AS TO THE ADMISSIBILITY OF
Application no. 8215/02
The European Court of Human Rights (Fourth Section), sitting on 14 March 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 8 February 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr D., is a Polish national who was born in 1964 and lives in Łódź, Poland. He is represented before the Court by Mr A. Kowalski, a lawyer practising in Tomaszów Mazowiecki.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The X
In 1997 the applicant and his wife Mrs E.D. adopted a baby-girl X.
Subsequently, the applicant and his wife ceased to live together. The applicant moved to a different flat, whereas X continued to live with E.D.
On 9 February 1998 the applicant filed with the Skierniewice District Court (Sąd Rejonowy) an application to grant him visiting rights in respect of X.
On 11 February 1998 the Skierniewice District Court transferred the application to the Tomaszów Mazowiecki District Court.
2. The granting of visiting rights
On 27 May 1998 the Tomaszów Mazowiecki District Court allowed the applicant’s application and authorised him to visit X twice a week. The visits were to take place in a flat occupied by E.D., situated in town K.
On 19 October 1998 the Piotrków Trybunalski Regional Court (Sąd Wojewódzki) changed the decision of 27 May 1998 in that one of the days fixed for visits was changed from Saturday to Friday and the applicant was allowed to visit X without the presence of third persons.
3. The applications for enforcement 1999 - 2000
On 24 June 1999 the applicant asked the Tomaszów Mazowiecki District Court to fine E.D. for obstructing two meetings with his daughter. The applicant submitted that in April 1999 E.D. and X had moved to E.D.’s mother’s home who lived in R. The offensive behaviour of the applicant’s mother-in-law during his visits in R and the hostile attitude of E.D. had prompted the applicant to request them on 18 June 1999 to arrange further meetings with X in a venue designated by the court in the decisions of 27 May and 19 October 1998, i.e. in a flat in town K.
On 15 July 1999 the Tomaszów Mazowiecki District Court discontinued the proceedings concerning the applicant’s request of 24 June 1999, as the applicant had confirmed to the court that he had concluded a friendly settlement with his wife.
On 27 September 1999 the applicant again asked the Tomaszów Mazowiecki District Court to fine E.D. for obstructing his meetings with X. On 21 October, 5 and 23 November and 9 December 1999 hearings took place before the Tomaszów Mazowiecki District Court.
On 19 June 2000 the Tomaszów Mazowiecki District Court dismissed the applicant’s application of 27 September 1999.
On 14 July 2000 the applicant filed for divorce.
In July 2000 X underwent surgery.
On 15 September 2000 the applicant again requested the Tomaszów Mazowiecki District Court to fine E.D. since on the same day she had failed to bring X to the meeting with the applicant in town K, the venue of the meetings designated by the District Court.
On 20 November 2000 E.D. was fined by the Tomaszów Mazowiecki District Court PLN 100 for the obstruction of the applicant’s meetings with X.
On 2 February 2001 the Piotrków Trybunalski Regional Court dismissed an appeal against the decision of 20 November 2000 lodged by E.D.
4. The applications for enforcement 2001
On 14 February 2001 the applicant lodged another request to fine his wife for obstructing meetings with his daughter,
On 20 June 2001 E.D. was fined by the Tomaszów Mazowiecki District Court PLN 150. The court established that some of the meetings did not take place, in particular, no meetings had taken place since 1 June 2001.
On 17 July 2001 the applicant was ordered to pay PLN 300 monthly by way of child support benefit.
On 23 July 2001 the applicant appealed against the decision of 20 June 2001. In particular, he asked that the fine be increased to PLN 1,000.
On 29 August 2001 the Piotrków Trybunalski Regional Court allowed the appeal filed by the applicant and increased to PLN 510 the fine imposed on E.D. on 20 June 2001 by the Tomaszów Mazowiecki District Court.
Subsequently, the applicant requested the conversion of the unpaid fine into a prison sentence, but it appears that the court dismissed the request as E.D. had paid the fine.
On 10 September 2001 the applicant lodged another request to fine E.D. as she had failed to bring X to the flat in town K.
On 7 and 28 November 2001 the court held hearings. Subsequently, the applicant requested the court to fine E.D. for her absence from those hearings. On 18 December 2001 hearings was held at which E.D. appointed a new representative.
On 11 January 2002 the Ombudsman wrote a letter to the applicant replying to his complaints about the course of the enforcement proceedings. The Ombudsman informed the applicant, inter alia, that if the well-being of the child was endangered by actions of the mother, a court could limit or deprive her of the parental responsibility for the child. It was open to the applicant to institute such proceedings or to request a change to the access order, so that, for example, the child could spend holidays with him.
On 14 February 2002 the Tomaszów Mazowiecki District Court held a hearing and decided to stay the proceedings. The court pointed out that a divorce case was pending before the Piotrków Trybunalski Regional Court and that in the course of the divorce proceedings E.D. had on several occasions asked the Regional Court to amend the order concerning the applicant’s visiting rights and to change the venue of the meetings as she had moved from town K to town R. The District Court also referred to the state of health of X who had been operated on again in October 2001.
The applicant appealed against the decision to stay the proceedings.
On 22 April 2002 the Piotrków Trybunalski Regional Court allowed the applicant’s appeal and resumed the proceedings.
On 20 May 2002 the court ordered a doctor who treated X to submit an expert opinion. Subsequently, the case-file had to be sent to the Piotrków Trybunalski Regional Court dealing with the divorce proceedings.
On 5 July 2002 the applicant filed with the Tomaszów Mazowiecki District Court submissions in which he challenged evidence given by the expert witness.
On 9 July 2002 the Tomaszów Mazowiecki District Court adjourned a hearing as neither the parties nor their counsel were present.
On 10 July 2002 the applicant submitted motions to adduce new evidence and to amend the minutes of the court’s hearing. The latter motion was dismissed on 8 August 2002.
On 8 August 2002 the District Court held a hearing. The applicant was present while E.D. and her counsel were absent. The court ordered that another expert opinion be prepared.
The subsequent hearing was held on 4 November 2002 at which the court heard the applicant and E.D. The applicant stated that he had been meeting regularly with X in September and October 2002, but in town R. E.D. stated that she had not been bringing X to town K for meetings with the father because the child’s doctor instructed her not to travel with X.
On 19 November 2002 E.D. was fined by the Tomaszów Mazowiecki District Court PLN 500. The Court recalled that E.D. had already been fined on 20 November 2000 and 20 June 2001 for obstructing the applicant’s meetings with X. The court also established that the applicant’s meetings with X had not taken place prior to September 2002, but that since then the visits had taken place in town R. The court found that except for a few months when the child could not travel due to eye surgery, E.D. should have brought X to town K for meetings with the applicant.
On 8 January 2003 the Tomaszów Mazowiecki District Court rejected E.D.’s appeal against the decision of 19 November 2002 because it had been lodged out of time.
5. Subsequent application for enforcement
On 4 February 2003 the applicant lodged another request to fine E.D.
During the hearing held on 27 February 2003 E.D. asked that the case be transferred to the District Court in Brzeziny as it was located closer to her place of residence in R.
Subsequently, the Tomaszów Mazowiecki District Court dealt with procedural matters relating to the transfer of the case. On 18 June 2003 the case was transferred to the Brzeziny District Court.
Between March and September 2003 the applicant met on several occasions with his daughter.
On 3 December 2003 and 2 February 2004 the Brzeziny District Court held hearings.
On 14 February 2004 E.D. was fined PLN 1100. In establishing the high amount of the fine, the court took into consideration that previous fines had proved to be ineffective.
On 4 May 2004 the Łódź Regional Court dismissed E.D.’s appeal against the decision. The court reiterated the first-instance court’s findings that between 30 January and 25 February 2003 E.D. had hindered the applicant’s contacts with the child because she had not brought X to town K. In this connection the court repeated that the venue of the meetings as given in the court’s decision was town K. It acknowledged that E.D. had moved and had a permanent residence in town R, nonetheless, it was not for the enforcement court to establish new facts and decide on the matter of visiting rights. Since E.D. had failed to comply with the visiting rights order by not bringing the child to the apartment in town K., the imposition of the fine was justified.
On 27 January 2004 the Poitrkow Trybunalski Regional Court dismissed the applicant’s request to lower the amount of child support benefit awarded on 17 July 2001.
B. Relevant domestic law
As regards visiting rights, 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, decisions on access rights are 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).
If a court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the 1964 Code of Civil Proceedings (Kodeks Postępowania Cywilnego) is applicable to the enforcement of this obligation. This article 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 the 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 a 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.”
1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings concerning his applications for enforcement (case no. III R Co. 9/00).
2. He further complained under Article 6 § 1 about the unfairness of the court proceedings.
3. The applicant also submitted that the failure of the Tomaszόw Mazowiecki District Court to speedily and effectively enforce his visiting rights had deprived him of contacts with X and was in breach of Articles 8 and 9 of the Convention on the Rights of the Child.
1. The applicant complained under Article 6 of the Convention about the unreasonable length of the proceedings in which he requested the imposition of a fine on E.D. He referred in particular to the period between 2000 and 2003.
Article 6 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
The applicants submitted that his request to fine E.D. and to enforce the fines imposed on her had not been examined within a reasonable time. He argued that the domestic courts had been responsible for the delay as they made some procedural mistakes, failed to discipline the other party and failed to conduct the proceedings speedily.
