FIRST SECTION

DECISION

Application no. 9068/16 Katarzyna KOWALCZYK and Mariusz KOWALCZYK against Poland

The European Court of Human Rights (First Section), sitting on 2 July 2019 as a Committee composed of:

Pere Pastor Vilanova, President, Krzysztof Wojtyczek, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 9 February 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Katarzyna Kowalczyk (“the first applicant”) and Mr Mariusz Kowalczyk (”the second applicant”), are mother and son. They are Polish nationals who were born in 1984 and 2000 respectively and live in Cracow. They were represented before the Court by Mr Z. Cichoń , a lawyer practising in Cracow.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

4. From birth the second applicant lived with his maternal grandparents. A family welfare officer ( kurator ) was appointed to provide support to the family. On an unknown date the second applicant ’ s grandfather was diagnosed with a personality disorder and the boy moved to live with his parents and siblings. From then on, he began to display behavioural problems at home and at school.

5. On 11 March 2014 the Cracow Podgórze District Court (Family and Juvenile Section), following an application by the family welfare officer, ordered the second applicant ’ s placement in an educational care facility ( placówka opiekunczo-wychowawcza ) on the grounds that he had caused problems pertaining to his education. The court referred to a report prepared by the welfare officer stating that the boy refused to attend school, was verbally aggressive towards his parents, swore at his mother and did not spend his nights at home. He also had an income from an unknown source. The parents told the court that they could not control the boy and make him change his behaviour.

6. The first applicant did not appeal against this decision.

7. On 23 May 2014 the director of the Educational Care Facility in Cracow sent a complimentary letter concerning the second applicant to the Cracow District Court, stating that he had received the highest evaluation of all the students at the facility.

8. At the end of the school year on 27 June 2014 the second applicant received a special diploma from the secondary school he had attended for outstanding performance (the highest average mark in the class, very good attendance and perseverance in spite of his difficulties).

9. In August 2014 the second applicant was transferred to a reintegration facility run by the SMH Association ( Siemacha ) in Cracow. On 9 October 2014 he ran away from that facility. His mother subsequently placed him at a relative ’ s house.

10. On 30 July 2014 the Cracow District Court instituted proceedings, as the second applicant had been found in possession of a small amount of drugs (0.9 grams of marijuana).

11. On 17 December 2014 the court decided to change its previous decision of 11 March 2014 (see paragraph 5 above) and placed the second applicant in a youth educational centre ( m ł odzie ż owy o ś rodek wychowaczy ) for the duration of the proceedings concerning the possession of drugs. It also appointed a guardian to supervise the exercise of parental authority over him. The court held that the boy had run away from the educational care facility in which he had been placed and that his whereabouts were unknown. Even if it could be established where he was, it would be pointless to return him to the same place, particularly because the educational measures taken there had not been sufficient.

12. The applicants did not appeal against this decision.

13. As it was impossible to establish the second applicant ’ s whereabouts, the proceedings were stayed on 14 May 2015.

14. On 2 July 2015 the first applicant, represented by a lawyer, lodged an application for modification of the decision of 17 December 2014. She pointed out that her son had obtained very good school results in June 2014. Those results, in her view, had justified his discharge from the educational care facility, but that had not happened. Moreover, he had suffered from the violent behaviour of other minors in the facility. It was for those reasons that he had run away. She asked the court to appoint a welfare officer in order to supervise the parental authority over the second applicant.

15. On 7 July 2015 the Cracow District Court dismissed the application. The court held that the fact that the second applicant was in hiding confirmed that he showed “signs of moral degradation” ( demoralizacja ) ”. In the court ’ s view, the parents could not guarantee that he would follow a proper educational process. He had apparently stayed for a time with his aunt; however, the mother had failed to inform the court that she was aware of his whereabouts. Such an approach had to be viewed as aiding him and, consequently, as an obstacle to cooperation with the family court. Lastly, the court noted that only a positive opinion about the applicant from the facility in which he had stayed or alternatively from the Diagnostic-Consultative Family Centre ( Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK” ) would have justified a change to its previous decision.

