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FOURTH
SECTION
CASE OF PAWLIK v. POLAND
(Application
no. 11638/02)
JUDGMENT
STRASBOURG
19
June 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Pawlik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and
Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 29 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11638/02) 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 Henryk Pawlik (“the applicant”), on 8 May
2000.
- The
applicant, who had been granted legal aid, was represented by
Mr B. Sochański, a lawyer practising in Szczecin. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged, that the Polish authorities had failed to take
effective steps to enforce his right of contact with his son, which
had violated his rights under Article 8 of the Convention.
- On
27 March 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3
of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Szczecin, Poland.
- In
1987 the applicant married I.P. In 1984 and 1988 respectively, K.,
his daughter, and R., his son, were born. In spring 1992 I.P. filed
for a divorce.
- On
11 May 1993 the Szczecin Regional Court issued an interim contact
order. According to its terms, the applicant was allowed to visit the
children on Wednesdays and Fridays for 2 hours and to spend 2 weeks
with them in summer.
- On
16 September 1994 the Szczecin Regional Court dissolved the
applicant's marriage. The court held that the applicant's ex wife
was responsible for the breakdown of their marriage. It also awarded
parental rights to both parents. It also limited the applicant in the
exercise of his rights: it ordered that K. and R.'s permanent
residence be with their mother. The applicant was allowed to
co decide about the children's education, health and place of
residence. The court specified access arrangements as determined in
the interim contact order of 11 May 1993.
- On
an unknown date in October 1994 the applicant filed a motion with the
Szczecin District Court for enforcement of the access arrangements.
On 11 October 1994 the District Court dismissed his application.
On 9 January 1996 the applicant again applied to the District
Court complaining that his ex wife was not respecting the access
arrangements.
- On
17 May 1996, upon the applicant's motion, the Bailiff of the Szczecin
District Court refused to enforce the judgment of 16 September
1994. He stated that pursuant to Articles 1050 and 1051 of
the Civil Procedure Code custody arrangements should be enforced by a
court.
- On
18 June 1996 the Szczecin District Court, referring to the children's
best interest, dismissed the applicant's application for enforcement
of his visiting rights. Upon the applicant's appeal, on
2 October 1996, the Szczecin Regional Court quashed this
decision and remitted the case to the District Court for
re examination. The Court held that the applicant was entitled
to have access to his children and that the District Court should
have examined the case from the perspective of enforcing his rights.
In case the mother obstructed the access arrangements, the District
Court should consider imposing a fine on her pursuant to Article 1050
§ 1 of the Civil Procedure Code.
- On
24 June 1997 the applicant asked the District Court to expedite the
proceedings.
- On
11 September 1997 the Szczecin District Court ordered the mother to
make R. available for contact. The court attached a penal order: in
case of failure to comply with that decision I.P. was to pay a fine
of PLN 300 [approx. EUR 75]. The court further discontinued
the enforcement proceedings as regards contacts with K.
- On
6 January 1998 the applicant informed the District Court that I.P.
was still failing to comply with the decision of 11 September
1997. He further asked the court to impose a fine on her. The
District Court examined his motion on 19 February, 24 March and
10 June 1998. On the latter date the District Court
dismissed the motion.
- On
23 June 1998 the Szczecin District Court informed the applicant that
he could see R. on 29 June 1998 in the Szczecin Consultation
Centre (Ośrodek diagnostyczno konsultacyjny). On
29 June 1998 the visit took place.
- On
12 September 1998 the court informed the applicant that he could meet
his son in the Psychiatric Consultation Centre (Poradnia i
pogotowie umacniania zdrowia psychicznego). It is not clear
whether the visit took place.
- On
an unknown date in 1998, of its own motion, the Szczecin District
Court instituted proceedings against the applicant's ex wife for
limitation of custodial rights and failure to establish access
arrangements for the applicant.
- On
11 January 1999 the applicant informed the court that I.P. had again
failed to make R. available for the meeting. On 15 February 1999
the Szczecin District Court ordered I.P. to comply with the divorce
judgment as regards the applicant's access rights on pain of a fine
in the amount of 500 PLN. On 15 September 1999 and 19 June
2000 the court held hearings. On the latter date the District Court
stayed the proceedings.
- On
30 June 2000 the Szczecin District Court gave a decision and for
the second time determined the applicant's visiting rights. The
applicant could visit R. every second Saturday and Sunday. He could
also spend with him the second day of the Christmas holidays, Easter
Monday and two weeks of holidays either in July or August. The
applicant did not appeal against this decision.
- On
25 July 2000 the Szczecin District Court discontinued the enforcement
proceedings against I.P. in view of the new access arrangements. The
court considered that the applicant should have filed a new motion
for enforcement of his visiting rights.
- On
12 December 2000 the applicant sent a letter to the District Court
complaining that the mother had failed to comply with the terms of
the new contact order.
- On
28 May 2001 the Szczecin District Court ordered the mother to make
the child available for contact on pain of a fine in the amount of
PLN 500 [approx. EUR 125].
- On
9 June 2001 the applicant attempted to visit R. However, I.P. was
absent and R was not available for the meeting. Subsequently, on
11 June 2001 the applicant informed the court that his
ex wife had again failed to comply with the decision of 30 June
2000.
- Meanwhile,
the applicant applied to be granted full custody rights in respect of
R. On 4 October 2000 the Szczecin District Court dismissed his
application. This decision was upheld by the Szczecin Regional Court
on 11 June 2001.
- On
24 September 2001 the Szczecin District Court imposed a fine on I.P,
for failure to comply with the court's orders concerning the
applicant's visiting rights. I.P. appealed against this decision. She
claimed that she had never prohibited R. from seeing his father. She
had even tried to explain to R. that it was important to have
contacts with his father. On 9 June 2001 R. had refused to
meet the applicant and she had not wanted to interfere with his
decision. In her opinion, the applicant had been “torturing”
R. with his constant request for visits.
- On
an unknown later date the applicant's ex wife filed an
application to limit the applicant's contacts with R. She also
appealed against the decision of 24 September 2001.
- On
14 March 2002 the Szczecin Regional Court gave a decision and
dismissed I.P.'s appeal against the decision to impose a fine on her.
The court held that since the access arrangements had been specified
for the second time, I.P. had been refusing to make the child
available for contacts. In addition, I.P. was the debtor in the
enforcement proceedings and she was required to comply with the
access arrangements. Lastly, the applicant's requests, based on a
lawful court order, could not have been considered as “torturing
the child”.
- On
17 June 2002 the Szczecin District Court discontinued the proceedings
in the applicant's case, since the applicant and his ex wife had
reached an agreement concerning access to the child.
- On
11 April 2005 the applicant lodged a complaint about a breach of the
right to a trial within a reasonable time under the Law of 17 June
2004 on complaints about a breach of the right to a trial within a
reasonable time alleging inactivity on the part of the Szczecin
District Court. On 27 April 2005 he submitted that his
complaint related to all sets of proceedings concerning enforcement
of the contact orders, since 1994.
- On
10 May 2005 the Regional Court asked the applicant to specify which
set of enforcement proceedings he had referred to in his complaint.
On 20 May 2005 the applicant submitted that all sets of
proceedings concerned the enforcement of contact orders. He further
claimed that, while the case numbers and the presiding judges had
changed, the enforcement proceedings concerned the same contact order
in respect of his child.
- On
23 May 2005 the Szczecin Regional Court rejected the applicant's
complaint. The court found that the applicant had failed to indicate
to which set of proceedings he had referred. It added that the
applicant's complaint could be considered as concerning the first set
of enforcement proceedings which had been terminated on 11 October
1994. Therefore, his complaint had to be rejected as lodged outside
the time limit.
II. RELEVANT DOMESTIC LAW
1. The length of proceedings
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings are stated in the Court's
decisions in the cases of Charzyński v. Poland
no. 15212/03 (dec.), §§ 12 23, ECHR
2005 V and Ratajczyk v. Poland no. 11215/02
(dec.), ECHR 2005 VIII and its judgment in the case of
Krasuski v. Poland, no. 61444/00, §§ 34 46,
ECHR 2005 V.
2. Visiting rights
- 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 the
other parent's access to a child, 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the Polish authorities had failed to take
effective steps to enforce his right of contact with his son, R. He
alleged a violation of Article 8 of the Convention, which
provides:
“1. Everyone has the right to respect
for his 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
Government contested that argument, stating that the complaint had
been lodged out of time and, in the alternative, was manifestly
ill-founded.
