FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77710/01 by H.N. against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 17 February 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr Michael O’Boyle , Section Registrar ,

Having regard to the above application introduced on 26 October 2000,

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 H. N., is a Norwegian [Note1] national, who was born in 1946. He is a teacher and lives in Norway. The respondent Government were represented by Mr K. Drzewicki , and, subsequently, by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

A. The circumstances of the case

1. The custody of the applicant’s children

(a) The applicant’s family

In 1988 the applicant married a Polish national M.C. In 1989 M.C. gave birth to their first daughter A. Subsequently, their son B was born in 1992 and their second daughter C in 1994.

The applicant and his family lived in Norway. The household also included S.C., the son of M.C. born in 1980 in her previous marriage.

On 22 November 1994 M.C. was involuntarily committed to a psychiatric institution for more than two months. According to the applicant she was diagnosed with “a clear paranoid psychosis”.

S.C. suffered from development disorders caused by “massive rejection” by his mother.

(b) The separation

On 31 March 1998 the applicant and M.C. separated. Subsequently, they filed for divorce.

On 15 June 1998 the Inderøy District Court granted the applicant the custody of A, B and C until the final decision in his divorce case. Moreover, the court granted M.C. visiting rights. She was allowed to visit children in their house once a week and every second weekend after giving the applicant a three-day written notice. At the same time, the court issued a restraining order prohibiting M.C. from visiting children in their schools. The applicant and M.C. were both granted parental authority.

On 17 July 1998 the Trondheim Regional Court dismissed M.C.’s appeal against the District Court’s decision.

(c) The abduction of the children and the application for their return

On 28 August 1999 M.C. abducted A, B and C and took them to Poland.

On 31 August 1999 the applicant applied to the Polish Ministry of Justice – designated as a Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the children.

On 9 September 1999 M.C. applied to the Warsaw District Court for a decision declaring that A, B and C were habitually resident in Warsaw. She also applied for a restraining order prohibiting the applicant from removing the children from Poland.

On 24 September 1999 the applicant’s application for the return of the children was submitted by the Polish Central Authority to the Warsaw District Court.

On 5 October 1999 the Warsaw District Court stayed the proceedings concerning the application lodged by M.C. The court’s decision was based on Article 16 of the Hague Convention.

On 22 November 1999 a Polish translation of an expert opinion obtained by the Inderøy District Court on 4 October 1999 was submitted to the Polish Ministry of Justice.

On 25 November 1999 the Warsaw District Court held a hearing in a case concerning the applicant’s application for the return of the children. M.C., whose lawyer did not attend the hearing, informed the court that she would like to submit later certain documents confirming that she and her children had been ill-treated by the applicant. The hearing was adjourned until 6 December 1999.

On 6 December 1999 the court requested an expert opinion on the relationships between the children and their parents and on whether the return of the children to the applicant would lead to psychological or physical damage to the children. The hearing was adjourned until 10 January 2000.

On 7 December 1999 the applicant, M.C. and the children were interviewed by the Warsaw Family Consultation Centre, which was responsible for preparing the expert opinion.

On 5 January 2000 the Inderøy District Court granted the applicant parental authority in respect of A, B and C and changed M.C.’s visiting rights. It considered that M.C. had unlawfully taken the children to Poland.

On 10 January 2000 the hearing before the Warsaw District Court was adjourned sine die because the expert opinion was not ready.

The expert opinion was submitted on 2 February 2000. It had six pages and ended with the following conclusion:

“The emotional ties of the children with both parents still exist but are disturbed as a result of conflicts in the family environment. The father’s attitude to the children does not raise any problems and mutual relationships between him and [B] and [C] are correct.

However, significant problems exist in the relationship between the father and [A], who partly identifies herself with her mother and whose attitude to the father is dictated by [the mother]. Therefore, transferring her to the care of the father may be difficult.

