FIRST SECTION

DECISION

Application no. 15404/15 Irena POLACZKIEWICZ against Poland and 5 other applications (see list appended)

The European Court of Human Rights (First Section), sitting on 18 June 2019 as a Chamber composed of:

Ksenija Turković, President, Krzysztof Wojtyczek, Aleš Pejchal, Armen Harutyunyan, Pere Pastor Vilanova, Pauliine Koskelo, Tim Eicke, judges, and Abel Campos, Section Registrar

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

(a) The applicants

3. The first applicant (Ms Polaczkiewicz) (application no 15404/15) is the biological mother of the second applicant, the switched child (Mr P ę dziwiatr) (application no. 15412/15). The third applicant (Mr Polaczkiewicz) (application no. 15417/15) is the first applicant ’ s other biological son. The fourth applicant (Ms Kaczmarek) (application no. 71082/16) was raised together with the second applicant by Ms P and her husband.

(b) Background to the case

4. On 26 October 1956 the first applicant gave birth to the second applicant in the Kamienica Polska Birthing Centre ( Izba Porodowa ). On the following day, in the same Birthing Centre, Ms P gave birth to a baby boy, A. On their discharge the first applicant and Ms P were given each other ’ s babies.

5. Both families lived in villages situated nearby. Over the years, family and friends, repeatedly noticed striking resemblances between the boys and their biological siblings. However, it was only in 2009, that the second applicant obtained DNA evidence confirming that the first applicant was his mother. At the same time the evidence was conclusive that she could not have been the mother of A.

(c) Proceedings for compensation

6. In 2010 the first, second and third applicants lodged a claim for damages against the Åš l Ä… ski Governor for the emotional distress that they had suffered on account of the baby switch that had occurred at a public health facility in 1956.

7. On 5 May 2011 the Katowice Regional Court gave judgment and dismissed the claim as time-barred.

8. On 20 October 2011 the Katowice Court of Appeal quashed the judgment and remitted the case for reconsideration. The court established that DNA testing had only become available in Poland from 1998. Consequently, it was only after that date that the applicants could have verified their suspicions that there had been a switch of the babies at birth. Such a claim should therefore have become time-barred on 31 December 2008 at the latest. However, given the particular circumstances of the case, the court dismissed the defendant ’ s objection that the claim was time-barred, on the ground that the application of the limitation period to the case would run against the principles of community life contained in Article 5 of the Civil Code.

9. On 21 November 2012 the Katowice Regional Court gave judgment and granted the applicants ’ claim. It awarded 450,000 Polish zlotys (PLN) each to the first and second applicants and PLN 100,000 to the third applicant. The court accepted that the claim had become time-barred on 31 December 2008 at the latest. Nevertheless, it held that the defendant ’ s objection in that respect should be dismissed as being contrary to Article 5 of the Civil Code.

10. On 17 April 2013 the Katowice Court of Appeal amended the judgment and lowered the sums awarded. The court agreed with the findings made by the first-instance court.

11. On 18 June 2014 the Supreme Court quashed the contested judgment and dismissed the applicants ’ claim. The court held that the breach of the applicants ’ personal rights had not been continuous as found by the other courts, but had been caused by the single event of the baby switch in 1956. Moreover, Article 448 of the Civil Code was not applicable to situations in which an infringement had occurred before 28 December 1996. This conclusion was in line with the introductory provisions of the Civil Code, pursuant to which the Civil Code was not relevant for the assessment of consequences of a tortious act that had occurred before it entered into force. The Supreme Court concluded that any findings about the prescription of time ‑ limits were groundless, since a claim that had not arisen could not become time ‑ barred.

(a) The applicants

12. The first applicant (Ms Papie ż ) and the second applicant (Ms Malawko) are twin sisters. The fourth applicant (Mr Jaroszewicz) and the fifth applicant (Ms E. Krzemi ń ska) are their biological siblings. Their biological mother is the late Ms J. The third applicant (Ms Ch ą dzynska) and the sixth applicant (Ms J. Krzemi ń ska) are biological sisters. Their biological mother is the late Ms B.