A. Admissibility
- The Court firstly notes that the Government raised a
preliminary objection that this complaint had been lodged outside the
six-month time limit (see paragraph 36 above). They claimed that
the applicant in his application form had not expressly referred to
Article 8 of the Convention. The applicant argued that while he
had not literally indicated Article 8 of the Convention, he had
in fact complained about the violation of his right to respect for
his family life.
- The Court accepts the applicant's arguments and
considers that the applicant raised in substance his complaint about
the alleged violation of his right to respect for his family life,
thereby complying with the six-month time limit required by
Article 35 § 1 of the Convention.
- The Court notes that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant claimed that there had been a continuing violation of his
right to respect for family life. He had repeatedly instituted
several sets of proceedings aimed at providing him with a possibility
to have regular contacts with his son. Despite the fact that two
court orders had been issued, none of them gave the applicant an
effective opportunity to meet his son. He concluded that there had
been a violation of Article 8 in this respect.
- The
Government did not submit any observations on the merits of this
complaint. They merely stated it should be declared inadmissible as
being manifestly ill founded (see paragraph 36 above).
2. The Court's assessment
- The
relationship between the applicant and his son amounted to “family
life” within the meaning of Article 8 § 1 of the
Convention. This has not been disputed.
- The essential object of Article 8 is to protect
an individual against arbitrary action by the public authorities.
There are in addition positive obligations inherent in effective
“respect” for family life. In both contexts regard must
be had to the fair balance that has to be struck between the
competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation (see, Hokkanen v. Finland, judgment of
23 September 1994, Series A no. 299 A, p. 20, § 55).
- Where
the measures in issue concern parental disputes over their children,
however, it is not for the Court to substitute itself for the
competent domestic authorities in regulating contact questions, but
rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of
appreciation. In so doing, it must determine whether the reasons
purporting to justify any measures taken with regard to an
applicant's enjoyment of his right to respect for family life are
relevant and sufficient (see, amongst other authorities,
Olsson v. Sweden, judgment of 24 March 1988,
Series A no. 130, p. 32, § 68).
- The
obligation of the national authorities to take measures to facilitate
contact by a non custodial parent with children after divorce is
not, however, absolute (mutatis mutandis, Hokkanen v. Finland,
cited above, § 58). The key consideration is whether those
authorities have taken all necessary steps to facilitate contact such
as can reasonably be demanded in the special circumstances of each
case (mutatis mutandis, Hokkanen v. Finland,
cited above, § 58).
- In
examining whether non enforcement of the access arrangements
ordered by the domestic court amounted to a lack of respect for the
applicant's family life the Court must strike a balance between the
various interests involved, namely the interests of the applicant's
son and his mother, those of the applicant himself and the general
interest in ensuring respect for the rule of law.
- In
the light of the above principles, what is decisive in this case is
whether the Polish authorities took all the necessary adequate steps
to facilitate the enforcement of the access arrangements as specified
on 16 September 1994 and 30 June 2000.
- According
to the access order the applicant was firstly authorised to meet with
R. twice a week and to spend two weeks in summer with him;
subsequently he was authorised to meet R. every second weekend and to
spend two weeks in summer.
- The
difficulties in arranging access were admittedly in large measure due
to the animosity between the applicant's former wife and the
applicant. Whilst I.P. consistently refused to comply with the access
arrangements, the applicant actively sought their enforcement. He had
several times unsuccessfully approached the national authorities to
put an end to this situation (see paragraphs 14, 18, 21, 23 above).
It would further appear that he managed to see his son only on a very
few occasions. Despite that, the only sanction that the authorities
used in the present case against I.P. was the imposition of a fine on
24 September 2001 (see paragraph 25 above).
- In
this respect, the Court notes that there were long delays in the
enforcement proceedings before the Szczecin District Court. In
particular, the Court would point to the periods between 2 October
1996 and 11 September 1997 (see paragraphs 11-13 above),
15 February 1999 and 15 September 1999 (see
paragraph 18 above), 12 December 2000 and 28 May 2001 (see
paragraphs 21 and 22 above).
- The
Court further considers that the domestic authorities had an
obligation to ensure enforcement of access arrangements, since it is
they who exercise public authority and have the means at their
disposal to overcome problems in the way of execution.
- In addition, the Court observes that no satisfactory
explanation has been put forward to justify the
delays in the enforcement proceedings. Similarly, the
Government have failed to provide
any explanation as to whether the domestic authorities facilitated
the enforcement of the access arrangements.
