MALEC v. POLAND - 28623/12 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 588 (28 June 2016)

In the case of Malec v. Poland,

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

András Sajó, President,

          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Iulia Motoc,
          Gabriele Kucsko-Stadlmayer,

Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 7 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 28623/12) 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 Jarosław Malec (“the applicant”), on 7 May 2012.

2. The applicant was represented by Ms K. Marasek-Zybura, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the Polish authorities had failed to take effective steps to enforce his right to have contact with his daughter.

4. On 7 November 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1973 and lives in Bibice.

6. In 1997 the applicant married E. In 2004 their daughter, N., was born. In 2008 the applicant and E. separated. In May 2008 the applicant moved out of the family home.

7. After the separation, the applicant and E. agreed on access arrangements (every second weekend, one day during the week, and the winter and summer holidays).

A. Divorce proceedings and access arrangements

8. On 16 January 2009 the applicant lodged a divorce petition with the Kraków Regional Court (Sąd Okręgowy) together with an application for an interim contact order.

9. On 26 February 2009 the Regional Court ordered a local assessment (wywiad środowiskowy) to be conducted at the mother’s home by a court-appointed guardian with a view to establishing N.’s situation and the parenting skills of the mother and father. The guardian submitted her report on 21 July 2009. The guardian established that N. loved both parents but was more attached to the mother. The applicant had frequent contact with his daughter. However, the parents were in conflict with each other and had negative feelings about each other. The applicant had authorised M.T., his new partner, to collect N. from the nursery, which was a source of great conflict between the parents. The guardian concluded that the access arrangements should be speedily determined by the court in order to minimise the negative consequences of the divorce on N. The child should stay with the mother and the father should be allowed frequent visits. He should, however, inform the mother of the child’s whereabouts as he had taken N. abroad without the mother’s knowledge.

10. A hearing scheduled for 17 February 2010 did not take place as the case file had not been returned from the Court of Appeal (where maintenance proceedings had taken place) and because the applicant had been in pre-trial detention in connection with a corruption case against him.

11. On 2 June 2009 and 14 October 2010 the applicant again applied for interim contact orders, specifying different arrangements. On 18 November 2010 the mother replied, setting out her own request for contact arrangements.

12. In summer 2010 the applicant moved in with M.T. and in September 2010 a son was born.

13. On 22 November 2010 the Kraków Regional Court issued an interim contact order. It decided that the applicant was allowed to see his daughter every second weekend between 3 p.m. on Friday and 5 p.m. on Sunday, and also between 3 p.m. on Tuesday and 3 p.m. on Wednesday. In addition, he could spend every second Christmas Eve, every Christmas Day and every Easter Sunday with her. The applicant was allowed to take N. for the first week of the winter school holidays and between 1 and 21 July of the summer holidays.

14. On 21 January 2011 the Kraków Regional Court issued a writ of execution in respect of that decision.

15. On 17 May 2011 E. asked the court to restrict contact between the applicant and N. owing to the child’s fragile emotional condition. N. had therapy with a psychologist between April 2011 and February 2012.

16. A hearing scheduled for 22 March 2011 was adjourned after the applicant lodged an application for the judge to step down. That application was dismissed on 29 March 2011. A further appeal by the applicant was dismissed on 7 September 2011.

17. On 20 May 2011 the psychologist treating N. suggested a change in the contact order so that N. would not have to stay overnight at the applicant’s house, as that was apparently causing her a lot of stress.

18. On 13 July 2011 the Kraków Regional Court ordered another local assessment. The guardian submitted her report on 16 December 2011. She established that contact visits with N. had taken place as agreed by the parents after their separation, with the exception of the period between January-May 2010 (when the applicant had been detained on remand on corruption charges). Contact meetings had resumed in May 2010 and had continued regularly until November 2010. Subsequently, after the court had begun supervising the contact visits, the conflict between the parents had escalated. The mother had been of the opinion that the applicant had wanted the contact meetings to take place regardless of the child’s needs and her after-school activities (ice skating practice). On the other hand, the father was convinced that the practice schedule had been manipulated by the mother so that it took place during his contact visits. As of 17 December 2011, the contact visits had not taken place according to the interim contact order. The applicant saw his daughter on her birthday and on a few occasions after school.

