ZAWADKA proti Polsku

THIRD SECTION

FINAL 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 6 November 2003 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 lodged on 17 December 1998,

Having regard to the partial decision of 7 November 2002,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Henryk Zawadka, is a Polish national who was born in 1960 and lives in Celestynów, Poland. The respondent Government were represented by Mr K. Drzewicki, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, 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, 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 that O would be able 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 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 of 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 taken P away 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 taken 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 that 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 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.

On 27 September 2001 the Regional Court dismissed the applicant’s appeal against the decision of the District Court.

The proceedings are stayed.

COMPLAINTS

The applicant complained under Article 8 of the Convention that he had not been able to have his access rights enforced. He further complained about an alleged breach of his and his son’s right to respect for private and family life.

THE LAW

A. Exhaustion of domestic remedies

The Government submitted that the applicant had not exhausted all available remedies, because he had failed to lodge a cassation appeal against the judgment given by the Białystok Regional Court on 19 June 1998. They gave an example of a similar case where such an appeal was examined by the Supreme Court (A.B. v. Poland (dec.), no. 33878/96, 13 March 2003).

The applicant considered that a cassation appeal was an extraordinary remedy and he could not be required to have lodged it in order to comply with Article 35 § 1 of the Convention. He further pointed out that the Regional Court had refused his request for the appointment of a legal-aid lawyer to file that appeal for him, despite his difficult financial situation.

The Court notes that the Government supplied convincing information about the existence of a remedy in respect of the complaint concerning the alleged breach of the applicant’s right to respect for family life. It is satisfied that that remedy was effective and accessible (cf. Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‑V and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).

The applicant’s contention that there is no obligation to lodge a cassation appeal in order to comply with the requirements of Article 35 § 1 of the Convention has not been substantiated and is inconsistent with the Court’s case-law (see, among other authorities, Hutten-Czapska v. Poland (dec.), no. 35014/97, 16 November 2000 and Wróblewski v. Poland (dec.), no. 76299/01, 17 June 2003). Further, the applicant has not provided any information or documents in support of his statement that he was unable to cover the costs of the cassation appeal he wished to have filed on his behalf.

In view of that, the Court finds that the part of the application relating to an alleged interference with the applicant’s family life must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Merits

The Court observes that the Government’s objection relates exclusively to the proceedings concerning parental responsibility. It notes that the application contained also allegations of the State authorities’ failure to fulfil their positive obligations under Article 8. Given the lack of objections to the compliance of this complaint with the requirement of the exhaustion of domestic remedies, the Court will carry on the examination of the admissibility criteria on the assumption that the applicant exhausted all available remedies in this connection.

The applicant complained about difficulties in having contact orders enforced, in breach of Article 8 of the Convention, which provides:

“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 Government were of the view that their positive obligations could not extend to an obligation to ensure the applicant the exclusive custody of his son or unlimited access to him. They noted that between May 1997 and August 1998 the applicant made it impossible for O to see her son. The Government submitted that in their decisions the domestic authorities had been guided in the first place by the interest of the child.

The applicant submitted that the domestic courts had summoned him to provide them the whereabouts of the child’s mother, but he had not been able to obtain that information. The courts refused his requests for assistance in this regard. The applicant recalled that on 22 August 1996 O took away his son from their place of residence and deprived him of contact with the son. He emphasised that, according to the psychologists, there existed strong emotional bonds between him and his son.

The applicant quoted Article 100 of the Family Code, which stipulated that the family court should provide assistance to parents in exercising their parental rights. He pointed out that he had no contact with his son and did not even know where he was. The applicant mentioned the District Court’s decision of 4 April 1997 in which the court considered that the settlement between him and O was impossible to enforce.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning[Note1] the State’s positive obligations under Article 8 of the Convention;

Declares the remainder of the application inadmissible.

Mark Villiger Georg Ress
Deputy Registrar President

[Note1] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.