(b) Background to the case

13. On 15 December 1950 in a District Hospital in Ł om ż a ( Szpital Powiatowy Ś w. Ducha w Ł om ż y ) Ms J gave birth to twin girls – the first and second applicants. On the following day, in the same hospital Ms B gave birth to the third applicant. On their discharge from the hospital the mothers were given each other ’ s babies. Ms J left the hospital with the second applicant (her biological daughter - one of the twins) and the third applicant (Ms B ’ s daughter). At the same time, Ms B was given the other twin sister – the first applicant.

14. Both families lived in the same city. Over the years, the first, second and third applicants attended the same schools and kept in contact. Following media reports about babies who had been switched at birth, they eventually decided to clarify their doubts about their identity. In 2012 the applicants obtained DNA evidence confirming that the first and second applicants were identical twins. At the same time the test confirmed that the third and sixth applicants were biological sisters.

(c) Proceedings for compensation

15. In 2012 all the applicants except the sixth applicant lodged a claim for damages against the Podlaski Governor for the emotional distress that they had suffered on account of the fact that they lost the opportunity to be raised in their biological families as a result of the baby switch that had occurred at a public health facility in December 1950.

16. On 12 June 2014 the Bia ł ystok Regional Court gave judgment and dismissed the claim. The court held that it was undisputable that the first and third applicants had been switched at birth in 1950 and consequently they had been denied the right to be raised in their biological families. However, the infringement of the applicants ’ personal rights had not been continuous and therefore the situation in the present case should be assessed in the light of the legal provisions applicable at the time of the infringement, namely at the time of the switch. Since the relevant provisions applicable at the material time had not provided for the possibility of compensation for a breach of personal rights, the applicants ’ claim had to be dismissed.

17. On 24 April 2015 the Bia ł ystok Court of Appeal upheld that judgment. It endorsed the findings made by the Regional Court. It held that there was a distinction between the permanent effects of a breach of personal rights ( trwa ł e skutki naruszenia d ó br osobistych ) and a continuous breach of personal rights ( trwa ł e naruszenie dóbr osobistych ). In the present case the breach was not continuous but had had permanent effects. Therefore, the situation had to be examined in the light of the provisions applicable at the time when the breach had occurred. However, the relevant legal provisions as applicable in 1950 had not provided for the possibility of compensation for a breach of personal rights.

18. On 8 April 2016 the Supreme Court refused to entertain a further cassation appeal.

(a) The applicants

19. The first applicant (Ms Czerwi Å„ ska) and the second applicant (Ms Filipek) are twin sisters. The third applicant (Ms Aleksander) and the fourth applicant (Ms P Ä™ kala) are their biological siblings. Their biological mother is the late Ms N. The fifth applicant (Mr Kruczek) was raised together with the first applicant. His mother is the late Ms K.

(b) Background to the case

20. On 11 December 1952 Ms N. gave birth to twin baby girls – the first and second applicants in the Nowy S ą cz District Hospital ( Szpital Powiatowy w Nowym S ą czu ). On the following day, in the same hospital, Ms K gave birth to a baby girl S. On their discharge from the hospital the mothers were given the wrong babies. Ms N left the hospital with her biological daughter, one of the twins - the second applicant - and with baby S. At the same time, Ms K was given the other twin – the first applicant. Baby S died in 1953.

21. The first and second applicants attended the same high school. The sisters met again in 2011 through friends that they had in common. They agreed that their unusual resemblance could not be coincidental and decided to undergo genetic testing. On 4 January 2012 the first and second applicants obtained DNA evidence confirming that they were identical twins.

(c) Proceedings for compensation

22. On 16 July 2012 all the applicants lodged a claim for damages against the Ma Å‚ opolski Governor for the emotional distress that they had suffered on account of the baby switch at birth that had occurred at a public health facility in 1952.

23. On 13 May 2013 the Cracow Regional Court gave judgment and dismissed the claim. The court held that it was undisputable that the first and second applicants had been switched at birth in 1952. However, this situation had been a single instantaneous tortious act which had ended in 1952. The provisions of the Civil Code relating to protection of personal rights were not applicable to this situation, and pursuant to the provisions applicable at the material time, it was not possible to claim compensation for a breach of personal rights. The court further concluded that in any event such a claim would have become time-barred.

24. On 5 April 2014 the Cracow Court of Appeal upheld the first ‑ instance judgment. The court confirmed that the tortious act in the present case had occurred in 1952. Subsequent events could not be regarded as separate tortious acts but as the consequences of one instantaneous act – the baby switch. For that reason, the situation should be examined in the light of the provisions applicable in 1952. However, the relevant law applicable at the material time had not made provision for a claim for compensation in a situation such as the applicants ’ . Lastly, the court held that even if the applicants could have been considered to have a claim for compensation, such a claim would have become time-barred in 1972 at the latest.

25. On 17 February 2016 the Supreme Court dismissed a subsequent cassation appeal by the applicants. The court agreed in principle with the reasoning of the lower courts. It further held that the applicants ’ claim had no legal grounds and therefore that any findings about the prescription of time ‑ limits were groundless, since a claim that had not arisen could not become time-barred.

26. In accordance with Article XLIX of the Introductory Provisions Act of 1964 ( Ustawa ‑ przepisy wprowadzÄ…jace kodeks cywilny ) (“the Introductory Provisions Act”) and the case-law of the Supreme Court (IV CK 81/04), the provisions of the Civil Code are not applicable to the assessment of the effects of a tortious act that occurred before the Code entered into force. However, in the case of doubt as to the applicable law, Article LXIV of the Introductory Provisions Act provides that the Civil Code should apply.

27. Article 5 of the Civil Code relates to the so-called “principles of community life” and reads as follows:

“Rights may not be exercised in a manner which contradicts their socio-economic purpose ( społeczno-gospodarcze przeznaczenie prawa ) or the principles of community life ( zasady współżycia społecznego ). Such an act or omission on the part of a person so entitled shall not be considered to constitute an exercise of that right and shall not be protected by law.”

28. Article 23 of the Civil Code sets out a non-exhaustive list of “personal rights” ( dobra osobiste ) in the following way:

“An individual ’ s personal rights, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

29. Article 24 § 1 of the Civil Code reads:

“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to eliminate the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask a court to award an appropriate sum for the benefit of a specific public interest.”

30. Article 448 of the Civil Code provides:

“The court may grant anyone whose personal rights have been infringed an appropriate sum as pecuniary compensation for any non-material damage ( krzywda ) suffered. Alternatively, the person concerned, irrespective of a claim for any other relief that may be necessary to eliminate the consequences of the infringement, may ask the court to award an appropriate sum for the benefit of a specific public interest ...”

COMPLAINTS

31. All applicants complained under Article 8 of the Convention about the baby switches that had occurred in the 1950s and alleged that those incidents had had irremediable long ‑ term effects on their private and family lives. In addition, the applicants that were switched at birth, allege that they had been deprived of their right to be brought up by their biological parents and the switch had affected crucial aspects of their identity.

32. They further complained that, despite the fact that they had all experienced stress, pain and emotional distress on account of the baby switches, their compensation claims had been dismissed by the domestic courts.

THE LAW

33. Given their similar factual and legal backgrounds, the Court considers that the six applications should be joined pursuant to Rule 42 § 1 of the Rules of Court .

34. The applicants complained under Article 8 of the Convention that the baby switches which had occurred in the 1950s had had irremediable long-term effects on their private and family lives.

35. The Court reiterates at the outset that, in accordance with the generally recognised rules of international law, the provisions of the Convention and its Protocols do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the relevant international treaty with respect to that Party. Under the general rule, the Court ’ s temporal jurisdiction is to be determined, with due regard to the particular circumstances of the given case, in relation to the scope of the Convention right at stake and the nature of the facts constitutive of the alleged interference (see Blečić v. Croatia [GC], n o. 59532/00, §§ 70 and 77, ECHR 2006 ‑ III, and Å ilih v. Slovenia [GC], no. 71463/01, §§ 145 ­ 46, 9 April 2009).

36. In order to establish the Court ’ s temporal jurisdiction it is therefore essential to identify the exact time of the alleged interference in the present cases (see Blečić , cited above, § 82).

37. The Court firstly notes that the present cases concern three incidents of baby switching that occurred in 1956, 1950 and 1952 respectively (see paragraphs 4, 13 and 20 above). The domestic courts subsequently held that those dates were crucial for the assessment of the infringement of the applicants ’ personal rights (see paragraphs 11, 16, 17, 23 and 24 above).

38. The Court concurs with the domestic courts that the legal situation of which the applicants complained arose in the 1950s, at the time of the baby switches. The subsequent proceedings for compensation should be seen as the use by the applicants of the available domestic remedies, and the decisions given in those proceedings merely highlighted that the existing legal situation had arisen in the 1950s (compare and contrast Zorica Jovanović v. Serbia , no. 21794/08 , § 48, ECHR 2013).

39. While it is true that from the ratification date onwards all of the State ’ s acts and omissions must conform to the Convention (see YaÄŸcı and Sargın v. Turkey , 8 June 1995, § 40, Series A no. 319 ‑ A), the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date (see Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004 ‑ IX ). Any other approach would undermine both the principle of non ‑ retroactivity in the Law of Treaties and the fundamental distinction between violation and reparation that underlies the law of State responsibility (see Blečić , cited above, § 81).

40. I n cases such as the present ones , where the interference pre ‑ dated the State ’ s ratification of the Convention, but where the final decision taken in the process of exhausting available domestic remedies post-dated it, the Court considers that to take the date of the latter act in determining its temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention came into force in respect of that State. However, that would be contrary to the general rule of non-retroactivity of treaties (see Blečić , cited above, § 79).

41. Accordingly, given that Poland ’ s recognition of the right of individual petition took effect only on 1 May 1993, the Court considers that, in the particular circumstances of the present case, it lacks the temporal jurisdiction to examine the applicants ’ complaints, which originated in situations that occurred in the 1950s.

42. It follows that these complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

43. The applicants also complained in substance that because of the manner in which the domestic courts had applied domestic law, their compensation claims had been dismissed. The Court considers that these complaints fall to be examined under Article 6 of the Convention.

44. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, given that the applicants did not allege any divergences in the case-law of the domestic courts, the Court considers that these parts of the applications do not disclose any appearance of a violation of the Convention.

45. It follows that these complaints are inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Artic le 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 11 July 2019 .

Abel Campos Ksenija Turković Registrar President

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Represented by

1

15404/15

20/03/2015

Irena POLACZKIEWICZ

19/10/1931

Poczesna

Maria WENTLANDT-WALKIEWICZ

2

15412/15

20/03/2015

Tadeusz PĘDZIWIATR

26/10/1956

Częstochowa

Maria WENTLANDT-WALKIEWICZ

3

15417/15

20/03/2015

Marek POLACZKIEWICZ

08/03/1961

Poczesna

Maria WENTLANDT-WALKIEWICZ

4

65199/16

03/11/2016

Barbara PAPIEÅ»

16/12/1950

Suwałki

Iwona MALAWKO

15/12/1950

Ł om ż a

Hanna CHĄDZYŃSKA

15/12/1950

Ł om ż a

Andrzej JAROSZEWICZ

26/06/1948

Mi Ä™ dzyrzec

Elżbieta KRZEMIŃSKA

27/02/1953

Gent

Janina KRZEMINSKA

24/10/1937

Ł om ż a

Maria WENTLANDT-WALKIEWICZ

5

71082/16

22/11/2016

Krystyna KACZMAREK

07/03/1955

Zawodzie

Maria WENTLANDT-WALKIEWICZ

6

78890/16

14/11/2016

Katarzyna CZERWIŃSKA

12/12/1952

Stalowa Wola

Maria FILIPEK

11/12/1952

Chełmiec

Bozena ALEKSANDER

26/07/1955

Nowy SÄ…cz

Stanisława PĘKAŁA

21/05/1958

Nowy SÄ…cz

Andrzej KRUCZEK

20/05/1949

Gołkowice Dolne

Maria WENTLANDT-WALKIEWICZ