issued by the Registrar of the Court

ECHR 262 (2011)

29.11.2011

Polish authorities refused prisoner permission to visit his dying

daughter in hospital and then failed to reply adequately and in

time to his request to attend her funeral

In today’s Chamber judgment in the case Giszczak v. Poland (application

no. 40195/08), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been:

Two violations of Article 8 (right to respect for private and family life) of the

European Convention on Human Rights

The case concerned a Polish prisoner’s complaint about not being allowed to visit his

daughter who was in intensive-care and that, following her death, he decided not to go

to her funeral as it was not clear whether he would have to attend in prison uniform and

chains and under police escort.

Principal facts

The applicant, Grzegorz Giszczak, is a Polish national who was born in 1970 and is

currently serving a 13-year prison sentence for incitement to murder in Hrubieszów

(Poland).

Six years into his prison sentence, Mr Giszczak was informed on 21 April 2008 that his

11-year old daughter had been hit by a bus and was in intensive care in a coma. A week

later, he applied for compassionate leave to visit her. The authorities subsequently

refused this request, on the ground that Mr Giszczak was convicted of a serious crime

and, involved in the prison subculture, was rude towards prison officers.

His daughter died on 16 May 2008. Her funeral took place on 21 May 2008.

Mr Giszczak did not go to his daughter’s funeral as he says that he was led to believe

that he would have to attend in prison clothes with shackles (chains) on both his hands

and legs and under uniformed police escort. Informed orally of this decision the day

before the funeral, he decided not to go out of fear of disturbing the ceremony.

The Government submitted that Mr Giszczak must have misunderstood as he clearly

would have been allowed to go to his daughter’s funeral in normal clothes and with

simple handcuffs.

The written decision granting him permission to attend his daughter’s funeral was served

on him on 26 May 2008. It specified that he could attend if escorted by the police but did

not mention whether he could go in normal clothes or without joined shackles.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

Complaints, procedure and composition of the Court

Mr Giszczak complained about the refusal to allow him to visit his seriously injured

daughter in hospital and, following her death, to attend her funeral in normal clothes.

The case will be examined under Article 8 (right to respect for private and family life).

The application was lodged with the European Court of Human Rights on 13 August

2008.

Judgment was given by a Chamber of seven, composed as follows:

David Thór Björgvinsson (Iceland), President,

Lech Garlicki (Poland),

Päivi Hirvelä (Finland),

Ledi Bianku (Albania),

Zdravka Kalaydjieva (Bulgaria),

Nebojša Vučinić (Montenegro),

Vincent A. de Gaetano (Malta), Judges,

and also Lawrence Early, Section Registrar.

Decision of the Court

Article 8 (right to respect for private and family life)

The Court considered that the reasons given for not allowing Mr Giszczak to visit his

daughter in hospital had not been convincing as the authorities’ concerns (gravity of the

offence and rude behaviour) could have been addressed by organising his escorted

leave. The Court therefore concluded that the refusal had not been “necessary in a

democratic society” as it had not corresponded to a pressing social need and had not

been proportionate to the legitimate aim – namely protecting public safety and

preventing disorder or crime – pursued. There had therefore been a violation of Article 8

concerning the refusal to let Mr Giszczak visit his dying daughter in hospital.

As concerned the compassionate leave to go to his daughter’s funeral, the Court noted

that the written decision had only been served on Mr Giszczak four days after the funeral

had actually taken place. Furthermore, it had not been particularly precise. Nor had he

been given clear information about the conditions for attending his daughter’s funeral

when informed orally of the decision. Indeed, the fact that Mr Giszczak had not been

informed in time and in a clear and unequivocal manner about the conditions of his

compassionate leave had resulted in him refusing to go as he was worried about causing

disruption. There had therefore been a further violation of Article 8 on account of the

Polish authorities’ failure to reply adequately and in good time to Mr Giszczak’s request

to go to his daughter’s funeral.

Article 41 (just satisfaction)

The Court held that Poland was to pay Mr Giszczak 2,000 euros (EUR) in respect of

non-pecuniary damage.

The judgment is available only in English.

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