19. On 2 January 2012 the guardian submitted a supplementary report to the court. She noted that N. did not enjoy the way the contact with the applicant was taking place. She did not mind seeing him more often than scheduled, but she did not want to stay overnight at his house.

20. On 11 January 2012 a hearing took place during which the applicant and E. agreed on access arrangements. On the same day, the Kraków Regional Court issued a divorce decree. The court ordered that in the period up to 30 June 2012 the applicant could see his daughter every Thursday between 3 p.m. and 7 p.m.; every second Saturday and Sunday between 11 a.m. and 7 p.m.; as well as on Easter Sunday between 11 a.m. and 7 p.m. From 1 July 2012, the applicant could see his daughter every second weekend from 3 p.m. on Friday until 5 p.m. on Sunday; every Wednesday from 3 p.m. until Thursday 3 p.m.; for the whole of the period between 1 and 21 July; the first week of the winter holidays; the first day of Easter; and on Christmas Day.

21. On 5 March 2012 the applicant appealed. On 31 July 2012 the Kraków Court of Appeal upheld the first-instance judgment.

B. Enforcement proceedings (fines and enforced collection)

22. On 14 and 20 December 2010 and on 17 January 2011 the applicant complained to the court that the mother had refused to comply with the access arrangements.

23. On 7 March 2011 the applicant lodged two applications for the court to impose a fine on the mother for failing to comply with the interim contact order of 22 November 2010.

24. The applicant subsequently lodged three applications on 15 April 2011, three on 28 April 2011 and four on 18 May 2011.

25. The court scheduled a hearing for 27 May 2011. However, E. failed to appear on that date (she was on leave to take care of her sick child).

26. The applicant lodged numerous further applications for the court to impose fines on E. In particular, he lodged two applications on 1 June 2011, two on 7 June 2011, four on 24 June 2011, three on 25 July 2011, three on 8 August 2011 and one on 23 August 2011.

27. The next hearing took place on 31 August 2011.

28. At a further hearing held on 28 October 2011, with reference to the applicant’s motion of 7 March 2011, the Kraków-Krowodrza District Court ordered the mother to comply with the interim contact order within two weeks on pain of a fine of 1,000 Polish zlotys (PLN). On 30 December 2011 the Kraków Regional Court dismissed an appeal by E. against that decision.

29. The applicant made further requests to the court to impose fines on E.: on 1 February 2012, 20 February 2012, 20 March 2012, 3 April 2012 (six motions); 24 April 2012 (two motions); and on 21 May 2012 (three motions).

30. On 8 March 2012 the Kraków-Krowodrza District Court severed to a separate set of proceedings the applicant’s application of 23 August 2011 (see paragraph 26 above). It was subsequently dismissed on 18 April 2012. Upon further appeal, the Kraków Regional Court quashed that decision on 30 July 2012. On 3 September 2012 the proceedings were further severed and the part concerning the applicant’s application of 23 August 2011 was assigned a new case number. It was subsequently transferred to Kraków-Nowa Huta District Court on account of a change of address by E. The proceedings were eventually discontinued on 24 April 2013.

31. On 15 March 2012, in reply to the applicant’s claim of 7 March 2011, the District Court imposed a fine of PLN 1,000 on E. (which she subsequently paid). It further ordered her to comply with the interim contact order within two weeks, on pain of another fine of PLN 1,000.

32. On 24 April 2012 a court-appointed guardian submitted a report to the court on arrangements for the applicant’s contact with his daughter. She observed that contact visits were not taking place in accordance with the contact order. N. sometimes met the applicant on Tuesdays after school, staying with him until about 3-4 p.m. She further noted that while N. did not want to stay overnight at the applicant’s home, she did not mind seeing him more often after school during the week. The guardian suggested that the parents and the child undergo an assessment at the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“the RODK”).

