AS TO THE ADMISSIBILITY OF
Application No. 28244/95
by Violetta MYSZK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 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
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 7 February 1995
by Violetta Myszk against Poland and registered on 18 August 1995 under
file No. 28244/95;
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
28 July 1997 and the observations in reply submitted by the
applicant on 7 January 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1964, is a teacher,
residing in Lasin.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
In December 1993 the applicant attempted to commit suicide.
After she left a hospital, she moved in with her mother. On
23 December 1993 the applicant lodged a request with the Grudzi*dz
District Court to have access to her children, R., born in 1985, and
K., born in 1988, who had remained with her husband in the marital
home, while she stayed in her mother's apartment.
On 12 January 1994 the Grudzi*dz District Court (S*d Rejonowy)
held a hearing in access proceedings at which it heard, inter alia,
evidence from an educationalist at the school attended by R. He stated
that the child had once said at school that he had been beaten by his
father. On the same date the Grudzi*dz District Court pronounced an
interim order concerning access to the children. The court granted the
applicant unlimited access to them at their place of residence with
their father and at school and allowed them to visit the applicant
every second day for two hours in the afternoon in her mother's
apartment.
In early February 1994 the applicant's husband left Lasin with
the children and settled in his parent's house in Kamienica Królewska,
approximately 200 kilometres from Lasin. The applicant informed the
court thereof.
In a further interim order of 23 February 1994 the Grudzi*dz
District Court changed the access arrangements set out in the order of
12 January 1994 in that it awarded custody of the children to their
father, residing in Kamienica Królewska, and allowed the applicant to
have access to them in their home.
In taking this decision the court considered the evidence of a
psychologist who had examined the family. The Court observed that the
applicant's husband had shown good parental skills and that the
applicant should have been aware, when taking her decision to commit
suicide, that the children would be taken care of by her husband. The
children's interest would be best served by leaving them with their
father in Kamienica Królewska. The applicant herself had not alleged
that her husband was incapable of taking competent care of them.
A definitive assessment of his decision to take them to Kamienica
Królewska, which was contrary to the terms of the order of 12 January
1994, would be made in a final decision to be pronounced in the access
proceedings. However, the children had already spent several weeks in
Kamienica Królewska and had satisfactory living conditions there and
were properly cared for. Forcing the applicant's husband to comply
with the order of 12 January 1994 would not serve their best interest.
The court also had regard to the fact that the children's father had
found employment in Kamienica Królewska, which he had not been able to
find in Lasin.
On 3 March 1994 the applicant lodged an appeal, submitting that
the impugned order gave countenance to her husband's failure to comply
with the order of 12 January 1994 and in practice deprived her of any
possibility of access to the children and of having a say in their
education. The court should, she insisted, have taken measures in
order to force her husband to comply with that order. She had returned
to the marital home after her stay with her mother, but her husband had
left Lasin on purpose as he wished to cut off her contact with the
children. She further submitted that the court had failed to examine
thoroughly the children's situation in their new place of residence,
in particular as regards their transport to school and the medical care
available for K. She emphasised that the impugned order had been taken
at a hearing in camera and that she had not been heard by the court,
while her husband had. She submitted that her attempt to commit
suicide should not be held against her in the decisions concerning
access arrangements.
On 11 March 1994 an expert opinion by two psychologists was
submitted to the Grudzi*dz District Court.
In March 1994 the applicant's husband refused to allow the
children to spend Easter with her.
On 19 April 1994 the Torun Regional Court (S*d Wojewódzki)
dismissed the applicant's appeal of 3 March 1994. The court found,
that, contrary to what the applicant alleged, the lower court had
examined the children's situation in detail and, having relied on the
reports of a social worker, had established that the children were well
cared for and had adequate material conditions. They were satisfied
with their life with their father and had not expressed a wish to
return to Lasin, although they wished that their parents would live
together again. The court acknowledged that, in view of the distance
between the applicant's residence and that of her children, her
effective access to them was difficult, but pointed out that this
solution was only a temporary one, to be ultimately changed by the
final decision in the access proceedings, which were likely to end in
the near future.
In June 1994 the applicant requested the Grudzi*dz District Court
to pronounce an order allowing the children to spend their summer
holidays with her. She submitted that her husband had intercepted her
letters to the boys and had not allowed them to spend Easter with her
in Lasin. During her visit to Kamienica Królewska. In May her husband
had refused to leave her alone with the children. During her visit in
June he had verbally insulted her in their presence.
