AS TO THE ADMISSIBILITY OF

                      Application No. 25718/94

                      by Swi*toslaw ADAMCZAK

                      against Poland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 20 June 1994 by

Swi*toslaw ADAMCZAK against Poland and registered on 18 November 1994

under file No. 25718/94;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      20 November 1995 and the observations in reply submitted by the

      applicant on 23 January 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the parties, may be

summarised as follows:

      The applicant, a Polish citizen born in 1964, is a farmer

residing in Mirostowice.

      On 19 December 1990 the police in Zary refused to institute

criminal proceedings against the applicant and his parents for ill-

treatment of his wife, finding that no criminal offence had been

committed.

      On 17 April 1991 the applicant's wife lodged a divorce action

with the Zielona Góra Regional Court (S*d Wojewódzki).  Subsequently,

she moved with their son K. to her parent's house in Bagienice.

      On 19 March 1992 the applicant requested the Court to decide on

his access to K., who was in his mother's care.

      On 29 July 1992 the Zielona Góra Regional Court ruled that during

the divorce proceedings their three year old child K. should be in his

mother's care, with the applicant having access to him at his wife's

residence on each first and third Saturday and Sunday from 9 a.m. to

5 p.m.; the applicant's wife was ordered to allow the access.

      On 31 July 1992 the applicant requested to be served a copy of

the decision of 29 July with its executory character being confirmed.

      On 8 August 1992 the Court confirmed that the order was liable

to execution and on 12 August the enforcement order was served on the

applicant.

      At the hearing on 25 August 1992 the President of the Court asked

the applicant whether he had tried to see the child.  The applicant

replied that he had a right not to reply and that he wished to avail

himself thereof.

      On 17 September 1992 the Zielona Góra Regional Court suspended

the divorce proceedings in view of the fact that the applicant had in

the meantime lodged a motion to have his wife legally incapacitated.

      On 1 May 1993 the applicant came to Bagienice with his brother

to visit his son.  He showed the court order of 29 July 1992 to his

wife.  However, she did not allow the applicant to see K.  Thereupon

an argument developed between the applicant and his brother on the one

hand and his wife, her brother and father on the other.  The father

screamed at the applicant, tried to hit him with his stick and uttered

threats.  The applicant's wife called the police.  Three policemen

arrived and after negotiations the applicant eventually visited the

child from 13.30 to 14.00.

      On 5 June 1993 the applicant requested the institution of

criminal proceedings against his father-in-law for uttering threats and

hindering the execution of the court order on 1 May 1993.

      On 24 June 1993 the Mlawa District Prosecutor terminated the

investigations, finding that no offence had been committed by the

applicant's father-in-law.  The applicant appealed against this

decision.

      On 26 July 1993 the Warsaw Regional Prosecutor quashed this

decision and ordered the case to be reconsidered, finding that

insufficient evidence had been taken; that the assessment of the

evidence given by the suspect appeared to be entirely erroneous; and,

consequently, that the decision was ill-founded.

      On 28 September 1993 the Mlawa District Prosecutor terminated the

criminal proceedings against the applicant's father-in-law P.S. for

compelling the applicant to certain behaviour ("zmuszanie do

okreslonego zachowania"), and against P.S. and the applicant's brother-

in-law for uttering threats against the applicant.  The Prosecutor

found that on 1 May 1993 the applicant's wife had initially refused her

consent for the applicant's visit to their son as she was afraid that

he might abduct the child.  She had eventually agreed and the applicant

had visited the boy in accordance with the conditions set out in the

Zielona Góra Regional Court order ("zgodnie z istniej*cym

postanowieniem S*du Wojewódzkiego w Zielonej Górze").  He further found

that the applicant's father-in-law had not intended to beat the

applicant, and that the witnesses (policemen) had not confirmed that

he had uttered threats to the applicant.

      On 4 October 1993 the applicant appealed against this decision.

He submitted that his father-in-law had in fact threatened him.  He

contended that during his visit on an unspecified date before

1 May 1993 he had been brandishing a knife, thus making it impossible

for the applicant to see his child.  During the altercation on 1 May

1993 the suspect had gone to the house to fetch his stick in order to

threaten the applicant.  The applicant stated that as a result of such

conduct he was afraid to visit the child .

      On 15 November 1993 the Warsaw Regional Prosecutor quashed the

decision of 28 September 1993 and ordered the case to be reconsidered.

      On 23 November 1993 the applicant requested the Mlawa District

Prosecutor to take certain evidence in the resumed proceedings against

P.S., requesting in particular that his brother and a policemen, who

had been present at the relevant time, be heard.

      On 30 December 1993 the Zielona Góra Regional Court resumed the

divorce proceedings.

      On 19 January 1994 the Mlawa District Prosecutor refused to

institute criminal proceedings against the applicant's wife for giving

false evidence in the proceedings against her father.  He found that

the applicant's wife had stated in these proceedings that on 1 May 1993

her father had not threatened the applicant; and that he had said that

the applicant could only visit the child with the local mayor

("soltys") as a witness, but not together with his brother.  The

Prosecutor concluded that no offence had been committed.

      The applicant unsuccessfully appealed to the Warsaw Regional

Prosecutor.  He submitted that his wife had written in a letter to the

Zielona Góra Regional Court in divorce proceedings that she was

categorically opposed to the applicant seeing the child and that she

continued to object to the applicant doing so.  On 14 March 1994 the

Prosecutor upheld the contested decision.

      On 30 March and 19 April 1994 the applicant complained to the

Warsaw Appeal Prosecutor about the wrongful decisions of the Public

Prosecutors.  He submitted inter alia that his wife prevented him from

seeing the child; and that she refused him taking the child with him

for holidays.  In a letter of 17 April 1994 he was informed that his

complaints had been carefully investigated and that the decisions

complained of were well-founded.

      On 31 March 1994 the Mlawa District Court (S*d Rejonowy), in

summary proceedings, found the applicant's father-in-law guilty of

uttering threats and imposed a fine on him.  Apparently the applicant

filed an objection to the case being dealt with in summary proceedings

and the case was accordingly transmitted to the ordinary proceedings.

On 12 April 1994 the applicant requested to be admitted as a civil

party to these proceedings.  He claimed compensation for moral damages

caused by the fact that he had not been able to see his son on 1 May

1993 due to the actions of the accused and reimbursement of travel

expenses.  He also wished to be admitted as a private prosecutor to the

proceedings.

      On 19 April 1994 the Mlawa District Court refused the former

request as the civil claim for compensation was not related to the

merits of the criminal proceedings, and apparently allowed the latter.

      On 26 April 1994 the applicant filed an appeal against the

refusal to be admitted as a civil party to the criminal proceedings,

submitting that his claim for reimbursement was related to the criminal

proceedings, since he wanted reimbursement of the travel costs (600 km)

as he had not been able to see the child due to the actions of the

accused and that he had suffered moral damage.

      On 29 April 1994 the President of the Court rejected this appeal

as no appeal lay against the contested decision.

      On an unspecified date criminal proceedings on suspicion of

persistent failure to pay child support were instituted against the

applicant.  The case is pending before the Mlawa District Court.  On

25 May 1994 this Court refused legal aid to the applicant.  The

applicant apparently appealed and on 29 August 1994 he was granted

legal aid.

      On 9 September 1994 the Mlawa District Court informed the

applicant that a court hearing in his criminal case would be held on

21 September and that he would be detained on remand if he failed to

appear.

      On 21 September 1994 the hearing in the proceedings against the

applicant's father-in-law was not held as planned.

      On 25 April 1995 the Zielona Góra Regional Court pronounced a

divorce.  The custody of K. was granted to the applicant's wife, with

the applicant having to participate in decisions concerning K.'s

education and schooling.  The applicant filed an appeal against this

judgment.

      On 29 December 1995 the Poznan Court of Appeal (S*d Apelacyjny)

rejected the applicant's appeal against the divorce judgment as he had

failed to pay the court fee within the statutory time-limit.

      On 12 January 1996 the applicant requested the Mlawa District

Court to amend the 1992 decision on his access to K. so that he could

take the child for the Christmas holidays, instead of visiting him at

his mother's residence.

      On 17 July 1996 the Mlawa District Court refused to grant the

applicant's request.  The Court noted that the applicant had not been

visiting K. for two years and had not sent any letters to him.  Before

the Court the child's mother refused her consent to any change of

access rights as the child did not have a strong recollection of his

father.  She further stated that the applicant had ceased to have

contacts with K. after an altercation in 1992.  The witnesses confirmed

that the applicant's contacts with K. were sporadic and that the link

between them had weakened as shown by the fact that the child never

mentioned his father.

      The Court considered that both parties were in a difficult

financial situation, both being unemployed and in bad health, with the

mother having two children in custody and the child support being paid

only for one child.  Thus, the Court concluded that it would put too

serious a burden on the parties if they were ordered to undergo

psychological consultation and mediation as they did not have means to

pay travel costs.  The Court further considered that the applicant's

request was motivated more by his own convenience than by the child's

best interests which should prevail.  It would best serve the child's

interests if the applicant reestablished his contacts with him on the

conditions set out in the 1992 access decision.  As the mother had

stated that she did not oppose these contacts, this would help in

reestablishing the emotional relationship between the applicant and K.

Relevant domestic law

      The Polish Family and Care Code provides that the court competent

to entertain an action for divorce is also competent to issue interim

orders concerning the manner in which the care of the parties' minor

children should be carried out and about the access rights until the

divorce judgment.  Either party can file a request to have such an

order pronounced or the court does so ex officio (Article 443).