- From
the foregoing it cannot be said that, bearing in mind the interests
involved, the competent authorities made reasonable efforts to
facilitate the reunion. On the contrary, the inaction of the
authorities placed on the applicant the burden of having to have
constant recourse to a succession of time consuming and
ultimately ineffectual remedies to enforce his rights.
- The
Court reiterates that in cases of this kind the adequacy of measures
taken by the authorities is to be judged by the swiftness of their
implementation; they require urgent handling as the passage of time
and change of circumstances can have irreparable consequences for
relations between the children and the parent who does not live with
them (see Ignaccolo-Zenide v. Romania, no. 31679/96,
§ 102, ECHR 2000 I).
- Accordingly,
the Court concludes that, notwithstanding the margin of appreciation
enjoyed by the competent authorities, the non enforcement of the
applicant's right of access constituted a breach of his right to
respect for his family life under Article 8. There has
consequently been a breach of that provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained that the length of the proceedings in
his case had exceeded a “reasonable time” within the
meaning of Article 6 § 1, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government maintained that the applicant had failed to exhaust
domestic remedies, as he had not lodged a complaint about the breach
of the right to a hearing within a reasonable time under the 2004 Act
in accordance with the procedural requirements.
- The
applicant, for his part, submitted that this remedy was not
effective, as the domestic court had rejected his complaint under the
2004 Act.
- Pursuant
to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
- The
Court observes that the present application was lodged with the Court
when the relevant proceedings were pending before the domestic court.
It further observes that, pursuant to section 18 of the 2004 Act,
it was open to persons such as the applicant in the present case
whose case was pending before the Court to lodge, within six months
from 17 September 2004, a complaint about the unreasonable
length of the proceedings with the relevant domestic court, provided
that their application to the Court had been lodged in the course of
the impugned proceedings and that it had not yet been declared
admissible.
- The
Court has already examined that remedy for the purposes of Article 35
§ 1 of the Convention and found it effective in respect of
complaints about the excessive length of judicial proceedings in
Poland. In particular, it considered that it was capable both of
preventing the alleged violation of the right to a hearing within a
reasonable time or its continuation, and of providing adequate
redress for any violation that has already occurred (see
Michalak v. Poland (dec.), no. 24549/03,
§§ 37 43).
- The
applicant, after having been informed by the Registrar of the
possibility of lodging a complaint about the length of the
proceedings under the 2004 Act, availed himself of this remedy.
However, when filing his complaint with the Szczecin Regional Court
he failed to comply with the procedural requirements attached to that
remedy. In particular, he failed to submit his application within the
prescribed time-limit.
- The
Court reiterates that domestic remedies cannot be said to be
exhausted when an appeal has been rejected or not allowed because of
a procedural mistake by the appellant (see Ben Salah Adraqui and
Dhaime v. Spain (dec.), no. 45023/98, ECHR 2000-IV).
- It
follows that the applicant has not complied with the requirement
under Article 35 § 1 of the Convention as to the
exhaustion of domestic remedies, and, therefore, this complaint must
be rejected in accordance with Article 35 § 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 20,000 euros (EUR) in respect of
non pecuniary damage for the distress caused as a result of the
failure to enforce the decisions concerning access to son.
- The
Government considered that the sum in question was excessive.
- The
Court sees no reason to doubt that the applicant suffered distress as
a result of the non enforcement of the contact orders at issue
and that sufficient just satisfaction would not be provided solely by
the finding of a violation. Making an assessment on an equitable
basis, the Court awards the applicant the sum of EUR 5,000 under
this head.
B. Costs and expenses
- The
applicant who received legal aid from the Council of Europe in
connection with the presentation of his case, also claimed EUR 5,000
for the costs and expenses incurred before the domestic courts and
for those incurred before the Court.
- The
Government contested this claim.
- According
to the Court's case law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,500 for
the proceedings before the Court, less EUR 850 received by legal
aid from the Council of Europe. It therefore awards EUR 650.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the failure to
protect the applicant's right to respect for family life admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- 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, EUR 5,000
(five thousand euros) in respect of non pecuniary damage and
EUR 650 (six hundred and fifty euros) in respect of costs and
expenses, to be converted into Polish zlotys at the rate applicable
at the date of the settlement, plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy Registrar President
