CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                       Application No. 25029/94                     by Marian GLOWACKI                     against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:             MM    J.-C. GEUS, President                M.A. NOWICKI                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV             Ms    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 28 December 1993 by Marian Glowacki against Poland and registered on 30 August 1994 under file No. 25029/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      18 December 1995 and the observations in reply submitted by the      applicant on 8 February 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Polish citizen born in 1954.   He is a postman residing in Kraków.        The facts of the case, as submitted by the parties, may be summarised as follows:        In March 1988 the applicant obtained an apartment from a housing cooperative in Kraków.   He was a principal tenant of the apartment and paid the rent.        On 2 January 1990 the applicant filed a divorce action with the Kraków-Krowodrza District Court (S*d Rejonowy).   He claimed that his wife be given custody of their three children and that he should be granted unlimited access rights.   On 22 February 1990 a reconciliation meeting was held before the court.        On 2 April 1990 the applicant changed his claim and claimed that his wife be deprived of parental rights.        In April 1990 the applicant's wife changed the locks to their apartment and since then she refuses to let the applicant in.        On an unspecified later date in 1990 the applicant filed an action for disavowal of paternity against his wife and the child D. born in 1990.        On 15 June 1990 the Family Diagnostics Centre, upon request of the divorce court, prepared a psychological opinion about the applicant's family.   The expert stated in the opinion that neither the applicant nor his wife were able to take good care of the children; however it was the mother who appeared to be more responsible.   Their relationship had badly deteriorated, they were openly hostile and kept fighting and occasionally they were aggressive towards each other.        On 26 June 1990 the applicant requested the Kraków District Prosecutor to institute criminal proceedings against his wife for hindering his access to the apartment.   He submitted that he had requested the local police station to assist him in regaining possession of the apartment, but no intervention had been made.        In an interim order of 18 October 1990 the Kraków-Krowodrza District Court granted the custody of the children to the applicant's wife and ordered the applicant to pay a certain sum as alimony for the children.   It dismissed the applicant's request to have an interim order regulating the use of the apartment issued.   The Court considered that there were no grounds for such order as the applicant had failed to sufficiently show that this was necessary.   The divorce proceedings were suspended until the decision on the merits in the paternity case.        On 15 February 1991 the applicant complained to the Minister of Justice about the inefficient manner in which the divorce proceedings were conducted and about the fact that the court had declined to issue an interim order concerning the use of the flat.        On 26 April 1991 the Prosecutor terminated the investigations in respect of the applicant's wife, finding that the police had twice assisted him in entering the apartment in order to take his personal belongings.   His wife had not opposed this.   It transpired from the case-file of the divorce proceedings that the applicant had not raised before the court that he was homeless.   He apparently had another apartment, inherited from his mother.   There were criminal proceedings pending against the applicant for ill-treatment of his wife, confirmed by a medical certificate.   The Prosecutor concluded that, whereas it was established that the applicant's wife hindered his use of the apartment, her actions were justifiable in the light of the applicant's reprehensible behaviour towards her.   Therefore she had no case to answer.        On 9 May 1991 the Kraków-Krowodrza District Court allowed the applicant's disavowal of paternity of D. and declared that the applicant was not the biological father of the child.        On 21 August 1991 the Kraków Regional Prosecutor dismissed the applicant's appeal against the decision of 26 April 1991, finding that the only reason for which the applicant's wife hindered his access to the apartment was her fear of the applicant.   Considering that she had legitimate reasons to fear the applicant, who was violent towards her and the children, the Prosecutor concluded that she had not committed any offence.        On 14 July 1992 the Kraków-Krowodrza District Court decided that the applicant's wife be supervised in the exercise of her parental rights during the divorce proceedings.        From 20 October 1992 until 10 November 1992 the applicant underwent psychiatric observations upon the order of the Kraków- Krowodrza District Court for the purposes of the criminal proceedings concerning ill-treatment of his wife.        On 14 June 1993 the applicant requested the court to be granted custody of the children.        On 25 June 1993 the Kraków-Krowodrza District Court decided to request the Family Diagnostics Centre to prepare a relevant expert opinion.        On 30 June 1993 the Kraków-Krowodrza District Court acquitted the applicant of ill-treatment and repeated assaults on his wife from June 1990 to July 1991.        On 6 October 1993 the applicant complained to the Kraków Regional Court (S*d Wojewódzki) about the prolongation of the divorce proceedings.        No hearings were apparently held in the divorce proceedings from 25 June 1993 until at least 27 January 1994.        The applicant failed to attend the first examination at the Family Diagnostics Centre, fixed for 14 October 1993.   The examination was carried out at the second meeting on 3 December 1993.        On 4 January 1994 the applicant challenged judge M.S. of the Kraków-Krowodrza District Court, alleging that she was biased against him.        On 2 February 1994 the Family Diagnostics Centre, upon a request of 25 June 1993, submitted a psychological opinion on the applicant's family to the Kraków-Krowodrza District Court, complementary to the opinion of 15 June 1990.        On 18 February 1994 the Kraków Krowodrza District Court dismissed the applicant's challenge of the judge as the legal requirements for her stepping down were not met, and imposed a fine on the applicant of 100,000 zlotys.   The applicant filed an appeal, submitting that the judge was biased and had been conducting the proceedings in an inefficient manner for almost five years.   He further submitted that he could not use his apartment as a result thereof until the divorce judgment would be pronounced.        