Lexploria

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

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GLOWACKI v. POLAND

GLOWACKI v. POLAND

LEXI