16. On 15 September 2015 the first applicant ’ s lawyer appealed, submitting that the District Court had failed to consider an expert opinion given by the welfare officer, A.Z. In his opinion, as of 11 June 2015, the second applicant could have returned to his parents ’ care on a trial basis. He further noted that the second applicant had not caused any problems during his stay at the care facility. Moreover, he had had successful school results.

Lastly, it was stated in the appeal, without any details in that regard, that the second applicant had escaped from the educational care facility as he had suffered from a violent behaviour of other minors.

17. On 7 December 2015 the Cracow Regional Court dismissed the appeal, referring to the reasons given by the District Court. The court held that the fact that the second applicant had been in hiding for such a long time showed an ongoing process of “moral degradation” . It noted that the allegation that he had suffered from the violent behaviour of others at the educational care facility was groundless and not substantiated in any way ( nie uprawdopodobnione ). The educational measures which had so far been taken in respect of him had not been effective. In particular, he had been in hiding for several months and his whereabouts and living conditions were unknown. Moreover, it was not clear whether his parents had any influence on him as they had claimed that they had not been in contact with him. The court noted that simply because the second applicant had graduated in June 2014 with very good results and his school reports were positive did not mean that he was not undergoing a process of “moral degradation” . In view of such factors, there was a clear indication that the educational measures taken in respect of the second applicant should be changed and that he should be placed in a different, stricter institution.

18. On 29 July 2016, following an argument with his grandfather, the second applicant jumped out of a first floor window and broke his leg. He was apprehended by the police and placed in Administration Centre no. 2 in Cracow.

19. On 23 August 2016 the court obtained an expert psychiatric opinion concerning the second applicant, which stated that his behaviour was not connected to a mental illness or any type of addiction.

20. The second applicant again ran away from the youth educational centre. Consequently, on 13 February 2017 the proceedings were stayed.

21. The principal features of the Juvenile Act of 26 October 1982 ( ustawa o postÄ™powaniu w sprawach nieletnich ) are set out in the Court ’ s judgments in the cases of Adamkiewicz v. Poland (no. 54729/00, §§ 51 ‑ 62, 2 March 2010) and Grabowski v. Poland ( no. 57722/12 , §§ 22 ‑ 27, 30 June 2015).

22. In addition to procedures applicable to juveniles who have committed criminal offences and are aged between thirteen and seventeen, the Juvenile Act also regulates correctional measures with respect to minors who have displayed anti-social behaviour not prohibited by law, referred to as “signs of moral degradation ( demoralizacja )”. Such proceedings are normally conducted by a family court. Under section 6(9), a minor who shows “signs of moral degradation ” may be placed by a family court in a youth educational centre ( m ł odzie ż owy o ś rodek wychowaczy ) .

23. Section 79(1) provides that a family court may at any time change or lift educational measures.

COMPLAINT

24. The applicants complained under Article 8 of the Convention about the decision of December 2014 to place the second applicant in a youth educational centre and the subsequent proceedings for modification of that decision. They also complained of an interference with their right to respect for their family life.

THE LAW

25. The applicants alleged that the decision to place the second applicant in a youth educational centre had constituted a breach of Article 8 of the Convention. The relevant parts of this provision provide as follows:

“1. Everyone has the right to respect for his ... 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 ... 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.”

26. The Government submitted a preliminary objection, alleging that the applicants had failed to exhaust the available domestic remedies in that they had failed to appeal against the decision of 17 December 2014.

27. They further agreed that there had been an interference with the applicants ’ family rights on account of the decision to place the second applicant in a youth educational centre. This interference had however been lawful, based on the relevant provisions of the Juvenile Act and had pursued the legitimate aims of protection of morals and prevention of crime. The measure had been justified given the second applicant ’ s behaviour – he had caused serious problems at home, had refused to attend school and had been caught in possession of a small amount of drugs. Consequently, in their view, the interference had been “necessary in a democratic society”.

