AS TO THE ADMISSIBILITY OF
Application No. 25029/94
by Marian GLOWACKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 28 December 1993
by Marian Glowacki against Poland and registered on 30 August 1994
under file No. 25029/94;
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
18 December 1995 and the observations in reply submitted by the
applicant on 8 February 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Polish citizen born in 1954. He is a postman
residing in Kraków.
The facts of the case, as submitted by the parties, may be
summarised as follows:
In March 1988 the applicant obtained an apartment from a housing
cooperative in Kraków. He was a principal tenant of the apartment and
paid the rent.
On 2 January 1990 the applicant filed a divorce action with the
Kraków-Krowodrza District Court (S*d Rejonowy). He claimed that his
wife be given custody of their three children and that he should be
granted unlimited access rights. On 22 February 1990 a reconciliation
meeting was held before the court.
On 2 April 1990 the applicant changed his claim and claimed that
his wife be deprived of parental rights.
In April 1990 the applicant's wife changed the locks to their
apartment and since then she refuses to let the applicant in.
On an unspecified later date in 1990 the applicant filed an
action for disavowal of paternity against his wife and the child D.
born in 1990.
On 15 June 1990 the Family Diagnostics Centre, upon request of
the divorce court, prepared a psychological opinion about the
applicant's family. The expert stated in the opinion that neither the
applicant nor his wife were able to take good care of the children;
however it was the mother who appeared to be more responsible. Their
relationship had badly deteriorated, they were openly hostile and kept
fighting and occasionally they were aggressive towards each other.
On 26 June 1990 the applicant requested the Kraków District
Prosecutor to institute criminal proceedings against his wife for
hindering his access to the apartment. He submitted that he had
requested the local police station to assist him in regaining
possession of the apartment, but no intervention had been made.
In an interim order of 18 October 1990 the Kraków-Krowodrza
District Court granted the custody of the children to the applicant's
wife and ordered the applicant to pay a certain sum as alimony for the
children. It dismissed the applicant's request to have an interim
order regulating the use of the apartment issued. The Court considered
that there were no grounds for such order as the applicant had failed
to sufficiently show that this was necessary. The divorce proceedings
were suspended until the decision on the merits in the paternity case.
On 15 February 1991 the applicant complained to the Minister of
Justice about the inefficient manner in which the divorce proceedings
were conducted and about the fact that the court had declined to issue
an interim order concerning the use of the flat.
On 26 April 1991 the Prosecutor terminated the investigations in
respect of the applicant's wife, finding that the police had twice
assisted him in entering the apartment in order to take his personal
belongings. His wife had not opposed this. It transpired from the
case-file of the divorce proceedings that the applicant had not raised
before the court that he was homeless. He apparently had another
apartment, inherited from his mother. There were criminal proceedings
pending against the applicant for ill-treatment of his wife, confirmed
by a medical certificate. The Prosecutor concluded that, whereas it
was established that the applicant's wife hindered his use of the
apartment, her actions were justifiable in the light of the applicant's
reprehensible behaviour towards her. Therefore she had no case to
answer.
On 9 May 1991 the Kraków-Krowodrza District Court allowed the
applicant's disavowal of paternity of D. and declared that the
applicant was not the biological father of the child.
On 21 August 1991 the Kraków Regional Prosecutor dismissed the
applicant's appeal against the decision of 26 April 1991, finding that
the only reason for which the applicant's wife hindered his access to
the apartment was her fear of the applicant. Considering that she had
legitimate reasons to fear the applicant, who was violent towards her
and the children, the Prosecutor concluded that she had not committed
any offence.
On 14 July 1992 the Kraków-Krowodrza District Court decided that
the applicant's wife be supervised in the exercise of her parental
rights during the divorce proceedings.
From 20 October 1992 until 10 November 1992 the applicant
underwent psychiatric observations upon the order of the Kraków-
Krowodrza District Court for the purposes of the criminal proceedings
concerning ill-treatment of his wife.
On 14 June 1993 the applicant requested the court to be granted
custody of the children.
On 25 June 1993 the Kraków-Krowodrza District Court decided to
request the Family Diagnostics Centre to prepare a relevant expert
opinion.
