant had tried to evade authorities or avoid his punishment.  It noted that the applicant had no criminal record, thus he could be not described as a habitual offender whose return to prison could not be guaranteed.  It noted that the Prison Director's recommendation regarding the applicant's request was not supported by facts.

Importantly, the Court censured the domestic authorities for failing to give any meritorious reasons for its decision that the Applicant's situation was not 'especially important'.  It noted that the Penitentiary Judge's decision gave no consideration to measures expressly provided for by law which could have facilitated and secured the applicant's say outside the prison, such as the possibility of escorted leave, and failed to take in to account the Court's earlier decision in the mater of Ploski v Poland (no. 26761/95, § 38, 12 November 2002), which related to very similar circumstances. The Court did not accept that the applicant was negligent in submitting his request for leave to attend his father's funeral when he did, noting that it was the Monday immediately following the Sunday when he received his father's death certificate and that the Penitentiary Judge was able to deliver his decision on the same day the request was lodged.

The Court noted that there are financial and logistical considerations to be taken into account including shortages of police and prison officers and also the 'seriousness' of refusing an individual the right to attend the funeral of his parent.  The Court opined that the respondent State could have refused attendance only if there had been compelling reasons and if no alternative solution - like escorted leave - could have been found (at 32).  It was held that the refusal of leave to attend his father's funeral was not necessary in a democratic society as it did not correspond to a pressing social need and was not proportionate to the legitimate aims pursued and therefore constituted a violation of art 8 of the Convention.

Relevance to the Victorian Charter

This decision is relevant to ss 13 and 17 of the Victorian Charter.  Section 13 states, inter alia, that a person has the right '(a) not to have his or her privacy [or] family... unlawfully or arbitrarily interfered with.'  Moreover, s 17 reinforces and arguably augments the right to respect for one's family insofar as it states, inter alia, that: '(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.'  In accordance with s 7(2) of the Charter, each right is 'subject at law only to such reasonable limits as can be demonstrably justified in a free and democratic society'.  This decision provides a useful example of how an individual's human rights, and in particular the right to respect for one's family, can be curbed only by compelling reasons.

Briohny Coglin is a lawyer with Minter Ellison