On 15 June 1994 the applicant lodged a divorce action with the
Torun Regional Court. On 19 August 1994 the court held
a reconciliation session, which failed.
On 14 September 1994 the Grudzi*dz District Court convicted the
applicant's husband of battering her from June 1993 to February 1994,
sentenced him to eighteen months' imprisonment and a fine, and
suspended execution of the prison sentence.
On 10 October 1994 the applicant submitted a request to the Torun
Regional Court to have the access arrangements changed by way of
interim orders under Article 443 of the Code of Civil Procedure so that
she could have custody of the children until a final decision in this
respect was taken in the divorce proceedings. On the same date the
court fixed the date for a hearing in the divorce proceedings for
9 November 1994 and requested the Grudzi*dz District Court to transfer
the case-file of the access proceedings to it.
On 24 October 1994 the applicant's husband filed a reply to her
request of 10 October 1994 with the Torun Regional Court.
On 31 October 1994 the Torun Family Diagnostics Centre filed with
the Grudzi*dz District Court a further expert opinion for the purpose
of the access proceedings concerning the current psychological
situation of the family and the relations between the children and the
parents.
At the hearing on 9 November 1994 the applicant's husband
challenged all the judges of the Torun Regional Court. The court
adjourned hearings in order to decide on the application.
On 10 November 1994 the Grudzi*dz District Court transferred the
access proceedings to the Torun Regional Court in order for them to be
joined with the divorce proceedings.
On 21 November 1994 the applicant reiterated her request of
6 October 1994 to have custody of the children.
On 1 December 1994 the applicant requested that the children be
allowed to spend Christmas with her. On 12 December 1994 the Torun
Regional Court granted her request. The applicant's husband failed to
comply with the order, despite three police interventions.
On 28 January 1994 the applicant informed the court thereof.
On an unspecified later date the Torun Regional Court transmitted
the case-file of the divorce proceedings to the Gdansk Court of Appeal
(S*d Apelacyjny) for a decision in respect of the challenge of the
judges.
On 13 January 1995 the Torun Regional Court dismissed the
applicant's husband's appeal against the judgment of 14 September 1994
pronounced in the criminal proceedings against him.
On 10 February 1995 the case-file reached the Gdansk Court of
Appeal.
On 10 March 1995 the applicant requested the Torun Regional Court
to issue an order allowing the children to spend Easter with her. The
court requested the Gdansk Court of Appeal to transmit the case-file
to it immediately so that this request could be dealt with. The case-
file reached the Torun Regional Court on 29 March 1995. On 30 March
1995 a letter from the applicant's husband was submitted to the court,
in which he argued that the court could not issue any orders in the
divorce proceedings in view of the fact that his challenge still
remained pending. On 31 March 1995 the Torun Regional Court, again by
way of interim order issued in the divorce proceedings, allowed the
applicant to take the children for Easter. On 11 April 1995 the
applicant's husband lodged an appeal.
On 14 April 1995 the applicant's husband refused to give her the
children. On 21 April 1995 she complained to the court.
On 25 May 1995 the Gdansk Court of Appeal examined the challenge
of the judges of the Torun Regional Court submitted by the applicant's
husband in the divorce proceedings and ordered that the case-file be
returned to the latter court as certain statements of the challenged
judges relevant to their alleged lack of impartiality as regards the
applicant and her husband were, apparently, missing. On the same date
the court dismissed the applicant's husband's appeal against the orders
of 12 December 1994 and 30 March 1995, considering that there were no
indications that contact with the applicant could be to the children's
detriment as the boys had a strong emotional bond with their mother and
as the expert report had not shown that she was suffering from any
mental illness, contrary to her husband's assertions.
On an unspecified later date the case-file was again transmitted
to the Gdansk Court of Appeal.
On 14 June 1995 the Grudzi*dz District Court convicted the
applicant's husband of theft of her personal effects and a car,
sentenced him to one year's imprisonment and suspended the execution
of the prison sentence.
On 10 July 1995 the applicant requested the Torun Regional Court
to allow her children to spend the holidays with her. On the same day
that court requested the Gdansk Court of Appeal to send the case-file
to it. On 20 July 1995 the Torun Regional Court granted the
applicant's request and allowed the children to spend August with her.
The applicant's husband filed an appeal, which was rejected on 1 August
1995 as he had failed to comply with the relevant formal requirements.
On 2 August 1995 the applicant complained to the bailiff of the
Kartuzy District Court that her husband had taken the children away
from his home and thus had made it impossible for her to take them, and
requested his assistance in enforcing the order. On 3 August 1995 the
bailiff ordered the applicant's husband to comply. On 11 August 1995
she informed the bailiff that her husband had failed to comply. Later
in August the bailiff informed the court that he had twice tried to
serve summonses on the applicant's husband, but it had proved
impossible as he was not present at his home in Kamienica Królewska.
On 1 September 1995 the case-file was again returned to the
Gdansk Court of Appeal. On an unspecified later date the court
dismissed the challenge of the judges. On 11 November 1995 the case-
file was again transmitted to the Torun Regional Court.
On 10 November 1995 the applicant requested the Torun Regional
Court to permit the children to spend Christmas with her. On an
unspecified later date the court agreed. On 29 November 1995 the
applicant's husband lodged an appeal. On 27 March 1996 the Gdansk
Court of Appeal dismissed his appeal. On 29 April 1996 the case-file
was again returned to the Torun Regional Court.
On 29 August 1996 a hearing was held before the Torun Regional
Court. The court ordered that the parties be further examined by the
specialists of the Family Diagnostics Centre.
On 29 October 1996 a further hearing was held before the Torun
Regional Court, at which the court heard submissions of the parties,
issued a new order as to the applicant's access to her children and
invited the parties to reach reconciliation.
On 16 December 1996 the court received a letter from the parties
from which it transpired that the applicant had moved in with her
husband and that they had decided to live together. They requested the
court to stay the proceedings. On 18 December 1996 the court decided
to stay the proceedings in view of the applicant's reconciliation with
her husband. They have not been resumed since then.
Relevant domestic law and practice
The Polish Family and Care Code provides that the court competent
to deal with an action for divorce is also competent to issue any
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 is pronounced. Either of the parties can file a
request to have such an order made; or the court does so ex officio
(Article 443).
Such an order can be appealed against to a second-instance court.
A final court decision as to parental rights and access
arrangements can be changed at any time if the interests of the child
so require, either upon a motion from 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 enforcement. The provisions of the Code of
Civil Procedure on enforcement of non-pecuniary obligations are
applicable to the enforcement proceedings concerning judicial decisions
on parental rights and access arrangements (resolution of the Supreme
Court of 30 January 1976, III CZP 94/75, OSNCP 1976/7-8).
Enforcement proceedings are instituted following a motion to this
effect by an applicant, i.e. that parent to whom access rights have
been granted, but are not respected by the other parent. The motion
shall be accompanied by the decision concerned, certified as to its
being executory. The motion is submitted to the bailiff who carries
out the enforcement. The respondent is informed at 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).
Enforcement of decisions concerning access arrangements aims at
compelling the parent who has custody of the child to comply with the
access decision.
If the parent refuses to comply with the enforcement measures,
a motion to have a fine imposed on him or her can be submitted to the
court in whose district the enforcement is carried out. The court
hears submissions of the parties and imposes a fine if the decision is
not complied with within this time-limit. Further fines can be imposed
if the creditor persists in his or her refusal (Article 1051 of the
CCP).
In pursuance of Article 49 of the Code of Civil Procedure,
a judge steps down, upon the motion of one of the parties, if there
exists a personal relation between him or her and one of the parties
which may cast doubt on his or her impartiality.
COMPLAINTS
The applicant complains in substance that she cannot have access
to her children and that her husband's aim is to destroy the emotional
bonds between her and her children. She submits in particular that the
court order of 23 February 1994 gave countenance to her husband's
failure to comply with the earlier order and de facto deprived her of
access.
She further complains in substance that the divorce proceedings
are going on too long, making it impossible to have the access
arrangements finalised.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 February 1995 and registered
on 18 August 1995.
On 9 April 1997 the Commission decided to communicate the
applicant's complaint concerning difficulties in obtaining access to
her sons and the length of access and divorce proceedings to the
respondent Government for observations on the admissibility and merits
to be submitted by 24 June 1997. Subsequently, the time-limit was
prolonged until 24 July 1997.
By a letter of 1 May 1997 the applicant's mother informed the
Commission that her daughter had had a reconciliation with her husband
and therefore pursuing the application became devoid of purpose.
By a letter of 22 May 1997 the applicant's mother was informed that it
did not transpire from any documents that her daughter had authorised
her to represent her before the Commission. Thus, in view of Article
30 para. 1 (a) of the Convention, her daughter should inform the
Commission whether she indeed intended to withdraw the application.
