AS TO THE ADMISSIBILITY OF
Application no. 45972/99
by Andrzej SIEMIANOWSKI
The European Court of Human Rights (Third Section), sitting on 3 July 2003 as a Chamber composed of
Mr G. Ress, President,
Mr L. Caflisch,
Mr P. Kūris,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mrs H.S. Greve,
Mr L. Garlicki, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 29 March 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicant, Andrzej Siemianowski, is a Polish national, who was born in 1959 and lives in Toruń. He is represented before the Court by Mrs Ewa Strzelczyk, a lawyer practising in Toruń. The respondent Government are represented by Mr Krzysztof Drzewicki, the Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 May 1992 the applicant divorced. The court declared that both spouses should retain full and unrestricted parental rights with respect to their minor daughter M., born on 3 May 1984, but it ordered that she should live with her mother.
Since the applicant could not reach an agreement with his former wife as to the manner of executing custody, on 24 November 1992 he requested the Toruń District Court to give a decision on access arrangements. On 11 May 1993 the court established access arrangements in that it allowed the applicant to have M. visit him twice in a month for weekends, for one month during the summer holidays, and for one week during the winter holidays.
In the meantime, between June 1992 and 23 October 1993, the applicant made a number of unsuccessful attempts in order to see his child. In the course of the enforcement proceedings instituted by the applicant against his former wife, the Toruń District Court twice summoned her to give the applicant access to M. on pain of imposing a fine (on 5 April 1993 and on 18 October 1993). On 7 January 1994 the court imposed a fine for non-compliance with its orders in the amount of 100,000 (old) złotys (equivalent of 10 new PLN).
As a result of the applicant’s request, on 8 February 1994 the Toruń District Court changed the access arrangements set out in the order of 11 May 1993 in that it established days and hours on which the father was allowed to see the child. The court ruled that the applicant should be allowed to take M. from her place of residence on every first and every third Friday of a month, as from 6.30 p.m. and bring her back on Sunday before 7.30 p.m. The court further set out detailed rules as to holidays, with reference to exact dates.
Following these detailed arrangements, the applicant made further attempts to see M., but, again, to no avail. According to the applicant’s submissions, every time he was coming to take his daughter at the time stipulated in the court order, either no one was answering the bell or he was being informed that his daughter was out, busy, sleeping or not willing to come with him. The applicant complained to various authorities, including the Toruń Commission of Protection of Rights of Child and the Ombudsman, and was informed in response that only courts had the power to enforce a judicial decision in respect of access to a child.
On 29 October 1994 the applicant again requested the Toruń District Court to alter custody and access arrangement in that the child would live alternately with the parents. Simultaneously, the mother requested the court to limit the applicant’s parental rights to a minimum.
Later on, the applicant several times instituted enforcement proceedings against the mother. The Toruń District Court imposed fines on her for non-compliance with the access order - in the amount of PLN 10 on 19 January 1995 and on 16 June 1995 and in the amount of PLN 20 on 13 October 1995.
When examining the applicant’s and his former wife’s requests to alter the access arrangements, the court requested a report from an expert in psychology. The expert, having met both parents, their daughter and her school teacher, delivered an initial psychological report on 9 April 1996 and a supplementary report on 16 October 1996. The expert concluded that M. had emotional ties with both parents and that it was in her best interest to continue living with her mother and to maintain regular and undisturbed contacts with the applicant.
The expert found that M. was not afraid of her own contacts with the applicant but she was stressed by the fact that any encounter between her mother, her mother’s new partner and the applicant might give raise to a quarrel. Having regard to the applicant’s former wife’s hostility to the applicant’s contacts with M., the expert recommended that the enforcement of the access rights be supervised by a court officer.
On 20 March 1997 the Toruń District Court dismissed the motions of the applicant and of his former wife, and upheld the decision of 8 February 1994 as to the access arrangements. Moreover, the court appointed an officer to supervise the exercise of custody rights by the mother.
According to the applicant’s submissions, not contested by the Government, the court officer failed to take any steps towards facilitating contacts between the applicant and M. There is no evidence that, except for one routine conversation, the court officer made a genuine effort to make the mother comply with the order.
Also on 20 March 1997, the Toruń District Court imposed a fine in the amount of PLN 400 on the mother, following a complaint by the applicant submitted on 18 November 1995. The mother appealed against this decision and on 12 June 1997 the Toruń Regional Court allowed her appeal, finding that, in view of the fact that M. turned 13 and thus attained a certain degree of maturity, her mother was no longer a person on whom enforcing the access arrangements depended exclusively. Subsequently, the applicant made further attempts to make the mother comply with the access arrangements, but to no avail. In 1998 he again instituted enforcement proceedings and on 21 April 1998 the Toruń District Court imposed on the mother a fine in the amount of PLN 500. The mother appealed and on 28 July 1998 the Toruń Regional Court allowed her appeal, again referring to M.’s age and finding that the contacts between M. and the applicant no longer depended on the mother’s will.