33. On 8 August 2012 the court imposed another fine of 1,000 PLN on E. However, on 22 November 2012 the Kraków District Court discontinued the proceedings on the grounds that the interim contact order of 22 November 2010 was no longer in force.

34. The court-appointed guardian submitted two reports to the Kraków District Court, dated 20 and 29 October 2012. She noted in the reports that the contact arrangements set out in the latest interim contact order were not being enforced. From May 2012 the father had only been able to see his daughter for a few minutes at occasional meetings. In the guardian’s opinion, the father was ready and able to take care of his daughter and organise interesting activities for their meetings. However, when questioned by the guardian, N. had been unenthusiastic about seeing her father and had said only negative things about him. The guardian concluded that a family assessment at the RODK was required.

35. Meanwhile, the applicant lodged numerous applications for a forcible removal of N. for various visits (in May, July and August 2012, and in February 2013). The Kraków District Court issued orders for a forcible removal of the child by the guardian on 15 May 2012 (for 1 July 2012), on 13 December 2012 (for 23 December 2012) and on 6 March 2013. In the latter decision, the court stressed that under no circumstances should physical force be used when collecting N. as that would be against her best interests.

36. On the first occasion, the guardian found that E. was not living at the address she had submitted to the court and he was therefore unable to collect the applicant’s daughter. On the two later occasions, the guardian tried to mediate between the parents and talk to the child in order to make her change her mind, but the child refused to go with the father.

C. Other enforcement proceedings

37. During the divorce proceedings, both the applicant and E. asked the police to intervene on several occasions. In particular, on 3 September 2011 the applicant arrived at E.’s home to collect N. However, N. was crying and refused to go with him. E. called the police because the applicant was allegedly behaving in an aggressive manner. On 25 October 2011 the police again intervened at E.’s home. On that occasion, E. refused to allow the applicant to take N. for a court-scheduled contact visit as the child was allegedly afraid of him.

38. On 20 February 2012 the applicant complained to the Kraków-Nowa Huta District Court that the mother had failed to comply with the interim contact order and asked the court to order her to give an undertaking related to her behaviour (odebranie przyrzeczenia określonego zachowania).

39. A hearing planned for 25 April 2012 was adjourned owing to the absence of both parents. The following hearings took place on 20 July 2012 and 23 August 2012.

40. On 23 August 2012 the Kraków-Nowa Huta District Court dismissed the applicant’s application because the interim contact order was no longer in force. That decision was quashed on appeal on 30 January 2013. The Kraków Regional Court held that the District Court had focused on the application to fine E. and had failed to consider the applicant’s other requests.

41. On 28 February 2013 the Kraków-Nowa Huta District Court again discontinued the proceedings relating to the applicant’s application to impose a fine on the mother because the interim contact order was no longer in force after the divorce judgment had become final. As of the date of the submission of the Government’s observations to the Court, the remainder of the applicant’s request (proceedings for the mother to give an undertaking) was still pending.

D. Modification of access arrangements

42. On 9 August 2012 E. applied for a change of the access arrangements which were specified in the divorce judgment. She submitted that N. did not want to stay overnight at the applicant’s house.

43. On 1 October 2012 the Kraków-Nowa Huta District Court issued an interim contact order and allowed E.’s request. The court ruled that the applicant could meet his daughter every other Sunday between 2 p.m. and 6 p.m. The court held that the modification of the access arrangements was in the best interests of the child at that moment and that it was essential to rebuild the emotional ties between N. and the applicant.

44. On 2 October 2012 the court ordered another local assessment and an examination of the parents and the child by the RODK experts.