On 30 June 1993 the Kraków-Krowodrza District Court acquitted the
applicant of ill-treatment and repeated assaults on his wife from June
1990 to July 1991.
On 6 October 1993 the applicant complained to the Kraków Regional
Court (S*d Wojewódzki) about the prolongation of the divorce
proceedings.
No hearings were apparently held in the divorce proceedings from
25 June 1993 until at least 27 January 1994.
The applicant failed to attend the first examination at the
Family Diagnostics Centre, fixed for 14 October 1993. The examination
was carried out at the second meeting on 3 December 1993.
On 4 January 1994 the applicant challenged judge M.S. of the
Kraków-Krowodrza District Court, alleging that she was biased against
him.
On 2 February 1994 the Family Diagnostics Centre, upon a request
of 25 June 1993, submitted a psychological opinion on the applicant's
family to the Kraków-Krowodrza District Court, complementary to the
opinion of 15 June 1990.
On 18 February 1994 the Kraków Krowodrza District Court dismissed
the applicant's challenge of the judge as the legal requirements for
her stepping down were not met, and imposed a fine on the applicant of
100,000 zlotys. The applicant filed an appeal, submitting that the
judge was biased and had been conducting the proceedings in an
inefficient manner for almost five years. He further submitted that
he could not use his apartment as a result thereof until the divorce
judgment would be pronounced.
On 24 February 1994 the applicant complained to the Court that
the opinion of the Family Diagnostics Centre was erroneous.
Subsequently the Court requested that the psychological examination of
the applicant's family be done again.
On 28 February 1994 the applicant filed an appeal against the
dismissal of his challenge of the judge of 18 February 1994.
Subsequently the Regional Court rejected his appeal as he had failed
to pay the relevant court fee.
On 14 March 1994 the applicant requested the local police station
to assist him in entering his apartment. On 18 March 1994 the police
station informed him that it was the housing cooperative which was
competent to do so.
On 12 April 1994 the housing cooperative informed the applicant
that it was not competent to do anything in this respect.
On 18 April 1994 the applicant complained to the Minister of
Justice about the inactivity of the police in assisting him.
On 17 June 1994 a hearing in the divorce proceedings was held.
Apparently the court again ordered the applicant to undergo
a psychiatric examination and obliged him to pay the costs thereof in
advance.
On 14 July 1994 the applicant complained to the Kraków Regional
Court about the length of the proceedings and in particular about the
Court's decision to repeat his psychiatric examination. He further
complained about the Court's decision to reject his appeal against the
dismissal of the challenge of the judge of 18 February 1994.
The applicant complained several times to the Minister of Justice
about the length of the proceedings.
Upon requests of the Kraków-Krowodrza District Court, on
unspecified dates four District Courts outside of Krakow heard evidence
from certain witnesses for the purposes of the divorce proceedings.
On 16 March 1995 the Kraków-Krowodrza District Court rendered the
judgment in the applicant's case. The Court dissolved the applicant's
marriage and granted custody of the children to the applicant's wife.
On 15 February 1996 the same court rejected the applicant's appeal on
formal grounds as the applicant had failed to pay the relevant court
fee and to substantiate his appeal.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the length of the divorce proceedings.
The applicant complains under Article 8 of the Convention that
his right to respect for his home has been breached as he cannot live
in his apartment and competent state authorities fail to assist him in
regaining possession of it.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 December 1993 and registered
on 30 August 1994.
On 17 May 1995 the Commission decided to communicate the
applicant's complaint concerning the length of the divorce proceedings
to the respondent Government.
The Government's written observations were submitted on
18 December 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 8 February 1996.
On 17 January 1997 the Commission decided to adjourn the case and
to request the Government to submit further information as to the
conduct of the divorce proceedings from July 1994. The Government
replied on 29 September 1997.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the length of the divorce proceedings, which commenced
on 2 January 1990 and ended by the judgment of 16 March 1995.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time ..."
2. The Government submit that the application, insofar as it relates
to events prior to the date of recognition of the right of individual
petition by Poland, is outside the competence ratione temporis of the
Commission.
