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WOJCIECH NOWAK v. POLAND - 11118/06 [2010] ECHR 854 (8 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/854.html
Cite as:
[2010] ECHR 854
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FOURTH
SECTION
CASE OF WOJCIECH NOWAK v. POLAND
(Application
no. 11118/06)
JUDGMENT
STRASBOURG
8 June 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 Wojciech Nowak v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 18 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 11118/06) 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 Wojciech Nowak
(“the applicant”), on 13 March 2006.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry for 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
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 was born in 1966 and lives in Zawiercie.
In
1993 the applicant married A.N. In 1994 they had a son, D.
Subsequently, the applicant and A.N. separated. Since their
separation, they have been living in the same town and in the same
street.
On
3 September 1996 the Zawiercie District Court issued an interim
contact order. According to its terms, the applicant was allowed to
visit the child every Tuesday and every first Saturday and third
Sunday of the month, between 4 p.m. and 6.30 p.m.
Between
29 September 1996 and 5 October 1997 the Zawiercie police intervened
on 12 occasions in order to facilitate the applicant's contact with
his child. These interventions took place at A.N's place of residence
and it would appear that on all these occasions the applicant was
able to see the child.
On
27 May 1997 the Katowice Regional Court dissolved the applicant's
marriage. It awarded parental rights to A.N., limited the applicant
in the exercise of his rights and ordered that D.'s permanent
residence be with his mother. The applicant was allowed to
participate in decisions about the child's education and health.
On
1 September 1997, 5 May 1998 and 18 May 1999 the applicant made
applications for fines to be imposed on A.N. under Article 1051 of
the Code of Civil Procedure. He subsequently withdrew the
applications.
On
4 March 1998 the District Court modified the access arrangements to
allow the applicant to take his son for two weeks' holiday between 1
and 15 July.
Between
1 June 1998 and 28 January 1999 the Zawiercie police intervened on
nine occasions in order to facilitate the applicant's contact with D.
It appears that only on one of these occasions was the applicant
unable to see D., as the child stated that he had not wished to see
his father.
On
15 April 1999, on the applicant's motion, the Zawiercie District
Court ordered A.N to allow the applicant's contact with the child on
pain of a 100 PLN fine.
Between
18 April 1999 and 8 June 1999 the police intervened on eight
occasions in order to enforce the applicant's contacts with his son.
On
9 December 1999 the applicant and his ex-wife concluded a court
settlement concerning the applicant's visiting right. According to
its terms the contacts were to be enforced under supervision of a
court appointed guardian in order to protect D.'s well-being.
However,
the mother failed to comply with the access arrangements. On 5
January 2000 the applicant asked the Zawiercie District Court to
impose a fine on A.N. for failure to comply with the settlement. On
9 March 2000 the District Court ordered A.N. to make
the child available for a visit (by 1 May 2000), on pain of having to
pay a fine.
On
28 April 2000 the applicant lodged yet another request for a fine to
be imposed on A.N. On 19 December 2000 the District Court dismissed
that request. The court obtained reports from two experts including a
psychologist and heard evidence from several witnesses. It considered
that A.N had not turned the child against his father. It noted that
the child had not wished to attend the meetings with his father.
Moreover, because of the forced contacts, in particular the two-week
holiday in 1998, D. started suffering from anxiety and fear. The
court also made reference to the fact that the applicant had proposed
not to have any contacts with the child for 5 years if A.N did
not claim maintenance payments for that period. The applicant's
further appeal was dismissed by the Katowice Regional Court on 28
February 2001.
Meanwhile,
on 21 February 2000 the applicant filed a motion for amendment of the
divorce decree in the part relating to parental rights. On 18 October
2000 the Zawiercie District Court dismissed his application.
The
applicant appealed, and on 28 December 2000 the Katowice Regional
Court gave a decision granting custody to the applicant and ordering
that D.'s permanent residence be with his father. The mother was
allowed to participate in decisions concerning the child's education
and choice of profession.
On
29 December 2000 A.N. filed an application with the Zawiercie
District Court to be granted sole custody of D.
On
23 August 2001 the District Court returned the applicant's request to
impose a fine on A.N. since he had failed to pay the required court
fee. His subsequent interlocutory appeal was dismissed on
15 November 2001.
On
12 October 2001 the Zawiercie District Court modified the decision of
28 December 2000. The court held that A.N. should be granted full
custody over D. and that D.'s place of residence should be with his
mother. The applicant was allowed to decide jointly about the child's
education and choice of profession.
A
further appeal lodged by the applicant was dismissed by the
Czestochowa Regional Court on 19 December 2001. The court
held that the applicant had not had a good relationship with his
child and that the boy was afraid of him. The court stressed that the
applicant could not have successfully claimed custody over D. since
his son fled from him whenever he had seen him.
Meanwhile,
the applicant asked the court to hand D. over to him. On 27 June 2001
the District Court gave an interim decision and held that while the
custody proceedings were pending the child should stay with his
mother. On 31 January 2002 the District Court refused to hand D. over
to the applicant.
On
15 March 2002 the Zawiercie District Court dismissed the applicant's
motion to impose a fine on A.N. for obstructing his access to the
child.
On
6 October 2005 the applicant again requested that D. be restored to
him. On 14 October 2005 the Zawiercie District Court refused his
request. The applicant did not appeal against that decision.
On
16 December 2005 the applicant filed an application to be granted
full parental rights. His application was dismissed by the Zawiercie
District Court on 28 July 2006. The court held that D. had been
living with his mother, with whom he had very close relations, and it
was in the child's best interest to leave him with her. The court
referred to the child's (then 12 years old) own statements that
his mother had not obstructed his contact with the applicant. It was
D. himself who had avoided contact with his father. The court further
noted that between 2001 and 2005 (when A.N filed a claim for increase
of maintenance payments) the applicant had not attempted to contact
his son and to exercise his visiting rights. Their contact was
limited to occasional meetings on the street, since they lived
nearby. The applicant's appeal against this decision was dismissed on
27 September 2006 by the Czestochowa Regional Court.
On
24 March 2006 the applicant asked the court to impose a fine on the
mother for obstructing his contacts with D. On 22 June 2006 the
District Court dismissed his request. The applicant did not appeal
against that decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law concerning the enforcement of a parent's
visiting rights is set out in the Court's judgment in the case of
P.P. v. Poland no. 8677/03, §§ 69-74, 8 January 2008.
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, D. He
alleged a violation of Article 8 of the Convention, which
provides
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument.
A. Admissibility
The
Government submitted a preliminary objection that the applicant had
failed to exhaust the required domestic remedies. They stressed that
the applicant had failed to appeal against the decisions on the
merits of his claims concerning parental rights. He had also failed
to appeal against the divorce decree and the decisions on the
imposition of fines on the mother. In addition, after 2005 he had
failed to file further applications in order to gain full parental
rights over D. Lastly, they stressed that the applicant had failed to
lodge a constitutional complaint challenging the provisions of the
family and custody code.
The
applicant replied that he had made use of all available remedies in
respect of his complaints.
The
Court notes, that in the present case the applicant did not object to
the contact arrangements as specified in the decisions of
3 September 1996, 9 December 1999 and the divorce decree.
He only maintained that the Polish authorities had failed to take
effective steps to enforce his right of contact with his son.
In
this connection the Court observes that it is true that the applicant
did not appeal against the decisions referred to by the Government.
He did, however, appeal against other decisions given in his case
(see paragraphs 15, 18 and 19 above). He further initiated
enforcement proceedings and asked the domestic courts to fine A.N.
for failure to comply with the access arrangements (see paragraphs
10, 16, 21 and 25 above).