      The decision can be appealed against to a second instance court.

      A final court decision as to parental rights/access rights can

be changed at any time if the interest of the child so requires.  Such

a change is made upon a motion of either parent or ex officio by the

court.

      If a parent who has been obliged by a court decision to respect

the other parent's access rights refuses to comply therewith, access

decisions are liable to execution.  The provisions of the Code of Civil

Procedure (CPP) on execution of non-pecuniary obligations are

applicable to execution of court decisions on parental rights or access

rights (resolution of the Supreme Court of 30 January 1976, III CZP

94/75, OSNCP 1976 7-8).

      Enforcement proceedings are instituted on a motion by the

"creditor", i.e. the parent to whom access rights have been granted,

but who fails to respect these rights. The motion shall be accompanied

by the decision concerned, certified as being enfoceable.  The motion

is submitted to the bailiff who carries out the enforcement measure.

The debtor is informed at the time of the first enforcement measure

that the enforcement proceedings have been instituted.  He is also

informed of the manner in which the enforcement is to be carried out

(Article 805 para. 1 of the CCP).

      If a parent refuses to comply with the enforcement measures, a

motion to have a fine imposed on him/her can be submitted to the court

in whose district the enforcement is carried out.  The court hears the

parties and shall impose a fine if the decision is not complied with

within the time-limit fixed for this purpose.  Further fines can be

imposed if the "creditor" is persistent in his refusal (Article 1051

of the CCP).

COMPLAINTS

      The applicant complains that despite the Zielona Góra Regional

Court order granting him access to his son, he does not enjoy such

access.  He submits that since his wife moved out in 1990 he has seen

the child only twice.  He complains that his wife in fact wishes that

his parental rights be withdrawn and her actions are motivated by this

wish.  The applicant invokes in substance Article 8 of the Convention.

He further relies on Article 5 of Protocol No. 7 to the Convention.

      The applicant complains under Article 6 of the Convention that

one hearing in criminal proceedings against his father-in-law was not

held as planned on 21 September 1994.  He complains about the initial

refusal to have an officially assigned lawyer.

      The applicant alleges that the courts in the criminal proceedings

against him are biased against him and have been bribed by his father-

in-law.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 20 June 1994 and registered on

18 November 1994.

      On 17 May 1995 the Commission decided to communicate the

applicant's complaint concerning difficulties in obtaining access to

his son to the respondent Government for observations on the

admissibility and merits to be submitted by 1 September 1995.

      On 4 August 1995 an extension of the time-limit for the

submission of the observations  was granted to the respondent

Government until 3 November 1995.  The Government's written

observations were submitted on 20 November 1995.  The applicant replied

on 19 December 1995.

THE LAW

1.    The applicant complains that despite the Zielona Góra Regional

Court order of 1992 granting him access to his son, he does not enjoy

such access.  He submits that since his wife moved out in 1990 he has

seen the child only twice.  He complains that his wife in fact wishes

that his parental rights be withdrawn and her actions are motivated by

this wish.  The applicant invokes in substance Article 8 (Art. 8) of

the Convention. He also relies on Article 5 of Protocol No. 7 (P7-5)

to the Convention.

      Article 8 (Art. 8) of the Convention reads:

      "1.  Everyone has the right to respect for his (...) family life

           (...).

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being

      of the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

a)    The Government first submit that the application, insofar as it

relates to events prior to 1 May 1993, i.e. the date of recognition of

the right of individual petition by Poland, is outside the competence

ratione temporis of the Commission.  The Government further submit that

events prior to this date should be taken into account merely as a

background to the issues before the Commission (Eur. Court HR, Hokkanen

v. Finland judgment, Series A vol. 299, p. 19, para. 53).

      The applicant submits that the decision on his access was

pronounced before 1 May 1993, but his difficulties to obtain access to

his son continue after this date.

      The Commission recalls that Poland recognised the competence of

the Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993".  It

follows that the Commission is not competent to examine complaints

relating to violations of the Convention by acts, decisions or events

that have occurred prior to this date.  The Commission notes that

certain relevant facts occurred after 30 April 1993.

      It follows that the Commission is competent ratione temporis to

examine the application insofar as it relates to events after

30 April 1993.

b)    The Government further submit that the applicant failed to avail

himself of domestic remedies available to him under Polish law.  First,

had the applicant not been satisfied with the access rights granted to

him by the court order of 29 July 1992, it was open to him to lodge an

appeal against this order, claiming that wider rights be granted to

him.  He failed to do so.  It is true that if the applicant had done

so within the statutory time-limit, the decision upon appeal would have

been pronounced before 1 May 1993, i.e. before the date on which the

Commission's competence ratione temporis to examine applications

against Poland became effective.  However, it was furthermore open to

the applicant at any time during the divorce proceedings, even after

expiry of the time-limit to appeal against the order of 29 July 1992,

to request a new court order concerning his access to the son.  He

could also have requested that in the new order the court award him the

assistance of a court guardian in the execution of his access rights.

