Right to say goodbye to dying person is legally protected personal interest, says court

A first instance court has made a ruling in the case brought by the family of a deceased prisoner. The family sought apologies from a penitentiary facility and damages for the moral injury they suffered after the prison had refused to let them say goodbye to the incarcerated family member dying in a prison hospital. The court ordered the prison to issue an official apology and ruled that the State Treasury should pay compensation to the deceased’s family members.

Prior to the ruling, the Helsinki Foundation has presented an amicus curiae brief in the case. In the brief, the HFHR underlined the importance of inmates’ right to maintain contact with families and loved ones. Both the European Prison Rules and the UN Nelson Mandela Rules stipulate that information about an inmate’s death, serious illness or transfer to a hospital should immediately be passed to the inmate’s next of kin unless an inmate requested otherwise.

In the opinion of the HFHR, the right to say goodbye to a dying person is also protected under Article 8 of the European Convention on Human Rights. The European Court of Human Rights has consistently ruled that any interference in an individual’s right to respect for their private and family life is only possible if it is shown that such an interference serves an important social interest. In rulings affecting Poland, the ECtHR has expressed its views on the matter generally in cases that involved hindering or preventing inmates’ contacts with dying family members. In Czarnowski v. Poland, the ECtHR found that the refusal of leave to attend the funeral of a prisoner’s family member was a violation of the Convention. “Even though incarceration involves the separation of an inmate from their family, the right of inmates and their families to respect for their private and family life must be ensured”, Katarzyna Wiśniewska, an attorney of the HFHR.

In the discussed case the court decided that the right to say goodbye to a dying prisoner is a legally protected personal interest within the meaning of the Civil Code. This interpretation is derived from a number of sources, including the Constitution of the Republic of Poland, the court argued. The court ruled that the prison administration is obliged to notify the family of an inmate’s deteriorating health if an inmate is unable to do so by themselves (in the discussed case, the inmate was receiving strong narcotic painkillers) or if such notification cannot be delivered in due time.

“This is a landmark ruling. It confirms that the presence of a loved one at a dying person’s side and the last goodbye are given legal protection as a personal interest, which means that if a person is deprived of an ability to say goodbye to a dying family member, this may intensify this person’s sorrow and suffering felt after a loved one’s death”, adds Michał Kopczyński, a lawyer working for the HFHR.