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DABROWSKA v. POLAND - 34568/08 [2010] ECHR 102 (2 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/102.html
Cite as:
[2010] ECHR 102
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FOURTH
SECTION
CASE OF DĄBROWSKA v. POLAND
(Application
no. 34568/08)
JUDGMENT
STRASBOURG
2 February
2010
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 Dąbrowska v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi, judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34568/08) 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, Ms Joanna Maria Dąbrowska
(“the applicant”), on 8 July 2008.
The
applicant was represented by Ms M. Gąsiorowska, a lawyer
practising in Warsaw. 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 the decisions granting her custody of her
son J.
On
17 November 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant lives in Białystok.
In
1991 the applicant married Mr S.D. On 21 December 1998 their son
J. was born.
In
February 2006 the applicant's husband took their son for a winter
holiday but afterwards failed to return with him to the family's
flat. The applicant's husband rented a new flat and started
hindering the applicant's contact with her son.
In
February 2006 the applicant filed for divorce.
On
24 May 2006 the Białystok District Court (Sąd Okręgowy)
gave an interim order which stipulated that, during the divorce
proceedings, the child's place of residence would be with the
applicant. The court ordered the applicant's husband to pay child
maintenance and granted him access to J. on Thursdays and every
other Saturday and Sunday. The interim order became final and
enforceable on 25 May 2006.
On
5 July 2006 the District Court ordered the court-appointed guardians
to enforce the decision of 24 May 2006 and to remove the child from
his father's care.
On
14 July 2006 one of the guardians made a first attempt to enforce the
court's order, which failed owing to the attitude of the father who
refused to hand J. over to his mother. The guardian refused to call
for police assistance or to inform the public prosecutor about
the events.
The
applicant informed the prosecutor that her child had been kidnapped
by her husband. However, on 25 July 2006 the Kolno District
Prosecutor refused to institute criminal proceedings, finding that no
offence had been committed. This decision was upheld by the Białystok
District Court on an unspecified later date.
The
applicant was unable to assist the same guardian in her next attempt
to remove the child from his father's care, which had been
scheduled for 11 August 2006. Consequently, it had to be
cancelled.
Given
the subsequent inactivity of the guardians, the applicant lodged
a complaint with the District Court on 6 December 2006.
In
reply, she was informed by the President of the Łomża
District Court that the guardians had received an instruction from a
family court judge to cease their attempts to remove the child.
Following
her second complaint about the court-appointed guardians, on 16 and
17 January and 5 February 2007, the President of the Białystok
Regional Court (Prezes Sądu Okręgowego) wrote to the
applicant informing her that he agreed that there had been
shortcomings in the guardians' attempts to remove the child from
his father's care and that new measures would shortly be taken. He
noted, in particular, that before ordering a forced removal of the
child, the applicant's husband should have been invited
to voluntarily hand J. over. This had resulted in the
unsuccessful enforcement of the court's order.
On
12 February 2007 the guardians made another attempt to remove
the child. However, the applicant's husband had gone with the
child to the adjacent flat. Both the guardians and the
police refused to enter that flat.
On
20 February 2007 the Białystok District Court ordered the
applicant's husband to hand over the child voluntarily to his mother
within three days.
Since
the father had failed to comply with this order, on 19 March 2007
the Białystok District Court gave a decision in which
it authorised the court-appointed guardians to forcibly remove
the child.
At
a hearing held on 30 March 2007, in the course of the divorce
proceedings, the court heard experts who had prepared an expert
opinion requested by the court. They testified that the child's
father had been manipulating the child with the aim of alienating him
from his mother. The father had also made it difficult for the child
to rebuild his relationship with his mother by ensuring that there
was no private contact between her and the child. During visits the
father was always present. In the best interest of the child,
the experts recommended that custody be given to the applicant.
On
30 March 2007 the guardians made a fourth attempt to remove the child
while he was at school. However, it was unsuccessful because
the father had been notified by one of the guardians about the
plan and thus did not bring the child to school on that day.