The Government submitted that the authorities had displayed the required diligence and that there were no periods of inactivity for which they could be held responsible. In addition they considered that the applicant had partly contributed to the prolongation of the proceedings by lodging numerous procedural requests. In sum the Government maintained that the complaint about the unreasonable length of the proceedings should be dismissed as manifestly ill-founded.
The Court firstly notes that the Government did not submit that the applicant had failed to exhaust domestic remedies with respect to his complaint under Article 6 of the Convention (see Krasuski v. Poland, no. 61444/00, § 72, ECHR 2005–...). The Court does not find it necessary to consider the question of exhaustion of domestic remedies as for the reasons indicated below the applicant’s complaint under Article 6 § 1 of the Convention is in any event manifestly ill-founded.
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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of 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 notes that since the domestic court granted the applicant visiting rights in 1998 he has so far instituted six sets of proceedings in which he requested the court to fine E.D. In so far as it can be understood that the applicant complains about the length of the first three sets of proceedings, the Court notes that the most recent of them ended on 2 February 2001 and that it was more then six months before the applicant lodged his application with the Court. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As regards the length of the following sets of the proceedings, the Court observes that the fourth set started with the applicant’s motion of 14 February 2001 and ended on 29 August 2001 and that the case was examined at two instances. The following set of proceedings started on 10 September 2001 and the first-instance decision was given on 19 November 2002. The appeal against the latter decision was dismissed on 8 January 2003. Accordingly, this set of proceedings lasted one year and two months. The sixth set of proceedings was initiated on 4 February 2003 and ended with the final decision after one year and three months, on 4 May 2004.
The Court considers that the first set of proceedings under consideration lasted three months and was conducted very speedily. The other two sets of proceedings proved to be more complex and the domestic courts held several hearings at regular intervals. In both sets the court ordered expert opinions and had heard expert witnesses and parties. Moreover, some prolongation was caused by the divorce proceedings pending simultaneously and by the transfer of the case to the competent court. In sum, the Court does not discern any period of inactivity for which the domestic authorities can be held responsible.
In the particular circumstances of the instant case, the Court considers that the proceedings under consideration do not disclose an unreasonable delay within the meaning of Article 6 § 1.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
2. The applicant also complained under Article 6 § 1 of the Convention that the enforcement proceedings had been unfair in that the judges were not impartial and favoured the other party.
The relevant part of Article 6 § 1 of the Convention provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
However, the Court notes that the applicant’s assertions about the violation of the above provision are wholly unsubstantiated.
In addition the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no 30544/96, ECHR 1999-I, § 28).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complained that the authorities had failed to speedily and effectively enforce his visiting rights which deprived him of contacts with X.
The Court considers that this complaint falls to be examined under Article 8 of the Convention, which in so far as relevant reads as follows:
“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. The Government’s preliminary objection
The Government submitted that, as regards the complaint under Article 8 of the Convention, the applicant had failed to exhaust domestic remedies within the meaning of Article 35 of the Convention. They argued that the applicant should have applied for the appointment of a court guardian who could have contributed to the proper conduct of the applicant’s meetings. At the same time, the Government relied on the Commission’s case-law and acknowledged that an application to impose a fine pursuant to Article 1050 of the Code of Civil Procedure was an effective and sufficient remedy with regard to the enforcement of access rights (the Government referred to case Adamczak v. Poland, (dec) no. 25718/94, 27 November 1996).
The applicant replied that he had applied for the appointment of a court guardian in 1998 but that the courts had failed to examine his request.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 also requires that the complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431 § 71).
However, the Court is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in the present the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, § 54, Hansen v. Turkey, (dec) no. 36141/97, 19 June 2001).
The Court observes that the applicant instituted numerous enforcement proceedings and that the domestic courts had allowed some of his applications. The Court further notes that the Government acknowledged that in matters relating to enforcement of the access rights, an application to impose a fine should be considered as an effective remedy. The Court therefore finds that the Government have failed to substantiate their contention that in addition to applying for enforcement of the visiting order, the applicant should have exhausted other remedies and, in particular, should have sought the appointment of a guardian.
Against this background the Court concludes that the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress.
The Court accordingly dismisses the Government’s objections.
B. The merits
1. The parties’ submissions
The applicant argued that due to conduct of the authorities, E.D. had a feeling of impunity. As a consequence, she prevented or interfered with his right of access to the child and set his daughter against him. The applicant maintained that only regular and uninterrupted meetings with X twice a week would have enabled him to maintain an emotional bond with his child and to counter the destructive influence on X of E.D. and her mother. The applicant further disagreed with the Government’s statement that after March 2003 he had refused to come to town R and consequently had waived his rights to meet with X. The applicant stated that after that date the meetings with X had been taking place in town R.
The Government submitted that the applicant was not denied access to his daughter and that in this extremely difficult family situation the authorities had limited power to act. Despite the fact that these contacts were irregular and not always in accordance with the court order, in particular, as regards the venue of the meetings, the applicant had not been totally deprived of the possibility to see X. The Government acknowledged that a few meetings did not take place in June 1999, in May 2000 and in January and February 2003, and that, after March 2003 the applicant had deprived himself of the possibility to meet with his daughter as he refused to come to town R.
However, the Government was of the opinion that the authorities took all steps in order to ensure the applicant’s respect for his family life and imposed fines on E.D. on 20 November 2000, 20 June 2001, 19 November 2002 and on 19 February 2004. The Government averred that the fines had to take into account the monthly income of E.D. which varied from PLN 1100 in 2000 to about PLN 1900 in 2003 – including the child maintenance benefit paid by the applicant. The Government submitted that the authorities had enforced the payment of the fines by E.D.
The Government maintained that the State had complied with its positive obligation to respect the applicant’s family life as guaranteed by Article 8 of the Convention and in the specific circumstances of the case the domestic authorities had taken all necessary steps to ensure E.D.’s compliance with access orders.
2. The Court’s assessment
The Court finds it undisputed that the relationship between the applicant and his daughter amounted to “family life” within the meaning of Article 8 § 1 of the Convention and the Court sees no reason to differ.
The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. Whilst the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55).
The obligation of the national authorities to take measures to facilitate meetings between a parent and his or her child is not absolute, especially where the two are still strangers to one another. Such access may not be possible immediately and may require preparatory measures being taken to this effect. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned will always be an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them. What is decisive is whether the national authorities have taken all such necessary steps to facilitate access as can reasonably be demanded in the special circumstances of each case (see, for instance, the Hokkanen judgment cited above, p. 22, § 58 and Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000-VIII).
In determining whether the non-enforcement of the access arrangements amounted to a lack of respect for the applicant’s family life the Court must examine whether a fair balance was struck between the various interests involved, namely the interests of the applicant’s daughter and her mother, those of the applicant himself and the general interest in ensuring respect for the rule of law.
Turning to the particular circumstances of the present case, the Court notes that the applicant’s access rights were granted by a court on 27 May 1998 and amended on 19 October 1998. According to the access order the applicant was authorised to meet with X twice a week without the presence of third persons. The Court further notes that the applicant’s enforcement requests led to the imposition of fines on E.D. on four occasions: on 20 November 2000, 29 August 2001, 19 November 2002 and 14 February 2004. The fines paid by E.D. amounted to over PLN 2200.
The Court observes that the most contentious issue between the applicant and E.D. seems to have been the venue of his meetings with X. E.D. moved to town R., where she had been living with her daughter and her mother, while the visiting order specified that the visits were to take place in town K. The Court notes that the distance between the towns K and R is about 16 kilometres. It is not clear why the access order was not changed to reflect the current domicile of X, and it appears that E.D.’s requests to that effect have not yet been examined. The Court further observes that on most occasions when the applicant came to town K on the date and time of meetings, X was not there. However, on the basis of the material before it, the Court finds that if the applicant came to the de facto place of residence of the child i.e. town R, most of the meetings took place. In addition to that, it is undisputed that some of the visits did not take place due to X’s state of health or were cancelled by the applicant himself.
The Court considers that the conflict between the applicant and E.D. made it particularly difficult for the domestic authorities to act in order to enforce the applicant’s visiting rights in full. Moreover, it is not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities as regards parental authority, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 32, § 68). In this connection the Court finds that the authorities diligently examined the applicant’s requests to fine E.D. and that the imposed fines could not be considered as unreasonably low regard being had to her income and to the fact that high fines might have threatened the well-being of X.
Finally, the Court stresses that Article 8 cannot be understood as extending to an obligation to ensure for an applicant exclusive custody over a child or unlimited access to it. In the instant case, the applicant concentrated on attempts to enforce the visiting rights by filing requests to fine E.D. The Court finds that the applicant did not try other possible ways to improve his contacts with X by, for example, requesting the court to change the visiting order nor did he seek the authorities’ assistance in reaching an agreement with his wife. Moreover, if the applicant considered E.D.’s influence on X as harmful, it was open to him to institute proceedings with a view to having E.D.’s parental responsibility for X limited or withdrawn.
In the above-mentioned circumstances the Court considers that, having regard to the margin of appreciation afforded to the State, the national authorities took all the steps to enforce the access rights which could reasonably be required in the very difficult conflict they had to deal with.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
D. v. POLAND DECISION
D. v. POLAND DECISION