The applicant did not do this.  Moreover, it was open to him to use

normal enforcement measures, applicable to enforcement of court orders

concerning non-pecuniary obligations.  The order of 29 July 1992 was

executory and this was certified in the document served on the

applicant on 12 August 1992.  The applicant did not request the bailiff

of the court competent for the mother's residence to assist him in the

enforcement of the access order.

      The Government conclude that the applicant failed to exhaust

domestic remedies available to him under Polish law and that for this

reason the application should be declared inadmissible.

      The applicant submits that all his requests for assistance were

disregarded by the authorities.  He submits that he did not receive any

effective help from any competent authorities, such as police, public

prosecutor and court.  He was afraid to avail himself of his access

rights as a result of the hostility of his former wife and her family.

The authorities were biased in favour of the mother.  He requested the

court's assistance in securing compliance with the 1992 order, but he

never received any reply.  He received this order without confirmation

that it was liable to execution.  On 1 May 1993 the police did not

ensure that he visited K. in accordance with the conditions set out in

the order.  It would have served no purpose to appeal against the 1992

order as it gave him access to the child.  The problem was that this

order proved to be unenforceable.  He finally submits that it fell to

the court to institute enforcement proceedings.

      The Commission recalls that the rule of exhaustion of domestic

remedies dispenses the States from answering before an international

body for their acts before they have had an opportunity to put matters

right through their own legal system.  However, international law, to

which Article 26 (Art. 26) makes express reference, demands solely

recourse to such remedies as are both available to the persons

concerned and sufficient (cf. Eur. Court HR, De Wilde, Ooms and Versyp

judgment of 18 June 1971, Series A no. 12, p. 29, para. 50, and p. 33,

para. 60).

      In the present case the Commission observes that the divorce

proceedings lasted from 17 April 1991 to 17 September 1992, the date

on which the court suspended them in connection with the applicant's

request to have his wife declared legally incapacitated.  They were

subsequently resumed on 30 December 1993 and judgment was pronounced

in first instance on 25 April 1995.  It was open to the applicant

during these proceedings to lodge a request to have the access decision

of 29 July 1992 changed and his access rights altered, had he wished

to do so.  Further, it was open to him to take enforcement measures,

as provided for by the Code of Civil Procedure, i.e. to request the

bailiff of the court competent for the mother's residence to assist him

in obtaining compliance with the access order.  Had this assistance

turned out to be ineffective, it was open to the applicant to ask the

court to impose successive fines on the mother.

      The Commission, on the basis of the documents submitted by the

Government, finds it established that the 1992 order was served on the

applicant, with its executory character certified by the court.

Therefore the formal conditions for the institution of enforcement

proceedings, applicable to enforcement of non-pecuniary obligations,

were met and it was open to the applicant to institute relevant

proceedings.  The Commission considers that these measures were

effective and sufficient with regard to his access rights.  The

applicant has not shown that he availed himself of these remedies.

      It follows that this part of the application must be rejected on

the ground that the applicant has not exhausted domestic remedies,

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2.    The applicant complains under Article 6 (Art. 6) of the

Convention that one hearing in criminal proceedings against his father-

in-law was not held as planned on 21 September 1994.

      The Commission observes that the Convention does not guarantee

a right to have a hearing held on any given date in criminal

proceedings against a third party.  It follows that the Commission has

no competence ratione materiae to examine this part of the application

which must be rejected in accordance with Article 27 para. 2

(Art. 27-2) as being incompatible  with the provisions of the

Convention.

3.    The applicant further complains under Article 6 (Art. 6) of the

Convention about the initial refusal to have an officially assigned

lawyer in the criminal proceedings against him.

      The Commission observes that on 25 May 1994 the Mlawa District

Court dismissed the applicant's request for the assistance of an

officially assigned lawyer.  However, the Commission further notes that

later the Court granted the applicant the assistance of an officially

assigned lawyer.  The applicant cannot, therefore, be regarded as a

victim since his request was eventually granted.

      It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4.    The applicant finally alleges that the courts in the criminal

proceedings are biased against him and have been bribed by his father-

in-law.

      The Commission observes that the applicant has not shown that a

final judgment in these proceedings has been pronounced.  Therefore the

applicant's complaints are premature. It follows that this part of the

application should be declared inadmissible for non-exhaustion of

domestic remedies under Article 27 para. 3 (Art. 27-3) of the

Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

         M.-T. SCHOEPFER                              G.H. THUNE

           Secretary                                  President

      to the Second Chamber                      of the Second Chamber