THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48542/99 by Henryk ZAWADKA against Poland

The European Court of Human Rights ( Third Section) , sitting on 7 November 2002 as a Chamber composed of

Mr G. Ress , President , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr K. Traja , Mr L. Garlicki , judges and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application introduced on 17 December 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Henryk Zawadka, is a Polish national, who was born in 1960 and lives in Celestynów, Poland.

A. The circumstances of the case

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

In 1994 the applicant’s son, P, was born. In August 1996 during the applicant’s stay abroad, P’s mother, Ms O., moved out from their house and took P with her. She did not allow the applicant to contact his son. Subsequently, the applicant took P back to his place.

On an unspecified date O filed with the Białystok District Court ( sąd rejonowy ) a request for the limitation of the applicant’s parental responsibility for P.

On 12 September 1996 the court issued an interim order to place P with his mother. It relied on the fact that O breast-fed P and at that time he was sick. On the following day a court-appointed guardian assisted by a policeman arrived at the applicant’s place and after a two-hour skirmish took away P from his father.

On 8 November 1996 the applicant and O concluded a friendly settlement. They agreed that P’s place of residence would be with his mother. The applicant had a right to take P to his place at specified dates and times in 1996. Starting from 1 January 1997 he was supposed to spend every second weekend with his son at his place. As to the exact dates of meetings in 1997 the parties agreed to decide at a later date.

At the beginning of 1997 O refused to hand over her son to the applicant, maintaining that P was sick.

In February 1997 the applicant requested that a court guardian assist him in meetings with P, submitting that O failed to comply with the settlement they had concluded.

On an unspecified date the applicant petitioned the Białystok District Court to fine O for obstructing his contacts with P, as established in the settlement of 8 November 1996. He also requested the prosecution authorities to initiate criminal proceedings against O.

On an unspecified date at the requests of the applicant and O proceedings concerning parental responsibility were instituted.

On 4 April 1997 the Białystok District Court stayed the proceedings concerning the applicant’s petitions, considering that only after the completion of the parental-responsibility proceedings it would be possible to examine them. The court noted that the parties to the friendly settlement had not specified the dates of the applicant’s meetings with P and therefore the settlement was impossible to enforce.

On 19 May 1997 the applicant went to O and, after a struggle, took away his son from her hands. Subsequently, O informed prosecution authorities that the applicant had kidnapped P and threatened her.

On 22 May 1997 the applicant sent letters to the Białystok District Court and the prosecution authorities informing them that he had taken over the custody of P and would continue to exercise his parental rights until the completion of the parental-responsibility proceedings. He declared to enable O to meet her son at the applicant’s place.

On 17 July 1997 the District Court, at O’s request, ordered the applicant to hand over P to O. Initially, he declared his willingness to do so, but, subsequently, went into hiding together with his son.

On 5 August 1997 the Białystok District Prosecutor ( prokurator rejonowy ) discontinued the proceedings initiated at the applicant’s request, considering that O had not committed a criminal offence. He found that she had refused to hand over P to the applicant because P had been sick at that time. The applicant’s appeal against that decision was dismissed by the Regional Prosecutor ( prokurator wojewódzki )

On 25 August 1997 the prosecutor discontinued also proceedings initiated at O’s request. He considered that the applicant had not committed a criminal offence. The prosecutor noted that despite the fact that P had got better, O had not allowed the applicant to meet his son. He pointed out that after taking away P from his mother the applicant had informed the prosecution authorities in Białystok and Otwock about the incident. In the light of the fact that the applicant had full parental rights in respect of P the prosecutor did not consider his act as a criminal offence. O’s allegations about having been threatened by the applicant proved unsubstantiated.

On 16 September 1997 the Otwock District Court ordered the applicant to reveal P’s place of residence and warned him that in case of failure to comply with its order he would be fined or detained. He did not comply with that order.

On 5 February 1998 the Otwock District Court issued an enforcement order in respect of the Białystok District Court’s decision of 17 July 1997. It ordered a bailiff to take away P from the applicant by force and hand him over to O.

