FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23462/03 by Janusz Bogdan KOZLOWSKI against Germany

The European Court of Human Rights (Fifth Section), sitting on 13 February 2007 as a Chamber composed of:

Mr P. Lorenzen , President, Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger , judges, and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 17 July 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Janusz Bogdan Kozlowski , is a German and Polish national who was born in 1962 and lives in Wloclawek .

A. The circumstances of the case

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

1. Background to the case

In 1992 the applicant married a Polish national in Berlin and lived together with her in Germany . They have three common children, two daughters and a son. After the son ’ s birth in 1999 the family went back to Poland . In August 2000 the applicant and his wife separated permanently and she and the three children returned to Germany . On 1 September 2000 the applicant ’ s wife filed for divorce and requested the sole custody of the children before the Pankow/Weißensee District Court.

2. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention)

On 22 June 2001 the Berlin Pankow /Weißensee District Court ordered the children ’ s repatriation to Poland under the Hague Convention .

On 3 September 2001 the Berlin Court of Appeal, upon the applicant ’ s wife ’ s appeal, quashed the District Court ’ s decision.

On 2 September 2002 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint, stating that it had been lodged out of time.

3. Proceedings concerning the right of access to the applicant ’ s children

On 6 September 2001 the applicant requested the Berlin Pankow/Weißensee District Court to determine his access rights by interim measure.

On 28 December 2002 the applicant complained about the inactivity of the District Court to the Court of Appeal. On 24 March 2003 the Court of Appeal rejected the applicant ’ s complaint stating that the case was of a difficult nature and that there was no indication of an arbitrary delay caused by the District Court.

On 25 November 2003 the Federal Constitutional Court quashed the Regional Court ’ s decision stating that the District Court ’ s inactivity violated the applicant ’ s right to effective protection of his legal interests ( Recht auf Gewährung effektiven Rechtsschutzes ) under Article 2 § 1 in conjunction with Article 20 § 3 of the German Basic Law.

In spring and summer 2004 the applicant complained to the President of the District Court and the Court of Appeal about the District Court ’ s continuing inactivity.

On 20 September 2004 the Court of Appeal ordered the District Court to expedite the proceedings.

On 8 October 2004 the District Court held that the applicant was entitled to supervised access to his son every other Saturday for two hours, but suspended the applicant ’ s right of access to his daughters for two years.

On 21 February 2005 the Court of Appeal confirmed the District Court ’ s decision insofar it concerned the access to his son but quashed the exclusion of access to his daughters. It allowed the applicant supervised access to them every third Sunday for four hours.

4. Proceedings concerning the custody of the children

At an unknown point of time the applicant ’ s wife requested the children ’ s sole custody before the Pankow/Weißensee District Court. The applicant did not wish to obtain the children ’ s sole custody, but requested the court to maintain joint custody.

During the course of the proceedings the court obtained a psychological expert opinion, heard the Youth Office, the children and their curator ad litem ( Verfahrenspfleger ).

On 12 March 2004 the court awarded the applicant ’ s wife the sole custody. The court found that joint custody was not feasible, as the parents were unable and unwilling to communicate and cooperate. The court found that the applicant ’ s wife was capable of raising the children and noted that she had a good relationship with them. In this respect the court observed that the children persistently refused to see their father and pointed out that the children themselves wished to remain with their mother.

On 19 April 2004 the applicant lodged a complaint with the Berlin Court of Appeal.

On 6 December 2004 the Court of Appeal conducted a hearing during which it heard the children, their curator ad litem and an official from the Youth Office.

On 21 February 2005 the Court of Appeal confirmed the District Court ’ s decision holding that the transfer of the children ’ s custody was in their best interest ( Kindeswohl ). The court highlighted that the level of hostility between the parties excluded joint custody. The Court of Appeal furthermore held that it was irrelevant who was responsible for the lack of cooperation, although it noted that the allegations by the applicant ’ s wife had been unfounded. Nevertheless, the court also stressed that the children had been living with their mother for four years and had a good relationship with her, as confirmed by the expert, the curator ad litem and the Youth Office. In this connection the court once more pointed out that the children wished to continue living with their mother and refused any contact with the applicant.

On 12 April 2005 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint.

5. S ubsequent proceedings

On 12 July 2005 the applicant requested the Pankow/Weißensee District Court to partially withdraw his wife ’ s custody rights. He argued that she obstructed his access by negatively influencing the children.

On 14 November 2005 the District Court held a hearing.

On 31 July 2006 the social worker, who had organised the children ’ s supervised access to date, issued her observations on the six visits which had taken place between December 2005 and June 2006. She concluded her comments by saying that in view of the children ’ s hostile attitude vis-à-vis the applicant it would be advisable if he abstained from further visits.

On 15 October 2006 the applicant requested the District Court to extend his access rights to one whole weekend per month as well as p arts of the school holidays.

Those proceedings appear to be still pending.

COMPLAINTS

The applicant submitted under Article 8 of the Convention that the impugned decisions infringed his right to family life. He particularly contested the decision to transfer the children ’ s sole custody to his wife instead of maintaining joint custody . Furthermore, the applicant complained under Article 6 § 1 of the Convention about the inactivity of the Pankow/Weißensee District Court and the resulting length of the proceedings relating to his request for determination of his access rights (file nos. 10 F 5848/01 and 16 WF 50/03).

THE LAW

A. Article 6 § 1 of the Convention

The applicant submitted that the Pankow/Weißensee District Court had remained inactive with regard to his request for an interim measure concerning his right of access to his children. He complained about the resulting length of proceedings under Article 6 § 1, which, as far as relevant, reads as follows:

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

The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint, as far as it concerns the proceedings before the Pankow/Weißensee District Court and the Court of Appeal (file nos. 10 F 5848/01 and 16 WF 50/03) . It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

B. The remainder of the complaints

Invoking Article 8 of the Convention the applicant complained about the decisions rendered in the aforementioned proceedings. He in particular challenged the decision to transfer the children ’ s sole custody to his wife.

In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the length of proceedings before the Pankow/Weißensee District Court and the Court of Appeal (file nos. 10 F 5848/01 and 16 WF 50/03);

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President