45. On 3 December 2012 a psychologist submitted his opinion to the court. The expert stated that the weakening of the emotional bond between the applicant and N. had been caused by a series of events. Those were, in particular, the applicant’s arrest in N.’s presence and his subsequent detention on remand; the applicant’s new relationship and new child; the applicant’s attempt to enforce the contact order, without any regard to N.’s needs; and the escalation in the conflict between E. and the applicant. The expert concluded that family therapy was needed in order for family ties to be re-established. In addition, changes to contact arrangements, such as an increased frequency of visits, were not in the child’s best interests at that time.

46. At a hearing held on 10 December 2012, the applicant informed the court that the day before, when he had arrived to see his daughter, she had not wanted to go with him. Apparently, N. had gone outside to talk to the applicant but when she had seen M.T. (his new partner) she had returned home crying and had refused to go with her father. In reply to a question from the court whether he would participate in family therapy, the applicant stated that he would have to think about it, as in his view the problems with enforcing the contact arrangements were the mother’s fault.

47. On 11 January 2013 the Kraków Regional Court allowed the applicant’s appeal against the interim order of 1 October 2012. It considered that the access arrangements specified in the District Court’s contact order had gone beyond what the mother had requested in her application.

48. On 1 March 2013 the RODK submitted its opinion to the court. Firstly, the experts observed that both parents loved N. and were able to attend to her needs. The father was determined to have a place in her life and play an important role. The mother had not been right to cut off contact between N. and her father. While she claimed that she had not obstructed the contact arrangements, she was not aware that her passive approach and clear animosity towards her ex-husband had impeded father-daughter contact. The experts stressed that N. had a strong emotional bond with the mother and remained under her influence. She did not feel loved by her father and was afraid of having contact with him. The experts concluded that N. was not able to cope with the emotional consequences of the conflict between her parents and that family therapy was indispensable. Furthermore, despite her negative reaction to the applicant, she should have contact with him. However, contact visits should not take place in the mother’s presence as that would increase N.’s negative attitude towards her father and prevent her from re-establishing a bond with him. Contact meetings should take place on neutral ground in the presence of a neutral person.

49. On 24 April 2013 the Kraków District Court issued a contact order. According to that decision, the applicant could meet N. every second Sunday between 3 p.m. and 6 p.m., with the exception of the first week of the winter school holidays and the period between 15 July and 15 August. In addition, he could see N. on the first day of Easter between 3 p.m. and 6 p.m., and on 24 December every even year and on 26 December every odd year. The court held that contact meetings should take place in the presence of a court-appointed guardian.

II. RELEVANT DOMESTIC LAW AND PRACTICE

50. The relevant domestic law concerning the enforcement of a parent’s visiting rights is set out in the Court’s judgment in Stasik v. Poland (no. 21823/12, §§ 60-66, 6 October 2015).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

51. The applicant complained that the Polish authorities had failed to take effective steps to enforce his right to contact with his daughter. He invoked Articles 6 and 8 of the Convention. The Court considers that this complaint should be analysed exclusively under Article 8 of the Convention, which reads:

“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

52. The Government submitted that the applicant had not exhausted the remedies available under Polish law in that he had lodged the application with the Court without waiting for the outcome of the proceedings concerning a modification of the contact arrangements, and that the application was therefore premature.

53. The applicant submitted at the outset that the proceedings for a modification of the contact arrangements which were pending had been instituted by E. and did not concern the present application. He further stressed that the divorce decree of 11 January 2012 setting out the contact arrangements was final. He maintained that he had filed nearly 50 applications (30 up to August 2011, and nearly 20 afterwards) to impose fines on the mother for failure to comply with the contact orders. Thus, in his opinion, he had exhausted the available domestic remedies.

54. The Court observes that the applicant did not object to the contact arrangements set out in several interim orders (see paragraphs 13, 20, 43 and 49 above). He only maintained that the Polish authorities had failed to take effective steps to enforce his right to contact with his daughter. In that connection, the Court notes that the applicant initiated enforcement proceedings and asked the domestic courts on numerous occasions to fine E. for failure to comply with the access arrangements (see paragraphs 22-24, 26, 29 above).