Apparently, between 1998 and 2001, the applicant was also deprived of effective access to his child and made numerous unsuccessful attempts in order to make the mother comply with the court’s order.
As of May 1997 all the applicant’s requests to impose further fines on his former wife were bound to fail, either in the first instance or upon the mother’s appeal, for the same reasons - M. being over 13 years old. Nevertheless, finding it impossible to enforce his right of effective access to his child, the applicant filed a number of further motions with the court.
The applicant has actually managed to see his daughter on several occasions in 2001, either by coming to her school or when she was coming down to meet him in front of her mother’s apartment. These encounters usually lasted 20 to 30 minutes each.
On 14 May 2002 the Toruń District Court discontinued the enforcement proceedings in view of the fact that the applicant’s daughter reached majority.
B. Relevant domestic law
Article 58 § 1 of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides:
“In a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties’ minor children should be carried out (...). The court may grant custody right to one parent and limit the custody rights of the other one.”
Article 557 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides:
“The custody court can change its decision if the best interest of person whom it concerns so require. “
According to the Supreme Court’s resolution, if a parent called upon by a court decision to respect the other parents’ access rights refuses to comply therewith, that decision is liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the 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 of the Code of Civil Procedure provides:
“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, should 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 who has been 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.
The maximum fine which can be imposed in one decision is set by the Code of Civil Procedure; this figure has changed several times within the relevant period because of inflation and monetary reform. Following the amendment which entered into force on 30 April 1996, the courts are not bound by any ceiling if three previous fines have proved ineffective.
The applicant complains under Article 8 of the Convention that, despite the Toruń District Court’s order granting him access to his daughter, he does not enjoy such access and that all his efforts proved unsuccessful in the face of the mother’s persistent non-compliance with the court orders. He also complains about the length of the enforcement proceedings instituted by him in 1994 and 1995.
The applicant further complains under Article 14 of the Convention that he is discriminated against in that as a divorced father he does not have any prospects of enjoying effective access rights.
1. The applicant complains that he was deprived of an effective access to his daughter and that the enforcement proceedings were ineffective and excessively lengthy. The Court considers that these complaints fall to be examined under Articles 8 and 6 of the Convention.
Article 8 provides, in so far as relevant:
“1. Everyone has the right to respect for his private and family life ...“
Article 6 § 1 provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government submitted that the applicant had exhausted all remedies provided for by Polish law.
However, they found that, since the applicant had actually managed to see his daughter on “numerous” occasions, he was not denied access to her. In particular, the applicant had met his daughter between 23 and 25 April 1993 and between 1 November 1992 and 7 June 1993. He also saw her on several occasions in 2001. Those meetings took place either at the applicant’s daughter elementary school or in front of the block of flats where she lived.
The Government further referred to interviews of the child by experts in psychology, where M. had expressed reluctance to see the applicant. They submitted that it would have been inappropriate to use coercion each time the applicant’s daughter refused to see him.
The Government concluded that the application should be declared inadmissible as being manifestly ill-founded since the applicant was not entirely deprived of the possibility to see his daughter.
The applicant did not contest the fact that he had managed to see his daughter on several occasions. These meetings were not, however, contrary to the Governments submissions, in the execution of the court order. These were isolated incidents when the applicant succeeded to see M. at school, during breaks between classes or in front of the block of flats where she lived, when she was returning home. This was not a kind of contact to which the applicant was entitled pursuant to the court order. Seeing his daughter in a crowd of other children, clandestinely and in a rush, could not and did not really contribute to the applicant’s maintaining family ties with his daughter. As a result, emotional ties between the applicant loosened and he became in fact excluded from the process of bringing his child up.
The Court considers, in the light of the parties’ submissions, that the complaints raise 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.
2. The applicant further complains under Article 14 of the Convention that he is discriminated against in that as a divorced father he does not have any prospects of enjoying effective access rights. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court finds that this complaint is not substantiated on the facts. The complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected is accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the complaint about ineffectiveness and length of the proceedings to enforce the applicant’s right of access to his child admissible, without prejudicing the merits of the case;
Declares the remainder of the application inadmissible.
Vincent Berger Georg Ress
SIEMIANOWSKI v. POLAND DECISION
SIEMIANOWSKI v. POLAND DECISION