The
guardians scheduled the next attempt to remove the child for sometime
between 6 and 26 April 2007; however, it did not take
place as the applicant did not receive formal notification until
28 April 2007. On 19 July 2007 the Białystok
Regional Court considered that the late notification given
to the applicant had been in violation of the domestic law.
On
27 August 2007 one of the guardians again attempted to remove the
child; however, the child's father refused to open the door to the
applicant and the guardian.
In
August 2007 the applicant's former husband went into hiding with
the child, so the guardians could not notify him of the next
planned action. Even so, they did not inform the Kolno District
Prosecutor about this fact until 29 November 2007.
Subsequently, the Białystok District Court ordered that the
applicant's former husband be heard by the Łomża District
Court; for an unknown reason this order has never been carried out.
On
10 September 2007 the Białystok Regional Court dissolved
the applicant's marriage. The court also decided to award the
applicant full parental rights over J. It further found that the
best interests of J. required that his place of residence be
with his mother. The parental rights of the applicant's former
husband were limited to decisions regarding the child's health and
education. He was ordered to pay child maintenance and authorised to
visit J. according to the arrangements set out in the judgment. The
court considered that the applicant's former husband had been
manipulating the child and alienating J. from his mother and
other members of his family.
The
applicant's husband lodged an appeal against the judgment.
Since
September 2007 the applicant's child has not been attending school.
On 5 December 2007 the applicant was fined for not fulfilling J.'s
educational obligations. It appears that the decision was later
quashed.
On
15 October 2007 the applicant received a reply from the President
of the Białystok Regional Court to another of her
complaints about the guardians' inefficiency. The President
considered that some delays had been caused by the father's
obstructive attitude but also by a lack of co-operation between the
applicant and the guardians. Nevertheless, the last action by one
of the guardians, which had taken place on 30 August 2007,
had shown a lack of diligence, and the guardian had been
instructed to make better use of the provisions of the Code
of Civil Procedure (Article 598¹¹).
On
28 February 2008 the Białystok Court of Appeal (Sąd Apelacyjny)
upheld the divorce judgment and dismissed the applicant's husband's
appeal as manifestly ill-founded. The judgment is final.
On
14 April 2008 the Białystok District Court decided to
discontinue the proceedings concerning the enforcement of the
court's order of 24 May 2006. It found that the enforcement
proceedings had lost their legal basis in the light of the final
judgment pronouncing the applicant's divorce. On 17 June
2008 the Białystok Regional Court quashed that decision.
The court considered that the enforcement proceedings should be
continued since parental rights had been awarded to the applicant and
she wished the proceedings aiming at the enforcement of the
court's decisions to be continued. Moreover, the child
remained in the care of an unauthorised person.
On
14 August 2008 the President of the Bialystok Regional Court again
replied to the applicant's complaints that the enforcement
proceedings were taking too long. The President informed the
applicant that he would be personally overseeing the enforcement
proceedings. He also stated that “the enforcement is still not
effective and incorrect procedural decisions have again been taken,
which have led to the proceedings being unnecessarily protracted”.
On
an unspecified later date the applicant's former husband applied to
be granted custody of J and to change the decision limiting his
parental rights.
On
2 April 2009 the Bialystok District Court, sitting in camera, gave a
temporary order in which it decided that, until the matter of custody
was re-examined on the merits, the child's place of residence should
be with his father. The court pointed to the fact that the child had
been living with his father prior to the divorce proceedings and
had very few ties with his mother. The court took into consideration
that the child, who was eleven years old, had expressed his
preference to live with his father. Moreover, the court considered
that J. had been having contact with the applicant and that remaining
temporarily with his father would be in his best interest.
The
applicant appealed against the decision, complaining that she had not
been informed of the proceedings to change the custody order
instituted by her former husband and that the decision had been
issued without holding a hearing. She maintained that the child's
father had not been properly caring for J. and had not fulfilled the
court's orders.
On
13 May 2009 the Bialystok Regional Court upheld the decision and
dismissed the applicant's appeal. The court held that it had been
necessary to legalise the existing status quo as J. had been in the
care of his father since 2006.