Nevertheless, the existing disturbances in the behaviour of [A] show that the father will better guarantee a proper functional development in future."

On 24 February 2000 the Warsaw District Court held a hearing.

The next hearing took place on 2 March 2000. The Warsaw District Court allowed an application for the return of the children lodged by the applicant and ordered M.C. to return them to the applicant. As M.C. declared that she would appeal this decision, the court granted the applicant visiting rights pending the outcome of the appellate proceedings. During the hearing the counsel for the applicant asked the judge to take the children away from M.C. and place them in a child care facility as there was a risk that M. C. would hide the children. However, the judge refused the request as she considered that such a risk did not exist.

Subsequently, M.C. lodged with the Warsaw Regional Court an appeal against the District Court’s decision of 2 March 2000.

On 30 May 2000 the Warsaw Regional Court held a hearing. The counsel for M.C. submitted a medical certificate confirming that she was sick and could not attend the hearing. The court adjourned the hearing until 4 July 2000.

On 4 July 2000 the Warsaw Regional Court rejected an appeal lodged by M.C. During the hearing M.C. and her lawyer declared that the children would be hidden.

(d) The enforcement proceedings

On 27 July 2000 the enforcement proceedings began. The bailiff ( komornik ) requested M.C. to return the children but she refused.

On 31 July 2000 the applicant paid 1,600 Norwegian kroner to the bailiff.

On 14 September 2000 the bailiff referred the case file to the Warsaw District Court.

On 19 October 2000 the court held the first hearing in the enforcement proceedings. M.C. did not attend it. She submitted a medical certificate confirming that she was sick.

The next hearing before the Warsaw District Court was held on 23 November 2000. The court adjourned the hearing as it considered that it was necessary to hear both parties to the proceedings.

On 5 December 2000 the Polish Central Authority informed the Norwegian Central Authority about the District Court’s decision of 23 November 2000. The applicant submitted that the Polish Central Authority had not informed him that he should have attended hearings held on 19 October and 23 November 2000 and that he had not received summonses from the Warsaw District Court to attend them.

On 7 January 2001 the applicant was examined in Warsaw by a court expert in psychology.

On 8 January 2001 the Warsaw District Court held a hearing. The court ordered M.C. to return the children to the applicant within seven days. It also decided that if she did not comply with the order she would be punished with a 1,000 Polish zlotys fine or a ten-day prison term in default. The court also ordered the bailiff to take the children away from M.C. by force if they were not returned within seven days.

M.C. appealed the District Court’s decision of 8 January 2001 but her appeal was dismissed on 6 March 2001 by the Warsaw Regional Court.

On 2 April 2001 the bailiff sent to the District Committee for the Protection of Children Rights in Warsaw a written request for their assistance in the enforcement of the District Court’s order to take the children away from M.C. by force. The request referred to Article 1092 of the Code of Civil Procedure and included information that the bailiff would enforce the court’s order on 19 April 2001 at 1 p.m. at M.C.’s house in Warsaw.

On 4 April 2001 the Norwegian Central Authority passed to the Polish Central Authority the applicant’s concerns that M.C., who had already hidden the children in the past, might hide them again and asked whether it was possible to take any measures to prevent this and in particular to bring forward the date of enforcement of the court order.

On 9 April 2001 the Polish Central Authority replied in the following terms:

“I would like to inform you that there is no possibility [of executing] the Court decision in another way. It is true the Court of Justice is allowed to [take preventive] measures but the execution of the measures will be held on the same bases as the [substantive] decision. Mr. N (...)’s anxieties have been transmitted to the proper court.

The [execution of the decision] may not take place before the established date.”

On 17 April 2001 the applicant had a meeting with the bailiff. He informed the applicant that following his request of 2 April 2001 he had contacted the Committee. He had been advised that it would not send a representative to assist in the enforcement of the court’s decision on 19 April 2001. In addition, a person speaking on behalf of the Committee had made the following statement to the bailiff:

“You understand that I do not agree with that and the mother of the children will be immediately informed about the date and time of the enforcement.”