On 24 February 1998 in the course of the parental-responsibility proceedings the Białystok District Court limited the applicant’s parental rights to a right to information about his child’s health. It amended the settlement of 8 November 1996 in that it decided that further contact between the applicant and his son would take place on third Saturdays of each month at the mother’s place without a possibility to take P anywhere outside.

The court considered that although there was nothing in the case-file to suggest that the applicant’s parenting skills were insufficient and it was difficult to establish to which of the parents P was more attached, the applicant’s conduct in the course of the proceedings proved his disrespect to the organs of justice and disregard to the interest of the child.

The court dismissed O’s request to divest the applicant of the parental rights, considering that at that stage it was too early to adopt such a serious measure.

The applicant and O appealed against that decision.

On 27 April 1998 the Warsaw Regional Court ( sąd wojewódzki ) dismissed the applicant’s appeal against the enforcement order of 5 February 1998.

On 19 June 1998 the Białystok Regional Court amended the District Court’s decision of 24 February 1998 in that it deprived the applicant of all parental rights in respect of P. It considered that he had abused his rights by making it impossible for the son to contact his mother, whereas the mother’s care at that stage of the child’s development was indispensable. The court further found that the applicant’s continuing hiding was to the child’s detriment, especially that he was apparently working and his son was taken care of by other people. It emphasised that the child had the right to decent life conditions, home and stability, of which the applicant had deprived him. The court further pointed out that the difficulties in enforcing court orders in the past could not justify the applicant’s conduct and he should have availed himself of legal remedies.

On 17 August 1998 the applicant requested the District Court to prevent issuing a passport for P, submitting that O intended to abduct P abroad. In reply, he was informed that until the date when the judgment of 19 June 1998 obtained legal force the passport would not be issued without the applicant’s approval.

On 28 August and 23 September 1998 the applicant informed the Białystok District Court about instances of obstructing his contact with P by O and requested assistance in the enforcement of his access rights.

On 9 September 1998 the Białystok Regional Court dismissed the applicant’s request for the appointment of a legal-aid lawyer for the purpose of lodging a cassation appeal and exemption from courts costs. The court found that he ran a business and in July 1997 his income had reached 700 Polish zlotys (PLN), whereas he would have to pay only a PLN 30 fee for his cassation appeal and the lawyer fees in a case like his would not exceed PLN 300. The court further noted that the applicant was single and had a plot of land with a building under construction, as well as a car. On 6 October 1998 the Regional Court rejected the applicant’s cassation appeal against that decision, as it was not provided for by law. On 16 December 1998 the Supreme Court rejected his appeal against the latter decision.

On 24 November 1998, in reply to the applicant’s complaint, the Office of the Prime Minister requested the Białystok District Court to submit information and documents concerning the applicant’s case, as it had certain doubts as to the decision to restrict his parental responsibility for P.

On 16 December 1998 the Head of the Family Department at the Białystok District Court informed the applicant that none of the court guardians had agreed to assist in the carrying out of his contact with the son.

On 24 February 1999 the Ombudsman’s office requested the Warsaw Regional Prosecutor to indicate the policemen who on 8 August 1998 had carried out the taking away of P from his father, as well as the person who had ordered it, in breach of the provisions of the Code of Civil Procedure. The applicant submits that no further measures were undertaken by the Ombudsman.

On 16 March 1999 the Białystok District Court dismissed the applicant’s and O’s petitions concerning his contact with the son. The court relied on the opinion prepared by two experts, according to which the relations between the child and parents were disturbed and because of the child’s age it was recommended that the meetings with the father would take place at the mother’s place. The experts noted that P would not want to leave his father. They pointed out that the need to maintain P’s contacts with his father existed, but the parents did not show understanding for the needs of the child and were driven by the wish to harm each other.

On 18 June 1999 the applicant filed with the Białystok Regional Court a petition in which he requested that O be deprived of the parental rights and he be granted parental responsibility. Subsequently, he asked the court to issue an interim order to the effect that P’s place of residence would be with the father.

In 2000 the applicant filed an unsuccessful request for the reopening of the proceedings terminated on 19 June 1998.

