AS TO THE ADMISSIBILITY OF
Application No. 25718/94
by Swi*toslaw ADAMCZAK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 June 1994 by
Swi*toslaw ADAMCZAK against Poland and registered on 18 November 1994
under file No. 25718/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 November 1995 and the observations in reply submitted by the
applicant on 23 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant, a Polish citizen born in 1964, is a farmer
residing in Mirostowice.
On 19 December 1990 the police in Zary refused to institute
criminal proceedings against the applicant and his parents for ill-
treatment of his wife, finding that no criminal offence had been
committed.
On 17 April 1991 the applicant's wife lodged a divorce action
with the Zielona Góra Regional Court (S*d Wojewódzki). Subsequently,
she moved with their son K. to her parent's house in Bagienice.
On 19 March 1992 the applicant requested the Court to decide on
his access to K., who was in his mother's care.
On 29 July 1992 the Zielona Góra Regional Court ruled that during
the divorce proceedings their three year old child K. should be in his
mother's care, with the applicant having access to him at his wife's
residence on each first and third Saturday and Sunday from 9 a.m. to
5 p.m.; the applicant's wife was ordered to allow the access.
On 31 July 1992 the applicant requested to be served a copy of
the decision of 29 July with its executory character being confirmed.
On 8 August 1992 the Court confirmed that the order was liable
to execution and on 12 August the enforcement order was served on the
applicant.
At the hearing on 25 August 1992 the President of the Court asked
the applicant whether he had tried to see the child. The applicant
replied that he had a right not to reply and that he wished to avail
himself thereof.
On 17 September 1992 the Zielona Góra Regional Court suspended
the divorce proceedings in view of the fact that the applicant had in
the meantime lodged a motion to have his wife legally incapacitated.
On 1 May 1993 the applicant came to Bagienice with his brother
to visit his son. He showed the court order of 29 July 1992 to his
wife. However, she did not allow the applicant to see K. Thereupon
an argument developed between the applicant and his brother on the one
hand and his wife, her brother and father on the other. The father
screamed at the applicant, tried to hit him with his stick and uttered
threats. The applicant's wife called the police. Three policemen
arrived and after negotiations the applicant eventually visited the
child from 13.30 to 14.00.
On 5 June 1993 the applicant requested the institution of
criminal proceedings against his father-in-law for uttering threats and
hindering the execution of the court order on 1 May 1993.
On 24 June 1993 the Mlawa District Prosecutor terminated the
investigations, finding that no offence had been committed by the
applicant's father-in-law. The applicant appealed against this
decision.
On 26 July 1993 the Warsaw Regional Prosecutor quashed this
decision and ordered the case to be reconsidered, finding that
insufficient evidence had been taken; that the assessment of the
evidence given by the suspect appeared to be entirely erroneous; and,
consequently, that the decision was ill-founded.
On 28 September 1993 the Mlawa District Prosecutor terminated the
criminal proceedings against the applicant's father-in-law P.S. for
compelling the applicant to certain behaviour ("zmuszanie do
okreslonego zachowania"), and against P.S. and the applicant's brother-
in-law for uttering threats against the applicant. The Prosecutor
found that on 1 May 1993 the applicant's wife had initially refused her
consent for the applicant's visit to their son as she was afraid that
he might abduct the child. She had eventually agreed and the applicant
had visited the boy in accordance with the conditions set out in the
Zielona Góra Regional Court order ("zgodnie z istniej*cym
postanowieniem S*du Wojewódzkiego w Zielonej Górze"). He further found
that the applicant's father-in-law had not intended to beat the
applicant, and that the witnesses (policemen) had not confirmed that
he had uttered threats to the applicant.
On 4 October 1993 the applicant appealed against this decision.
He submitted that his father-in-law had in fact threatened him. He
contended that during his visit on an unspecified date before
1 May 1993 he had been brandishing a knife, thus making it impossible
for the applicant to see his child. During the altercation on 1 May
1993 the suspect had gone to the house to fetch his stick in order to
threaten the applicant. The applicant stated that as a result of such
conduct he was afraid to visit the child .
On 15 November 1993 the Warsaw Regional Prosecutor quashed the
decision of 28 September 1993 and ordered the case to be reconsidered.
On 23 November 1993 the applicant requested the Mlawa District
Prosecutor to take certain evidence in the resumed proceedings against
P.S., requesting in particular that his brother and a policemen, who
had been present at the relevant time, be heard.
On 30 December 1993 the Zielona Góra Regional Court resumed the
divorce proceedings.
On 19 January 1994 the Mlawa District Prosecutor refused to
institute criminal proceedings against the applicant's wife for giving
false evidence in the proceedings against her father. He found that
the applicant's wife had stated in these proceedings that on 1 May 1993
her father had not threatened the applicant; and that he had said that
the applicant could only visit the child with the local mayor
("soltys") as a witness, but not together with his brother. The
Prosecutor concluded that no offence had been committed.
The applicant unsuccessfully appealed to the Warsaw Regional
Prosecutor. He submitted that his wife had written in a letter to the
Zielona Góra Regional Court in divorce proceedings that she was
categorically opposed to the applicant seeing the child and that she
continued to object to the applicant doing so. On 14 March 1994 the
Prosecutor upheld the contested decision.
On 30 March and 19 April 1994 the applicant complained to the
Warsaw Appeal Prosecutor about the wrongful decisions of the Public
Prosecutors. He submitted inter alia that his wife prevented him from
seeing the child; and that she refused him taking the child with him
for holidays. In a letter of 17 April 1994 he was informed that his
complaints had been carefully investigated and that the decisions
complained of were well-founded.
On 31 March 1994 the Mlawa District Court (S*d Rejonowy), in
summary proceedings, found the applicant's father-in-law guilty of
uttering threats and imposed a fine on him. Apparently the applicant
filed an objection to the case being dealt with in summary proceedings
and the case was accordingly transmitted to the ordinary proceedings.
On 12 April 1994 the applicant requested to be admitted as a civil
party to these proceedings. He claimed compensation for moral damages
caused by the fact that he had not been able to see his son on 1 May
1993 due to the actions of the accused and reimbursement of travel
expenses. He also wished to be admitted as a private prosecutor to the
proceedings.
On 19 April 1994 the Mlawa District Court refused the former
request as the civil claim for compensation was not related to the
merits of the criminal proceedings, and apparently allowed the latter.
On 26 April 1994 the applicant filed an appeal against the
refusal to be admitted as a civil party to the criminal proceedings,
submitting that his claim for reimbursement was related to the criminal
proceedings, since he wanted reimbursement of the travel costs (600 km)
as he had not been able to see the child due to the actions of the
accused and that he had suffered moral damage.
On 29 April 1994 the President of the Court rejected this appeal
as no appeal lay against the contested decision.
On an unspecified date criminal proceedings on suspicion of
persistent failure to pay child support were instituted against the
applicant. The case is pending before the Mlawa District Court. On
25 May 1994 this Court refused legal aid to the applicant. The
applicant apparently appealed and on 29 August 1994 he was granted
legal aid.
On 9 September 1994 the Mlawa District Court informed the
applicant that a court hearing in his criminal case would be held on
21 September and that he would be detained on remand if he failed to
appear.
On 21 September 1994 the hearing in the proceedings against the
applicant's father-in-law was not held as planned.
On 25 April 1995 the Zielona Góra Regional Court pronounced a
divorce. The custody of K. was granted to the applicant's wife, with
the applicant having to participate in decisions concerning K.'s
education and schooling. The applicant filed an appeal against this
judgment.
On 29 December 1995 the Poznan Court of Appeal (S*d Apelacyjny)
rejected the applicant's appeal against the divorce judgment as he had
failed to pay the court fee within the statutory time-limit.
On 12 January 1996 the applicant requested the Mlawa District
Court to amend the 1992 decision on his access to K. so that he could
take the child for the Christmas holidays, instead of visiting him at
his mother's residence.
On 17 July 1996 the Mlawa District Court refused to grant the
applicant's request. The Court noted that the applicant had not been
visiting K. for two years and had not sent any letters to him. Before
the Court the child's mother refused her consent to any change of
access rights as the child did not have a strong recollection of his
father. She further stated that the applicant had ceased to have
contacts with K. after an altercation in 1992. The witnesses confirmed
that the applicant's contacts with K. were sporadic and that the link
between them had weakened as shown by the fact that the child never
mentioned his father.
The Court considered that both parties were in a difficult
financial situation, both being unemployed and in bad health, with the
mother having two children in custody and the child support being paid
only for one child. Thus, the Court concluded that it would put too
serious a burden on the parties if they were ordered to undergo
psychological consultation and mediation as they did not have means to
pay travel costs. The Court further considered that the applicant's
request was motivated more by his own convenience than by the child's
best interests which should prevail. It would best serve the child's
interests if the applicant reestablished his contacts with him on the
conditions set out in the 1992 access decision. As the mother had
stated that she did not oppose these contacts, this would help in
reestablishing the emotional relationship between the applicant and K.
Relevant domestic law
The Polish Family and Care Code provides that the court competent
to entertain an action for divorce is also competent to issue interim
orders concerning the manner in which the care of the parties' minor
children should be carried out and about the access rights until the
divorce judgment. Either party can file a request to have such an
order pronounced or the court does so ex officio (Article 443).