By a letter of 23 July 1997 the applicant's mother informed the
Commission that the situation in her daughter's family had greatly
improved and that her daughter would provide the relevant information.
The Government submitted their observations on 28 July 1997.
On 15 October 1997 observations in the case were submitted by the
applicant's mother. By a letter of 29 October 1997 she was again
requested to submit a power of attorney and the applicant was warned
that a strike-off would be considered if she did not submit her
observations or a power of attorney to her mother by 23 December 1997.
On 7 January 1998 the applicant submitted her observations and
requested that her mother's submissions be taken into consideration.
THE LAW
1. The applicant complains in substance under Article 8 (Art. 8) of
the Convention that she cannot have access to children, contrary to the
judicial decisions in the relevant proceedings.
The Commission has examined this complaint under Article 8
(Art. 8) of the Convention, which in its relevant part 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 applicant has failed to
exhaust relevant domestic remedies. It was open to her to use normal
enforcement measures under Article 1051 of the Code of Civil Procedure,
applicable to the enforcement of court orders concerning non-pecuniary
obligations. The applicant did not request the bailiff of the court
with jurisdiction over her husband's place of residence to assist her
in the enforcement of the access order. The Government conclude that
the applicant failed to exhaust the domestic remedies available to her
under Polish law and that for this reason this part of the application
should be declared inadmissible.
The applicant submits that in fact she submitted such a request
on 2 August 1995.
The Commission observes that it clearly transpires from the
documents submitted by the applicant that she requested the bailiff of
the Kartuzy District Court to assist her in obtaining enforcement of
the court's decision of 20 July 1995 according to which her children
should spend the holidays with her. It further transpires that on
3 August 1995 the bailiff ordered the applicant's husband to comply.
On 11 August 1995 she informed the bailiff that he had failed to
comply. Later in August the bailiff informed the court that he had
twice tried to serve summonses on the applicant's husband, but to no
avail. Therefore the Commission considers that the applicant in fact
tried the relevant remedy referred to by the Government, but that this
remedy proved to be ineffective in that the applicant was unable
thereby to obtain her husband's compliance with the court's decisions.
It follows that this part of the application cannot be declared
inadmissible for non-exhaustion of domestic remedies.
b) As to the substance of the complaint, the Government submit that
the Grudzi*dz District Court, on 12 January 1994 and 23 February 1994,
issued decisions regulating access to the applicant's children and
these decisions were subsequently served on the applicant. These
decisions preserved the applicant's access to her children until
a final judgment in the divorce proceedings.
The Government further argue that the courts, when taking the
decisions of 23 February 1994 and 19 April 1994, could not have taken
into consideration the applicant's husband's conviction for battering
her as these proceedings were still pending before the first-instance
court.
The Government finally state that it was open to the applicant
to request that the access decisions be enforced by the bailiff of the
Kartuzy District Court, but that she failed to do so. The Government
conclude that the applicant's failure to request assistance from
competent State authorities cannot engage the responsibility of the
State, and that the application should be declared manifestly ill-
founded.
The applicant submits that the Grudzi*dz District Court, by its
order of 23 February 1994, authorised her husband's failure to comply
with the earlier order of 14 January 1994, as his removal of the
children from L. made it very difficult for her to have effective
access to them. She further argues that, when issuing this order, the
court acted very speedily, whereas it was not so efficient when dealing
with her request concerning the access arrangements.
She further contends that the courts consistently failed to
react to her complaints about her difficulties in the relations with
her children caused by her husband's lack of cooperation, verbal abuse
and psychological cruelty. The courts, in particular the Grudzi*dz
District Court, showed an inhuman disregard for her feelings as
a mother. The courts treated her as if they were acting on the
assumption that she was at fault in the difficulties affecting her
family life, without there being any sound grounds therefor. The
enforcement proceedings proved ineffective in the face of her husband's
obstinate refusal to cooperate.
The applicant submits that she has been wronged by the courts,
which showed lack of common sense and unreasonably delayed her case.
She submits that she kept the courts informed about her difficulties
in obtaining effective access to her children, in particular in that
she could not take them for a walk or talk to them without the presence
of other persons. She submits that none of the decisions ordering her
husband to permit the children to spend certain periods with her were
complied with. For three years she had contact with children mostly
at their school or on the premises of the Family Diagnostics Centre.