28. The applicants contested those submissions. They argued that they had lodged an application for modification of the decision of 17 December 2014, which had subsequently been examined by courts at two levels of jurisdiction. Thus, in their opinion, they had exhausted the available domestic remedies.

29. In addition, they maintained that they had both suffered stress on account of the court ’ s decision to place the second applicant in a youth educational centre.

30. The Court observes at the outset that the applicants failed to appeal against the decision of 17 December 2014 within the prescribed time ‑ limit. However, in July 2015 the first applicant lodged an application for modification of that decision (see paragraph 14 above). In this connection the Court notes that, under section 79(1) of the Juvenile Act, a family court may at any time change or lift educational measures (see paragraph 23 above) . Nevertheless, in the present case the Court does not find it necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies, as the application is in any event inadmissible for the following reasons.

31. The Court observes that the parties agreed that the decision to place the second applicant in a youth educational facility had constituted an interference with the applicants ’ right to respect for family life under Article 8 of the Convention. It is also not in dispute that this interference was based on section 6(9) of the Juvenile Act (see paragraph 22 above). The Court endorses these conclusions. It is further satisfied that the authorities acted in pursuit of the legitimate aims of protecting “health or morals”, “rights and freedoms of others” and “prevention of crime”.

32. The question of whether the interference was “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measure were “relevant and sufficient”. Article 8 requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Elsholz v. Germany [GC], no. 25735/94, §§ 48, 50, ECHR 2000 ‑ VIII and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts)).

33. Turning to the circumstances of the present case, the Court notes that in March 2014 the District Court ordered the second applicant ’ s placement in an educational care facility on the grounds that he refused to attend school and was causing serious problems at home (see paragraph 5 above). During his time in that institution his conduct and school results improved. Unfortunately, this change was not long-lasting and he was subsequently found in possession of a small amount of drugs (see para graph 10 above). Following these events, the domestic courts took the view that the educational measures taken so far had not been sufficient and that it was necessary to place him in an institution with a stricter regime (see paragraph 11 above).

34. The Court observes that in their decisions the domestic courts referred to the second applicant ’ s gradual process of “moral degradation ” , his repeated running away from the educational care facilities, his parents ’ unwillingness to cooperate with the family court and their general inability to control him (see paragraphs 15 and 17 above). The Regional Court further held that the first applicant had failed to substantiate in any way the allegation that her son had suffered from a violent behaviour of other minors in the educational care facility (see paragraph 17 above). It is also to be noted that, likewise, in the proceedings before the Court the applicants ’ submissions were limited to vague and general statements about the interference with their right to respect for their family life but they did not supply any details as to the allegedly violent behaviour of other minors in the educational care facility. Taking into account the fact that the domestic authorities had the benefit of direct contact with all those concerned, the Court concludes that in the present case the national authorities provided relevant and sufficient reasons within their margin of appreciation and that the impugned measures did not therefore run contrary to the requirement that any restrictions on the right to family life must be “necessary in a democratic society”.

35. The Court further observes as regards the decision-making process (see T.P. and K.M. v. the United Kingdom, § 72, cited above) that the first applicant was assisted by a lawyer in the proceedings before the District Court and the Regional Court (see paragraphs 14 and 16 above). She was therefore involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests.

36. In conclusion, the Court finds that the family courts in the present case acted in the second applicant ’ s best interests, struck a proper balance between the competing interests, and did not overstep their margin of appreciation in ordering and implementing the necessary measures. Moreover, the decision-making process was fair and afforded due respect to the applicants ’ rights under Article 8 of the Convention. Accordingly, the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 September 2019 .

Renata Degener Pere Pastor Vilanova Deputy Registrar President