On 24 February 1994 the applicant complained to the Court that the opinion of the Family Diagnostics Centre was erroneous. Subsequently the Court requested that the psychological examination of the applicant's family be done again.        On 28 February 1994 the applicant filed an appeal against the dismissal of his challenge of the judge of 18 February 1994. Subsequently the Regional Court rejected his appeal as he had failed to pay the relevant court fee.        On 14 March 1994 the applicant requested the local police station to assist him in entering his apartment.   On 18 March 1994 the police station informed him that it was the housing cooperative which was competent to do so.        On 12 April 1994 the housing cooperative informed the applicant that it was not competent to do anything in this respect.        On 18 April 1994 the applicant complained to the Minister of Justice about the inactivity of the police in assisting him.        On 17 June 1994 a hearing in the divorce proceedings was held. Apparently the court again ordered the applicant to undergo a psychiatric examination and obliged him to pay the costs thereof in advance.        On 14 July 1994 the applicant complained to the Kraków Regional Court about the length of the proceedings and in particular about the Court's decision to repeat his psychiatric examination.   He further complained about the Court's decision to reject his appeal against the dismissal of the challenge of the judge of 18 February 1994.        The applicant complained several times to the Minister of Justice about the length of the proceedings.        Upon requests of the Kraków-Krowodrza District Court, on unspecified dates four District Courts outside of Krakow heard evidence from certain witnesses for the purposes of the divorce proceedings.        On 16 March 1995 the Kraków-Krowodrza District Court rendered the judgment in the applicant's case.   The Court dissolved the applicant's marriage and granted custody of the children to the applicant's wife. On 15 February 1996 the same court rejected the applicant's appeal on formal grounds as the applicant had failed to pay the relevant court fee and to substantiate his appeal.     COMPLAINTS        The applicant complains under Article 6 of the Convention about the length of the divorce proceedings.        The applicant complains under Article 8 of the Convention that his right to respect for his home has been breached as he cannot live in his apartment and competent state authorities fail to assist him in regaining possession of it.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 28 December 1993 and registered on 30 August 1994.        On 17 May 1995 the Commission decided to communicate the applicant's complaint concerning the length of the divorce proceedings to the respondent Government.        The Government's written observations were submitted on 18 December 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 8 February 1996.        On 17 January 1997 the Commission decided to adjourn the case and to request the Government to submit further information as to the conduct of the divorce proceedings from July 1994.   The Government replied on 29 September 1997.     THE LAW   1.    The applicant complains under Article 6 (Art. 6) of the Convention about the length of the divorce proceedings, which commenced on 2 January 1990 and ended by the judgment of 16 March 1995.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1.   In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing within a      reasonable time ..."   2.    The Government submit that the application, insofar as it relates to events prior to the date of recognition of the right of individual petition by Poland, is outside the competence ratione temporis of the Commission.        The Commission recalls that Poland recognised the competence of the Commission 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". It follows that the Commission is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to this date.        The Commission further recalls that in cases where it can, by reason of its competence ratione temporis, only examine part of the proceedings, it can take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (see No. 7984/77, Dec. 11.7.79, D.R. 16, p. 92). It follows that the Commission 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.   3.    Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted.        The Government contend that the applicant cannot be regarded as having exhausted available domestic remedies with regard to the complaint about the length of the proceedings.   The Government submit that there is no single general remedy available under Polish law to complain about the length of proceedings.   However, they submit that the usual judicial remedies, i.e. appeals against procedural and substantive court decisions, could be employed in this respect.   The applicant failed to show that he had exercised any judicial remedies since 1 May 1993.   Moreover, as the applicant has not availed himself of any judicial remedies, it is not clear from which date the six months' period should be calculated.   Thus, the applicant cannot be regarded as having complied with this requirement.        The Government further submit that an administrative hierarchical complaint about the length of proceedings may be lodged with the president of the competent court, or with the president of the superior court and with the Minister of Justice.        The Government contend that it was open to the applicant to file appeals against the procedural court decisions which would, in his opinion, contribute to the delay in the proceedings.   He has not shown that he has availed himself of this possibility.   Therefore he has not exhausted relevant domestic remedies.        The applicant does not submit any relevant arguments in this respect.        The Commission recalls the Convention organs' case-law, according to which the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether the applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his complaints by providing a direct and speedy, and not merely indirect, protection of the rights guaranteed in Article 6 (Art. 6) of the Convention (Eur. Court H.R., Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 16, para. 29; No. 8890/80, Dec. 6.7.92, D.R. 29, p. 129).   The Commission further recalls that under Polish law neither appeals against substantive and procedural court decisions nor a hierarchical appeal constitute effective remedies to complain about the length of civil proceedings (No. 24559/94, Dec. 6.9.95, D.R. 82-A, p. 76).        The Commission finds that it has not been established that the applicant had any effective remedy at his disposal which would have enabled him to submit his complaints under Article 6 para. 1 (Art. 6-1) of the Conv ention to the domestic authorities and would have contributed to a reduction of the length of the proceedings.        Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.   4.    As regards the merits of the complaint, the Government contend that the case was complex both as to the facts and the law.   Thus expert opinions were necessary to establish the psychological situation of the family and the parental skills of both parents.   Very detailed findings had to be made in this respect, given the precarious situation of the family and the fact that the children required special care. The applicant and his wife filed   contradictory claims as to which of them should be granted the parental rights.        In the Government's opinion, the applicant's conduct also contributed to prolonging the proceedings.   The proceedings were suspended for a certain period in 1990 and 1991 as the applicant filed a successful action for disavowal of paternity.   The applicant changed his claim several times with regard to custody of the children, with the result that a further expert opinion had to be prepared.   He failed to attend the first examination at the Family Diagnostics Centre, fixed for 14 October 1993, which prolonged the proceedings as the next examination was fixed for 3 December 1993.   Further, the applicant questioned the soundness of the expert opinion prepared on the basis of this examination.   He challenged the judge, and after his challenge was dismissed on 18 February 1994, he further demanded restitution of the time-limit to appeal against this decision.        As regards the conduct of the authorities, the Government consider that there were no significant periods of inactivity longer than those necessary for preparing the expert opinions.   On the whole, the length of the proceedings was reasonable and the authorities acted with due dispatch.   The Government conclude that this complaint should be declared manifestly ill-founded.        The applicant submits that the court was wrong in considering that he had acted in bad faith in challenging the   judge.   The Court failed to take any measures to speed up the proceedings.   It tolerated the conduct of the applicant's wife which prolonged the proceedings. The hearings were adjourned for a year and a half as one witness consistently failed to appear.   The court likewise did not react.   The applicant submits that the summons for the examination at the Family Diagnostics Centre on 14 October 1993 was not served on him.   The applicant questioned the accuracy of the expert opinion as it contained false statements as to the children's relationship with their parents and drew wrong conclusions.        The Commission first observes that the proceedings lasted five years, two months and fourteen days, out of which one year, ten months and sixteen days falling after 30 April 1993, the date on which the Commission's competence to examine individual applications against Poland became effective.        The Commission recalls that the reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the case-law of the Convention organs and in the light of the circumstances of the case, which in this case call for an overall assessment (Eur. Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, p. 23, para. 72; Cesarini v. Italy judgment of 12 October 1992, Series A no. 245-B, p. 26, para. 17).        The Commission observes that the case was not complex as to the law.   However, detailed psychological expert opinions had to be taken in order to ensure that the interest of the children was properly safeguarded with regard to custody.        Insofar as the handling of the case by the domestic court is concerned, the Commission notes that there were no unreasonably long gaps in the proceedings.   The parties requested that witnesses be heard who lived far from the Court's location and the Court complied with their requests, by instructing four different courts to hear these witnesses, which entailed certain delays in the proceedings.        As regards the applicant's conduct, the Commission finds that he contributed to the delay in that he changed his claim with regard to paternal rights.   He further failed, for whatever reason, to attend a psychological examination on a date fixed in October 1993.   The Commission further notes that the proceedings remained pending for a certain period due to the applicant's action for disavowal of paternity, which had to be decided in a separate set of proceedings. In January 1994 the applicant challenged a judge, which further prolonged the proceedings.        In these circumstances, the Commission finds that the length of the divorce proceedings has not exceeded a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that the complaint about the length of the proceedings concerned is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    The applicant complains under Article 8 (Art. 8) of the Convention that his right to respect for his home has been breached as he cannot live in his apartment and the competent state authorities fail to assist him in regaining possession of it.        Article 8 (Art. 8) of the Convention, insofar as relevant, reads:        "1.   Everyone has the right to respect for ...his home...        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 Commission recalls that Article 8 (Art. 8) of the Convention may give rise to positive obligations inherent in an effective respect for private life or home.   In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual (see Eur. Court. H.R., Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para. 41).        The Commission observes, however, that Poland recognised the competence of the Commission 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".   In the present case, the Court dismissed in October 1990 the applicant's request to have an interim order issued in the divorce proceedings, regulating the use of the apartment until the decision on the merits.   In 1991 the Public Prosecutor terminated the criminal investigations against the applicant's wife on suspicion of her hindering the applicant's access to the apartment, finding that she had no case to answer.   These decisions were taken prior to 1 May 1993.        It follows that this part of the application is outside the competence ratione temporis of the Commission and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        As regards events after 30 April 1993, the Commission is not required to examine whether or not the facts submitted by the applicant in support of this part of the application disclose any appearance of a violation of the Convention as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter after all domestic remedies have been exhausted".   The Commission notes that it was open for the applicant to file a new request for an interim order in the divorce proceedings, regulating the use of the apartment, until the decision on the merits.   The applicant failed to show that he tried this remedy.        It follows that this part of the application must be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber