Lexploria

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)

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WALKOWSKA v. POLAND

WALKOWSKA v. POLAND

LEXI