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 further recalls that in cases where it can, by
reason of its competence ratione temporis, only examine part of the
proceedings, it can take into account, in order to assess the length,
the stage reached in the proceedings at the beginning of the period
under consideration (see No. 7984/77, Dec. 11.7.79, D.R. 16, p. 92).
It follows that the Commission is competent ratione temporis to examine
the applicant's complaint insofar as it relates to the proceedings
after 30 April 1993, taking into consideration the stage of the
proceedings reached at this date.
3. Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with a matter after all domestic remedies have been
exhausted.
The Government contend that the applicant cannot be regarded as
having exhausted available domestic remedies with regard to the
complaint about the length of the proceedings. The Government submit
that there is no single general remedy available under Polish law to
complain about the length of proceedings. However, they submit that
the usual judicial remedies, i.e. appeals against procedural and
substantive court decisions, could be employed in this respect. The
applicant failed to show that he had exercised any judicial remedies
since 1 May 1993. Moreover, as the applicant has not availed himself
of any judicial remedies, it is not clear from which date the six
months' period should be calculated. Thus, the applicant cannot be
regarded as having complied with this requirement.
The Government further submit that an administrative hierarchical
complaint about the length of proceedings may be lodged with the
president of the competent court, or with the president of the superior
court and with the Minister of Justice.
The Government contend that it was open to the applicant to file
appeals against the procedural court decisions which would, in his
opinion, contribute to the delay in the proceedings. He has not shown
that he has availed himself of this possibility. Therefore he has not
exhausted relevant domestic remedies.
The applicant does not submit any relevant arguments in this
respect.
The Commission recalls the Convention organs' case-law, according
to which the decisive question in assessing the effectiveness of
a remedy concerning a complaint about the length of proceedings is
whether the applicant can raise this complaint before domestic courts
by claiming specific redress; in other words, whether a remedy exists
that could answer his complaints by providing a direct and speedy, and
not merely indirect, protection of the rights guaranteed in Article 6
(Art. 6) of the Convention (Eur. Court H.R., Deweer v. Belgium judgment
of 27 February 1980, Series A no. 35, p. 16, para. 29; No. 8890/80,
Dec. 6.7.92, D.R. 29, p. 129). The Commission further recalls that
under Polish law neither appeals against substantive and procedural
court decisions nor a hierarchical appeal constitute effective remedies
to complain about the length of civil proceedings (No. 24559/94, Dec.
6.9.95, D.R. 82-A, p. 76).
The Commission finds that it has not been established that the
applicant had any effective remedy at his disposal which would have
enabled him to submit his complaints under Article 6 para. 1 (Art. 6-1)
of the Conv ention to the domestic authorities and would have
contributed to a reduction of the length of the proceedings.
Accordingly, the application cannot be declared inadmissible for
non-exhaustion of domestic remedies.
4. As regards the merits of the complaint, the Government contend
that the case was complex both as to the facts and the law. Thus
expert opinions were necessary to establish the psychological situation
of the family and the parental skills of both parents. Very detailed
findings had to be made in this respect, given the precarious situation
of the family and the fact that the children required special care.
The applicant and his wife filed contradictory claims as to which of
them should be granted the parental rights.
In the Government's opinion, the applicant's conduct also
contributed to prolonging the proceedings. The proceedings were
suspended for a certain period in 1990 and 1991 as the applicant filed
a successful action for disavowal of paternity. The applicant changed
his claim several times with regard to custody of the children, with
the result that a further expert opinion had to be prepared. He failed
to attend the first examination at the Family Diagnostics Centre, fixed
for 14 October 1993, which prolonged the proceedings as the next
examination was fixed for 3 December 1993. Further, the applicant
questioned the soundness of the expert opinion prepared on the basis
of this examination. He challenged the judge, and after his challenge
was dismissed on 18 February 1994, he further demanded restitution of
the time-limit to appeal against this decision.
As regards the conduct of the authorities, the Government
consider that there were no significant periods of inactivity longer
than those necessary for preparing the expert opinions. On the whole,
the length of the proceedings was reasonable and the authorities acted
with due dispatch. The Government conclude that this complaint should
be declared manifestly ill-founded.