55. Against that background, the Court concludes that the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress (see also P.F. v. Poland, no. 2210/12, § 45, 16 September 2014). The Court accordingly dismisses the Government’s objections.

56. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

57. The applicant submitted that he had experienced significant difficulties in having regular and effective contact with his daughter. Firstly, despite the fact that the guardian had already in July 2009 pointed out in her report that a “speedy regulation of contact visits between the child and the father is recommended”, it took the domestic court two years to issue an interim contact order. Subsequently, as of May 2011, it had become impossible to have any contact visits.

58. He stressed that while the domestic court had been aware that the mother had obstructed contact with the child, it had not done much in order to facilitate it. The applicant noted that he had lodged more than 50 applications to impose a fine on the mother. However, while those applications had been registered by the domestic court and assigned different file numbers, the domestic court had failed to take a stance on the substance of his complaint and had only multiplied the sets of proceedings.

59. In particular, the applicant referred to his application of 7 March 2011. In those proceedings, the Kraków District Court had imposed a fine on E. one year later, on 15 March 2012. The fine had eventually been enforced only after June 2012. A subsequent fine had been imposed by the court on 8 August 2012, but by the date of the filing of observations (22 May 2013) it had not yet been enforced.

60. The applicant further referred to the guardians’ findings, which had confirmed that he had had no access to his child. While the domestic court had given three orders on forcible removal of the child, the guardian had not been able to enforce contact on those days. In the applicant’s opinion, the guardian had failed to make use of the options available to him and should have had asked the police for assistance to enforce the right to contact.

61. The applicant concluded that the domestic authorities had for an extended period of time failed effectively to secure his right to contact with his own daughter. They had therefore prevented him from taking an active part in her upbringing and being able to establish proper family ties. In addition, the authorities had persistently tolerated E.’s inappropriate behaviour and had failed to prevent her from obstructing his contact with N.

(b) The Government

62. The Government submitted that the authorities had taken all the appropriate steps that could reasonably have been required in the circumstances of the case. They argued that the applicant had in fact never lived with his daughter. In 2003 (when E. had been pregnant) he had taken a job in another city, Łódź, and had worked there until 2007. Throughout that period, he had lived in Łódź during the week and had stayed with his wife and child only at the weekend. He had moved out of the family home in May 2008, when N. had been four years old. In the Government’s opinion, in the absence of cohabitation, the relationship between the applicant and N. had not been able to develop in a way that was usual for children of divorced parents who had lived with the non-custodial parent and who had developed emotional ties with him or her.

63. Moreover, the Government submitted that the applicant had been able to see his daughter on numerous occasions, thus he had not been completely denied access to her. They noted that contact had taken place regularly until 22 November 2010, in line with the agreement between the parents, with a break between January and May 2010, when the applicant had been detained on remand on corruption charges. They confirmed that between December 2010 and April 2011 there had been disturbances in the execution of the contact rights. The applicant had applied for the enforcement of access arrangements each time contact had not taken place. Between May 2011 and January 2012, the parents’ conflict had escalated and contact had essentially not taken place. Subsequently, contact visits had taken place irregularly and without any overnight stays.

64. The Government also stressed that E. had not refused any contact between the applicant and N., despite the parents’ conflict, but she had merely opposed prolonged and overnight visits owing to the child’s fragile emotional condition.

65. The Government were of the opinion that the proceedings had been swift and that the authorities had conducted them in a diligent manner. Various proceedings had been held before three different courts (Kraków Regional Court, Kraków-Krowodrza District Court and Kraków-Nowa Huta District Court), which had often requested the case files of other proceedings to be sent to them. In addition, the domestic courts had appointed numerous experts and guardians, had ordered several local assessments and had obtained an opinion from the RODK. They further argued that the enforcement proceedings had been effective in that the domestic court had twice imposed a fine on the child’s mother.

