European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
P.P. v. POLAND - 8677/03 [2008] ECHR 19 (8 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/19.html
Cite as:
[2008] ECHR 19
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FOURTH
SECTION
CASE OF P.P. v. POLAND
(Application
no. 8677/03)
JUDGMENT
STRASBOURG
8
January 2008
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 P.P. v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Joseph Casadevall,
Giovanni
Bonello,
Kristaq Traja,
Javier Borrego
Borrego,
Lech Garlicki,
Ljiljana Mijović,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8677/03) 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 an Italian national, Mr P.P. (“the
applicant”), on 24 February 2003. The President of the
Chamber acceded to the applicant's request not to have his name
disclosed (Rule 47 § 3 of the Rules of Court).
The
applicant was represented by Mr D. Mascia, a lawyer practising in
Verona, Italy. The Polish Government (“the Government”)
were represented by their Agent, 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 Agent, Mr Ivo Maria Braguglia.
The
applicant alleged in particular violation of Articles 6 § 1 and
8 of the Convention on account of the non-enforcement of the
decisions relating to return of his daughters who had been abducted
by their mother to Poland.
By
a decision of 24 January 2006 the Court declared the application
admissible.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant lives in Torri di Quartesolo, Italy.
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.
A. 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
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.
B. 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.”
C. The proceedings concerning 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 an 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. Reuniting the children only 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 the 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 contact without the 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 had been 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 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 as it will be 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 to 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 them psychological damage.
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 can no longer 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 good and they do
not require special conditions for their development.
Both
minors are of a young age and have not reached a degree of maturity
which would allow their opinions to be taken into account 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.
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.
D. The first attempt to enforce the court order
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 within
one week. 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 forcibly remove A and B from
K.P. under Article 5986
of the Code of Civil Proceedings.
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 applicant was also present.
The children were not found at any of those locations. Despite some
indications that the children could have been in the second house
visited, the police officers refused the guardians' request to enter
the 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.
E. Other attempts to enforce the court order
On
31 January 2002 two guardians assisted by police officers and
accompanied by a representative of the Italian embassy attempted to
enforce the court's order. K.P. and the 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. had paid for tuition, however due to
illness A had not been attending classes.
On
18 October 2002 the police informed the court of the address where A
and B were staying with their mother. The court guardian went to this
address on 21 October 2002 but the children were not there.
Apparently,
on 7 January 2003 K.P. proposed a friendly settlement with the
applicant. He refused.
On
27 January 2003 the court guardian attempted to remove the children
from the last known address but there was no sign of them again.
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 harm” (społeczna szkodliwość
czynu jest znikoma).
On 25
September 2003 the Poznań District Court dismissed an appeal by
the applicant 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.
F. 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, went 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 belonging to the local forest warden. It was surrounded by police
officers. K.P., her sister and A and B were inside the house. When
guardians entered the house A said that she did not want to be
reunited with her father and K.P. used insulting language with
respect to the applicant and the court which had ordered the return
of the children. Subsequently, the guardians called an ambulance.
After a doctor had 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.
Immediately
after the attempt to remove the children, K.P. left with A and B and
remained in hiding at least until September 2003. Since then they
have been living in K.P.'s father's house in P., where the children
attend schools.
G. The staying of the enforcement proceedings and the
proceedings to change the order to return the children
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.
The order is final and enforceable.
[K.P.] has been in 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
lodged 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 an appeal
by the applicant 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
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 evidence from K.P.
On
7 March 2004 the applicant asked the court to determine his contact
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. This order was amended on 15 April 2005 by the
Poznan District Court, which decided that the applicant could visit
his daughters every time he came to Poland and that he could take
them outside their place of residence.
On
27 March 2005 the applicant met his daughters for the first time
since 2001. The visit took place in the house of K.P.'s father. The
applicant was allowed to speak with his older daughter A but the
grandfather, assisted by private security guards, stopped him from
entering the second floor of the house to see his younger daughter.
On
7 June 2005 the Poznan District Court quashed the decision of
5 January 2001 and decided not to return the children to the
applicant. The court justified the review of the final decisions
ordering the return of children to Italy, under Article 13 of the
Hague Convention, by reference to a risk that their return would
expose the children to psychological harm or would otherwise place
them in an intolerable situation. It based its assessment on the
visits that had been carried out in the place of residence of the
children, in September and October 2003, and on the opinion of the
Poznań Family Consultation Centre of 27 October 2003. The court
established that during their six-year stay in Poland the girls had
fully assimilated in the country, spoke Polish, and had forgotten
their life in Italy. Their emotional bond with their mother was very
strong. The emotional tie between A and her father was distorted as
she rejected him, disapproved of him and wished to stay with her
mother in Poland. The bond between the younger B and the applicant
was considered by the experts as suppressed. In those circumstances
the court found that the best interest of the children required
quashing the decisions ordering their return to Italy, as separating
A and B from their mother could be dangerous for their mental state
and could place them in an intolerable situation.
On
8 July 2005 the applicant, represented by his lawyer, lodged an
appeal against the decision.
On
11 October 2005 the Poznan Regional Court dismissed the appeal. The
decision is final.
On
28 November 2005 the Poznan District Court resumed the enforcement
proceedings and decided that in the light of the decision of 7 June
2005 the enforcement of the order to return the children should be
finally discontinued.
Simultaneously,
the Italian courts were dealing with the applicant's case. On 24
February 2005 the Venice court granted the applicant sole custody of
A and B. On 28 November 2005 the Venice court gave a decision in
which it deprived K.P. of her parental authority over A and B. The
decision is final.
H. The order to detain the applicant
On
1 December 1999, in the course of the divorce proceedings instituted
by K.P., the Poznań Regional Court ordered the applicant to pay
1,000 Polish zlotys (PLN) monthly in 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 child support the Poznań District
Prosecutor instituted criminal proceedings against him, on a request
made by K.P. 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 lawyer applied to change the preventive
measure imposed on the applicant.
On
22 July 2004 the Poznan District Prosecutor dismissed his request as
it found that bail would not secure the applicant's appearance at his
trial. That decision was upheld by the Poznan District Court on
19 October 2004.
Another
request to quash the decision ordering the applicant's detention was
dismissed by the Poznan District Prosecutor on 15 January 2005.
The applicant's lawyer appealed against this decision.
On
9 March 2005 the Poznan District Court allowed the appeal and quashed
the applicant's detention order. The court established that the
reason for which the detention had been imposed, the impossibility of
establishing the applicant's address in Poland, was no longer a valid
ground as he had appointed a representative in the case. Moreover, it
had not been substantiated that the applicant would avoid his trial.
I. The proceedings concerning child support and divorce
On
17 May 2004 the Poznan Regional Court during the divorce proceedings
decided to dismiss K.P.'s request for child support from the
applicant. The court found that since K.P. has been keeping the
children illegally and has not allowed the enforcement of final
decisions, supporting the children should remain her sole
responsibility.
On
7 September 2004 the Poznan Court of Appeal dismissed an appeal by
K.P. against this decision.
On
11 January 2005 the Poznan Regional Court dismissed another request
lodged by K.P. to grant her child support from the applicant. Her
appeal against this decision was dismissed on 15 February 2005 by the
Poznan Court of Appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. 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 organising 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 of 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. ...”
Article
13 provides as follows:
“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person,
institution or other body which opposes its return establishes that –
a) the person, institution or other body having
the care of the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had consented
to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return
would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.
The judicial or administrative authority may also refuse
to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.
In considering the circumstances referred to in this
Article, the judicial and administrative authorities shall take into
account the information relating to the social background of the
child provided by the Central Authority or other competent authority
of the child's habitual residence.”
B. 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 interests of the person 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 children under the Hague Convention.
Article
5986 provides,
that if a person who is ordered to return a child does not comply
with the court's order, the court will instruct the guardian to
remove the persons concerned forcibly (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:
Ҥ 1 The court guardian, in
carrying out the removal of [a minor], shall be especially 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 parent's access rights refuses to comply therewith, decisions
on access rights are liable to enforcement proceedings. The
provisions of the Code of Civil Procedure on enforcement of
non-pecuniary obligations are applicable to the enforcement of court
decisions on parental rights or access rights (resolution of the
Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976
7-8).
If
a court obliges a parent exercising custody rights to ensure access
to a child to the other parent, Article 1050 of the 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 especially
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.”
C. 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 fifteen 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 three years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained under Article 8 of the Convention about the
failure of the domestic authorities to enforce the Polish courts'
decisions concerning his visiting rights and the return of his
daughters to Italy. Article 8 of the Convention, in so far as
relevant, provides:
“1. Everyone has the right to respect
for his private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties' submissions
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 had 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 had 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 had granted the applicant access to his children.
However, they acknowledged that the enforcement of those visits had
been 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 daughters had not been exercised. They referred to the
criminal proceedings instituted against the applicant, for not paying
child benefit for a period of almost three years between 1999 and
2002, in the course of which an arrest warrant had been issued
against him. The fear of being arrested, in the Government's opinion,
had prevented the applicant from coming to Poland to exercise his
visiting rights.
B. The Italian Government's submissions
The
Italian Government expressed their concern that the passage of time
could have irreversible consequences for 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 for
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.
C. The Court's assessment
1. The general principles
The Court reiterates that the essential object of
Article 8 is to protect the individual against arbitrary action by
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 Keegan v. Ireland, judgment of 26
May 1994, Series A no. 290, p. 19, § 49).
In
relation to the State's obligation to take positive measures, the
Court has repeatedly held that Article 8 includes a parent's right to
the taking of measures with a view to his being reunited with his
child and an obligation on the national authorities to facilitate
such reunion (see, among other authorities, Ignaccolo-Zenide v.
Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen
v. Finland, no. 32842/96, § 127, ECHR 2000 VIII;
and Iglesias Gil and A.U.I. v. Spain, no. 56673/00,
§ 49, ECHR 2003 V).
In
cases concerning the enforcement of decisions in the sphere of family
law, the Court has repeatedly held that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
the execution as can reasonably be demanded in the special
circumstances of each case (see Hokkanen v. Finland, judgment
of 23 September 1994, Series A no. 299 A, § 53;
Ignaccolo-Zenide, cited above, §96; Nuutinen, cited
above, §128; and Sylvester v. Austria,
nos. 36812/97 and 40104/98, § 59, 24 April 2003).
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 does not live with him or her. In proceedings under the
Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction this is all the more so, as its Article
11 requires the judicial or administrative authorities concerned to
act expeditiously in proceedings for the return of children and any
inaction lasting more than six weeks may give rise to a request for a
statement of reasons for the delay (see Ignaccolo-Zenide,
cited above, § 102, and H.N. v. Poland,
no. 77710/01, §§ 78 and 83, 13 September 2005).
The
Court also held that although coercive measures against the children
are not desirable in this sensitive area, the use of sanctions must
not be ruled out in the event of unlawful behaviour by the parent
with whom the children live (see Ignaccolo-Zenide, cited
above, § 106).
Lastly, the Court reiterates that the Convention must
be applied in accordance with the principles of international law, in
particular with those relating to the international protection of
human rights (see Streletz, Kessler and Krenz v. Germany [GC],
nos. 34044/96, 35532/97 and 44801/98, § 90,
ECHR 2001-II, and Al-Adsani v. the United Kingdom
[GC], no. 35763/97, § 55, ECHR 2001-XI). Consequently,
the Court considers that the positive obligations that Article 8 of
the Convention lays on the Contracting States in the matter of
reuniting a parent with his or her children must be interpreted in
the light of the Hague Convention, all the more so where the
respondent state is also a party to that instrument (see
Ignaccolo-Zenide, cited above, § 95).
2. The application of the general principles to the
above case
The
Court firstly notes that it was common ground that the tie between
the applicant and A and B came within the scope of family life within
the meaning of Article 8 of the Convention.
The
Court observes that the core of the application is the
non-enforcement of the decisions ordering the children's return to
Italy. In the light of the above principles, what is decisive in this
case is to determine whether the Polish authorities took all the
necessary adequate steps to facilitate the enforcement of those
decisions. Moreover, the Court reiterates that the swiftness of the
implementation of the return of children was essential, as the
applicant had made an urgent application to the courts, the purpose
of which was to protect the individual against any damage that might
result from the lapse of time (see H.N., cited above, §§
77 and 78).
The
Court notes that the domestic authorities had firstly decided to
return children to the applicant, the decision became final on 8 June
2001, and they subsequently attempted to enforce the return order.
However, the order was never enforced and on 7 June 2005 the domestic
court had established that there had been a change in circumstances
and had decided that the return of the children entailed a grave risk
of harm within the meaning of Article 13 (b) of the Hague Convention.
In this connection the Court reiterates that a change in the relevant
facts may exceptionally justify the non-enforcement of a final return
order. However, having regard to the State's positive obligations
under Article 8 and the general requirement of respect for the rule
of law, the Court must be satisfied that the change of relevant facts
was not brought about by the State's failure to take all measures
that could reasonably be expected to facilitate execution of the
return order (see Sylvester, cited above, § 63).
The
Court observes that in the proceedings dealing with the applicant's
request for the return of the children, the case lay dormant on
several occasions and that the periods of inactivity lasted several
months each. In particular it took the appellate court from 2
February to 3 June 2000 to reach a decision, and similarly no hearing
was held between 16 June and 21 October 2000 before the District
Court and between 5 January and 1 June 2001 before the
Poznań Regional Court. The Court considers that no satisfactory
explanation has been put forward to justify those delays.
As
regards the subsequent enforcement proceedings conducted by the
court's bailiff, the Court also observes that the applicant applied
to enforce the court's order on 19 July 2001, however, the bailiff
requested K.P. to return the children only on 10 September 2001.
Given her refusal to comply, he discontinued the proceedings after
three months, on 31 December 2001. These periods of inactivity
must be attributed to the domestic authorities.
The
court also considers that after the guardians' attempts to find A and
B made in January 2002, they remained practically inactive until
another attempt to locate the children was made on 21 October
2002 (see paragraphs 34 and 36 above).
The
Court notes that, in the event, when the authorities did finally find
the children on 3 April 2003, the circumstances were such that
they could not remove them.
The
Court acknowledges that the difficulty of the present case resulted
from the fact that K.P. had been hiding A and B and that on 3 April
2003 she refused to hand over the children to the court guardian and
the police. While the use of coercive measures against the children
is not desirable, the Court reiterates that the use of sanctions must
not be ruled out in the event of unlawful behaviour by the parent
with whom the children live. In this connection the Court observes
that while there was no doubt that the children were wrongfully
removed by K.P. and that she was avoiding enforcement of a final
decision ordering removal of A and B, the domestic authorities
discontinued criminal proceedings against her, judging that the
abduction and hiding of the children were of “minimal social
harm” (see paragraphs 18 and 41 above).
Without
overlooking the difficulties created by the resistance of the
children's mother, the Court finds, thus, that the lapse of time was
to a large extent caused by the authorities' own handling of the
case. In this connection, the Court reiterates that effective respect
for family life requires that future relations between parent and
child not be determined by the mere effluxion of time (see W. v.
the United Kingdom, judgment of 8 July 1987, Series A no.
121, p. 29, § 65, and Sylvester, cited above, § 69).
Finally,
the Court notes that it is not called in the present case to examine
the issue of lawfulness or arbitrariness of the decision ordering the
applicant's pre-trial detention given in January 2002. The Court also
notes that the criminal proceedings against the applicant were
instituted due to his failure to pay child support for his daughters
ordered by the court on 1 December 1999. Nevertheless, that
decision was in force until 14 October 2002, while the
authorities maintained the detention order until March 2005. During
this time the domestic courts considered unjustified other claims for
child support benefit made by K.P. (see paragraphs 63 to 65 above).
The Court thus considers that in the particular
circumstances of the case, the upholding for a period of over three
years of the detention order against the applicant, although it
originated in his own decision not to pay child support for his
children, made it more difficult for him to come to Poland to see his
children and to help in the enforcement of the decision to remove
them.
Having
regard to the foregoing, the Court concludes that the Polish
authorities failed to take, without delay, all the measures that
could reasonably be expected to enforce the return order and
consequently to secure his visiting rights, and thereby breached the
applicant's right to respect for his family life, as guaranteed by
Article 8.
Consequently,
there has been a violation of Article 8.
Bearing in mind the violation of Article 8 already
found, the Court considers that it is not necessary to examine
separately the other aspect of the complaint raised by the applicant,
namely the non-enforcement of the visiting rights, mainly between
2001 and 2005. The Court notes that lack of contact between the
applicant and his children during this time was primarily caused by
the authorities' failure to find the children, as K.P. was hiding
them in order to avoid the enforcement of the return order issued
under the Hague Convention, and by the arrest order which had been
issued against the applicant, which had made it more difficult for
him to come to Poland. Those circumstances were taken into
consideration by the Court in the above assessment, which resulted in
the finding that the domestic authorities had failed to secure
respect for the applicant's family life.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the final courts' decisions had not been
enforced 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 provides:
“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
...”
A. The parties' submissions
The
applicant submitted that although the authorities had recognised his
right to be reunited with his children and had 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 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 had acted diligently and had tried on several
occasions to enforce the decisions. These attempts were unsuccessful
because K.P. was in hiding with the children. The respondent
Government underlined that the case was particularly difficult as it
concerned delicate family matters regarding two minors.
B. The Italian Government's submissions
The
Italian Government argued that by non-enforcement of the final court
orders the respondent State had 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.
C. The Court's assessment
101. The
Court reiterates the difference in the nature of the interests
protected by Articles 6 and 8 of the Convention. While Article 6
affords a procedural safeguard, namely the “right to a court”
in the determination of one's “civil rights and obligations”,
Article 8 serves the wider purpose of ensuring proper respect for,
inter alia, family
life. The difference between the purpose pursued by the
respective safeguards afforded by Articles 6 and 8 may, in the light
of the particular circumstances, justify the examination of the same
set of facts under both Articles (see for instance McMichael v.
the United Kingdom, judgment of 24 February 1995, Series A no.
307-B, p. 57, § 91).
102. In
the instant case, the Court finds that the lack of respect for the
applicant's family life resulting from the non-enforcement of the
final return order is at the heart of his complaint. Having regard to
its above findings under Article 8, which focus on the
non-enforcement of a final court order, the Court considers that it
is not necessary to examine the facts also under Article 6
(see Sylvester v. Austria, cited above, § 76).
Regard being had to the above conclusion, the Court does not
consider it necessary to examine separately the applicant's complaint
about the alleged non-enforcement of visiting rights.
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 39,100 euros (EUR) in respect of pecuniary damage,
for travel costs of forty-six trips he made between Italy and Poland
in connection with the enforcement proceedings and for the purpose of
visiting his children in Poland. The applicant stated that he had
made eight trips in 1999, twenty-four in 2000 and twelve in 2001. He
made one trip in 2002 and one in 2005.
As to
non-pecuniary damage, the applicant claimed EUR 50,000 by way of
compensation for suffering endured by him and his children.
The
Government submitted that the applicant's claim in relation to
pecuniary damage had no causal casual link with the alleged
violations of the Convention. With regard to non-pecuniary damage,
the Government argued that the sum claimed by the applicant was
excessive and unjustified.
As
regards the travel and subsistence costs related to visiting his
children and the enforcement of the return order under the Hague
Convention, claimed by the applicant under the head of the pecuniary
damage, the Court considers it appropriate to deal with them under
the head of costs and expenses.
As
to non-pecuniary damage, the Court sees no reason to doubt that the
applicant suffered distress as a result of the non-enforcement of the
return order and that sufficient just satisfaction would not be
provided solely by the finding of a violation. Having regard to the
sums awarded in comparable cases (see, for instance,
Ignaccolo-Zenide, cited above, §117, and Hokkanen,
cited above, p. 27, § 77; see also, mutatis mutandis,
Elsholz v. Germany [GC], no. 25735/94, § 71, ECHR
2000-VIII and Kutzner v. Germany, no. 46544/99, §
87, ECHR 2002-I; and Sylvester, cited above, § 84)
and making an assessment on an equitable basis as required by
Article 41, the Court awards the applicant EUR 7,000.
B. Costs and expenses
The
applicant claimed a total amount of EUR 17,683 by way of costs and
expenses broken down as follows:
(i)
EUR 9,700 for legal expenses paid to four lawyers who represented him
at different stages of the domestic proceedings in Poland;
(ii)
EUR 6,000 for legal expenses paid to his lawyer who represented him
in the Court proceedings;
(iii)
EUR 1,600 for costs of interpretation in the domestic proceedings;
(iv)
PLN 1,500, equivalent to EUR 383 at the material time, for court fees
for enforcement of the domestic court's judgment.
The
Government submitted that the costs and expenses claimed by the
applicant were exorbitant and in part irrelevant as there was no
indication that they had been incurred with the purpose of
preventing, or obtaining redress for the violation complained of.
According
to the Court's consistent case-law, to be awarded costs and expenses
the injured party must have incurred them in order to seek prevention
or rectification of a violation of the Convention, to have the same
established by the Court and to obtain redress therefor. It must also
be shown that the costs were actually and necessarily incurred and
that they are reasonable as to quantum (see, for instance, Venema
v. the Netherlands, no. 35731/97, § 117, ECHR 2002-X).
The
Court considers that the costs and expenses relating to the domestic
proceedings, as far as they concern the enforcement proceedings found
to cause a violation of the Convention (see paragraph 95 above) and
the costs of the Strasbourg proceedings were incurred necessarily.
They must, accordingly, be reimbursed in so far as they do not exceed
a reasonable level (see Ignaccolo-Zenide, cited above, §
121).
However,
the Court notes that the applicant's claims relating to costs and
expenses allegedly incurred before the Polish authorities have not
been accompanied by any invoices or other justifications. The Court
thus considers that the applicant failed to substantiate that he had
incurred the claimed costs, with an exception of the costs of his
representation before the Court, which had been documented by
invoices. Turning to travel and subsistence costs related to the
forty-six trips allegedly made by the applicant to Poland, the Court
notes that the claim was also not supported by any justifications.
The applicant failed also to specify the exact dates on which he had
made those trips. The Court considers, however, on the basis of the
facts of the case, that the applicant must have incurred travel and
subsistence costs related to one trip he made in 2002 in connection
with an attempt to enforce the return order under the Hague
Convention.
Making
an assessment on an equitable basis and considering, in particular,
that the case was indisputably complex, it awards the applicant EUR
7,000 under the head of costs and expenses.
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
Holds that there has been a violation of
Article 8 of the Convention on account of the non-enforcement of
the order requiring the return of the children to the applicant;
Holds that there is no need to examine the
applicant's other complaints under Articles 6 § 1 and 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 according to
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
7,000 (seven thousand euros) in respect of non pecuniary damage;
(ii) EUR
7,000 (seven thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 8 January 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