According to the applicant, the bailiff did not take any steps to speed up enforcement of the court’s order.

On 19 April 2001 the bailiff assisted by two police officers and accompanied by a social worker, the applicant and the Norwegian consul came to the M.C.’s house to enforce the court order. However, neither M.C. nor the children were present. M.C.’s mother, who lived in the house, informed the bailiff that M.C. and the children “had left around 12 April 2001 for an unknown destination”.

Subsequently, the police authorities in Poland and Norway were informed that M.C. had abducted the children and was hiding them in Poland.

On 31 August 2001 the Norwegian Central Authority submitted to its Polish counterpart details of M.C.’s bank account held in Warsaw where she was receiving her pension from Norway.

On 17 September and 14 November 2001 the Norwegian Central Authority inquired of the Polish Central Authority about developments in the search for the applicant’s children but received no reply.

On 12 December 2001 the Norwegian Central Authority submitted to the Polish Central Authority a third request for information about developments in the applicant’s case. The request was signed by two senior officers of the Authority.

On 19 December 2001 the Polish Central Authority informed its Norwegian counterpart that details of M.C.’s bank account had been passed to the prosecution service, which was investigating this lead. It also advised the Norwegian authorities about new legislation which since 27 September 2001 had made a guardian ( kurator sądowy ) responsible for the enforcement of court decisions allowing applications for the return of children. Therefore, on 14 December 2001 the Warsaw District Court had allowed an application lodged by the applicant’s lawyer and had decided that a guardian should take the children away from M.C. when her address was established.

On 6 April and 18 June 2002 the applicant wrote to the Chief Police Commissioner in Warsaw asking for help in finding his children but did not receive a reply.

(e) The return of A

On 9 July 2002 the applicant received a telephone call from S.C., at that time aged 22, who was on holiday in Poland. S.C. informed him that A was visiting M.C.’s aunt in Warsaw. The applicant immediately contacted the police authorities in Norway and Poland while S.C. kept A under observation.

On 10 July 2002 A. returned to the applicant’s house in Norway.

On 9 September 2002 the Warsaw District Court asked an elementary school in Warsaw whether B and C attended it. On 28 October 2002 the court asked the local educational authority in Warsaw whether the children attended any of the schools managed by it.

On 20 December 2002 the Norwegian Minister of Justice sent a letter to his Polish counterpart asking him to look into the applicant’s case.

On 23 January 2003 a meeting of representatives of institutions engaged in the search for the children took place in Warsaw. It was organised by the Polish Ministry of Justice.

On 29 January 2003 the Warsaw District Court asked the Social Security Board where M.C. was collecting her pension.

On 10 February 2003 the court requested two other elementary schools to inform it whether B and C attended them. On the same day the court was informed by the International Police Cooperation Bureau in Warsaw that M.C. had made a phone call from Warsaw to Norway.

On 17 February 2003 the Warsaw District Prosecutor informed the Warsaw District Court that M.C. had been arrested in Białystok , Poland several months before.

On 18 February 2003 the Polish Ministry of Justice replied to the letter of 20 December 2002. The reply referred to the conduct of the proceedings in the applicant’s case and the fact that M.C. was being prosecuted on charges of forgery of documents and use of false identity. She was under police supervision and was not allowed to leave Poland.

On 28 February 2003 the Białystok District Prosecutor informed the Warsaw District Court that the prosecution service had lodged with the Białystok District Court a bill of indictment against M.C. She was charged with the forgery of documents as she had apparently adopted false identities for herself and for B and C.

(f) The return of B and C

On 15 April 2003 a guardian took B and C away from M.C.

On 16 April 2003 the children were returned to the applicant.

2. The statement made in press by judge H.Å».

On 24 April 1999 a Polish weekly magazine “P” published a two ‑ page article in which M.C. gave her account of the custody dispute with the applicant. The magazine also published several photographs of M.C. and A, B and C. The article, which was entitled “A foreign husband wants to take away my children”, was accompanied by the following statement made by judge H.Å». who was the President of X Family and Juvenile Section of the Warsaw District Court:

“We do not have many cases of a fight for a child between parents of whom one is Polish and the other is a foreigner. And it is worth saying that a parent, who has Polish nationality, should always turn to us in case of problems concerning which of the parents should have custody of children – even though a Polish court is not the only court to rule in such a case. In general we would co-operate with a foreign court (in a country of origin of the second parent or where a child resides) and together decide the case according to international agreements. It is also important that a case comes to us before a final judgment is adopted by a foreign court.

The main character of the article – Mrs M (...) – should without any delay turn for help to us. If a final judgment is given in Norway – a Polish court will be helpless, there will be no avenue to appeal. The judgment will have to be honoured according to international agreements ...”

B. Relevant domestic law

1. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

The relevant provisions of the Hague Convention, which was published in the Polish Official Journal on 25 September 1995, read as follows:

Article 7

“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures:

(a) To discover the whereabouts of a child who has been wrongfully removed or retained;

(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;

(d) To exchange, where desirable, information relating to the social background of the child;

(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;

(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;

(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

( i ) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

Article 11

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”

2. The Polish Code of Civil Proceedings 1964

Article 1092 of the Code, which was repealed on 26 September 2001, provided as follows:

“While taking away a person who is a subject of parental authority or who is in care, the bailiff shall be specially careful, and shall do everything to protect such a person from physical or moral harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.”

COMPLAINTS

The applicant complained under Article 6 § 1 about the unreasonable length of the proceedings concerning the return of his children.

He also complained under Article 8 of the Convention that the Polish authorities failed to reunite him swiftly with his children.

Finally, the applicant submitted that a statement made in the press by judge H.Å»., advising M.C. to seek help from the Warsaw District Court, had encouraged her to remove children to Poland and to start custody proceedings there and had resulted in a breach of his right to a fair trial by an impartial tribunal.

THE LAW

1. The applicant complained that the unreasonable length of the proceedings concerning the return of his children breached Article 6 § 1 which, in so far as relevant, provides:

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

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case ‑ law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The applicant complained about a breach of Article 8 of the Convention which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 applicant submitted that the Polish authorities failed to reunite him swiftly with his children. An expert opinion requested on 6 December 1999 by the Warsaw District Court concerned the questions already answered in an expert opinion obtained by the Inderøy District Court and submitted to Polish authorities on 22 November 1999. Moreover, the applicant averred that between July 2000 and 23 January 2003 the Polish authorities did not take the actions required of them under the Hague Convention.

The Government submitted that “domestic authorities dealing with the applicant’s case undertook all possible actions in order to preserve the proper development of the applicant’s relations with his children”. The enforcement of a court order requiring the return of the applicant’s children was hindered by M.C. In conclusion, the Government submitted that the facts of the case did not disclose a violation of Article 8 of the Convention and asked the Court to declare the case inadmissible as manifestly ill ‑ founded.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. The applicant also complained about a breach of his right to a fair trial by an impartial tribunal. This complaint falls under Article 6 § 1 which, in so far as relevant, provides:

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

The applicant submitted that a breach of Article 6 resulted from the fact that judge H.Ż., who was the President of X Family and Juvenile Section of the Warsaw District Court, made a statement which on 22 April 1999 was published in a magazine “P”.

The Court considers it unfortunate that such a statement was made, as it could give the impression of a lack of impartiality on the part of the District Court. Nevertheless, judge H.Å». did not try the applicant’s case. What is more, the applicant has failed to provide sufficient evidence in support of his allegation. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints about a breach of Article 6 § 1 (unreasonable length of the proceedings) and Article 8 (right to respect for family life);

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President

[Note1] To be checked.