To
date J. has not been removed from his father's care. Prior to 2 April
2009, that had been in breach of the interim order of 24
May 2006 and the final divorce judgment of 10 September
2007. During that time, the applicant had only had infrequent contact
with J., always in public places and in the presence of the
child's father.
II. RELEVANT DOMESTIC LAW
Article
5986 of the 1964
Code of Civil Procedure (Kodeks Postępowania Cywilnego)
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 forcibly remove the persons concerned (przymusowe odebranie
osoby).
Under
Article 59810,
“Upon a request of a court-appointed guardian, the
police are obliged to help him or her to carry 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 in hiding or because other action is
taken with the aim of stopping the enforcement of the order, the
court-appointed guardian shall inform a prosecutor.”
Pursuant
to 59812,
Ҥ 1 The court-appointed
guardian, in carrying out the removal of [a minor], shall be
especially careful and shall do everything to ensure that the
well-being of the child is not damaged 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 placed at risk as a result of the removal, the guardian
shall stop the enforcement of the order until the risk is over,
unless by stopping the enforcement, the person would be placed
at greater risk.”
Article
211 of the 1997 Criminal Code (Kodeks Karny) provides
as follows:
“Whoever, contrary to the will of the person
having care or supervision, abducts or detains a minor under
fifteen years of age or a person who is helpless by reason of his
mental or physical condition, shall be liable to a custodial penalty
of up to three years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that her right to respect for private and family
life, as protected by Article 8 of the Convention, had been breached.
That Article reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government did not comment on the application.
A. Admissibility
The
Court notes that the application 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
The
applicant complained that the authorities had continually failed
to enforce the court's decisions ordering that J.'s place of
residence should be with her. She submitted that the State had a
positive obligation to take effective measures aimed at securing
her right to respect for her private and family life. She also
stated that the court-appointed guardians had not acted with due
diligence. The applicant had unsuccessfully complained to the
supervisory authorities in relation to the guardians' actions.
As a consequence
of the authorities' failure to enforce their own decisions the
custody rights granted to the applicant had turned out
to be illusory. She had been forced to agree to meet her
son in conditions imposed by her former husband - only in public
places and in his presence. The emotional ties between her and her
son had been permanently affected.
As
mentioned above, the Government did not submit any comment regarding
this case.
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).
The
Court's case-law has consistently held that Article 8 includes
a right for a parent to have measures taken with a view to his
or her being reunited with the child, and an obligation for the
national authorities to take such measures. This applies not only to
cases dealing with the compulsory taking of children into public care
and the implementation of care measures (see, inter alia,
Olsson v. Sweden (no. 2), judgment of 27 November 1992,
Series A no. 250, pp. 35-36, § 90), but also to cases where
contact and residence disputes concerning children arise between
parents and/or other members of the children's family (see
Hokkanen v. Finland, 23 September 1994, § 55, Series A no.
299 A, and Zawadka v. Poland, no. 48542/99, § 55,
23 June 2005).
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. The key
consideration is whether those authorities have taken all necessary
steps to facilitate contact as can reasonably be demanded in the
special circumstances of each case (see Ignaccolo Zenide
v. Romania, no. 31679/96, § 96, ECHR 2000 I; Nuutinen
v. Finland, no. 32842/96, § 128, ECHR 2000 VIII;
and Sylvester v. Austria, nos. 36812/97 and
40104/98, § 59, 24 April 2003).
Other
important factors in proceedings concerning children are that time
takes on a particular significance as there is always a danger that
any procedural delay will result in the de facto determination
of the issue before the court and that the decision-making procedure
provides requisite protection of parental interests (see W. v. the
United Kingdom, judgment of 8 July 1987, Series A no.
121, pp. 28-29, §§ 62-64).
The
Court firstly observes that the present case does not concern
a situation where the authorities were unable to effectively
enforce the access rights of one divorced parent because of the
conflict between the parties (see D. v Poland (dec). no.
8215/02, 14 March 2006). The applicant in the case under
consideration was granted sole custody over her son J. by the final
decisions issued by the domestic courts on 24 May 2006 and
10 September 2007. Nevertheless, these decisions were not
enforced by the authorities and the applicant's son has been living
with his father since February 2006.
Finally,
in 2 April 2009 the authorities decided to legalise the status quo
and granted the applicant's former husband temporary custody of J.
The
interim order became enforceable on 25 May 2006 and immediately after
that date the applicant applied to the court-appointed guardians to
remove the child from the care of an unauthorised person. However,
the first attempt was not made until 14 July 2006 (see paragraph 11
above). Subsequently, the guardians acted either slowly or
ineffectively. For example, the Court notes a long period of
inactivity between the first attempt to enforce the order and the
second one, which took place seven months later (see paragraphs 13
and 17 above). The shortcomings were acknowledged by the President of
the Bialystok Regional Court on three occasions in 2007 and on at
least one occasion in 2008 (see paragraphs 16 and 31 above).
Nevertheless, there is no evidence that any action was taken to
eliminate these shortcomings and to assure diligence by the
guardians.
Nor
is there any appearance that the authorities took a firmer stand
after the judgment of 10 September 2007 became final, by virtue of
which the applicant's former husband's parental rights were limited
and the child's place of residence was again ordered to be with his
mother. This judgment included a critical assessment of the father's
parental skills based on the opinion of the expert, who considered
that he had been manipulating his son and alienating him from the
applicant (see paragraphs 20 and 25 above). Nevertheless, the courts
attempted to formally discontinue the enforcement proceedings and
apparently ceased to take any actions with the aim of changing
the child's place of residence (see paragraph 30 above).
The
Court acknowledges that some of the difficulty of the present case
resulted from the fact that the applicant's former husband had
refused to hand over the child to the court-appointed guardians.
While the use of coercive measures against the child 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 child lives (see H.N. v. Poland, no. 77710/01, §
74, 13 September 2005, and P.P. v. Poland, no.
8677/03, § 92, 8 January 2008). In this connection the
Court observes that, while there was no doubt that J. had been
removed by the applicant's former husband in March 2006 and that the
latter had been avoiding enforcement of a final decision
granting the applicant custody of J., the domestic authorities
nevertheless discontinued the investigation into the allegation
of abduction and hiding of J. finding that no offence had been
committed (see paragraph 12 above).
Without
overlooking the difficulties created by the resistance by J.'s
father, the Court thus finds that the lapse of time and the
ineffectiveness of the enforcement of the binding domestic
decisions were, 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 should not be determined by the mere
effluxion of time (see P.P., cited above, § 93, and
Sylvester, cited above, § 69). Moreover, it cannot
be said that the responsibility for failure of the relevant decisions
or measures can be attributed to the applicant who actively sought
their enforcement (see Hokkanen, citied above, § 60).
In addition, the Court observes that no explanation
has been put forward by the
Government 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 final domestic decisions (see paragraphs 40
and 43 above, and Pawlik v. Poland, no. 11638/02, §
52, 19 June 2007).
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 decisions ordering that
the place of residence of the applicant's child be with her and
thereby breached the applicant's right to respect for her family
life, as guaranteed by Article 8.
There
has accordingly been a violation of Article 8 of the Convention.
II. 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 15,000 euros (EUR) in respect of non pecuniary
damage.
The
Government did not submit comments regarding the applicant's claim.
The
Court awards the applicant EUR 10,000 in respect of non pecuniary
damage.
B. Costs and expenses
The
applicant, who was represented by a lawyer, also claimed 5,600 Polish
zlotys (PLN), which amounted to EUR 1,250 at the time the claims were
submitted, for costs and expenses.
The
Government did not submit comments regarding the applicant's claim.
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 were
reasonable as to quantum. In the present case, the Court notes that
the applicant's lawyer failed to specify the exact amount sought in
respect of the costs and expenses incurred in the domestic
proceedings and in the proceedings before the Court. Nor did she
submit any invoices or other evidence substantiating that the costs
had been actually and necessarily incurred. Regard being had to the
above the Court dismisses the claim for 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
Declares the application admissible;
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 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