2. The Court’s assessment

(a) General principles

66. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life within the meaning of Article 8 of the Convention (see, among other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130, and Vojnity v. Hungary, no. 29617/07, § 28, 12 February 2013). In this context, the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life. Hence, the Court has repeatedly held that Article 8 includes the right for parents to have measures taken that will permit them to be reunited with their children and an obligation on part of the national authorities to take such action (see, amongst many others, Hokkanen v Finland, 23 September 1994, § 55, Series A no. 299-A and Cristescu v. Romania, no. 13589/07, § 57, 10 January 2012). This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Zawadka v. Poland, no. 48542/99, § 55, 23 June 2005). On the other hand, the Court also held that when two persons have lost affection for each other, it cannot realistically be expected from the State to make one of these persons adopt a positive attitude towards the other (see Z.J. v. Lithuania, no. 60092/12, § 105, 29 April 2014).

67. In such cases, the obligations of the national authorities are not, however, absolute. The key consideration is whether those authorities have taken all the appropriate steps for facilitating such contact as can reasonably be demanded in the particular circumstances of each case (see, mutatis mutandis, Hokkanen, cited above, § 58). Another important factor in proceedings concerning children is that time takes on a particular significance, because there is always a danger that any procedural delay will result in the de facto determination of the issue before the court (see P.F., cited above, § 56). Moreover, the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see, for example, Kuppinger v. Germany, no. 62198/11, § 102, 15 January 2015). Lastly, the child’s best interests must be the primary consideration and may, depending on their nature and seriousness, override those of the parents (see among many others, Olsson (No. 2), § 90, cited above and Płaza v. Poland, no. 18830/07, § 71, 25 January 2011).

(b) Application of the above principles to the present case

68. It is not disputed that the matters concerned in the present case relate to “family life” within the meaning of Article 8 § 1 of the Convention and that this provision is applicable.

69. The decisive question is whether or not the Polish authorities took all the appropriate steps that could reasonably be demanded to facilitate the enforcement of the contact arrangements as defined in the contact orders (see paragraphs 13, 20, 43, 49 above). All those decisions authorised the applicant to have regular contact with his daughter. However, the specific arrangements changed over time. Initially, the applicant was allowed to take his daughter home for the weekend. Subsequently, as specified in the divorce judgment, he was not allowed to keep N. overnight at his home. Then, as of 1 July 2012, he was allowed to spend every second weekend with N. On 1 October 2012 the Kraków District Court again restricted the contact arrangements to day visits only. Finally, according to the last order of 24 April 2013, the applicant was still refused overnight visits. In addition, the court ordered that contact take place in the presence of a court-appointed guardian.

70. The Court notes that the applicant and E. separated in 2008, when N. was four years old. The applicant and E. initially agreed on access arrangements and managed to resolve the issue of contact between each other. The applicant had regular access to N., with the exception of the period between January and May 2010 when he was detained on remand. Problems arose after the court issued the first interim contact order in November 2010. As argued by the Government, the applicant’s contact with his child became irregular and the conflict between the parents escalated. Subsequently, between May 2011 and January 2012 almost no contact took place (see paragraphs 18 and 63 above). Afterwards, contact took place irregularly, usually only on weekdays and without any overnight stays (see paragraphs 32 and 34 above).

71. In that connection, the Court observes that the applicant has never been considered as being unsuitable to maintain contact with N. or to take care of her during her visits. On the contrary, it has been found by the experts involved in the case that such contact was in N.’s interests and should be maintained (see paragraphs 34 and 48 above).

72. The difficulties in arranging contact were admittedly due in large measure to the animosity between E. and the applicant. The Court also notes the growing reluctance of the child to meet with her father. It is further mindful of the fact that contact and residence disputes are by their very nature extremely sensitive for all the parties concerned, and it is not necessarily an easy task for the domestic authorities to ensure enforcement of a court order where the behaviour of one or both parents is less than constructive. However, a lack of cooperation between parents who have separated is not a circumstance which can of itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Z. v. Poland, no. 34694/06, § 75, 20 April 2010; G.B. v. Lithuania, no. 36137/13, § 93, 19 January 2016).

