FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8677/03 
by P.P. 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 January 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Mr J. Borrego Borrego, 
 Ms L. Mijović, judges
Having regard to the above application lodged on 24 February 2003,

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

Having regard to the comments submitted by the Italian Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr P.P., is an Italian national and lives in Italy. He is represented before the Court by Mr D. Mascia, a lawyer practising in Verona, Italy. The respondent Government were represented by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The Italian Government who participated in the proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), were represented by their co-Agent, Mr F. Crisafulli.

The facts of the case, as submitted by the parties, may be summarised as follows.

A.  The circumstances of the case

In 1991 the applicant married a Polish national K.P. In 1992 K.P. gave birth to their first daughter A. In 1996 the second daughter, B, was born. The family lived in Italy.

1.  The abduction of the applicant’s children

In summer 1999 K.P. took A and B on holiday to Poland. Subsequently, she failed to return to Italy with the children and they remained in Poland.

In September 1999 K.P. filed with the Poznań Regional Court an application for divorce.

On 6 September 1999 the applicant applied to the Polish Ministry of Justice – designated as a central authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the children.

On 11 October 1999 the Venice Court for Minors allowed an application submitted by the applicant and made an interim order granting him the custody of A and B.

On 9 November 1999 the Poznań District Court made an interim order requiring A and B to remain in Poland during the proceedings concerning the application for their return.

2.  The granting of visiting rights

On 14 November 1999 the applicant asked the Poznań District Court to grant him visiting rights.

On 17 November 1999 the Poznań District Court allowed the application and granted the applicant visiting rights. In particular, the court granted him the right to visit his children four times a month and to take them outside the flat in which they lived. K.P. appealed against this decision but her appeal was dismissed on 14 December 1999. However, she interfered with the applicant’s visiting rights and in the course of the next three months he had to be assisted on three occasions by police officers in order to enforce his visiting rights.

On 19 November 1999 the Poznań District Court dismissed K.P.’s request that the case concerning the return of the children be either joined to the divorce case or stayed. The court gave the following reasons for its decision:

“Pursuant to Article 16 of the Hague Convention after receiving notice of a wrongful removal or retention of a child within the meaning of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention. That is why the court has informed the Regional Court that it is necessary to stay proceedings in the divorce case.”

3.  The first court decision ordering the return of the children

At the hearing held on 26 November 1999 the court decided to order an expert opinion.

On 11 January 2000 the Poznań Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted to the Poznań District Court the expert opinion in reply to the court’s inquiry whether the well-being of A and B would be threatened by their return to their father in Italy. The opinion ended with the following conclusions:

“1/  the well-being of [A and B] will not be threatened if they are returned to Italy together with their mother. Only reuniting the children with their father would result in repeating an abnormal situation prevailing at the moment. Moreover, in view of the age of the children, and in particular the age of [B], depriving them of a permanent presence of their mother would lead to the inability to fulfil their development needs concerning the mother;

2/  the possibility of leaving the children in the custody of their mother in Poland should only be considered if their father could be guaranteed more significant participation in their lives – including contacts without participation of other persons. However, the attitude of the mother does not guarantee that such a right and the needs of the children would be secured.”

On 7 February 2000 the Poznań District Court allowed an application for the return of the children lodged by the applicant and ordered K.P. to return them to the applicant. The court considered that the removal of A and B was wrongful under Article 3 of the Hague Convention. K.P. appealed against this decision to the Poznań Regional Court.

On 15 May 2000 the Venice Court for Minors granted the applicant the custody of A and B and ordered that they be returned to Italy.

On 2 and 16 June 2000 the Poznań Regional Court held hearings. On the latter date it allowed an appeal lodged by K.P., quashed the decision of the 7 February 2000 and remitted the case to the District Court.

On 21 October 2000 the court held a hearing at which it ordered that a new expert opinion be prepared.

On 20 November 2000 the Poznań Family Consultation Centre submitted to the Poznań District Court the expert opinion, which ended with the following conclusions:

1/  the return of the children to Italy without the mother will be difficult for them i.e. damaging. However, we should point out that such damage is experienced by children who grow up separated from one of their parents. That is why in our previous opinion we suggested as the best solution the return of the girls to Italy together with their mother (...).

2/  as for the scope of damage caused to the minors by their return to Italy without their mother, we are of the view that:

-  there is no danger of physical damage because the living conditions in Italy guaranteed by their father are proper (...);

-  the minors have emotional bonds with their mother and they will suffer because of her absence – it will be impossible for them to fulfil their development needs related to the mother, and this will cause psychological damage to them.

3/  the assessment of all the problems of the children caused by their return to Italy without the mother leads us to the conclusion that it will not expose them to irreparable damage because:

-  they are going back to their father with whom they have emotional bonds;

-  they have a feeling of belonging to him and he used to play an important role as a parent. (...);

-  they are going back to the environment which is familiar to them as they grew up in it and this will facilitate their adaptation;

-  [B] is reaching the age in which contacts with peers become important and her needs cannot any more be fulfilled only in the family; the role of the father also becomes more important at that age;

-  the possibility of adaptation of [A] is even greater than her younger sister’s as she concentrates on problems related to her school life. (...);

-  both minors’ psychological and physical development is proper and they do not require special conditions for their development.

4/  both minors are of a young age and have not reached a degree of maturity which would allow taking into account their opinions concerning the choice of the parent with whom they would like to live. In addition to the lack of maturity of the minors, the value of such opinions would be doubtful because of the influence to which they are presently subjected (...).

On 10 December 2000 the Poznan Family Centre submitted an additional expert opinion. The experts were heard on 4 and 5 January 2001.

4.  The second court decision ordering the return of the children

On 5 January 2001 the Poznań District Court again allowed an application for the return of the children lodged by the applicant and ordered K.P. to return them to the applicant. The court considered that K.P. had unlawfully abducted the children. It also observed that:

“the court also draws the attention to the fact that [K.P.] does not obey the law in Poland as she does not comply with a final court decision concerning the father’s contacts with the children (she does not allow the father to take the children away from their place of residence). Therefore, the children cannot stay with their father and he cannot participate in their education.”

(...)

The court would also point out that the applicant’s behaviour does not disclose contempt of court. His bitter words directed at the justice system were caused by the despair and bitterness of a father and were justified since the proceedings in the present case have already lasted a year and a half and [K.P.] still does not comply with the court decision granting him visiting rights.”

K.P. appealed against the decision of 5 January 2001 but on 1 June 2001 the Poznań Regional Court dismissed her appeal. On 8 June 2001 the court declared that the decision was enforceable (klauzula wykonalnosci).

K.P. lodged a cassation appeal against the decision of 1 June 2001. However, it was rejected on the basis that it was not provided for by the law.

On 19 July 2001 the applicant requested the enforcement of the final decision of 5 January 2001. On 10 September 2001 the court’s bailiff requested K.P. to return the children to the applicant. On 27 December 2001 the court ordered the bailiff to enforce the court’s decision. Since K.P. failed to comply, on 31 December 2001, the bailiff discontinued the proceedings.

On 29 October 2001 the Poznań District Court dismissed K.P.’s application in which she requested that the final decision should not be enforced.

On 8 January 2002 the Poznań District Court ordered a court guardian (kurator sądowy) to forcefully remove A and B from K.P. under Article 5986 of the Code of Civil Proceedings.

5.  The first attempt to enforce the court order

On 8 January 2002 two guardians assisted by police officers and accompanied by a representative of the Italian embassy visited three different houses looking for A and B. The children were not found in the first and third house. The second house was locked and there was smoke coming from the chimney. A dog was barking inside. There were footprints of children’s shoes on the snow near the house. However, the police officers refused the curators’ request to enter the locked house since they did not have a search warrant.

On 16 January 2002 K.P. appealed against the enforcement order of 8 January 2002 but on 1 February 2002 her appeal was rejected as it was not provided for by the law. Her appeal against the latter decision was dismissed on 27 May 2002.

On 17 January 2002 the court guardian requested the Poznań Regional Prosecutor to institute criminal proceedings against K.P. on charges of abduction according to Article 211 of the Criminal Code.

K.P. filed with the Poznań District Court an application challenging judge B.B. but it was finally dismissed on 6 August 2002.

6.  Other attempts to enforce the court order

On 31 January 2002 two guardians assisted by the police officers and accompanied by a representative of the Italian Embassy attempted to enforce the court’s order. K.P. and children were not found in the house they visited.

On 10 July and 30 September 2002 the guardian informed the court that her attempts to obtain information about the children were still unsuccessful. On 19 September 2002 the guardian asked whether A had been attending a particular school. On 7 October 2002 the Director of the school confirmed that K.P. paid for tuition, however, due to her illness A had not been attending classes.

It is not clear why an attempt to reunite the children with the applicant apparently carried out on 21 October 2002 was unsuccessful.

Apparently, on 7 January 2003 K.P. proposed a friendly settlement with the applicant. He refused.

On 28 January 2003 the Poznań District Court ordered that the children be taken by the court guardian at any time. On 29 January 2003 the guardian unsuccessfully tried to enforce the order.

In February 2003 the District Court requested several institutions to submit information about the whereabouts of K.P. and the children.

On 13 February 2003 the Poznań District Prosecutor discontinued the criminal proceedings against K.P. on charges of abducting and hiding A and B because she considered that the abduction and hiding were of “minimal social harmfulness” (społeczna szkodliwość czynu jest znikoma).

6.  The last attempt to enforce the court order

On 6 April 2003 two guardians assisted by police officers and accompanied by a representative of the Italian embassy came to a property situated in B. M. in order to enforce the court order. The property consisted of a house and a plot of land located in a forest and belonged to the local forest warden. It was surrounded by police officers. K.P., her sister and A and B were inside the house. When curators entered the house A said that she did not want to be reunited with her father and K.P. insulted the applicant and the court which had ordered the return of the children. Subsequently, the guardians called an ambulance. After the doctor examined A and B, the guardians decided that they would not enforce the court order. The guardians, the police officers and the representative of the Italian embassy left the property.

7.  The decision to stay the enforcement proceedings

On 25 July 2003 the Poznań District Court suspended the enforcement proceedings concerning the return of the children to the applicant. The court gave the following reasons for its decision:

“On 5 January 2001 the Poznań District Court (...) made an order in a case IX Nsm 469/00 ordering [K.P.] to return the minors [A and B] to their father [P.P.] who lives in Italy. The order was made on the basis of the Hague Convention on the Civil Aspects of International Child Abduction.

The order was appealed. On 1 June 2001 the Regional Court dismissed appeals lodged by [K.P.] and the District Prosecutor. Presently, the order is final and enforceable.

[K.P.] has been hiding with the children for more than two years and she makes it impossible to enforce the order. She has recently returned to her original place of residence and she has filed an application under Article 577 of the Code of Civil Procedure to reject [P.P.’s] request to return the children.

The court has doubts whether it is possible to change an order made under the Hague Convention and to give a contradictory decision under Article 577 of the Code of Civil Procedure. In view of these doubts the court has decided to submit the case (...) to the Regional Court as it raises serious doubts.

At the same time, the court has stayed the enforcement until the final ruling in the case.”

On 2 September 2003 the Poznań Regional Court dismissed the applicant’s appeal against the decision of 25 July 2003.

On 19 September 2003 the Poznań Regional Court refused the District Court’s request of 25 July 2003 and returned the case to the District Court. The court considered that it was possible to change the court’s order to return minors but such proceedings must be based on the Hague Convention and decided in the light of the principles embodied in the European Convention on Human Rights. In particular, the change of the order could not be a consequence of the authorities’ failure to take all the measures that could reasonably be expected to enforce the order.

On 25 September 2003 the Poznań District Court dismissed the applicant’s appeal against the prosecution service’s decision of 13 February 2003 to discontinue the criminal proceedings against K.P. on charges of abduction and hiding of A and B.

On 14 October 2003 the Poznań District Court decided that the enforcement proceedings would be stayed until the date of the final ruling on K.P.’s application to change the court order requiring her to return the children to the applicant.

On 5 January 2004 the Poznań District Court held a hearing in the proceedings concerning K.P.’s application to change the court order concerning the return of the children. At this hearing the court heard K.P.

On 7 March 2004 the applicant asked the court to determine his contacts with the children. At the hearing held on 25 October 2004 the parties agreed that the applicant would have a right to two phone calls per month with A and B.

The children remain in the care of K.P.

8.  The proceedings concerning child support

On 1 December 1999, in the course of the divorce proceedings instituted by K.P., the Poznań Regional Court ordered the applicant to pay monthly PLN 1,000 as child support. The applicant submitted that he had been notified of the reasons for this decision in December 2000.

As the applicant was not paying the child support the Poznań District Prosecutor instituted criminal proceedings against him. On 25 January 2002 the Poznań District Court ordered the pre-trial detention of the applicant for a period of one month. Subsequently, the prosecutor issued an arrest warrant against him.

On 14 October 2002 the Poznań Regional Court ex officio quashed its decision of 1 December 1999.

On 20 July 2004 the applicant’s counsel applied to change the preventive measure imposed on the applicant. It appears that the prosecutor proposed that the arrest warrant would be quashed on bail of PLN 100,000 (approximately EUR 23 000). The amount of bail was subsequently lowered to PLN 50,000.

On 9 March 2005 the court quashed the detention order.

B.  Relevant domestic law

1.  Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

The Hague Convention was published in the Polish Official Journal on 25 September 1995. Article 7 of the Hague Convention reads, in so far as relevant:

“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures:

(a)  To discover the whereabouts of a child who has been wrongfully removed or retained;

(b)  To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

(c)  To secure the voluntary return of the child or to bring about an amicable resolution of the issues;

(d)  To exchange, where desirable, information relating to the social background of the child;

(e)  To provide information of a general character as to the law of their State in connection with the application of the Convention;

(f)  To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;

(g)  Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

(h)  To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

(i)  To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

Pursuant to Article 11:

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”

2.  The Polish Code of Civil Proceedings

The 1964 Code of Civil Proceedings (Kodeks Postępowania Cywilnego) in Article 577 provides as follows:

“The custody court can change its decision if the best interest of person whom it concerns so require. “

The amendment to the Code introduced on 19 July 2001, which entered into force on 27 September 2001, deals with the proceedings concerning the return of the children under the Hague Convention.

Article 5986 provides, that if a person who is ordered to return the child does not comply with the court’s order, the court will instruct the guardian to forcefully remove the persons concerned (przymusowe odebranie osoby).

According to Article 59810:

“Upon a request of a court guardian, the police are obliged to help him in carrying out the forcible removal of [a minor].”

Article 59811 § 1 provides as follows:

“If forcible removal of [a minor] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order, the court guardian shall inform a prosecutor.”

Pursuant to 59812:

“§ 1  The court guardian, in carrying out the removal of [a minor], shall be specially careful and shall do everything to ensure that the well-being of that person is not disturbed and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function.

§ 2  If the well-being of [a minor] would be in danger as result of the removal, the guardian shall stop the enforcement of the order until the danger is over, unless, the stopping of the enforcement would cause greater danger to the person.”

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 parents’ 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 Code of Civil Proceedings 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.”

Article 1092 of the Code provided as follows:

“When taking away a person who is the subject of parental authority or who is in care, the bailiff shall be specially careful, and shall do everything to protect such a person from physical or moral harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.”

3.  The Polish Criminal Code

Article 211 of the 1997 Criminal Code (Kodeks Karny) provides as follows:

“Whoever, contrary to the will of the person appointed to take care of or supervise, abducts or detains a minor person under 15 years of age or a person who is helpless by reason of his mental or physical condition shall be liable to a penalty of deprivation of liberty for up to 3 years.”

COMPLAINTS

1.  The applicant complained that the failure of the domestic authorities to enforce the court decisions concerning his visiting rights and ordering the return of his daughters to Italy breached his right of access to court guaranteed by Article 6 § 1 of the Convention. He referred to the case of Pini and Bartani and Manera and Atripaldi v. Romania (dec.), nos. 78028/01 and 78030/01, 25 November 2003.

2.  The applicant further complained that the failure of the domestic authorities to enforce the court decisions concerning his visiting rights and ordering the return of his daughters violated Article 8 of the Convention. He relied on the cases Ignaccolo-Zenide v. Romania, no. 31679/96, ECHR 2000-I and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A).

THE LAW

A.  The Government’s preliminary objection

The respondent Government submitted that, as regards the complaint under Article 8 of the Convention that the authorities failed to enforce the decisions relating to visiting rights, 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 to impose a fine on K.P. as this remedy was provided by Article 1050 of the Code of Civil Procedure. In the proceedings concerning enforcement of a decision ordering the return of the children, however, the Government acknowledged that the domestic law did not allow for the imposition of a fine.

In reply, the applicant argued that this procedure would not be effective to remedy the violations alleged by him.

The Italian Government considered that in the particular circumstances of the instant case an application to impose a fine on K.P. could not be considered as an effective remedy and it would not have a reasonable prospect of success.

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 court proceedings in the course of which the domestic authorities granted him visiting rights and ordered the return of A and B to Italy. The Court notes that the enforcement of both decisions was closely interrelated. In the enforcement proceedings the applicant sought and obtained the assistance of the police and court guardians who on several occasions attempted to enforce the court’s orders. He also initiated enforcement proceedings under Article 5986 of the Code of Civil Proceedings which authorised the forcible removal of the children if their return was ordered pursuant to the Hague Convention. Furthermore, the applicant was a party to the criminal proceedings against K.P. concerning charges of abducting and hiding A and B and he appealed against the decisions to discontinue the proceedings. However, his efforts remained unsuccessful on account of K.P.’s persistent refusal to comply with the court’s orders.

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.  Merits

1.  The applicant complained about a failure to enforce the final courts’ decisions concerning his visiting rights and ordering the return of his daughters to Italy under Article 6 § 1 of the Convention, the relevant part of which provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...”

The applicant submitted that although the authorities recognised his right to be reunited with his children and granted his application under the Hague Convention, they were incapable of enforcing those decisions. The applicant underlined that it should not have been very difficult to find a woman with her two children who maintained stable relations with her family and friends. He considered that his right to enforcement of the final domestic decisions, which is a part of the right of access to a court, was not respected by the Polish authorities.

The respondent Government rejected these arguments. They submitted that the authorities acted diligently and on several occasions tried to enforce the decisions. These attempts were unsuccessful because K.P. absconded with the children. The respondent Government underlined that the case was particularly difficult as it concerned delicate family matters regarding two minors.

The Italian Government argued that by non-enforcement of the final court orders the respondent State deprived those decisions of all useful effect and that it raised a serious issue of the right of access to a court under Article 6 § 1 of the Convention.

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

2.  The applicant further complained under Article 8 of the Convention about the failure of the domestic authorities to enforce the court decisions concerning his visiting rights and the return of his daughters. Article 8 of the Convention, in so far as relevant, provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant submitted that the authorities had taken no serious action to enforce the decisions granting him the right to visit his daughters and ordering the return of the children to Italy. He further argued that nothing has been done to trace his daughters, who had been hidden by the mother and her relatives every time a visit by the Polish authorities was expected. The applicant also stated that the criminal proceedings against him de facto deprived him of exercising his visiting rights as he could not come to Poland for fear of being arrested.

As regards the visiting rights the Government submitted that the domestic courts granted the applicant access to his children. However, they acknowledged that the enforcement of those visits was hindered by K.P. The Government further argued that the applicant had contributed to some extent to the fact that his right to visit his daughter did not take place. They referred to the criminal proceedings instituted against the applicant - for not paying child benefit ordered in 1999 - in the course of which an arrest warrant was issued against him. The fear of being arrested, in the Government’s opinion, prevented the applicant from coming to Poland to exercise his visiting rights.

The Italian Government expressed their concern that the passage of time could have irreversible consequence on the relationship between the applicant and his children, not only from the perspective of the applicant’s rights under Article 8 of the Convention, but also considering the negative consequences of the loss of one parent on the children’s development. They also deplored the fact that the authorities had not tried other indirect measures which could have brought positive results in order to facilitate the applicant’s reunion with his daughters, such as psychological assistance to the child and the parent or, in more serious cases, placing the children in public care.

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

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza 
 Registrar President

P.P. v. POLAND DECISION


P.P. v. POLAND DECISION