The applicant submits that the court was wrong in considering
that he had acted in bad faith in challenging the judge. The Court
failed to take any measures to speed up the proceedings. It tolerated
the conduct of the applicant's wife which prolonged the proceedings.
The hearings were adjourned for a year and a half as one witness
consistently failed to appear. The court likewise did not react. The
applicant submits that the summons for the examination at the Family
Diagnostics Centre on 14 October 1993 was not served on him. The
applicant questioned the accuracy of the expert opinion as it contained
false statements as to the children's relationship with their parents
and drew wrong conclusions.
The Commission first observes that the proceedings lasted five
years, two months and fourteen days, out of which one year, ten months
and sixteen days falling after 30 April 1993, the date on which the
Commission's competence to examine individual applications against
Poland became effective.
The Commission recalls that the reasonableness of the length of
proceedings is to be determined with reference to the criteria laid
down in the case-law of the Convention organs and in the light of the
circumstances of the case, which in this case call for an overall
assessment (Eur. Court HR, Obermeier v. Austria judgment of 28 June
1990, Series A no. 179, p. 23, para. 72; Cesarini v. Italy judgment of
12 October 1992, Series A no. 245-B, p. 26, para. 17).
The Commission observes that the case was not complex as to the
law. However, detailed psychological expert opinions had to be taken
in order to ensure that the interest of the children was properly
safeguarded with regard to custody.
Insofar as the handling of the case by the domestic court is
concerned, the Commission notes that there were no unreasonably long
gaps in the proceedings. The parties requested that witnesses be heard
who lived far from the Court's location and the Court complied with
their requests, by instructing four different courts to hear these
witnesses, which entailed certain delays in the proceedings.
As regards the applicant's conduct, the Commission finds that he
contributed to the delay in that he changed his claim with regard to
paternal rights. He further failed, for whatever reason, to attend a
psychological examination on a date fixed in October 1993. The
Commission further notes that the proceedings remained pending for
a certain period due to the applicant's action for disavowal of
paternity, which had to be decided in a separate set of proceedings.
In January 1994 the applicant challenged a judge, which further
prolonged the proceedings.
In these circumstances, the Commission finds that the length of
the divorce proceedings has not exceeded a "reasonable time" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the complaint about the length of the proceedings
concerned is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
5. The applicant complains under Article 8 (Art. 8) of the
Convention that his right to respect for his home has been breached as
he cannot live in his apartment and the competent state authorities
fail to assist him in regaining possession of it.
Article 8 (Art. 8) of the Convention, insofar as relevant, reads:
"1. Everyone has the right to respect for ...his home...
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 Commission recalls that Article 8 (Art. 8) of the Convention
may give rise to positive obligations inherent in an effective respect
for private life or home. In determining whether or not a positive
obligation exists, regard must be had to the fair balance that has to
be struck between the general interest of the community and the
interests of the individual (see Eur. Court. H.R., Powell and Rayner
v. the United Kingdom judgment of 21 February 1990, Series A no. 172,
p. 18, para. 41).
The Commission observes, however, 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". In the present case, the Court dismissed in October 1990 the
applicant's request to have an interim order issued in the divorce
proceedings, regulating the use of the apartment until the decision on
the merits. In 1991 the Public Prosecutor terminated the criminal
investigations against the applicant's wife on suspicion of her
hindering the applicant's access to the apartment, finding that she had
no case to answer. These decisions were taken prior to 1 May 1993.
It follows that this part of the application is outside the
competence ratione temporis of the Commission and therefore
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
As regards events after 30 April 1993, the Commission is not
required to examine whether or not the facts submitted by the applicant
in support of this part of the application disclose any appearance of
a violation of the Convention as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with a matter after all
domestic remedies have been exhausted". The Commission notes that it
was open for the applicant to file a new request for an interim order
in the divorce proceedings, regulating the use of the apartment, until
the decision on the merits. The applicant failed to show that he tried
this remedy.
It follows that this part of the application must be rejected 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 J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy