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FOURTH
SECTION
CASE OF PŁAZA v. POLAND
(Application
no. 18830/07)
JUDGMENT
STRASBOURG
25 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Płaza v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18830/07) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Mr
Kazimierz Płaza (“the applicant”), on 13 April 2007.
- The
applicant was represented by Mr A. Bodnar, a lawyer practising in
Warsaw. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- The
applicant alleged that the Polish authorities had failed to take
effective steps to enforce his right of contact with his daughter,
which had violated his rights under Article 8 of the Convention.
He also complained that the proceedings in his case had exceeded a
reasonable time within the meaning of Article 6 of the Convention.
- On
11 May 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Gozd.
- He
married E.K. in October 1989. On 9 May 1990 K., the couple's
daughter, was born. Two weeks later the couple split up.
On 2
November 1992 the Warsaw Regional Court pronounced their divorce. The
court awarded custody of the couple's child to both parents and
ordered that her place of residence should be with her mother.
- Between
1992 and 1997 several sets of proceedings were conducted concerning
the enforcement of the access arrangements provided in the divorce
judgment. Ultimately, on 22 July 1997 the parties reached an
agreement validated by the court as to the manner of implementing the
custody arrangements. The applicant was allowed to see K. once a
month on Sundays for two hours, from 3 to 5 p.m.
A. Proceedings concerning enforcement of the access rights
specified in the agreement
-
Subsequently, the Warsaw-Mokotów District Court and, upon
appeal, the Warsaw Regional Court, conducted successive sets of
enforcement proceedings in respect of the 1997 agreement. In
particular, it examined the applicant's successive applications for a
fine to be imposed on the mother and/or to have time-limits fixed
within which she should comply with the access arrangements and allow
the applicant to see K.
- On
16 October 1997 the applicant lodged an application with the Warsaw
District Court for a fine to be imposed on K.'s mother. He submitted
that she had consistently failed to comply with the conditions of the
agreement concluded in July. On 2 December 1998 the mother was
summoned by the court and ordered to allow the applicant access to
their child within fourteen days. Upon her appeal, on 23
February 1999 the Warsaw Regional Court quashed that decision on
formal grounds and remitted the case. On 21 October 1999 the
Warsaw-Mokotów District Court set a one-month time-limit
within which the mother was to comply with the conditions of the
access agreement.
- In
letters to the Warszawa Mokotów District Court of 31 March
and 26 April 1998, 19 April 1999 and 10 April 2001, E.K. requested
the court to order the applicant to attend the meetings with the
child without male friends, to dress appropriately for the occasion,
to arrive on time and not to tease the child. In a letter of 9 March
1998 she informed the court that the applicant had failed to attend
meetings planned for November, December, January and February,
without having informed her that he would not come. She further
stated that despite this the child would be ready to meet her father
under the conditions specified in the agreement. In a letter of
29 January 1999 she informed the court that out of eighteen
monthly meetings planned since the agreement had been concluded the
applicant had failed to attend nine.
- In
2000 the District Court appointed a custody officer to supervise the
execution of the access agreement. She periodically submitted reports
to the court, dated, inter alia, 15 September 2000, 6 April
and 8 May 2001, 12 September 2003, 26 April and 2 May
2004 and 25 May 2005.
- In
January 2000 the first-instance court, following the applicant's
complaint, again set a one-month time limit for the mother to
comply with the access arrangements and imposed a fine on her in the
amount of 1,000 Polish zlotys (PLN).
- On
4 June and 29 November 2000 the applicant renewed his applications.
The court dismissed them on 6 September 2001. It observed that there
were no grounds for imposing a fine, as the mother had not taken any
steps to make it impossible for the father to see the child. It was
the child herself who was hostile to her father.
The
applicant appealed, complaining that the court lacked impartiality
and that it had wrongly assessed the evidence before it. The Warsaw
Regional Court dismissed his appeal on 10 December 2001. It found
that the parties had been in a bitter conflict; that the child had a
negative attitude towards her father; that the mother had not done
anything to prevent the girl from having contact with her father;
that it was not in the child's best interest to force her to have
frequent contact with him; and that the lower court had made correct
findings of fact.
- In
May 2002 the applicant submitted a new application for a fine to be
imposed on the mother. On 1 August 2002 the court dismissed it,
essentially reiterating the reasoning adopted in its decision of 6
September 2001 and referring to similar findings of fact. It observed
that the mother and father were in a conflict so bitter that they had
become unable to see how much their conflict affected the child. They
both blamed the other party for all the problems arising in
connection with the exercise of custody and access rights, failing to
see their own shortcomings and being unable to reach any compromise.
The child had become an instrument in the fight between the parties.
The child's hostility to her father and, in particular, the fact that
the mother had not sought to influence her attitude, was alarming.
The parents had told the court that they needed therapy, but had
failed to do anything about it. The father had repeatedly asked for
the mother to be punished by a fine but he had not challenged the
assertion that it was the child herself who did not want to see him.
- The
applicant appealed, complaining that the first-instance court had
been very superficial in the examination of the evidence.
On 14
November 2002 the Warsaw Court of Appeal dismissed the applicant's
appeal against that decision. It observed that forcing the child to
see his father would not by itself restore the emotional ties between
the girl and her father, and that these ties had become seriously
weakened.
- On
4 June 2003 the applicant submitted a new application to make the
mother comply with the access arrangements. In the proceedings
instituted by this application the court ordered that another opinion
should be prepared by psychologists to assess both the feasibility of
the applicant's contact with K. and the psychological state of the
persons concerned.
In
that opinion, dated 1 October 2003, the experts stated that the child
had declared that she had agreed to talk to the experts only at her
mother's request. She had stressed that she had not changed and would
not change her attitude towards her father. She could not understand
why the applicant wanted to pursue contact, given that he had filed
an application for denial of paternity (see paragraphs 37-38 below).
She was convinced that he was motivated by his wish to annoy and
cause stress to herself and her mother. She had complained about his
visits to her school and the fact that he had told her teachers and
her friends that she was a “bad daughter”. K. had called
the applicant a “sadist”. She had objected to his
criticising her mother, to whom she was very strongly attached. K.
had strongly denied that her mother had ever forbidden her to see the
applicant.
In
their conclusion the experts reiterated the conclusion of their 2001
report and noted that the therapy, which both the parents and the
daughter had undergone separately, had not produced positive results.
- On
25 February 2004 the first-instance court again set a one-month
time-limit for the mother, on pain of a fine of PLN 1,500. The
court summarised the enforcement proceedings and the decisions given
in them. It noted that the applicant had not behaved badly towards
the child and that he had reported regularly for the meetings. His
behaviour towards the child might have been awkward but this was due
essentially to the fact that he did not actually know the girl as he
had had very little opportunity to get to know her. The court
referred to an expert opinion prepared for the purposes of the
proceedings and concerning the child's psychological situation. K.
was very hostile towards her father, despite the fact that she had
had no personal experience with him capable of justifying her
hostility. The mother had failed to take any steps to persuade the
child to have contact with her father or to alter the negative image
which the child had formed of him. The court found K.'s attitude
alarming. It further noted that had the mother been dissatisfied with
the scope or character of the applicant's access rights, it had been
open to her to challenge them in separate proceedings. The present
case was concerned only with the enforcement of the existing access
rights as defined by the 1997 agreement and it was obvious that the
mother was not complying with them.
- Both
parties appealed. In her appeal E.K. stressed that she had never
taken any steps to prevent her daughter from meeting the applicant.
It was the child who had steadfastly refused to see her father, which
left the mother helpless. In his appeal, the applicant insisted that
the mother should be obliged to pay the fine after the expiry of the
time limit, as provided for by Article 1050 of the Code of Civil
Procedure.
The
appeals were dismissed on 7 June 2004. The Warsaw Regional Court
dismissed the applicant's appeal, in which he sought that a fine be
imposed on the mother, noting that a fine could only be imposed if
she had failed to honour her obligation within the time-limit set by
the court. It further observed that it was actually the child, not
the mother, who had refused contact, while it was the mother who was
the debtor within the meaning of Article 1050 of the Code of Civil
Procedure.
It
also dismissed the mother's appeal, observing that the child had,
beyond any doubt, been drawn into the conflict between the parties.
The image she had of her father had been shaped by her mother,
particularly as the child had not had any contact with her father for
several years, despite the fact that he had always been ready to see
her and continued to come to the meetings fixed for that purpose. It
was the mother who was responsible for the child's attitude, which
was full of hatred and hostility towards her father. The court found
the mother's attitude inappropriate. It further noted that the
applicant and the mother and child had undergone therapy, but
separately. However, as the child had refused to talk about her
father, the issue of contact with him had not been addressed in her
therapy. There were no grounds for believing that contact with her
father would harm the child.
- On
16 November 2004 the Warszawa-Mokotów District Court examined
a complaint by the applicant, submitted on 15 September 2004,
that the access rights had not been properly implemented, despite the
expiry of the time-limit set for that purpose in the decision of
25 February 2004. The court noted that the time-limit for
ensuring compliance had expired and that since that date the
applicant had not seen the child as she steadfastly refused to meet
him. The court imposed a fine of PLN 1,000 on the mother. It
further set a time limit of thirty days for her to comply with
the access arrangements.
- E.K.
appealed. On 7 June 2005 the Warsaw Regional Court allowed her appeal
and remitted the case. It observed that while it was true that the
contact arrangements had not been respected, this was not because of
the mother's failure to comply with them, but because of the girl's
attitude. It further noted that she was fifteen years old and her
views and feelings had to be taken into account by the courts.
- On
7 November 2005 the Warszawa-Mokotów District Court dismissed
the applicant's application for a fine to be imposed on E. K. The
court heard K. in the absence of the parties and referred to her
statements in its decision. She stated that it was she who had not
complied with the access agreement. She told the court that the
applicant had never been around when she needed him, he had never
listened to her and had only wanted to hurt and annoy her mother. She
stated that she would not see her father.
The
court emphasised that the father had a right to contact his daughter
and the parties themselves had had regard to this right when
concluding the 1997 agreement. However, while the situation obtaining
at that time had probably offered prospects of contact, the court was
obliged to take into consideration the current situation. K. was now
fifteen years old and her opinion had to be taken into account. Lack
of regular and peaceful contact for over eight years had resulted on
her part in a lack of any emotional ties with her father. It could
not be overlooked that the applicant did not want to listen to her
views or to respect them. Even before the proceedings before the
court he was dismissive of her views and expressed the opinion that
they had been dictated by her mother.