She submits that she informed the Torun Regional Court, before which
the divorce proceedings were pending, about the criminal proceedings
against her husband for failure to comply with the access orders.
The applicant further submits that her husband is violent and
that their family requires regular therapy. She states that the State
does not provide any effective prevention programmes as regards
domestic violence and that the courts do not treat this issue as
seriously as they should.
The Commission recalls that, although the object of Article 8
(Art. 8) is essentially to protect the individual against arbitrary
interference by the public authorities, it may also impose positive
obligations on the State inherent in an effective respect for family
life. These obligations may involve the adoption of measures designed
to secure respect for family life even in the sphere of the relations
of individuals between themselves (Eur. Court HR, X and Y v. the
Netherlands judgment of 26 March 1985, Series A no. 91, p. 11,
para. 2). However, the notion of "respect" enshrined in Article 8
(Art. 8) is not clear-cut. Especially where the positive obligations
implicit in that concept are concerned, its requirements will vary
considerably from case to case according to the practices followed and
the situations obtaining in the Contracting States (Eur. Court HR,
Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299,
p. 34, para. 131).
In the present case the Commission first observes that the
applicant's husband, when taking the children away from Lasin in
February 1994, did indeed act in defiance of the court's order of
12 January 1994, which granted unlimited access rights to the
applicant. The court, when issuing the decision of 23 February 1994,
in fact gave countenance to this course of action.
The Commission further observes that the applicant had
difficulties in obtaining effective access to her children due to her
husband's active hostility towards her. This is shown in particular
by the fact that she could not obtain her husband's compliance with
three court orders in respect of access arrangements involving her
children's stay for certain periods in her place of residence.
However, the Commission notes that it does not transpire from the
case-file that she could not have had access to her children at all.
She herself submits that she was able to visit the children at their
place of residence and at their school and that she availed herself of
this possibility. It is true that she contends that she could not see
her sons without her husband being present. However, it transpires
from certain documents in the case-file that the applicant's contacts
with her children were and remained good throughout the proceedings.
This is shown in particular by the Gdansk Court of Appeal's decision
of 25 May 1995, in which it found that there were no indications that
contact with the applicant could be to the children's detriment as they
had a strong emotional bond with their mother. Moreover, the courts,
when deciding that the children could spend holidays with the
applicant, must reasonably have relied on the fact that their emotional
relations were good and thus visits to their mother's home were in
their interest.
The Commission further notes that the applicant did not actively
pursue her application before the Commission from the time of
communication to the respondent Government. It was only her mother who
maintained correspondence with the Commission, without any power of
attorney having been submitted to it authorising her to represent the
applicant. The applicant did not respond to the Commission's
enquiries, aimed at establishing her intentions with regard to her
application. It transpires from her mother's submissions, contained
in her letters of 1 May and 23 July 1997, that before May 1997 the
applicant had moved to her husband's house, that they had resumed
family life and that the general family situation had greatly improved.
This submission was corroborated by the Government's submissions, in
which they stated that in a letter of 16 December 1996 the applicant
and her husband informed the court that they had reached
a reconciliation and requested the court to stay the divorce
proceedings. The applicant did not contest this statement. The
Commission further observes that it does not transpire from the
parties' submissions that the period in which the applicant did not
live with her children brought about any tangible deterioration of the
emotional bonds between her and them, which, according to the expert
reports submitted to the court in the divorce proceedings, were and
remained good.
The Commission further notes that it was only in December 1997
that the applicant contacted the Commission, complaining mainly and in
very vague terms about new problems within her family. There is no
indication that any proceedings relating to the applicant's access to
the children, except for the stayed divorce proceedings before the
Torun Regional Court, are pending before any authorities. The
Commission therefore considers that, insofar as it can be determined
on the basis of the applicant's slightly contradictory submissions,
that she indeed wishes to pursue her case, it cannot be determined from
her arguments that the lack or inadequacy of the State's assistance
in the enforcement of her access rights led to a destruction of family
bonds between her and her children, and that any such lack or
inadequacy can be deemed to constitute lack of respect for her family
life within the meaning of Article 8 (Art. 8) of the Convention.
The Commission further notes that in her submissions to the
Commission the applicant mainly complains that the State does not
provide an adequate framework in which families experiencing
difficulties can obtain competent and effective family counselling.
However, the applicant does not specify the nature and the precise
character of the difficulties encountered by her family after the
reconciliation with her husband, except for the fact that her husband
tends to be violent. She has also failed to state whether she actually
tried to obtain any counselling and what was the concrete outcome of
her endeavours. The Commission further considers that the positive
obligations of the State inherent in an effective "respect" for family
life within the meaning of Article 8 (Art. 8) of the Convention do not
encompass an obligation to provide ex officio effective family
counselling to families with problems.
The Commission concludes that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
Insofar as it can be determined on the basis of the applicant's
submissions that she in fact alleges that her husband has a tendency
to be violent against her or the children, this complaint concerns a
private person, whose acts, however reprehensible, do not engage the
responsibility of the State. It follows that this complaint is
incompatible ratione personae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains in substance under Article 6 (Art. 6) of
the Convention that the proceedings in which the access issues were to
be determined lasted too long.
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 ... hearing
within a reasonable time by (a) ... tribunal ..."
The Government first submit that the period to be taken into
consideration started on 23 December 1993 and ended on 18 December
1996. They further state that the case should be regarded as complex
as to the facts and law, the more so as two separate sets of
proceedings were conducted as regards access arrangements, the access
proceedings proper and the divorce proceedings. After the applicant
instituted the divorce proceedings in June 1994, the Grudzi*dz court
transmitted the access case to the Torun court, before which the
divorce proceedings were pending, in order for the cases to be joined.
The Regional Court had to hold a hearing in order to take possible
interim decisions as to the access arrangements. The applicant's
husband appealed against all orders concerning the children's visits
to their mother, which considerably prolonged the proceedings as the
case-file had to be transmitted to the Gdansk Court of Appeal on each
occasion. Likewise, the challenge of the judges filed by the
applicant's husband prolonged the proceedings.
The Government conclude that this complaint should be declared
manifestly ill-founded.
The applicant argues that the proceedings have been unreasonably
long.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (Eur. Court HR, Vernillo
v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30).
The Commission observes that the proceedings concerning access
were instituted on 23 December 1993. On 10 November 1994 they were
joined with the divorce proceedings. These proceedings were stayed on
18 December 1996 upon the parties' joint request and remain stayed.
Thus the total period to be considered is two years, eleven months and
twenty-five days.
The Commission observes that in the present case the subject-
matter of the proceedings - at first issues of access to the children,
and then the same issues within the context of the divorce proceedings
- cannot in itself be regarded as being complex as to the law. The
fact that the access proceedings were ultimately joined with the
divorce case did not affect the character of the case as it is a normal
obligation of the courts to decide on access arrangements in divorce
proceedings, both by way of interim orders if such a need arises or by
way of final judgment. Likewise, in the Commission's view, there are
no indications that in the applicant's case there were any special
factual circumstances which would render the case complex. As regards
the fact that the court requested that expert reports be prepared by
the Family Diagnostics Centre, this is a current practice of the courts
in divorce cases. Therefore it cannot be regarded as sufficient
argument to support the conclusion that the case was complex.
As regards the applicant's conduct, the Commission finds no
indication that she contributed to the length of the proceedings.
Insofar as the conduct of the authorities is concerned, the
Commission first observes that the courts' conduct is open to criticism
as regards the manner in which the challenge of the judges submitted
by the applicant's husband was dealt with. It was submitted on
9 November 1994 at the first hearing in the divorce case. Subsequently,
the case-file was several times transmitted between the Torun Regional
Court and the Gdansk Court of Appeal. It is true that this was in part
due to the fact that the Torun Regional Court had to take interim
access orders upon the applicant's requests. However, it transpires
that on 25 May 1995 the Gdansk Court of Appeal returned the case back
to the Torun Regional Court in view of the fact that declarations of
certain judges as to their personal relations with the parties were
missing. This irregularity, in the Commission's view, must be ascribed
to a certain lack of diligence on the part of the Torun Regional Court
in dealing with the challenge. As a result, it took the Gdansk Court
of Appeal almost one year, from 9 November 1994 to an unspecified date
between 1 September 1995 and 11 November 1995, to decide on the
challenge, which is a considerable period to decide on such
a relatively simple issue. Otherwise, the courts dealt promptly with
the applicant's requests to issue specific access orders and issued the
required decisions with no delays. The Commission finally observes
that the divorce proceedings were stayed upon the parties' joint
request and remain pending.
Assessing the facts of the case as a whole, and taking into
account in particular the fact that the overall length of the
proceedings was not significant, the Commission considers that the
access proceedings have not exceeded a "reasonable time" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows
that this complaint is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) 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