In
so far as the Government alleged that the applicant should have
lodged a constitutional complaint, the Court observes that the
applicant did not object to the relevant provisions of the family and
custody code, he merely stressed that the authorities had not
enforced his right of contact with his son.
Against
that background, the Court concludes that the applicant did
everything that could reasonably be expected of him to exhaust the
national channels of redress. The Court accordingly dismisses the
Government's objections.
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
1. The applicant
The
applicant claimed that there had been a continuing violation of his
right to respect for his family life. He had repeatedly instituted
proceedings aimed at providing him with the opportunity to have
regular contacts with his son. He further claimed that the child's
mother had a negative influence on D. As a result, emotional ties
between them had loosened and to all intents and purposes he had been
excluded from the process of bringing up his child. He concluded that
this amounted to a violation of Article 8.
2. The Government
The
Government stressed that the applicant was himself responsible for
not forging stronger emotional bonds with his son and for weakening
their relations. He had insisted on enforcing his visiting rights
even when the child had been sick. At present D., now a teenager did
not seek contact with the applicant, despite the fact that they both
lived in the same street, in the same town.
The
Government pointed to the domestic courts' findings, according to
which the applicant had a negative influence on his son.
They
further stressed that the applicant had enforced his visiting rights
in the presence of the police and of court-appointed guardians. The
Government concluded that the authorities had done everything they
could to protect the applicant's rights to respect for his family
life.
3. 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 (see, mutatis mutandis, Hokkanen, 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 (see, mutatis mutandis, Hokkanen, 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 (see D.v. Poland
(dec). no. 82115/02, 14 March 2006).
In
the light of the above principles, what is decisive in this case is
whether the Polish authorities took all the necessary steps to
facilitate the enforcement of the contact arrangements as specified
on 3 September 1996, 4 March 1998 and 9 December 1999. According
to the access orders the applicant was first authorised to meet D.
every Tuesday and every first Saturday and third Sunday of the month
for two and a half hours. Subsequently he was authorised to take D.
for two weeks' holiday.
The
Court considers that the domestic authorities had an obligation to
ensure enforcement of contact arrangements, since it was they who
exercised public authority and had the means at their disposal to
overcome obstacles to execution. In this respect the Court notes that
between 1996 and 1997 the Zawiercie police intervened on 12 occasions
facilitating the applicant's access to the child (see paragraph 7
above). In 1998 the child spent a two-week holiday with the applicant
(see paragraph 11 above). Subsequent visits in 1998 and 1999 were
also facilitated by the police intervention. It appears, that on all
but one occasion, the applicant managed to see his son (see paragraph
12 above). Lastly, the applicant's enforcement request eventually led
to a court order of 9 March 2000 (see paragraph 13 above).
The
difficulties in arranging contacts in the present case were
admittedly in large measure due to the animosity between the
applicant and his former wife, and subsequently to the child's
attitude.
The
Court further observes that the conflict between the applicant and
A.N. made it particularly difficult for the domestic authorities to
act in order to enforce the applicant's visiting rights. Already in
2000, the experts noted that D. was suffering from anxiety and fear
as a result of forced contacts with his father (see, paragraph 19
above). As time went by, D. matured and was able to take his own
decisions in respect of his contacts with his father. The Court notes
that the domestic authorities were also aware of the fact that the
nature of the applicant's contact with D. became dependent not only
on the attitude of the child's mother, but also on the boy's own
wishes (see paragraphs 12, 17 and 23 above). In addition, the Court
observes that between 2001 and 2005 the applicant had not sought any
contact with D. which was noted by the domestic court (see paragraph
27 above). The Court reiterates here that it is not seeking to
substitute itself for the domestic authorities in the exercise of
their responsibilities as regards parental authority, but rather to
review under the Convention the decisions taken by those authorities
in the exercise of their margin of appreciation (see Kaleta
v. Poland, no. 11375/02, § 58, 16 December 2008).
The
foregoing considerations are sufficient to enable the Court to
conclude that there has been no violation of Article 8 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 8 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