The
court concluded that it could not be said that the mother was to
blame for making contact impossible. There were no grounds for
imposing a fine on her.
The
applicant appealed, requesting that the decision be quashed.
- On
25 April 2006 the Warsaw Regional Court dismissed his appeal, finding
that there were no grounds on which to impose a fine on the mother,
given that the child was old enough to express her own views and
feelings on the question of contact, which she obviously did not want
to maintain. The mother could not be said to bear responsibility for
the non-enforcement of the access arrangements.
- On
26 June 2006 the applicant again requested that a fine be imposed on
E.K. for failure to respect the access arrangements.
- After
that date, he had no further contact with the girl, even
sporadically.
- In
reports submitted to the court on 4 December 2007 and
13 February 2008 the custody officer summarised her
conversations with E.K. and K. She stated that K. was very mature for
her age and very articulate. She did not understand how her father
could say that he loved her and behave towards her in the way he did.
He did not take her views into account, criticised her mother and her
family, and had told many persons in K.'s environment that her mother
was incapable of taking proper care of her. During the contact
visits, he had complained about her mother. She did not want to be
exposed to this. She requested recognition and understanding of her
feelings and views. She stated that she was almost an adult and able
to make a sensible judgment for herself. The contact with her father
had been a source of stress, anxiety and shame for her.
- On
a subsequent unspecified date the Warszawa-Mokotów District
Court ordered the applicant to submit the original of the access
agreement of 1997. The applicant complied on 14 March 2008.
His
application of 26 June 2006 (see paragraph 23 above) was
dismissed by the Warsaw District Court on 9 May 2008. The court had
regard to all the material gathered in the file on the enforcement
proceedings. It took into account K.'s persistent refusal to see the
applicant and the fact that she had repeatedly said that she disliked
or even hated him. It noted that there was no evidence that E.K. had
prevented her daughter from seeing her father. It observed that the
applicant's conduct towards K. could not have contributed to building
good relations between them as he had tried on various occasions to
see her unexpectedly at school or in other places or circumstances,
which had only heightened the child's dislike and fear of him. It
also noted that K. was eighteen years old and her views had to be
taken into consideration.
- On
20 May 2008 the court discontinued the proceedings concerning the
enforcement of the 1997 agreement on the ground that K. was now
18 years old and thus the proceedings had become devoid of
purpose.
B. Proceedings concerning the scope of the custody and access
rights
- On
21 April 1999 the court extended the applicant's access rights
specified in the 1997 agreement and ordered that his meetings with K.
be supervised by child contact supervisors. This decision was later
amended by the Warsaw Regional Court on 22 February 2000. That court
held that the temporal scope of the applicant's contact visits with
K. should remain as determined in the original agreement but upheld
the proviso that they should be supervised by child contact
supervisors.
- In
2001 the applicant again requested the Warsaw District Court to
change the access arrangements specified in the 1997 agreement and to
extend his visiting rights in respect of the child. Simultaneously,
the mother requested the court to limit the applicant's access rights
to a minimum. These two applications were subsequently joined and
examined in the same set of proceedings.
- The
applicant's daughter was examined by experts in the course of these
proceedings. The objective of the expert opinion, submitted to the
Mokotów District Court, was to examine the nature of the
relationship between the applicant and his daughter and to assess the
value of contact visits for the child's development and well-being.
The
experts observed that K. had a highly negative opinion of her father.
She refused to use his surname as her own name. She was of the view
that he had failed to show a proper interest in her and that in fact
he despised her and all his actions were aimed at annoying her and
her mother. The experts concluded that because of that negative
attitude relations between the applicant and his daughter were
strained to such an extent that any meaningful contact was
impossible.
- On
23 October 2001 the court deprived the applicant of his access
rights. The judgment was amended on 28 February 2002 by the Warsaw
Regional Court and the mother's application to restrict the
applicant's access rights was dismissed.
- In
May 2002 the applicant submitted to the same court an application to
have the mother's custody rights restricted. In July 2002 E.K.
submitted an application to have the applicant divested of his
rights.
- By
a decision of 8 August 2002 the Warszawa-Mokotów District
Court dismissed the applicant's request, ordered him to undergo
therapy and imposed an identical obligation on E. K. and K. The court
observed that, as the conflict between the parties had made it
impossible for them to show a modicum of co-operation in the child's
interest, therapy offered a chance for their relationship to improve.
The court found that the conflict between the parents had caused the
child to suffer from very serious psychological disturbances.
- In
a new set of proceedings instituted by the applicant by which he
requested that E.K. be divested of her parental rights, the court
questioned experts at a hearing held on 7 January 2004.
On 18
February 2004 the Warszawa-Mokotów District Court dismissed
the request submitted by the applicant, expressing the view that the
applicant was essentially motivated by his wish to harass his former
wife.
- On
30 March 2006 E.K. requested the Warszawa-Mokotów District
Court to divest the applicant of his parental rights. The applicant
lodged an identical application with the same court. The cases were
subsequently joined at a hearing held on 17 July 2006. A hearing
scheduled for 16 October 2006 was adjourned as a refusal to
allow the request to disqualify the judge, submitted by the mother,
issued on 4 September 2006, had not become final. Subsequent hearings
scheduled for 25 January and 5 March 2007 were adjourned as the
parties failed to attend them. On 23 May 2007 a witness failed
to comply with the summons and the hearing was adjourned. The next
hearing was scheduled for 12 September 2007. On 4 June 2007
the applicant submitted a motion for a lay judge to be disqualified.
On 12 September 2007 the court decided that the mother and child
should be examined by the experts. The mother and K. were accordingly
summoned to report to the Family Diagnostics Centre on 1 April 2008
but failed to comply with the summonses on that date. The court
scheduled the hearing for 27 May 2008. The interview in the Centre
was rescheduled for 11 June 2008.
- On
27 May 2008 the court discontinued the proceedings as K. had
turned eighteen on 9 May 2008.
C. Proceedings concerning the paternity challenge
- In
2001 the applicant requested the Piaseczno District Prosecutor to
bring, on his behalf, proceedings for denial of his paternity in
respect of K. The child's mother was heard by the prosecutor on
17 October 2001. She gave her consent to DNA tests being carried
out. The prosecutor informed the applicant thereof and stated that he
would bring proceedings before the court only if the results of the
tests showed that the applicant was not the father. By a letter of 2
November 2001 the applicant refused to undergo a DNA test and
requested the prosecutor to lodge the case with the court. He
submitted that the court should order the mother and child to undergo
a test.
- The
prosecuting authorities brought no proceedings, finding, in the light
of the parties' submissions, that there were no justified grounds on
which to challenge the applicant's paternity.
D. Proceedings concerning the applicant's complaint about the
breach of his right to have his case heard within a reasonable time
- On an unspecified date in 2006 the applicant
filed a complaint under Law of 17 June 2004 on
complaints about a breach of the right to a trial within a reasonable
time (Ustawa o skardze na naruszenie prawa strony do rozpoznania
sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki
– “the 2004 Act”) about a breach of his right to
have his case heard within a reasonable time in the enforcement
proceedings instituted by his application of 4 June 2003 and
terminated by the decision of 25 April 2006 (see paragraphs 16
and 22 above).
- On
21 September 2006 the Warsaw Regional Court dismissed his complaint.
It observed that the applicant complained essentially about the
second-instance court's quashing, on substantive law grounds, the
decisions given by the first-instance court, which, in his view, had
unduly prolonged the proceedings. The court noted that the length
complaint could not go to the merits of the decisions and that there
had been no periods of inactivity in the proceedings. Having examined
the conduct of the District Court since the entry into force of the
2004 Act on 17 September 2004, the Regional Court found that the
proceedings had been conducted with due diligence and within a
reasonable time.
- On
6 June 2008 the Warsaw Regional Court discontinued the proceedings
instituted by the applicant's complaint about the unreasonable length
of the proceedings, summarised in paragraphs 35 and 36 above. The
court found that, given that the impugned proceedings had been
discontinued on 27 May 2008, a ruling on their length had become
redundant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and judicial practice concerning the
enforcement of a parent's visiting rights are set out in the Court's
judgment in the case of Zawadka v. Poland, no. 48542/99,
§ 48, 23 June 2005.
- In
particular, according to the Supreme Court's resolution, if a parent
who has been obliged by a court decision to respect the other
parent's access rights refuses to comply therewith, access decisions
are liable to enforcement proceedings. The provisions of the Code of
Civil Procedure on enforcement of non pecuniary obligations are
applicable to enforcement of court decisions on parental rights or
access rights (resolution of the Supreme Court of 30 January
1976, III CZP 94/75, OSNCP 1976 7-8).
Article 1050
“1. If the debtor is obliged to take measures
which cannot be taken by any other person, the court in whose
district the enforcement proceedings were instituted, on a motion of
a creditor and after hearing the parties, shall fix the time-limit
within which the debtor shall comply with his obligation, on pain of
fine (...).
2. If the debtor fails to comply with this obligation,
further time-limits may be fixed and further fines may be imposed by
a court.”
If
the court obliges a parent exercising custody rights to ensure access
to a child to the other parent, Article 1050 of the Code of Civil
Procedure is applicable to the enforcement of this obligation.
- Article
12 of the UN Convention on the Rights of the Child provides
that the States Parties shall ensure to the child who is capable of
forming his or her own views the right to express those views freely
in all matters affecting the child, the views of the child being
given due weight in accordance with the age and maturity of the
child.
45. The relevant domestic law
and practice concerning remedies for the excessive length of judicial
proceedings, in particular the provisions of the 2004 Act as
applicable at the material time, are set out in the Court's decisions
in cases of Charzyński v. Poland
no. 15212/03 (dec.), §§ 12 23, ECHR
2005-V and Ratajczyk v. Poland no. 11215/02
(dec.), ECHR 2005-VIII and its judgment in the case of Krasuski
v. Poland, no. 61444/00, §§ 34-46,
ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the proceedings summarised above at
paragraphs 26-27 and 35-36 had lasted too long. He referred to
Article 6 § 1 of the Convention, which in so far as
relevant reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government abstained from submitting their comments on this part of
the application.
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the conduct of the applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court observes that the impugned sets of proceedings lasted,
respectively, one year and ten months before two judicial instances
and two years and two months, also before two judicial instances.
- Having
regard to the criteria referred to above and to the circumstances at
issue, the Court is of the view that the length of the proceedings
concerned did not exceed what could be considered reasonable, due
regard being had to the fact that parent-child proceedings require to
be handled expeditiously.
- It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the Polish authorities had failed to take
effective steps to enforce his right of contact with his daughter. He
alleged a violation 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.”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies which were available to him under domestic law. He
had not had recourse to a civil action against the State Treasury for
the protection of his personal rights under Articles 23 and 24 of the
Polish Civil Code. They further argued that in such proceedings the
applicant could also, relying on Article 448 of that Code, have
sought compensation for the failure of the courts to protect his
parental rights.
- The
applicant submitted that between December 1999 and September 2006 he
had lodged at least six applications with a view to having his
visiting rights, established in the 1997 agreement, enforced. He had
chosen measures which had been both available and relevant in order
to vindicate his visiting rights; in particular, Article 1050 of the
Code of Civil Procedure had addressed his situation directly. A civil
action for compensation against the State Treasury was not, in the
circumstances of the case, an adequate legal remedy. It could only
have resulted, and only had the applicant been successful, in his
being granted compensation. It could not have had any impact on the
effective exercise of his parental rights.
- The
Court notes that under Article 35 normal recourse should be had
by an applicant to remedies that are available and sufficient to
afford redress in respect of the breaches alleged. The existence of
such remedies must be sufficiently certain not only in theory but
also in practice, failing which they will lack the requisite
accessibility and effectiveness (see, among other authorities,
Belinger v. Slovenia (dec.), no. 42320/98, 2 October
2001). It is incumbent on the Government pleading non-exhaustion to
demonstrate to the Court that the remedy was an effective one
available in theory and in practice at the relevant time, that is to
say, that it was accessible, was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (see, among other authorities, Gaspari
v. Slovenia, no. 21055/03,
§ 42, 21 July 2009).
- In
this connection, the Court notes that the Government failed to adduce
any case-law of the domestic courts to show that a civil action for
the protection of personal rights brought against the State Treasury
or an action for compensation for non-pecuniary damage under Article
448 of the Civil Code could be successfully invoked in cases where an
alleged breach of personal rights consisted in the State's failure to
ensure effective enforcement of contact or visiting rights specified
in judicial decisions or in agreements concluded before the courts.
On the other hand, the Court notes that the applicant had recourse to
the proceedings provided for by Article 1050 of the Code of Civil
Procedure, which, under the case law of the Polish Supreme
Court, were applicable to situations where enforcement issues arose
in the context of the exercise of parental rights and visiting
rights.
The
Government's objection must therefore be rejected.
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that since the applicant had actually managed to
see his daughter on numerous occasions before 26 June 2006, he had
not been denied access to her. Until at least 2000 K.,
normally under the supervision of her grandmother, had usually waited
for the applicant outside the block of flats where her grandmother
lived, at the time set in the agreement. At the beginning the
meetings had lasted approximately twenty to twenty-five minutes
instead of the two hours specified in the access agreement, as the
applicant would leave early. E. K. had never forbidden K. to see the
applicant. She had made reasonable efforts to maintain contact with
him and to ensure that the meetings were held as planned. She had
also informed the applicant that despite his repeated absences she
would respect the agreement.
- The
Government further submitted that after 2001 the contact visits had
become extremely rare because of K.'s refusal to see the applicant.
The applicant had tried to see his daughter “by surprise”,
at various unexpected and inappropriate places and times. He
had given her teachers details about his conflict with K.'s mother
and told them about his efforts to deprive her of her custody rights.
This had been very unpleasant and stressful for
the child.
- The
Government emphasised that the contact visits between the father and
the daughter had been difficult from the very beginning of the period
under examination. Early on, the applicant had come to see his
daughter accompanied by two witnesses, usually men who were strangers
to K. The child was afraid of them and each visit had caused her a
lot of stress. K.'s mother had on several occasions informed the
applicant how stressful these visits were for their daughter and
requested him to respect the times and conduct during the visits
specified in the agreement, but to no avail. She had also drawn the
courts' attention to the applicant's conduct and repeatedly expressed
the view that he had been sabotaging his relationship with K.
intentionally, in order to build a case against the mother for not
complying with the visiting arrangements.
- The
Government further referred to the applicant's application for denial
of his paternity in respect of K. This was, in their view, an
additional factor contributing to the further deterioration of
relations between the applicant and his daughter. Such an action was
also obviously incompatible with the paternal love which the
applicant claimed to feel for the child. It had
also contributed to the fact that K. had started to dislike her
father.
- The
Government averred that the applicant, for his part, had refused to
respect his daughter's wishes and feelings. The alleged violation of
his right to respect for his family life should not be seen in
isolation from K.'s right to respect for her private life. The right
to maintain personal relations and direct contact with both parents
on a regular basis was, first and foremost, the right of a child and
not of the parents. The parents' right of access to their children
was protected under the Convention, but should not be given priority
over the child's best interests. It was because of the applicant's
behaviour, which had been such a traumatic experience for K.,
especially at the early stage of her childhood, that the child
preferred not to see her father.
- The
Government submitted that the State had done everything it could to
maintain the relationship by, inter
alia, regulating the visiting
arrangements, obliging all the persons concerned to undergo family
therapy, ordering expert opinions to establish the psychological
state of the parties; by giving decisions ordering the mother to
comply with the access agreement and to influence K. to change her
attitude towards her father, as well as decisions limiting or
depriving the applicant of his access rights in order for him to
evaluate and change his behavior. Despite these efforts, the parents
had failed to put their hostility aside for the sake of their child.
The applicant's attitude, which had focused on blaming the mother for
K.'s negative feelings towards him and demanding that the mother be
punished, was especially open to criticism. He had never paid proper
attention to his daughter's needs and feelings. A balance needed to
be struck between the interests of all members of the family, and
when those interests were at variance, the interest of the child
should prevail. In the case at hand, it was in the best interest of
K. to be separated from the applicant.
- The
Government referred to Article 12 of the UN Convention on the Rights
of the Child (see paragraph 44 above) and stated that the State was
obliged to ensure to the child capable of forming
his or her own views the right to express those views freely in all
matters affecting it and to give them due weight consistent with the
age and maturity of the child. In the present case, K. had been
examined by psychologists and heard by the courts that dealt with
access cases. Her views had been given due consideration, in
particular in that the experts had found that she was very mature for
her age as well as articulate and able to express her views and
feelings in a clear manner.
- The
Government concluded that the Polish authorities had not failed to
discharge their positive obligation to secure to the applicant the
effective exercise of his right to respect for his family life.
- The
applicant submitted that the 1997 agreement between the applicant and
his ex-wife had never been executed properly. The fact that the
meetings with his daughter had not taken place as specified by that
agreement had been described regularly by the child contact
supervisor in her official notes attached to the file of the access
case. The applicant's difficulties in having his rights respected had
not met with any reaction on the part of the custody court. This had
caused an irreversible disruption of the parental bond.
- The
applicant further averred that the Government's argument that he was
a bad father did not find support in the relevant judicial decisions.
The court had never restricted the scope of his parental rights on
account of his bad conduct. The Government's submissions had been
based on statements by the child's mother which lacked objectivity.
In any event, it was not the role of the Government to sit in
judgment on the emotional state, personal characteristics or
character traits of the applicant. The daughter's opinion about her
father had been caused by the authorities' failure to enforce the
agreement on contact with the applicant. Lack of such contact over a
long period of time and the influence of the child's mother had led
to the severance of the bond between the applicant and his child.
This situation had persisted until the daughter came of age and the
proceedings to enforce the access agreement had become devoid of
purpose. Ultimately, the applicant had lost a very important part of
his family life – a relationship with his daughter.
- The
applicant argued that he had submitted the application for the denial
of paternity following certain statements made by his daughter during
an interview with the child contact supervisor. These statements
amounted to a justified reason for instituting proceedings for denial
of paternity in order to check their truthfulness. The fact that this
application had ultimately been dismissed after the mother had been
heard by the prosecutor only once demonstrated that the daughter's
submissions were false. In the applicant's view, it showed that the
mother could have a negative influence on the child's opinion about
her father and that the daughter's judgment was unreliable.
- In
so far as the Government relied on the daughter's repeated refusals
to see her father, the applicant submitted that this argument failed
to take into consideration the obligation of the authorities to
execute judicial decisions and judgments. It amounted to an obvious
denial of the rule of law, which was a fundamental principle of
a democratic society, which was inherent in all provisions of the
Convention (see Zvolský and
Zvolská v. the Czech Republic,
no. 46129/99, § 65) and entailed a duty on the part of
the State to comply with judicial orders or decisions (Antonetto
v. Italy, no. 15918/89,
§ 35, and Amat-G Ltd and Mebaghishvili
v. Georgia, no. 2507/03, §
61).
2. The Court's assessment
(a) Relevant principles
- The
relationship between the applicant and his daughter amounted to
“family life” within the meaning of Article 8 § 1
of the Convention. This has not been disputed.
-
The Court reiterates that the essential object of Article 8 is to
protect the individual against arbitrary interference by public
authorities. There may however be positive obligations inherent in an
effective “respect” for family life. These obligations
may involve the adoption of measures designed to secure respect for
family life even in the sphere of relations between individuals,
including both the provision of a regulatory framework of
adjudicatory and enforcement machinery protecting individuals' rights
and the implementation, where appropriate, of specific steps (see,
amongst other authorities, X and Y v. the Netherlands,
26 March 1985, § 23, Series A no. 91, and Zawadka
v. Poland, no. 48542/99, § 53, 23 June 2005). In both the
negative and positive contexts, regard must be had to the fair
balance which has to be struck between the competing interests of the
individual and the community, including other concerned third
parties, and the State's margin of appreciation (see, amongst other
authorities, Keegan v. Ireland, 26 May 1994, § 49,
Series A no. 290; Siemianowski v. Poland,
no. 45972/99, § 97, 6 September 2005). The Court
has already repeatedly held that in matters relating to their custody
the interests of children are of paramount importance. The child's
best interests must be the primary consideration (see, to that
effect, Gnahoré v. France, no. 40031/98,
§ 59, ECHR 2000-IX) and may, depending on their nature
and seriousness, override those of the parents (see Sahin
v. Germany [GC], no. 30943/96, § 66,
ECHR 2003-VIII). In particular, a parent cannot be entitled
under Article 8 of the Convention to have such measures taken as
would harm the child's health and development (Scozzari and Giunta
v. Italy [GC], nos. 39221/98 and 41963/98, § 169,
ECHR 2000-VIII, P., C. and S. v. the United Kingdom,
no. 56547/00, § 117, ECHR 2002-VI). The Court
appreciates that in respect of very young children it is essentially
for the courts to make an objective assessment, in the light of all
the evidence available to them, whether the contact with the parent
should be encouraged and maintained or not. However, as children
mature and become, with the passage of time, able to formulate their
own opinion on their contact with the parents, the courts should give
due weight also to their views and feelings as well as to their right
to respect for their private life.
- Where
the measures in issue concern disputes between parents over their
children, however, the Court's role is not to substitute itself for
the competent domestic authorities in regulating contact questions,
but rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of
appreciation. In so doing, it must determine whether the reasons
purporting to justify any measures taken with regard to an
applicant's enjoyment of his right to respect for family life are
relevant and sufficient (see, amongst other authorities, Olsson
v. Sweden, 24 March 1988, § 68, Series A
no. 130; Wojciech Nowak v. Poland, no. 11118/06,
§ 45, 8 June 2010).
- The
Court's case-law has consistently held that Article 8 includes the
right for a parent to have measures taken with a view to his or her
being reunited with the child, and an obligation on the national
authorities to take such measures. This applies not only to cases
dealing with the compulsory taking of children into public care and
the implementation of care measures (see, inter alia, Olsson
v. Sweden (no. 2), 27 November 1992, § 90,
Series A no. 250), but also to cases where contact and residence
disputes concerning children arise between parents and/or other
members of the children's family (e.g. Hokkanen v. Finland,
23 September 1994, § 55, Series A no. 299).
- The
obligation of the national authorities to take measures to facilitate
contact by a non-custodial parent with children after divorce is not,
however, absolute (see, mutatis mutandis, Hokkanen,
cited above, § 58). The key consideration is whether those
authorities have taken all necessary steps to facilitate contact as
can reasonably be demanded in the special circumstances of each case
(mutatis mutandis, Hokkanen, cited above, § 58).
Other important factors to be taken into account in proceedings
concerning children are that time takes on a particular significance
as there is always a danger that any procedural delay will result in
the de facto determination of the issue before the court (see
H. v. the United Kingdom, 8 July 1987, §§ 89-90,
Series A no. 120), and that the decision making procedure
should provide the requisite protection of parental interests
(W. v. the United Kingdom, 8 July 1987,
§§ 62-64, Series A no. 121).
(b) Application of the principles to the facts of the
case
- In
the light of the above principles, what is decisive in this case is
whether the Polish authorities took all the necessary steps to
facilitate the enforcement of the contact arrangements as specified
in the agreement which the applicant had concluded with his
daughter's mother in 1997. According to that agreement, the applicant
was first authorised to see K. once a month on a Sunday. The
domestic authorities had an obligation to ensure enforcement of the
contact arrangements, since it was they who exercised public
authority and had the means at their disposal to overcome obstacles
to execution.
-
The Court first observes that the remit of the present case is
limited to the examination of facts relating to the alleged failure
of the State to ensure effective enforcement of the 1997 access
agreement. In this respect the Court notes that the applicant and his
wife split up very shortly after the child was born (see paragraph 6
above). The custody and access rights were determined in the divorce
judgment given two years later. Subsequently, several sets of
proceedings were held in connection with the applicant's access
rights as certain difficulties had arisen in their execution (see
paragraph 7 above). Ultimately, the 1997 agreement between the
parties was concluded in the context of these proceedings. Hence, in
the absence of cohabitation, the relationship between the applicant
and K. did not have an opportunity to develop in a way usual for
children of divorced parents, who have normally lived with the
non-custodial parent and developed emotional ties with him or her.
This, in the Court's opinion, must be taken into consideration in the
examination of the case, in particular as to the scope of the State's
positive obligations.
-
Early on, the applicant had contact visits with his daughter which
were conducted in the manner specified in the 1997 agreement. It has
not been shown or argued that the mother denied him access to K. The
applicant had contact with K. until 2001. It was only afterwards that
problems arose in that K. did not wish to see him. The applicant
would then come to her school or to other places where he could see
her, mostly against the child's wishes.
- In
this connection, the Court observes that in 1997 and 1998 the
applicant repeatedly failed to report for the meetings with the
daughter. It further observes that he attended some of them
accompanied by his friends. K. was afraid of them and this might have
contributed to the deterioration of the relationship. The child's
mother repeatedly informed the court of these shortcomings in the
applicant's conduct (see paragraph 10 above).
- The
Court further observes that the bitter conflict between the applicant
and the child's mother, which, as the courts repeatedly observed,
deepened over the years, made it particularly difficult for the
domestic authorities to act in order to enforce the applicant's
visiting rights. The difficulties in arranging and maintaining
regular contact were in large measure due to the animosity between
the applicant and his former wife, and subsequently to the child's
own attitude.
-
In this context, the Court notes that in 2000 the court, having
regard to the difficulties which had arisen in connection with the
access arrangements, appointed a court officer to supervise the
contact visits. She repeatedly talked with the parties and tried to
encourage them to be more co-operative. From 2000 on she also tried
to convince K. to meet her father, but to no avail. The child contact
supervisor submitted numerous periodic reports to the court to keep
it informed about the developments between the parties (see paragraph
11 above).
- The
Court further observes that the courts were well aware of the
conflict between the parties and that in 2002, they obliged the
parties to the proceedings to undergo therapy in order to facilitate
their contact and ease tensions between them.
-
It is further noted that the courts repeatedly appointed experts with
a view to establishing what was in the best interest of the child
under the circumstances.
- Moreover,
the applicant's enforcement requests eventually led to the court
orders given in the enforcement proceedings on 21 October 1999,
January 2000 and 24 February 2004 with a view to enforcing the
existing contact arrangements. In addition, the courts imposed a fine
on the mother for failure to comply with them (see paragraphs 17 18
above).
- The
Court emphasises that the domestic courts never found that the mother
had been at fault in connection with the difficulties in ensuring
compliance with the terms of the 1997 access agreement. It was never
established that she had taken any steps to thwart the execution of
that agreement by, for instance, forbidding the applicant from having
contact with the child, or by preventing the child from seeing him.
Indeed, in its decision of 10 December 2001 the Warsaw
Regional Court observed that the mother had not done anything to
prevent the child from having contact with her father (see
paragraph 13 above). In its decision of 7 November 2005 the
Warsaw-Mokotów District Court stated that the mother was not
to be blamed for making contact impossible (see paragraph 21
above). In its decision of 9 May 2008 the same court found that
there was nothing to indicate that the mother had prevented the child
from seeing her father (see paragraph 26 above).
- Lastly,
in the assessment of the case the Court cannot overlook the fact that
in 2001 the applicant requested the prosecuting authorities to bring,
on his behalf, proceedings for denial of his paternity in respect of
K. It notes that during her first and only conversation with the
prosecutor in connection with that request, the child's mother agreed
to having DNA tests carried out for the purpose of assessing whether
it was advisable to bring the relevant proceedings before the
competent court. In reply, the applicant refused to undergo the test
himself and insisted that the prosecutor should institute judicial
proceedings against the mother and child for denial of his paternity.
In the Court's view, if the applicant had any reasonable grounds on
which to harbour doubts as to his paternity, his refusal cannot but
be considered irrational. The mother's readiness to have the
paternity test carried out supports this view. Moreover, the
applicant must have been aware that such an application would not be
beneficial for his relationship with his daughter and would put his
relationship with his former wife, which was already strained, under
additional stress.
- The
Court observes that as time went by, K. matured and was able to take
her own decisions in respect of her contact with her father. The
Court notes that the domestic authorities were also aware that the
applicant's contact with her had become dependent not only on the
attitude of the child's mother, but also on the girl's own wishes. It
was the child's own approach to contact which was, at least from
2001, decisive in the failure of the contact arrangements. Already in
2001 the experts noted that K. was suffering fear and stress as a
result of forced contact meetings with her father (see paragraph 13
above). In 2003 the experts informed the court that the child
expressed hostility towards him and did not want to see him (see
paragraph 16 above). The same conclusion was reached in the
subsequent proceedings, held in 2004 and concerning the applicant's
request to impose a fine on the mother (see paragraph 17 above). In
its decision of 16 November 2004 the Warszawa Mokotów
District Court noted that the girl had consistently refused to see
her father (see paragraph 19 above). From June 2006, when K. was
sixteen years old, the applicant had no further contact with her as
she repeatedly refused to see him.
The
Court is of the view that the approach of the domestic courts, which
considered that it was of the greatest relevance to the custody and
access issues to establish the psychological situation of the child
and take her wishes into consideration (see paragraphs 20, 21, 22 and
20 above), cannot be open to criticism. It concludes that in an
emotionally fraught situation characterised by the conflict between
her parents the courts struck a fair balance between the child's best
interests and preferences and her father's rights.
The
Court reiterates that it cannot substitute itself for the domestic
authorities in the exercise of their responsibilities as regards
parental authority. Its function, rather, is to review under the
Convention the decisions taken by those authorities in the exercise
of their margin of appreciation (see Kaleta v. Poland,
no. 11375/02, § 58, 16 December 2008). In the
instant case, it cannot find that that margin was exceeded.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been no violation of Article 8 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible as regards
the applicant's complaint under Article 8 of the Convention, and the
remainder of the application inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the separate opinion of Judge de Gaetano is
annexed to this judgment.
N.B.
F.A.
CONCURRING OPINION OF JUDGE DE GAETANO
The
facts of this case are rather confusing, no doubt due to the constant
pitched battles fought in the Polish courts between the applicant and
his former wife, to the detriment of the minor involved.
Nevertheless, it is quite clear that from 1997 onwards the Polish
courts did all that was reasonably possible to ensure effective
enforcement of the 1997 access agreement, and that it was basically
because of the disaffection that the child herself showed towards her
father that problems arose.
As is
correctly stated in § 76, the applicant does not appear to
be complaining about the period prior to the 1997 access agreement,
but only about the period subsequent to it. Nevertheless that period
– the first seven years of the child's life – was
critical for the development of the necessary filial ties between the
applicant and his daughter. There surely must be something wrong with
a system which takes, or allows the parties to take, almost five
years – from 2 November 1992 to 22 July 1997 – to
determine definitely access arrangements with regards to a child. Had
the applicant also complained specifically about the period
1992-1997, I am sure that the outcome of this case would have been
different.