73. In that regard, the Court observes that when the applicant’s former wife failed to comply with the contact orders, the applicant began to file enforcement claims with the District Court. He has filed over 50 such requests (see paragraph 64 above) and they eventually resulted in the District Court ordering the mother to comply with the access arrangements and to the imposition of fines on two occasions (see paragraphs 31 and 33 above).

74. However, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see paragraph 67 above). Firstly, as regards the swiftness of the enforcement proceedings, the Court notes that the domestic court examined the request of 7 March 2011 on 28 October 2011, when it ordered the mother to comply with the contact order (see paragraph 28 above). Since she continued to prevent the applicant having any contact with N., the court eventually imposed a fine on her on 15 March 2012, that is, one year later (see paragraph 31 above). Secondly, the Court points out that the enforcement proceedings initiated by the applicant on 23 August 2011, after several procedural decisions, were eventually discontinued more than two and a half years later, on 24 April 2013 (see paragraph 30 above). Thirdly, the proceedings instituted by the applicant on 20 February 2012, in so far as the applicant alleged that the mother failed to comply with the interim contact order, were discontinued a year later, on 28 February 2013 (see paragraph 41 above).

75. Apart from noting the general difficulties resulting from the fact that the proceedings took place before three different courts (see paragraph 71 above), the Government did not submit any explanation for the particular delays in the examination of the applicant’s requests. The Court finds that even though the applicant’s enforcement requests led eventually to two decisions imposing a fine on the mother, the protracted examination of those requests and the obstruction to his contact resulted, as noted by the experts, in a further deterioration of the emotional bond with his daughter (see paragraph 48 above).

76. The Court acknowledges that the task of the domestic courts was rendered difficult by the particularly strained relationship between the applicant and his former wife. However, while the Government referred in general terms to the conflict between the applicant and the child’s mother as the source of the applicant’s problems in maintaining contact with N. (see paragraphs 63 and 64 above), there are no indications that this conflict affected the course of the enforcement proceedings or was the reason for the delays therein and their lack of effectiveness (see Stasik v. Poland, no. 21823/12, § 93, 6 October 2015).

77. The Court also notes that the applicant submitted that the guardian should have asked for assistance from the police when he tried on two occasions to forcibly collect N. However, the Court reiterates that it has repeatedly held that coercive measures against children are not desirable in this sensitive area (see Maire v. Portugal, no. 48206/99, § 76, ECHR 2003-VII, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 106, ECHR 2000-I), or might even be ruled out by the best interests of the child (Raw and Others v. France, no. 10131/11, § 80, 7 March 2013).

78. Having regard to the facts of the case, in particular the passage of time, and the criteria laid down in its own case-law, the Court concludes that, notwithstanding the State’s margin of appreciation, the Polish authorities failed to make adequate and effective efforts to enforce the applicant’s parental rights and his right to contact with his child.

79. There has accordingly been a violation of Article 8 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

80. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

81. The applicant claimed 78,000 Polish zlotys (PLN) (approximately 18,353 euros (EUR)) in respect of non-pecuniary damage.

82. The Government found this sum excessive.

83. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 7,000 under that head.

B. Costs and expenses

84. The applicant claimed 13,613.64 PLN (approximately EUR 3,221) for the costs and expenses incurred before the domestic courts. This amount comprised the applicant’s lawyers’ fees in the numerous sets of domestic proceedings for the enforcement of contact orders. He also asked for 8,325 PLN (approximately EUR 1,962) in costs for legal representation and translation incurred before the Court.

85. The Government argued that only costs actually incurred in the preparation and defence of the applicant’s case before the Court should be taken into consideration.

86. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs under all heads.

C. Default interest

87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MALEC v. POLAND - 28623/12 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 588 (28 June 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/588.html Cite as: [2016] ECHR 588