The decision can be appealed against to a second instance court.
A final court decision as to parental rights/access rights can
be changed at any time if the interest of the child so requires. Such
a change is made upon a motion of either parent or ex officio by the
court.
If a parent who has been obliged by a court decision to respect
the other parent's access rights refuses to comply therewith, access
decisions are liable to execution. The provisions of the Code of Civil
Procedure (CPP) on execution of non-pecuniary obligations are
applicable to execution of court decisions on parental rights or access
rights (resolution of the Supreme Court of 30 January 1976, III CZP
94/75, OSNCP 1976 7-8).
Enforcement proceedings are instituted on a motion by the
"creditor", i.e. the parent to whom access rights have been granted,
but who fails to respect these rights. The motion shall be accompanied
by the decision concerned, certified as being enfoceable. The motion
is submitted to the bailiff who carries out the enforcement measure.
The debtor is informed at the time of the first enforcement measure
that the enforcement proceedings have been instituted. He is also
informed of the manner in which the enforcement is to be carried out
(Article 805 para. 1 of the CCP).
If a parent refuses to comply with the enforcement measures, a
motion to have a fine imposed on him/her can be submitted to the court
in whose district the enforcement is carried out. The court hears the
parties and shall impose a fine if the decision is not complied with
within the time-limit fixed for this purpose. Further fines can be
imposed if the "creditor" is persistent in his refusal (Article 1051
of the CCP).
COMPLAINTS
The applicant complains that despite the Zielona Góra Regional
Court order granting him access to his son, he does not enjoy such
access. He submits that since his wife moved out in 1990 he has seen
the child only twice. He complains that his wife in fact wishes that
his parental rights be withdrawn and her actions are motivated by this
wish. The applicant invokes in substance Article 8 of the Convention.
He further relies on Article 5 of Protocol No. 7 to the Convention.
The applicant complains under Article 6 of the Convention that
one hearing in criminal proceedings against his father-in-law was not
held as planned on 21 September 1994. He complains about the initial
refusal to have an officially assigned lawyer.
The applicant alleges that the courts in the criminal proceedings
against him are biased against him and have been bribed by his father-
in-law.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 June 1994 and registered on
18 November 1994.
On 17 May 1995 the Commission decided to communicate the
applicant's complaint concerning difficulties in obtaining access to
his son to the respondent Government for observations on the
admissibility and merits to be submitted by 1 September 1995.
On 4 August 1995 an extension of the time-limit for the
submission of the observations was granted to the respondent
Government until 3 November 1995. The Government's written
observations were submitted on 20 November 1995. The applicant replied
on 19 December 1995.
THE LAW
1. The applicant complains that despite the Zielona Góra Regional
Court order of 1992 granting him access to his son, he does not enjoy
such access. He submits that since his wife moved out in 1990 he has
seen the child only twice. He complains that his wife in fact wishes
that his parental rights be withdrawn and her actions are motivated by
this wish. The applicant invokes in substance Article 8 (Art. 8) of
the Convention. He also relies on Article 5 of Protocol No. 7 (P7-5)
to the Convention.
Article 8 (Art. 8) of the Convention reads:
"1. Everyone has the right to respect for his (...) 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."
a) The Government first submit that the application, insofar as it
relates to events prior to 1 May 1993, i.e. the date of recognition of
the right of individual petition by Poland, is outside the competence
ratione temporis of the Commission. The Government further submit that
events prior to this date should be taken into account merely as a
background to the issues before the Commission (Eur. Court HR, Hokkanen
v. Finland judgment, Series A vol. 299, p. 19, para. 53).
The applicant submits that the decision on his access was
pronounced before 1 May 1993, but his difficulties to obtain access to
his son continue after this date.
The Commission recalls that Poland recognised the competence of
the Commission to receive individual applications "from any person,
non-governmental organisation or group of individuals claiming to be
a victim of a violation of the rights recognised in the Convention
through any act, decision or event occurring after 30 April 1993". It
follows that the Commission is not competent to examine complaints
relating to violations of the Convention by acts, decisions or events
that have occurred prior to this date. The Commission notes that
certain relevant facts occurred after 30 April 1993.
It follows that the Commission is competent ratione temporis to
examine the application insofar as it relates to events after
30 April 1993.
b) The Government further submit that the applicant failed to avail
himself of domestic remedies available to him under Polish law. First,
had the applicant not been satisfied with the access rights granted to
him by the court order of 29 July 1992, it was open to him to lodge an
appeal against this order, claiming that wider rights be granted to
him. He failed to do so. It is true that if the applicant had done
so within the statutory time-limit, the decision upon appeal would have
been pronounced before 1 May 1993, i.e. before the date on which the
Commission's competence ratione temporis to examine applications
against Poland became effective. However, it was furthermore open to
the applicant at any time during the divorce proceedings, even after
expiry of the time-limit to appeal against the order of 29 July 1992,
to request a new court order concerning his access to the son. He
could also have requested that in the new order the court award him the
assistance of a court guardian in the execution of his access rights.
The applicant did not do this. Moreover, it was open to him to use
normal enforcement measures, applicable to enforcement of court orders
concerning non-pecuniary obligations. The order of 29 July 1992 was
executory and this was certified in the document served on the
applicant on 12 August 1992. The applicant did not request the bailiff
of the court competent for the mother's residence to assist him in the
enforcement of the access order.
The Government conclude that the applicant failed to exhaust
domestic remedies available to him under Polish law and that for this
reason the application should be declared inadmissible.
The applicant submits that all his requests for assistance were
disregarded by the authorities. He submits that he did not receive any
effective help from any competent authorities, such as police, public
prosecutor and court. He was afraid to avail himself of his access
rights as a result of the hostility of his former wife and her family.
The authorities were biased in favour of the mother. He requested the
court's assistance in securing compliance with the 1992 order, but he
never received any reply. He received this order without confirmation
that it was liable to execution. On 1 May 1993 the police did not
ensure that he visited K. in accordance with the conditions set out in
the order. It would have served no purpose to appeal against the 1992
order as it gave him access to the child. The problem was that this
order proved to be unenforceable. He finally submits that it fell to
the court to institute enforcement proceedings.
The Commission recalls that the rule of exhaustion of domestic
remedies dispenses the States from answering before an international
body for their acts before they have had an opportunity to put matters
right through their own legal system. However, international law, to
which Article 26 (Art. 26) makes express reference, demands solely
recourse to such remedies as are both available to the persons
concerned and sufficient (cf. Eur. Court HR, De Wilde, Ooms and Versyp
judgment of 18 June 1971, Series A no. 12, p. 29, para. 50, and p. 33,
para. 60).
In the present case the Commission observes that the divorce
proceedings lasted from 17 April 1991 to 17 September 1992, the date
on which the court suspended them in connection with the applicant's
request to have his wife declared legally incapacitated. They were
subsequently resumed on 30 December 1993 and judgment was pronounced
in first instance on 25 April 1995. It was open to the applicant
during these proceedings to lodge a request to have the access decision
of 29 July 1992 changed and his access rights altered, had he wished
to do so. Further, it was open to him to take enforcement measures,
as provided for by the Code of Civil Procedure, i.e. to request the
bailiff of the court competent for the mother's residence to assist him
in obtaining compliance with the access order. Had this assistance
turned out to be ineffective, it was open to the applicant to ask the
court to impose successive fines on the mother.
The Commission, on the basis of the documents submitted by the
Government, finds it established that the 1992 order was served on the
applicant, with its executory character certified by the court.
Therefore the formal conditions for the institution of enforcement
proceedings, applicable to enforcement of non-pecuniary obligations,
were met and it was open to the applicant to institute relevant
proceedings. The Commission considers that these measures were
effective and sufficient with regard to his access rights. The
applicant has not shown that he availed himself of these remedies.
It follows that this part of the application must be rejected on
the ground that the applicant has not exhausted domestic remedies,
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant complains under Article 6 (Art. 6) of the
Convention that one hearing in criminal proceedings against his father-
in-law was not held as planned on 21 September 1994.
The Commission observes that the Convention does not guarantee
a right to have a hearing held on any given date in criminal
proceedings against a third party. It follows that the Commission has
no competence ratione materiae to examine this part of the application
which must be rejected in accordance with Article 27 para. 2
(Art. 27-2) as being incompatible with the provisions of the
Convention.
3. The applicant further complains under Article 6 (Art. 6) of the
Convention about the initial refusal to have an officially assigned
lawyer in the criminal proceedings against him.
The Commission observes that on 25 May 1994 the Mlawa District
Court dismissed the applicant's request for the assistance of an
officially assigned lawyer. However, the Commission further notes that
later the Court granted the applicant the assistance of an officially
assigned lawyer. The applicant cannot, therefore, be regarded as a
victim since his request was eventually granted.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally alleges that the courts in the criminal
proceedings are biased against him and have been bribed by his father-
in-law.
The Commission observes that the applicant has not shown that a
final judgment in these proceedings has been pronounced. Therefore the
applicant's complaints are premature. It follows that this part of the
application should be declared inadmissible for non-exhaustion of
domestic remedies under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy