AS TO THE ADMISSIBILITY OF
Application No. 24147/94
by Wanda WALKOWSKA
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 15 November 1993
by Wanda Walkowska against Poland and registered on 17 May 1994 under
file No. 24147/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1949, resides in
Bielowice.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
In 1985 the Legnica District Court (S*d Rejonowy) restricted the
parental rights of the applicant and her husband over their three
daughters, L., E. and R., and appointed a court guardian to supervise
them in the exercise of their custody rights.
In 1987 the Legnica District Court dissolved the applicant's
marriage and granted custody over the three daughters, L., E. and R.,
to the applicant.
In 1988 the applicant gave birth to her fourth daughter M.
In October 1991 the applicant's sister requested the Legnica
District Court to place the applicant's children in a children's home.
She submitted that the applicant suffered from mental disorder and as
a result was not able to provide proper care to her daughters. She
lacked any practical sense and was unable to organise adequately the
children's daily life. She had a tendency to move from place to place
with the children, disregarding their need to have a stable home. The
family efforts to help her had proven ineffective as she refused to
cooperate.
On 12 January 1992 the Legnica District Court issued an interim
decision to place L., E. and R. in a children's home pending the
decision on the merits. The Court found that the children had not been
properly cared for; that the apartment was filthy and disorderly; that
in the current school-year they had begun to attend school only in
October 1991. At school the children were usually dirty and did not
have the necessary school materials. The Court relied in this respect
on the findings of the court guardian.
On 21 January 1992 the Legnica Regional Court (S*d Wojewódzki)
dismissed the applicant's appeal.
On 21 April 1992 the Legnica District Court restricted the
applicant's parental rights over L., E. and R. and decided to place
them in a children's home. The Court also restricted the parental
rights of the applicant over M. and appointed a court guardian to
supervise her in the exercise of her parental rights.
On 10 June 1992 the Legnica Regional Court dismissed the
applicant's appeal against this decision.
On 1 December 1992 the Legnica District Court withdrew the right
of care and custody from M.'s father.
On 15 March 1993 the Legnica District Public Prosecutor requested
the Legnica Regional Court to institute proceedings to have the
applicant declared in part legally incapacitated on account of mental
disorder.
On 22 March 1993 the applicant's sister requested the Legnica
District Court to withdraw the applicant's parental rights over her
youngest daughter M. and to place M. in the children's home. She
submitted that the child was neglected; that the applicant did not
allow her to play with other children; that the applicant was in
hospital for an operation and that she could not take care of M.
properly, both on account of her recurrent mental problems and her
physical condition. The child was cared for by the applicant's
sisters during certain periods, but they were unable to take her on a
permanent basis.
On 25 March 1993 the Legnica District Court issued an interim
decision to place M. with Children Service (Pogotowie Opiekuncze) until
the decision on the merits. The Court considered that the applicant
had not secured proper care of the child and had neglected her.
On 10 August 1993 the applicant requested the Legnica District
Court to restitute her parental rights over the children.
On 9 September 1993 M. was transferred to the children's home
where her older sisters lived.
On 25 November 1993 the Legnica Regional Court decided to legally
incapacitate the applicant on account of her mental disorder. The
Court found that the applicant had undergone psychiatric treatment for
schizophrenia in 1973 and 1974. Afterwards she had refused to take any
medical treatment. Her parental rights had been restricted by the
Legnica District Court and her children had been placed in a children's
home. She lived with S., who was an alcoholic and often ill-treated
her. She received financial support from the social security
department which she mostly used to buy superfluous things. The Court
relied inter alia on an expert opinion of a psychiatrist who had stated
that the applicant suffered from schizophrenia and was unable to
understand her situation adequately.
On 1 March 1994 the Wroclaw Court of Appeal (S*d Apelacyjny)
dismissed the applicant's appeal against the decision concerning her
legal incapacitation.
On an unspecified later date the applicant submitted a request
to have the decision of her legal incapacitation reconsidered. These
proceedings are apparently pending before the Legnica Regional Court.
On 21 September 1994 the applicant submitted a request to the
Legnica District Court to have her parental rights restored.
On 12 January 1995 the Legnica District Court fixed a date for
the hearing in the proceedings concerning the applicant's request for
restitution of her parental rights. At a certain later date the
proceedings were suspended pending the decision on the merits in the
proceedings concerning the applicant's legal incapacitation.
COMPLAINTS
The applicant complains under Article 2 of Protocol No. 1 to the
Convention that as a result of the placing of her daughters in the
children's home she was deprived of her right to raise them in
conformity with her own religious and philosophical convictions. She
submits that the decisions concerning the custody of her children were
wrong and that she is able to take competent care of them.
She complains under Article 5 of the Convention that the children
have been deprived of their freedom.
The applicant further complains that the decision concerning her
legal incapacitation was erroneous as she is of sound mind and has
never suffered from any mental disorder.
THE LAW
1. The applicant complains that she was deprived of her right to
raise her children in conformity with her own religious and
philosophical convictions. She submits that the decisions concerning
the custody of her children were wrong and that she is able to take
competent care of them.
The Commission has examined these complaints under Article 8
(Art. 8) of the Convention, which states, insofar as relevant:
"1. Everyone has the right to respect for his ... family
life..."
2. 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 by Poland of the rights recognised in the
Convention through any act, decision or event occurring after 30 April
1993". The decisions concerning the restriction of the applicant's
parental rights and the placing of the children in the children's home
were taken before that date.
It follows that insofar as the application relates to the period
before 30 April 1993, it 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).
3. As regards the events after 30 April 1993, the Commission recalls
that on 21 September 1994 the applicant submitted a request to have her
parental rights restored. The proceedings are pending before the
Legnica District Court. The applicant has not shown that a final
decision on the merits has been issued in these proceedings.
The Commission is not required to decide whether or not the facts
submitted by the applicant in support of those complaints disclose any
appearance of a violation of the provisions of the Convention as
Article 26 (Art. 26) of the Convention provides that the Commission
"may only deal with the matter after all domestic remedies have been
exhausted".
In the present case the proceedings concerning the applicant's
parental rights have been suspended until the decision in the
proceedings relating to her legal incapacity is pronounced. Therefore
the applicant has not exhausted the remedies available under Polish
law. It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
4. The applicant complains under Article 5 (Art. 5) of the
Convention that her children have been deprived of their freedom.
The Commission observes that placing the children in a children's
home does not amount to deprivation of liberty within the meaning of
this provision. It follows that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant complains about the proceedings concerning her
legal incapacity which came to an end on 1 March 1994. However, she
does not allege any particular shortcomings in these proceedings, but
rather challenges the outcome of the proceedings.
The Commission recalls in this respect that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set out
in the Convention. The Commission refers, on this point, to its
established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp.
222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.
7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45, Dec. 5.4.94, D.R.77-B, p.
81).
The remainder of the application, if examined under Article 6
(Art. 6) of the Convention, is therefore 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.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy