FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29944/96

by Maria GONTARSKA

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 13 July 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan ,

Mrs S. Botoucharova , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 July 1995 by Maria GONTARSKA against Poland and registered on 23 January 1996 under file no. 29944/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1954 and living in Włocławek .

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

A. Particular circumstances of the case

1. Background of the case

Since 1985 the applicant has been suffering from a schizo -affective psychosis.  The condition of her health worsened at the end of 1991, when she became pregnant.

During her pregnancy the applicant suffered from deep depression.  After the birth of her child, on 20 July 1992, the applicant was placed in a psychiatric hospital for seven days.  Her infant daughter was temporarily taken into public care.

Later, the applicant consented to placing her daughter in a foster home.  On 12 November 1992 the WÅ‚ocÅ‚awek District Court (SÄ…d Rejonowy ) made an order restricting the applicant's parental rights and placing her daughter with the foster family S.  The S. family was awarded custody of the child.

From November 1992 to April 1993 the applicant received psychiatric treatment.  In February 1993 she decided that she should re-assume responsibility for the care of her daughter.  She submits that after she had mentioned it to the S. family, they started to hinder her in maintaining contact with her daughter.

2. Proceedings relating to the applicant’s request for her parental authority to be restored

On 22 April 1993 the applicant requested the Lipno District Court to restore her full parental authority.  Since then, according to her submissions, her contacts with her daughter became even more difficult.  The applicant submits that from this time on, the foster family started to express hostility towards her.  For instance, during one of her visits in their home, the police had to intervene.

On 22 July 1993 the applicant requested the Lipno District Court to make an interim order ruling on the terms of her access to her daughter.  Apparently, the court did not address the issue at that time.

On 19 October 1993, the Lipno District Court dismissed the applicant's request to restore her full parental authority.  The court relied on an expert report according to which the applicant's mental state was still unstable and constituted an obstacle to restoring her parental rights.  The expert had not, however, seen any obstacles to the applicant maintaining personal contact with her daughter.

On 24 March 1994, upon the applicant's appeal, the WÅ‚ocÅ‚awek Regional Court (SÄ…d Wojewódzki ) quashed the first-instance decision and remitted the case to the Lipno District Court.

On 8 June 1994 the applicant again requested the court to give an interim order ruling on the terms of her access to her daughter.  On 11 June 1994, during a hearing, she upheld her request and specified that she wished to see her daughter twice a month in her own or her mother’s residence.

On 11 July 1994 the Lipno District Court issued an interim order stipulating that the applicant should be allowed to take her daughter to her place of residence, twice a month for two hours.

Apparently, in the meantime, the Lipno District Court had ordered that fresh expert evidence be obtained, in particular from experts in psychiatry and psychology.  On 18 August 1994 a psychiatrist prepared a report.  On 23 February 1995 experts in psychology and pedagogy from the Family Diagnostics Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ) prepared another report.

On 26 April 1995 the Lipno District Court dismissed the applicant's request for her parental authority to be restored.  It did, however, alter the manner in which the applicant's parental rights were restricted. Relying on the expert reports and the parties’ submissions, the court found that the applicant's state had improved and that it was desirable to unite the family.  Therefore, it ordered the termination of the foster family’s care, returned the child to the applicant and appointed a court guardian to supervise the applicant in her exercise of custody rights.  At the same time, taking into account the interests of the child who had developed certain emotional ties with the foster family, the court fixed a schedule of visits and access between the S. family and the child.  The former foster family was allowed to have access to the child on weekends, with the option that the child could stay with them overnight.  The applicant did not appeal against this decision.

On 16 November 1995, upon the foster family’s appeal, the WÅ‚ocÅ‚awek Regional Court partly amended the first-instance decision, ruling that the child’s domicile should coincide with her mother’s domicile, and upheld the remainder of the decision.

3. Proceedings concerning the former foster family’s contact with the child

On an unspecified date in November 1996, the applicant requested the WÅ‚ocÅ‚awek District Court to alter the arrangements in respect of the S. family's contact with her daughter, as she considered this contact to have a detrimental influence on her child.  In particular, she argued that the possibility of spending weekends with her daughter constituted an essential element of her family life. 

A first hearing was held on 25 November 1996.

On 28 November 1996 the court decided that evidence from experts at the Family Diagnostics Centre be obtained in order to determine the scope of the emotional ties between the former foster family and the child, and whether there was a need to maintain that contact.

On 12 March 1997 the experts submitted their report to the court.

On 2 June 1997 the court held a hearing.

On 9 June 1997 the Włocławek District Court decided that contact between the former foster family and the child should be maintained; however, it placed further restrictions on S.’s access to her.  Consequently, the former foster family was allowed to see the child twice a month in the presence of the applicant and a court custody guardian, in the child’s residence.  The court relied on the expert report and the parties’ submissions.

On an unspecified date the applicant filed an appeal against this decision but did not state whether she sought to have it altered or quashed and remitted to the court of first instance.

On 9 September 1997 the Włocławek District Court ordered the applicant to indicate the relief she sought, on pain of her appeal being rejected.

In her reply of 23 September 1997 the applicant informed the court that “she was indifferent about the way the appellate court would alter the contested decision”.

On 6 November 1997 the Włocławek Regional Court rejected the applicant's appeal for her failure to comply with the procedural requirements laid down by the Code of Civil Procedure in respect of such appeals.

B. Relevant domestic law

Section 109 of the Family and Custody Code ( Kodeks Rodzinny i Opiekuńczy ) provides as follows:

     "1. If the interests of a child are endangered, the court shall give an appropriate order.

      2. The court may, in particular: …

   …

5) make an order placing a minor in a foster home or in a public care centre."

COMPLAINTS

1. In respect of the proceedings relating to her request for her parental authority to be restored, the applicant submits the following complaints:

a) under Article 8 of the Convention, that the Lipno District Court, by its refusal to restore her full parental rights, unjustifiedly interfered with her right to respect for her family life;

b) under Article 6 § 1 of the Convention, that the proceedings in question were unfair and, in particular, that the judges were biased against her;

c) under Article 6 § 1 of the Convention, that the length of the proceedings exceeded a reasonable time.

2. In respect of the proceedings concerning the former foster family’s contact with her child, the applicant submits the following complaints:

a) under Article 8 of the Convention, that maintaining this contact is detrimental to her daughter and adversely affects their family life;

b) under Article 6 § 1 of the Convention, that the proceedings were unfair and, in particular, that the courts reached wrong decisions;

c) under Article 6 § 1 of the Convention, that the length of the proceedings exceeded a reasonable time.

3. Finally, the applicant invokes Article 3 of the Convention, submitting that all the obstacles she encountered in the exercise of her custody rights amounted to inhuman treatment.

THE LAW

1. In respect of the proceedings relating to the applicant’s request for her parental authority to be restored, the applicant submits the following complaints:

a) under Article 8 of the Convention, that the Lipno District Court, by its refusal to restore her full parental rights, unjustifiedly interfered with her right to respect for her family life;

b) under Article 6 § 1 of the Convention, that the proceedings in question were unfair and, in particular, that the judges were biased against her.

Article 8 of the Convention, provides, insofar as relevant:

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

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.”

Article 6 § 1 of the Convention provides, insofar as relevant:

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

Under Article 35 § 1 of the Convention “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.

In this regard, the Court recalls that the rule of exhaustion of domestic remedies referred to in that provision of the Convention normally requires that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law ( Ahmet Sadik v. Greece, judgment of 15 November 1996, Reports 1996-V, p. 1655, § 30).

In the present case, the Court observes that the applicant failed to appeal against the decision of the Lipno District Court of 26 April 1995.  The Court finds that the applicant, by lodging such an appeal, could have contested the ruling and raised any arguments relating to the substance of her complaints.

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

c) The applicant further complains, under Article 6 § 1 of the Convention, that the length of the proceedings in question exceeded a reasonable time.

Article 6 § 1 of the Convention states, insofar as relevant:

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

The Court observes that Poland recognised the competence of the Convention organs to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Poland of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".  It further recalls that, pursuant to Article 6 of Protocol No. 11 to the Convention, this limitation shall remain valid for the jurisdiction of the Court under that Protocol.

In respect of the present case t he Court further observes that the proceedings concerned lasted from 22 April 1993 to 16 November 1995, i.e. two years, six months and twenty-five days, of which two years, six months and sixteen days fall within the Court’s competence ratione temporis .

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the behaviour of the applicant and the conduct of the relevant authorities.  On the latter point, what is at stake for the applicant in the litigation has to be taken into account in certain cases (see the F.E. v. France judgment of 30 October 1998, to be published in Reports 1998, § 53).  In particular, the cases relating to the custody of the child should, in principle, be decided speedily (see the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, § 72).

The Court notes at the outset that the present case was of a certain complexity.  In particular, it was necessary to obtain evidence from experts in order to rule on the applicant’s request.  Also, the importance of the child’s interest at stake made it necessary to strike the proper balance between the speedy conduct of the proceedings and cautious examination of the case.

During the period under consideration the case was twice examined at first-instance level and twice on appeal.  The courts heard the parties to the proceedings and obtained several expert reports, in particular medical reports and a report from the Family Diagnostics Centre.  Moreover, there were no substantial periods of inactivity on the part of the courts dealing with the applicant’s case.

Assessing the relevant facts as a whole, the Court does not find that the Polish authorities failed to act with all due diligence in handling the case.

Nor does it find that the applicant’s conduct, in particular the manner in which she exercised her procedural rights, contributed to the length of the proceedings.

In view of the above considerations, the Court concludes that the length of the proceedings in the present case did not exceed a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

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

2. In respect of the proceedings concerning the former foster family’s contact with her child, the applicant submits the following complaints:

a) under Article 8 of the Convention, that maintaining this contact is detrimental to her daughter and adversely affects their family life;

b) under Article 6 § 1 of the Convention, that the proceedings were unfair and, in particular, that the courts reached wrong decisions.

The Court recalls that the obligation to exhaust domestic remedies contained in Article 35 § 1 of the Convention also requires the individual to follow the procedural rules attached to the remedy.  Failure to do so, or a mistake in so doing, will vitiate the individual’s compliance with that obligation (Eur. Comm. HR, no. 21782/93, Dec. 26.6.1995, D.R. 82-A, p. 5).

The Court finds that the applicant’s appeal against the contested decision of 9 June 1997 was rejected since the applicant failed to comply with the procedural requirements laid down by Polish law in respect of such appeals.

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies in accordance with Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

c) The applicant further complains under Article 6 § 1 of the Convention that the length of the proceedings exceeded a reasonable time.

Having regard to the criteria for the reasonableness of the length of proceedings cited above, the Court notes that the proceedings lasted from an unspecified date in November 1996 to 6 November 1997, i.e. about one year.  The WÅ‚ocÅ‚awek District Court determined the applicant’s request on 9 June 1997, that is, some seven months after the applicant had lodged her claim.  During this time, at least two hearings were held and the court obtained expert evidence.

In these circumstances, the Court considers that the overall length of the proceedings in question did not exceed a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

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

3. Finally, the applicant invokes Article 3 of the Convention, submitting that all the obstacles she encountered in the exercise of her custody rights amounted to inhuman treatment.

However, the Court considers that no separate issue arises under the Convention in respect of this complaint.

It follows that the remainder of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpää Registrar President