FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1073/05 by Zbigniew RADOWSKI against Poland

The European Court of Human Rights ( Fourth Section), sitting on 1 3 February 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall ,

Mr S. Pavlovschi , Mr L. Garlicki, Mrs L. Mijovi ć, Mr J. Å ikuta,

Mrs P. Hirvelä , judges ,

and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 10 December 2004,

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

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zbigniew Radowski, is a Polish national who was born in 1967 and lives in Pozna ń . He is represented before the Court by Mr L. Cyrson, a lawyer practising in Pozna ń . The respondent Government are represented by their Agent, Mr J. Woł ąsiewicz of the Minist r y of Foreign Affairs.

A. The circumstances of the case

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

In April 2000 the applicant and his wife divorced. In a divorce judgment, the Poznan Regional Court awarded custody of the parties ’ two-year-old son M. to the mother and granted the applicant access to the child three times per month.

On 26 April 2000 the applicant instituted proceedings for denial of paternity. In the light of DNA analysis, it was established that M . was the applicant ’ s biological child. The applicant subsequently recognised his paternity .

On 10 July 2003 the applicant obtained a decision of the G ł ogów District Court concerning his access to M. and modifying the access arrangements determined by the divorce judgment. He was granted access to the child by visit ing him at the mother ’ s address, indicated in the decision, once a month, on the first Saturday of every other month, from 10 a .m. to 1 p . m . , as from 2 August 2003.

On 4 December 2003 the Głogów District Court gave a judgment by which the applicant was divested of his parental authority. The court found that the applicant had not made any efforts to maintain close emotional ties with his child during the first years of his life. The court also observed that the applicant had been evading parental responsibilities and his behaviour had not seemed to have been motivated by the child ’ s best interests.

This judgment was upheld by t he Legnica District Court on 18 March 2004.

On an unspecified later date the mother moved to Germany with M. and married again.

The applicant repeatedly requested the police to accompany him during his visits to the child ’ s grandparents ’ house to exercise his rights of access to M. as provided in the July 2003 decision. The police officers on every occasion verified whether M. was at home, but invariably found that both M. and his mother were absent.

T he applicant instituted enforcement proceedings under the provisions of the Code of Civil Procedure governing enforcement of judgments imposing non-pecuniary obligations .

On 17 August 2004 the Głogów Regional Court gave a decision by which it refused to institute enforcement proceedings in respect of the access decision of 10 July 2003. It observed that it provided only for the applicant ’ s right to have access to his son and specified the access arrangements , but did not determine the mother ’ s corresponding obligations . Thus, it could not be enforced.

Following the applicant ’ s appeal against this decision, on 30 September 2004 the Legnica Regional Court upheld the decision, sharing the first-instance court ’ s conclusion that the judgment could not be enforced.

The applicant subsequently requested the G ł ogów District Court to give an interpretation of its July 2003 decision. On 20 August 2004 the court refused to do so, considering that the applicant wished in fact to have original decision amended by setting out the mother ’ s obligations. This, the court declared, could be done in a new set of access proceedings in which the access arrangements would be reviewed and amended so as to specify the mother ’ s obligations.

On 30 September 2004 the Legnica Regional Court dismissed the applicant ’ s appeal against this decision. The court observed that the applicant ’ s dissatisfaction with the fact that he could not exercise his access rights determined by the judicial decision had been legitimate and justified. Nevertheless, the court agreed with the conc lusion of the decision of 17 August 2004 that the original access decision had not imposed any obligations on the mother and therefore could not be subject to enforcement proceedings. The Regional Court also observed that the Głogów District Court had , in its decision of 20 August 2004, indicated a way of clarifying the applicant ’ s situation, i.e. by applying for a modification of the decision of 10 July 2003.

The applicant did not apply to have this decision modified by the court.

B. Relevant domestic law and practice

Article 58 § 1 of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides:

“In a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties ’ minor children should be carried out (...). The court may grant custody rights to one parent and limit the custody rights of the other one.”

Article 577 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides:

“The custody court can change its decision if the best interests of the person whom it concerns so require. “

According to the Supreme Court ’ s resolution, if a parent called upon by a court decision to respect the other parents ’ access rights refuses to comply therewith, that decision is liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights (30 January 1976, III CZP 94/75, OSNCP 1976 7 ‑ 8).

COMPLAINT S

The applicant complained under Articles 6 and 8 of the Convention that he c ould not obtain access to his child in compliance with a valid judicial decision , because the court s had refused to give him assistance provided for by the provisions on the enforcement of judgments of civil courts.

THE LAW

1. The applicant complained under Articles 6 of the Convention that he c ould not obtain access to his child in compliance with the valid judicial decision on access arrangements.

Article 6 § 1 of the Convention, insofar as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government argued that the applicant had failed to exhaust domestic remedies. In their view, he should have requested the family court, under Article 577 of the Code of Civil Procedure, to review the access arrangements with a view to amending the July 2003 decision . This provision made it possible for the family court to amend, at any time, its decision on custody and access arrangements if the best interests of the persons concerned so required. This procedure should be regarded as an effective remedy, because in the applicant ’ s situation it was both available and sufficient. It also offered good prospects of success. Had the applicant requested that such a decision be given, the court could have imposed on the mother , who was obviously unwilling to co-operate , such obligations as to make the decision enforceable in civil enforcement proceedings .

The Government were of the view that the decision of 10 July 2003 had been formulated specifically. It referred to the days, hours and conditions of the applicant ’ s access to his son. The public authorities had not prevented, obstructed or delayed the exercise of the applicant ’ s access rights. The Glogów District Court had assumed, when giving this decision, that the mother would bona fide comply with it, having regard to the child ’ s best interests. This court had done its best to establish what was, in the circumstances which obtained at that time, in M. ’ s best interests and diligently examined the access issues. The public authorities could hardly have had any influence on the mother ’ s unwillingness to co-operate with the applicant.

They further observed that the case concerned a very delicate matter of complex family relations. The domestic courts were in principle better placed to determine the legal relations in this domain, with a requisite degree of flexibility and regard being the State ’ s margin of appreciation. In the circumstances of the case, having regard to the child ’ s mother ’ s un-cooperative attitude and to the difficulties encountered by the applicant, the domestic courts should have been allowed an opportunity to re-examine the access arrangements.

The applicant acknowledged that under Polish law the family court could revise its ruling on access arrangements at any time. However, the essential purpose of this provision was to obtain a revision of valid decisions on, inter alia , custody and access issues, where the circumstances of a case had changed over time. In the applicant ’ s case, no change of circumstances had occurred which would have justified the revision and amendment of the original decision.

He further argued that he had not wanted to have the July 2003 access decision revised by way of instituting new proceedings regarding his access to the child, as he was in essence satisfied with the access arrangements provided therein. Rather, he sought the enforcement of a valid court ruling of July 2003 by means of a proper enforcement procedure provided for by Polish law on civil procedure. If the position of the Polish Government was accepted, it would impose on the applicant an obligation to institute new proceedings, despite the existence of a valid decision the substance of which, insofar as it concerned the applicant ’ s access rights, the applicant found satisfactory.

Pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court reiterates that by virtue of Article 1 of the Convention (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is further articulated in Articles 13 and 35 § 1 of the Convention (see KudÅ‚a v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI).

The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. T he rationale for the exhaustion rule is to afford the national authorities, primarily the courts, the opportunity to prevent or put right the alleged violations of the Convention. It is based on the assumption, reflected in Article 13, that the domestic legal order will provide an effective remedy for violations of Convention rights. This is an important aspect of the subsidiary character of the Convention machinery: see among many authorities Selmouni v. France [GC], no. 25803/94, ECHR 1999 ‑ V, § 74; KudÅ‚a , cited above, § 152; Andrášik and Others v. Slovakia (dec.), nos. 57984/00 et al., ECHR 2002 ‑ IX.

The Court first observes that the applicant obtained a decision of the Głogów District Court, dated 10 July 2003, concerning his access rights to his son. However, as the child ’ s mother was unwilling to co-operate, he requested that enforcement proceedings be instituted in respect of the access decision. His request was unsuccessful as the courts subsequently found that the decision was flawed in that it failed to specify the mother ’ s obligations. The applicant ’ s efforts to secure enforcement of his access rights by way of obtaining an interpretative decision also proved unsuccessful. However, as it was confirmed by the Głogów District Court in its decision of 20 August 2004, it has always been open to the applicant to institute a new set of access proceedings and to seek amendment of the access decision so as to have the mother ’ s obligations specified.

The Court observes that the Pol ish Code of Civil Procedure, in its Article 577, expressly provides that a valid decision on access can be amended if the best interests of a child warrant such a change.

In these circumstances and also bearing in mind the subsidiary character of the mechanism of protection of human rights established by the Convention, the Court is of the view that it was sufficient that under domestic law the applicant could have instituted proceedings in order to have the shortcomings of the access decision rectified so as to have the mother ’ s obligations in respect of access specified, and that he was instructed accordingly by the District Court. However, the Court observes that the applicant failed to avail himself of this possibility.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant also invokes Article 8 of the Convention, which insofar as relevant 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.”

The Court is of the view that no separate issue arises under this provision of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. In view of the above, the applicant ’ s complaints must be rejected and the application of Article 29 § 3 of the Convention discontinued.

For these reasons, the Court by a majority

Declares the application inadmissible.

T.L. Early Nicolas Bratza Registrar President