On 8 February 2001 the Białystok District Court refused the applicant’s request for the enforcement of the part of the judgment given on 24 February 1998 concerning his contacts with the son. The court considered that the place of residence of O and the son was unknown and therefore the enforcement was impossible.

On 20 February 2001 the District Court dismissed the applicant’s petition to deprive O of parental responsibility for P. It noted that the applicant’s submissions as to the allegedly improper manner in which the mother looked after P were unsubstantiated. On the contrary, the experts were of the opinion that there were strong emotional bonds between her and P. The applicant appealed.

In her letter of 26 February 2001, written in reply to the applicant’s complaint, the President of the Białystok Court of Appeal agreed with his contention that the proceedings were lengthy.

On 27 March 2001 the police authorities informed the applicant that O with his son had left for London on 30 May 2000.

On 17 May 2001 the Białystok Regional Court quashed the District Court’s decision of 8 February 2001. On 10 August 2001 the District Court, following the Regional Court’s instructions, stayed the enforcement of the orders concerning contact between the applicant and his son, because the applicant was unable to indicate O’s place of residence.

The proceedings are still pending.

B. Relevant domestic law

1. Cassation appeal

The Code of Civil Procedure provides for a cassation appeal to the Supreme Court. It can be lodged against judgments or any other final decisions of second-instance courts. Such an appeal must be filed by an advocate or legal adviser.

Cases relating to family law and custody law are examined in non-contentious procedures. The rules concerning the cassation appeals apply also to such procedures with certain exceptions.

In 1998 paragraph 1 of Article 519 (1) of the Code stipulated:

“The cassation appeal does not lie against a decision of a second-instance court ... if the provisions [concerning the non-contentious procedures] provide for the possibility of amendment or quashing of a final decision.”

There were two different interpretations given to that principle. According to one, expressed inter alia in the Supreme Court’s decision of 26 March 1997 (case no. II CKN 42/97), the exclusion of cassation appeals was a general principle in those types of procedure where the possibility of amendment or quashing of a decision existed. Such was the procedure in cases examined under custody law, since Article 577 of the Code stipulated that the custody court could amend its own decision if the interest of the person concerned so required. The other interpretation, presented, among other authorities, in the Supreme Court’s decision of 4 July 1997 (case no. III CZ 28/97), excluded the cassation appeal only in cases where that remedy was based exclusively on grounds which would justify the amendment of a decision under Article 577. A case-by-case scrutiny was suggested in order to establish whether in a particular case that remedy would lie against the second-instance court’s decision (see the Supreme Court’s decision of 11 March 1997, case no. III CZP 9/97).

Since July 2000 the above-mentioned Article 519 (1) provides for a cassation appeal only in those family, custody or guardianship law cases which concern adoption and division of conjugal property.

2. Parental responsibility

Paragraph 1 of Article 111 of the Family and Custody Code ( Kodeks Rodzinny i Opiekuńczy ) provides in so far as relevant:

“If parental responsibility cannot be exercised because of a permanent obstacle or if parents abuse their parental responsibility, or flagrantly neglect their duties in respect of the child, the custody court shall divest them of parental responsibility. The deprivation of parental responsibility can be decided also in respect of one of the parents.”

3. Ombudsman

The Law of 15 July 1987 on the Ombudsman provides that

“The Ombudsman, after having acquainted himself with each application addressed to him, can (1) take up the case, (2) limit himself to instructing the applicant as to available remedies, (3) transfer the case according to competence, (4) refuse to take up the case - notifying thereof the applicant and the person whom the case concerns.” (Section 11)

Having found a violation of human rights, the Ombudsman can, under Section 14, present his opinion to the authority concerned. In so doing, he shall not interfere with the independence of the judiciary. Further, the Ombudsman can request a superior authority that appropriate measures be undertaken in respect of the authority breaching human rights. The Ombudsman can request the initiation of relevant proceedings and, in some cases, lodge a cassation appeal or an extraordinary appeal against court judgments.

