FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43316/98 by B.R. against Poland

The European Court of Human Rights (Fourth Section) , sitting on 7 June 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges ,

and Mr V. B erger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 July 1997 and registered on 4 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national , born in 1960 and living in Warsaw.

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

A. Criminal proceedings against the applicant

On 20 June 1994 the Warsaw District Prosecutor ( Prokurator Rejonowy ) submitted to the Warsaw District Court ( SÄ…d Rejonowy ) a bill of indictment against the applicant. The applicant was charged with domestic violence against his wife.

On 12 July 1994 the prosecutor submitted another bill of indictment in which the applicant was charged with threatening his wife.

On 15 September 1994 the Warsaw District Court joined those two cases.

The court held hearings on 10 and 11 October, as well as 2 December 1994. On 1 February 1995 the court adjourned a hearing and ordered the police to seek a certain witness.

On 27 November 1995 the Warsaw District Prosecutor submitted to the court another bill of indictment in which he charged the applicant with the evasion of the payment of maintenance for his daughter.

After the hearing held on 18 March 1996 the court did not schedule any hearings until 8 June 2000.

On 18 April 2000 the court joined the bill of indictment of 27 November 1995 to the proceedings.

On 8 June 2000 the court ordered the applicant’s psychiatric examination, at his counsel’s request.

On 25 August 2000 the applicant asked permission to record the course of the hearing on his tape-recorder. After the presiding judge’s refusal the applicant decided to leave the courtroom and requested that the presiding judge be challenged.

On 30 August 2000 the Warsaw District Court declined the applicant’s request.

On 11 September 2000 the applicant petitioned the court to quash the decisions of 25 and 30 August 2000.

On 11 October 2000 the court ordered another psychiatric examination of the applicant, considering that the two psychiatric opinions issued in the course of those proceedings were incomplete and superficial.

B. Other proceedings

1. Divorce proceedings

In 1991 the applicant’s wife filed with the Warsaw Regional Court ( Sąd Wojewódzki ) a divorce action.

In 1992 the court ordered the applicant to pay 500,000 old zlotys (PLZ) of monthly maintenance for his daughter. The court considered that the fact that at that time he was unemployed could not be the only factor to be taken into account. Having regard to his education and profession, the court noted that it was mainly the applicant’s fault that he had not found any employment.

In October 1992 following an order given by the Warsaw Regional Court a psychological opinion concerning relations between the parents and the daughter was issued.

On 16 March 1993 the court imposed a fine on the applicant for offending the court’s authority.

On 16 March 1993 the court regulated the frequency of the applicant’s contacts with his daughter pending the divorce proceedings. The meetings were supposed to take place on first and second Sundays of every month between 11 a.m. and 1 p.m. in the mother’s presence.

On 27 July 1993 the court amended its decision concerning the maintenance, increasing it to PLZ 900,000. It considered that as a construction engineer the applicant was able to earn approximately PLZ 3,000,000.

On 29 November 1993 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s appeal against the decision of 27 July 1993.

On 24 November 1995 the Warsaw Regional Court dismissed the applicant’s claim for alimony from his wife and refused his request to decrease the amount of the maintenance for his daughter. He appealed, but on 18 July 1996 the Warsaw Court of Appeal dismissed his appeal.

On 24 November 1995 the Warsaw Regional Court amended its decision of 16 March 1993 in that it increased the frequency of the applicant’s meetings with his daughter. He and his wife appealed and on 18 July 1996 the Warsaw Court of Appeal quashed that decision. It considered that the contested decision was not supported by an opinion of psychologists.

The opinion was issued in March 1997.

On 23 December 1997 the Warsaw Regional Court issued an order concerning the applicant’s contacts with his daughter pending the divorce proceedings. It decided that the meetings should take place on first, second and third Saturdays of every month between 11 a.m. and 4 p.m. without the mother’s presence. The court also ordered a guardian ( kurator sądowy ) to supervise those meetings. Having regard to the opinion of the psychologists, it considered that in the ongoing conflict between the parents, the daughter, who was emotionally attached to her mother, became more and more unfriendly towards her father, which called for more frequent contacts with the father.

On 18 June 1998 the Warsaw Court of Appeal dismissed his appeal against that decision.

On 29 January 1999 the Warsaw Regional Court gave judgment. The applicant’s appeal against that judgment was rejected.

2. Proceedings concerning a fine

On an unspecified date the applicant requested that his wife be fined for her alleged failure to comply with a court order concerning the contacts with the daughter.

On 29 May 1996 the Warsaw District Court refused his request. It found that the applicant had contacted his daughter rarely and since November 1995 had not seen her at all. The court noted that in May 1996 he had failed to appear at a previously arranged meeting. In addition, the court observed that the applicant had failed to provide any evidence that his wife had made it difficult for him to contact his daughter.

On 25 November 1996 the Warsaw Regional Court dismissed his appeal.

In November 1996 the applicant filed with the Warsaw District Court a similar request, submitting that his wife made it impossible for him to meet his daughter.

On 11 June 1997 the court declined his request, considering that an isolated case of cancellation of a meeting because of the daughter’s trip to the mountains could not be considered as violating the applicant’s rights.

On 24 September 1997 the Warsaw Regional Court dismissed his appeal.

1 . Criminal proceedings against the applicant

In November 1994 the applicant was charged with threatening certain individuals. On 16 November 1995 the proceedings were discontinued.

2 . Criminal proceedings against the applicant’s wife

In February 1996 the applicant brought a private prosecution against his wife, submitting that she had insulted him.

On 8 April 1998 the Warsaw District Court stayed the proceedings, because the only witness was abroad and the place of his residence was unknown. On 28 July 1998 the Warsaw Court of Appeal dismissed the applicant’s appeal against that decision.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings pending before the Warsaw District Court against him have exceeded a reasonable time.

2. He complains under Article 6 § 3 (d) of the Convention that in those proceedings the court failed to summon a witness for the defence.

3. The applicant complains under Article 13 of the Convention about the lack of an effective remedy against the court decision imposing a fine on him in the course of the divorce proceedings.

4. He complains under Article 6 § 1 of the Convention that in the divorce proceedings the interim decisions concerning his contacts with the daughter were not issued within a reasonable time.

5. The applicant complains under Article 8 of the Convention that the domestic courts drastically limited his contacts with the daughter and failed to assist him in enforcing their interim measures by their refusals to impose fines on his wife.

6. He complains under Article 6 § 1 of the Convention about errors of fact allegedly committed by domestic courts in the course of the proceedings concerning the fine.

7. The applicant complains under Articles 8 and 14 of the Convention that between 1991 and 1998 he was discriminated against, because the amount of the child support maintenance he had to pay was excessive. He submits that it interfered with his private and family life.

8. He complains under Article 6 § 1 of the Convention that the criminal proceedings discontinued in 1995 exceeded a reasonable time.

9. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against his wife have exceeded a reasonable time.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the allegedly unreasonable length of the criminal proceedings against him.

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

2. The applicant complains under Article 6 § 3 (d) of the Convention about the domestic court’s failure to summon a witness.

The Court finds that the applicant’s complaint is premature as the proceedings are still pending before the Warsaw District Court. The domestic remedies have therefore not been exhausted as required by Article 35 § 1 of the Convention. It follows that this complaint must be rejected, in accordance with Article 35 § 4.

3. The applicant complains under Article 13 of the Convention about the lack of a remedy against the decision imposing the court fine on him.

The Court notes that the impugned decision was issued on 16 March 1993. However, the declaration whereby Poland accepted the right of individual petition took effect on 1 May 1993. It follows that the application is in this part incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

4. The applicant complains under Article 6 § 1 of the Convention about the allegedly unreasonable length of the proceedings concerning the interim measures.

The Court observes that the alleged violation occurred in the course of the interlocutory proceedings relating to the interim measure. The decisions issued by the domestic courts concerned the provisional regulation of the applicant’s contacts with his daughter pending the main divorce proceedings. Therefore, the Court finds that the interlocutory proceedings complained of did not involve the determination of the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis , Österreichische Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria, no. 17200/91, Commission decision of 2 December 1991, unpublished, and Apis a.s . v. Slovakia (dec.), no. 39754/98, 13 January 2000, unpublished).

5. The applicant complains under Article 8 of the Convention about the alleged limitation of his contacts with the daughter by the domestic courts and their failure to enforce the decisions concerning those contacts.

(a) The Court notes that one of the decisions concerning this matter was issued on 16 March 1993. Having regard to the above considerations the Court finds that this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

As regards the other decisions, the Court observes that the decision of 23 December 1997 in fact increased the frequency of the applicant’s contacts with his daughter, thus it could not be considered as a limitation of those contacts. However, even assuming that that regulation of the frequency of the contacts could be regarded as an interference with the applicant’s rights guaranteed by Article 8 of the Convention, in particular, his right to respect for family life, in any event the Court finds that such interference was justified under Article 8 § 2 of the Convention.

The regulation of the applicant’s contacts with his daughter was based on article 443 of the Code of Civil Procedure ( Kodeks Postępowania Cywilnego ), thus it was issued in accordance with the law.

As it transpires from the decision of 23 December 1997, the regulation was in the interest of the daughter and was intended to improve the relations between her and her father. The decision was based on the opinion of psychologists. There is no indication that the Warsaw Regional Court failed to strike a fair balance between the applicant’s rights and the interest of his daughter. Therefore, the Court considers that the interference with the applicant’s right to respect for family life was justified under Article 8 § 2 of the Convention as necessary for the protection of the rights of his daughter.

It follows that this part of the application is manifestly ill-founded  within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

(b) In so far as the applicant complains about the alleged failure of the domestic courts to assist him in enforcing their orders, the Court observes that in the proceedings concerning his request to impose a fine on his wife the Warsaw District Court found his submissions unsubstantiated. It considered that an isolated case of the cancellation of the meeting did not suffice to constitute grounds for punishing her. In the light of that court’s findings concerning the applicant’s frequent failures to contact his daughter the Court sees no indication that the refusal to impose that fine could interfere with the applicant’s rights guaranteed by Article 8 of the Convention.

Therefore, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

6. The applicant complains under Article 6 § 1 of the Convention that in the course of the proceedings concerning the fine the domestic court committed errors of fact.

Even assuming that the impugned proceedings involved the determination of the applicant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention, in any event the Court recalls that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28). It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

7. The applicant complains under Articles 8 and 14 of the Convention about the allegedly excessive amount of child support maintenance he had to pay between 1991 and 1998.

The Court notes that the latest of the decisions concerning the amount of the maintenance was issued on 18 July 1996, thus more than six months before the date on which the application was submitted. It follows that this complaint is inadmissible for non-compliance with the six-month rule laid down in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

8. The applicant complains under Article 6 § 1 of the Convention about the allegedly unreasonable length of the criminal proceedings discontinued in 1995.

The Court finds that those proceedings were discontinued on 16 November 1995, thus more than six months before the date on which the application was submitted. It follows that this complaint is inadmissible for non-compliance with the six-month rule laid down in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

9. The applicant complains under Article 6 § 1 of the Convention about the allegedly unreasonable length of the criminal proceedings against his wife.

The Court observes that the impugned proceedings did not involve the determination of the applicant’s civil rights or obligations, nor of any criminal charge against him. Therefore, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint under Article 6 § 1 of the Convention that the criminal proceedings against him have exceeded a reasonable time;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress              Registrar              President