THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35461/97 by Andrzej STĘPOWSKI against Poland

The European Court of Human Rights (Third Section) , sitting on 15 June 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr L. Loucaides, Mr J. Makarczyk Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve , judges , [Note1]

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 April 1996 and registered on 27 March 1997,

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, a Polish citizen born in 1939, is an engineer residing in Warsaw.

A. Particular circumstances of the case

1. The custody proceedings

On 29 November 1988 the Warszawa-Praga District Court dissolved the applicant’s marriage, awarded custody of one of their sons to the applicant, and that of the other to his former wife.

On 4 September 1989 the applicant lodged an action with the Warszawa-Praga District Court, claiming that the parental rights of his former wife be restricted and that the custody of both children be awarded to him. The court held hearings on 13 October 1989, 27 October 1989, 21 November 1989, 20 March 1990, 26 April 1990, 30 April 1990, 23 October 1990 and 27 November 1990.

On 8 January 1991 the applicant complained to the President of the District Court, alleging that the presiding judge lacked impartiality, that she had been conducting the proceedings in a chaotic manner, and that she had been distorting his oral submissions to the court when dictating them for the record. In a reply of 21 January 1991, he was informed that it was open to him to submit at any time written objections to the case-file as regards the manner in which the minutes of the hearings were being taken. It was further acknowledged that certain complaints were well-founded and that the attention of the judge concerned would be drawn to them.

The court held further hearings on 12 March 1991 and 28 May 1991. On the latter date the applicant requested that the judge step down, alleging her bias. Apparently this request was later dismissed. The court held the next hearing on 22 January 1992.

On 2 April 1992 the Family Diagnostics Centre submitted its expert opinion to the court. On 8 May 1992 the applicant lodged objections to the report. On 11 May 1992, 15 June 1992, 29 June 1992 and 29 July 1992 further hearings were held. Apparently, at the last of these hearings, the court ordered that a further expert opinion be prepared on the parties’ parental skills. This opinion was submitted to the court on 5 November 1992. On 20 November 1992 the applicant lodged his pleadings with the court, arguing that this opinion was also ill-founded. He submitted that the report contained serious discrepancies and errors. He stressed that the experts had had particular regard to the previous report of 2 April 1992, and that they had failed to address adequately the questions put by the court.

On 30 November 1992 the court dismissed the applicant’s request to have the parental rights of his former wife restricted, and ordered that one of the sons should reside with his mother. The court apparently relied, inter alia , on an expert opinion of the Family Diagnostics Centre of 5 November 1992.

The applicant appealed. On 15 March 1993 the Warsaw Regional Court granted the appeal after a hearing and remitted the case to the lower court.

On 7 June 1993 a hearing was held. On 15 June 1993 the District Court refused to order as an interim measure that both boys immediately move to the applicant’s apartment, considering that they felt safe with their mother and that there were no reasons justifying such a measure. The court further noted that the children were spending each weekend with their father.

On 21 July 1993 the applicant complained to the President of the court about the alleged bias of the presiding judge. He alleged that there were differences between the version of the decision of 15 June 1993 kept in the case-file and that which had been served on him. He further complained that the proceedings were unfair.  In the President’s reply of 23 August 1993, it was explained that the difference, an omission of one word in the written grounds of the decision, had been caused by a clerical error, and that otherwise the texts had been identical. Apologies were presented to the applicant.

In a letter of 7 September 1993, the applicant again complained about discrepancies between two versions of the same decision. In a reply of 22 September 1993, the Deputy President of the Regional Court acknowledged that there were minor discrepancies between various copies of the decision, but stressed that they were devoid of any legal significance, in that they did not affect the essence of the decision.

On 3 December 1993 the applicant complained again about these errors.

On 29 December 1993 the Regional Court dismissed the applicant’s appeal against the refusal to order interim measures on 15 June 1993.

On 15 March 1994 the applicant again complained about the errors in the text of the decision of 15 June 1993.

On 5 September 1994 the applicant objected to a new expert report prepared by the Family Diagnostics Centre, complaining that the relevant examinations had been cursory and that the conclusions of the specialists were erroneous. He requested that the experts, who had prepared the opinion, be questioned by the court. He further requested the court to take evidence from the tape recording made during the examination of the children by the experts.

On 8 September 1994, 10 October 1994 and 10 November 1994 hearings were held.  On 10 October 1994 the applicant lodged a request that the judge step down, alleging her lack of impartiality. Apparently this request was later dismissed.

The next hearing was held on 18 October 1995. On 13 December 1995 the District Court discontinued the proceedings as the applicant had withdrawn his request, in view of the fact that his son M. had moved into his apartment.

2. Labour law proceedings

On 31 May 1996 the applicant lodged an action against his employer with the Warsaw District Court, claiming payment of certain parts of his salary. On 23 September 1996 the District Court apparently allowed his claim in part.

On 21 October 1997 the applicant requested retroactive leave to lodge an appeal outside the statutory time-limit. His request was dismissed on 10 February 1998 by the Warsaw District Court. The court noted that the applicant had failed to comply with the statutory time-limit of fourteen days for lodging an appeal. The court established that the final hearing in the case had been fixed for 23 September 1996. Four summonses for this hearing had been sent to the applicant: on 10 June 1996, 10 July 1996, 30 July 1996 and 8 September 1996. The applicant had failed to fetch any of them from the post office. The court considered them to have been duly served on him. The court further noted that the applicant had been on holiday from 30 June to 18 July 1996, and later from 4 to 26 August 1996.  From May to November 1996 he had not lived in his apartment, as he had been taking care of his mother. However, the court considered that the applicant, by failing to take any measures in order to ensure that the court documents be duly served on him, had failed to show the diligence which could reasonably be expected from a person engaged in judicial proceedings.

The applicant appealed against this decision. On 16 April 1998 the Warsaw Regional Court upheld the contested decision, considering that the applicant had failed to adduce any circumstances capable of showing that he had shown due diligence, particularly as he had left on holiday without informing the court thereof. The court further considered that  he had not shown that there had been objective and insurmountable obstacles to the effective service of the four summonses to the hearing of 23 September 1996 on him.

B. Relevant domestic law

Article 168 § 1 of the Code of Civil Procedure, insofar as relevant, provides that if a party to proceedings fails to comply with the prescribed time-limit through no fault of its own, the court shall, on that party’s request, grant leave to appeal out of time.

Article 136 of the Code of Civil Procedure provides that the parties to proceedings are under an obligation to inform the court about any change of address. Under § 2 of this provision, if they fail to do so, a decision to be served on the party shall be filed in the case-file and shall be regarded as having been duly served, unless the court knows the new address of that party.

COMPLAINTS

As regards the custody proceedings, the applicant complains that his rights guaranteed under Article 6 of the Convention were breached as the District Court made it impossible for him to submit pleadings and oral declarations because on one occasion the court sent a summons to a witness which did not contain her name, and there were discrepancies between two versions of the decision of 15 June 1994. He further alleges that the judges were biased against him and that the proceedings were conducted in a chaotic manner. The applicant also complains that these proceedings lasted unreasonably long.

The applicant next complains that the civil proceedings against his employer were unfair in that the court gave its first-instance judgment after a hearing which he could not attend, through no fault of his. He further submits that he was deprived of access to the second-instance court as the courts wrongly concluded that he was at fault in failing to comply with the time-limit for lodging his appeal.

THE LAW

1. The applicant complains under Article 6 of the Convention about the length and alleged unfairness of the custody proceedings.

Article 6 § 1, in so far as relevant, reads as follows:

“In determination of civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... .”

a) Insofar as the applicant complains about the alleged unfairness of the proceedings, the Court observes that on 13 December 1995 these proceedings were discontinued when the applicant withdrew them because one of his sons had decided to move into his apartment. The Court recalls that, under Article 35 § 1 of the Convention, it can only deal with matters after all domestic remedies have been exhausted. Given the applicant’s decision not to pursue the proceedings further, he failed to exhaust the remedies at his disposal under Polish law.

It follows that this part of the application is to be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

b) As regards the complaint concerning the length of the proceedings, the Court notes that the proceedings started on 4 September 1989, when the applicant requested that the parental rights of the mother be restricted. The proceedings lasted until 13 December 1995, when the Warszawa-Praga District Court discontinued the proceedings, following the applicant’s request to this effect.

The Court recalls that Poland recognised the competence of the European Commission of Human Rights to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993". According to Article 6 of Protocol No. 11 to the Convention, this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the Court is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to 1 May 1993.  However, in cases where it can, by reason of its competence ratione temporis , only examine part of the proceedings, it may take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (see the Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53). It follows that the Court is competent ratione temporis to examine the applicant's complaint insofar as it relates to the proceedings after 30 April 1993, taking into consideration the stage of the proceedings reached at this date.

The Court therefore observes that, after 30 April 1993, the proceedings lasted two years, seven months and thirteen days.

The Court further recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, namely its complexity and the conduct of the applicant and the authorities. In this instance the circumstances call for an overall assessment (see the Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, § 17).

The Court finds that the proceedings do not disclose any particular complexity. They concerned the applicant’s request to have the parental rights of his former wife over their children restricted.  In such proceedings the courts are under an obligation to examine the parties’ parental skills, the emotional links between the children and the parents, and to assess the measures regarding custody which would be in the children’s best interests. It is true that a certain number of expert reports were prepared for the purpose of assessing the parental skills and emotional links. However, such expert evidence is frequently used in judicial custody proceedings, the expert opinion being essential for the determination of the parties’ claims to custody. The ordering of such evidence cannot in itself be regarded as rendering the case complex.

Concerning the conduct of the applicant, the Court observes that after 15 June 1993, he engaged in correspondence with the presidents of the District and Regional Courts, repeatedly complaining about clerical errors in the copies of the decision on interim measures, and alleging that they were to his serious detriment. Even assuming that the decision concerning interim measures involves a determination of the applicant’s “civil rights and obligations” within the meaning of Article 6 of the Convention, in the light of the explanations given to the applicant by the President of the District and Regional Courts, the Court fails to see how these errors could have materially affected the applicant’s position in the proceedings. The Court further notes that the applicant at least twice questioned the reasonableness of the conclusions of the expert reports. Finally, on two occasions the applicant requested that the judge step down, and his requests were judicially examined. In the light of these elements, the Court considers that the applicant is at least partly responsible for the length of the proceedings.

As to the conduct of the Polish courts, the Court notes that the case was dealt with at two levels of jurisdiction and then re-considered by the first-instance court. Insofar as the first instance proceedings are concerned and insofar as the Court has the competence ratione temporis to examine those proceedings, the Court observes that the domestic court held hearings at regular intervals. There is no indication that the experts were slow or negligent in the submission of their reports to the court or that the authorities otherwise contributed to the length of the proceedings.

Having regard to the particular circumstances of the present case and considering the proceedings as a whole, the Court finds that there is no appearance of a violation of the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

c) In so far as the applicant complains about the lack of access to the second-instance court in the labour proceedings, the Court first recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, the “right to a court” is not absolute; it is subject to implied limitations, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired. Lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, p. 1502, § 50; the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports 1998-I, p. 279, § 34).

The Court also recalls that Article 6 § 1 does not guarantee a right of appeal as such or a second level of jurisdiction, the latter being recognised by Article 2 of Protocol No. 7 only in respect of persons convicted of a criminal offence. However, where several court levels do exist, each instance must comply with the guarantees of Article 6, including the right of effective access to court (see the Brualla G ómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2945, § 37).

Turning to the circumstances of the present case, the Court notes that the District Court summoned the applicant four times, by registered letter, to the hearing to be held on 23 September 1996, at which the first-instance judgment was given. The applicant was not aware of this as he did not fetch any of the summonses from the post-office within the time-limit provided for by law. It was only on 23 November 1997 that he lodged the appeal against the judgment.

The Court first notes that, had the applicant picked up these summonses from the post office, he would have been aware that the first-instance judgment was to be given on that date, and then it would have been open to him to lodge his appeal within the statutory time-limit. The Court further notes that, had he taken other measures to have the summonses forwarded to his holiday address, he would have been informed about the final hearing and, again, he would have had the possibility to appeal in time. The applicant did not take such measures.

The Court therefore considers that the applicant has not shown that in pursuing the appeal proceedings he displayed the diligence which could normally be expected from a party to civil proceedings.

In these circumstances, the Court does not consider that the courts, when dismissing the applicant’s request for leave to appeal out of time, took a decision which was incompatible with the applicant's right of access to court under Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 34 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)