COMPLAINTS

The applicant complains that he has not been able to have his access rights enforced. He complains about an alleged breach of his and his son’s right to respect for private and family life. The applicant alleges the unfairness of court proceedings in his cases and the hindering of his right to an effective remedy. He challenges the decisions of the domestic courts, which, in his view, disregarded his son’s rights. The applicant complains about the allegedly unlawful and drastic manner of taking away his son. Finally, he alleges discrimination on the grounds of sex. The applicant invokes Articles 6 § 1, 13 and 14 of the Convention.

THE LAW

1. The applicant complains about the manner in which his son was taken away from him.

The Court observes that allegations of ill-treatment by the police can raise an issue under Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court, however, notes that the applicant has not instituted any proceedings, in particular criminal ones, against the persons allegedly responsible for the incident complained of (see, mutatis mutandis , Litwa v. Poland , application no. 26629/95, Commission decision of 15 September 1997, Decisions and Reports (DR) 90, p. 13).

It is true that the applicant complained about the incident to the Ombudsman. Nonetheless, the Court notes that the remedy at issue is of a discretionary nature, since the Ombudsman is not obliged to take any action following such a complaint, no precise grounds for his/her decision being specified by law (see, mutatis mutandis , Piechowicz v. Poland , no. 38857/97, Commission decision of 21 October 1998, unreported). What is more, the Ombudsman can limit himself/herself to the mere instructing of an applicant about available remedies or transfer the case to the authority competent to deal with it. The primary competence to examine allegations of human rights’ violations is left to other authorities under specific procedures directly accessible to the person concerned. Therefore, the Court finds the remedy used by the applicant ineffective for the purposes of Article 35 § 1 of the Convention.

The Court further notes that, as it appears from the applicant’s submissions, no action was undertaken after the inquiry made by the Ombudsman’s office as to the circumstances of the event complained of. It was nevertheless open to the applicant to request the initiation of appropriate proceedings concerning that event. He did not so.

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 complains under Article 6 § 1 of the Convention about the alleged unfairness of the court proceedings in his cases. He complains about the court’s alleged disregard for his son’s rights.

Article 6 § 1 provides, in so far as relevant:

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

The Court observes that the applicant has been involved in a number of court proceedings and he has not specified to which of them this complaint relates. What is more, he does not allege any concrete shortcomings in the manner the proceedings were conducted. Therefore, without prejudice to the issue as to whether the applicant has exhausted all remedies available under the domestic law, the Court finds this complaint entirely unsubstantiated and rejects it as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains about his alleged inability to have contact orders enforced and the alleged violation of his and his son’s right to respect for family life.

Article 8 of the Convention reads:

“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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicant complains under Article 13 of the Convention about the alleged lack of an effective remedy.

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that the applicant has a range of remedies at his disposal and availed himself of them on several occasions. The fact that the outcome of proceedings initiated by those remedies was unfavourable to the applicant cannot suffice to raise an issue under Article 13.

The Court recalls that the remedy within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of the complaint (see K. v. the United Kingdom , application no. 11468/85, Commission decision of 15 October 1986, DR 50, p. 199). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant complains about the alleged discrimination on the grounds of his sex. He relies on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court firstly recalls that Article 14 has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by other provisions of the Convention and the Protocols (see Rasmussen v. Denmark , judgment of 28 November 1984, Series A no. 87, § 29, p. 12). Accordingly and having regard to the applicant’s allegations concerning the right to respect for his family life, the Court will examine this complaint in conjunction with Article 8.

However, without prejudice to the issue as to whether the applicant has exhausted all available domestic remedies, the Court notes that there is nothing to suggest that in taking their decisions on the applicant’s access rights or parental responsibility the Polish courts were unduly influenced by the gender of the parents (see Sztajer v. Poland , application no. 24715/94, Commission decision of 16 January 1996, unreported, and M. C. v. Finland (dec.), no. 28460/95, 25 January 2001, unreported).

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

Decides to adjourn the examination of the applicant’s complaints concerning the right to respect for family life;

Declares inadmissible the remainder of the application.

Mark Villiger Georg Ress              Deputy Section Registrar President