FOURTH SECTION

DECISION

Application no. 31219/04 by WÅ‚ odzimierz CZUPINKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 2 October 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä , judges ,

and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 21 July 2004,

Having regard t o the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr W ł odzimierz Czupinka , is a Polish national who was born in 1965 and lives in Łódź . He was represented before the Court by Mr R. Debski , a lawyer practising in Łódź .

The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicant married in 1991, in the Ukraine . In 1992 he came to Poland . Later, he obtained Polish citizenship.

In January 1994 the applicant ’ s son, Oskar, was born in Łódź , Poland . In 1996 the applicant divorced.

The child lived with the applicant ’ s former wife who remarried and lived in Switzerland and in Poland . The applicant remained in contact with his son and visited him often. In June 2002 the applicant ’ s former wife died in a car accident.

Subsequently, Mr M.G. and Mrs G.G., the child ’ s maternal grandparents, moved from the Ukraine to Poland and started to provide care for Oskar. It appears that they refused to allow the applicant to visit his son.

Shortly after, the applicant initiated custody proceedings with the Brzeziny District Court ( SÄ…d Rejonowy ) in which he requested to have the child returned to him.

In August 2002 the applicant asked the court to schedule a hearing and informed it about his planned trip to the United States of America to present his art exhibition.

It appears that during his absence in the US the grandparents applied to the court to deprive the applicant of parental responsibility for Oskar and to appoint them as foster parents.

On 11 June 2003 the Łódź District Court refused the applicant ’ s application to return Oskar to him. On the same date the court decided to deprive the applicant of his parental responsibility for Oskar and appointed the grandparents as his foster family. That decision contained no reasoning. It appears that the applicant was abroad at the material time and that he did not appeal against this decision.

On 3 November 2003 the applicant applied for restoration of parental responsibility for Oskar. In February 2004 the applicant formally applied for the grant of visiting rights.

On 11 February 2004 the Brzeziny District Court decided that it was not competent to examine the case and transferred it to the Siedlce District Court. The applicant appealed against this decision and on 30 March 2004 the Łódź Regional Court ( Sąd Okręgowy ) allowed the appeal and quashed the impugned decision.

On 26 May 2004 the Brzeziny District Court authorised the applicant to visit Oskar every Wednesday in the presence of a school counsellor. The grandparents appealed.

On 9 July 2004 the Łódź Regional Court allowed the appeal, quashed the decision and remitted the case.

On 27 December 2004 the Skierniewice Family Consultation Centre ( Rodzinny Osrodek Diagnostyczno-Konsultacyjny ) submitted an expert opinion.

On 3 February 2005 the Brzeziny District Court decided that the applicant should be authorised to visit his son at school on the dates specified in the decision, approximately once a week.

On 9 February 2005 the applicant applied to have Oskar placed in a therapeutic foster family as suggested by experts.

The applicant met with his son on 9 February and 19 March 2005 . Both visits were very brief due to the hostile attitude of the boy towards the applicant.

On 7 March 2005 the court held a hearing at which the applicant requested to have the child placed in a foster family.

On 4 and 25 April 2005 the court ordered that another expert opinion be prepared.

The visits scheduled at the boy ’ s school in April and May 2005 did not take place. The grandparents brought the child to the place designated for the meetings but Oskar refused to leave the car.

The grandparents and the child failed to turn up for the visits scheduled for 15 June 2005 and afterwards. On 17 June 2005 the applicant notified the police that his son Oskar was missing. On that date and at subsequent scheduled visits at which the grandparents and the child failed to appear, the applicant informed the court guardian ( kurator sÄ… dowy ) that according to his information the grandparents had kidnapped the child.

On 11 July 2005 the Brzeziny District Court examined the applicant ’ s request of 9 February 2005 and decided to place Oskar with another foster family. It appears that the authorities made no attempt to enforce this decision.

On 12 September 2005 the Brzeziny primary school declared that Oskar had failed to appear at school after the summer break. It appears from another school certificate of 15 September 2005 that Oskar attends a secondary school in the Ukraine .

On 12 October 2005 the applicant informed the Brzeziny District Court that Oskar had been taken by his grandparents to the Ukraine and requested an order obliging them to return the child. He submitted that he had deposited the child ’ s passport with the court and therefore the removal of the child had been illegal.

On 4 November 2005 the Brzeziny District Court decided to restore the applicant ’ s parental responsibility for Oskar and ordered the grandparents to return the child. At the same time, the court refused the request that the part of the decision concerning the return of the child to the applicant should be immediately enforceable.

The grandparents lodged an appeal against this decision but it was dismissed by the Łódź Regional Court on 23 February 2005. The decision is final and enforceable.

B. Events that took place after the case was communicated

On 12 April 2006 the Registrar sent a letter to the applicant, informing him that the President of the Fourth Section of the Court had decided to give notice of his application to the Polish Government.

On 18 September 2006 the Government submitted their written observations on the admissibility and merits of the application. The applicant was granted legal aid and he was represented by a lawyer appointed by him. On 22 September 2006 the applicant ’ s representative was invited to file, on behalf of the applicant, any written observations in reply to those of the Government by 3 November 2006.

The applicant ’ s representative did not comply with the time-limit fixed for the submission of his observations. Nor did he ask the Court for an extension of that time-limit.

On 10 May 2007 the Registry sent another letter to the applicant and his representative by registered post. They were asked to explain their failure to observe the procedure fixed in the case and were informed that the Court might conclude that the applicant no longer intended to pursue his application. The letter sent to the applicant was not claimed by him and was returned by post. The letter sent to the applicant ’ s lawyer had been delivered to him on an unspecified date in May 2007 as he had signed the acknowledgement of receipt. The applicant ’ s representative did not reply to it.

A further letter was sent to the applicant ’ s representative by registered post on 15 June 2007 seeking confirmation as to whether he still represented the applicant in the proceedings before the Court and whether the applicant wished to maintain his application. He was advised that if no response was received by 29 June 2007 the Court would consider striking the case out of its list. It emerges from the relevant acknowledgement of receipt (signed by the applicant ’ s representative) that the letter was delivered to him on 4 July 2007.

Neither the applicant nor his representative has to date resumed correspondence with the Court in the instant case .

COMPLAINTS

The applicant complained that he had been deprived of the contacts with his son for almost 4 years and that the authorities had failed to secure him those contacts. The applicant also complained on behalf of his minor son that he had been deprived of contacts with his father.

The applicant also complained about the length of the proceedings. He alleged that the domestic court had acted slowly and against the well ‑ being of his son as, according to expert opinions, the child should have been separated from his grandparents. The applicant also complained, invoking Article 8 of the Convention, about the decision of 11 June 2003 depriving him of parental responsibly for Oskar.

THE LAW

The applicant raised several complains, under Article 8 of the Convention, regarding his contacts with his son.

The respondent Government invited the Court to reject the application as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. They further submitted that with respect to some complaints the applicant had failed to observe the six-month rule and the requirement of exhaustion of domestic remedies.

However, the Court, having regard to the events that occurred after notice of the application had been given to the Polish Government and after they had submitted their observations on the admissibility and merits of the case, considers that it does not have to deal further with the present application and that Article 37 § 1 of the Convention should be applied. That provision, in its relevant part, reads:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In this respect the Court notes that the applicant failed to submit within the time-limit his reply to the observations submitted by the respondent Government on 18 September 2006. The applicant and his representative have also failed to respond to two further communications from the Registry of the Court, both of which were sent by registered letters, the last one dated 15 June 2007 requesting confirmation of whether the applicant wished to maintain his application.

In the circumstances, the Court concludes that the applicant does not intend to pursue his application and that it is no longer justified to continue the examination of his case. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine , that would require it to continue the proceedings by virtue of that provision.

In view of the above, it is appropriate to discont inue the application of Article 29 § 3 of the Convention and to strike the case out of the list .

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

T.L. Early Nicolas Bratza Registrar President