Communicated on 12 May 2017
FIRST SECTION
Application no. 71021/13
Marian BRUNNER
against Poland
lodged on 7 November 2013
STATEMENT OF FACTS
The applicant, Mr Marian Brunner, is a Polish national who was born in 1970 and lives in Psary.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The first custody decision
In October 1999 the applicant filed for divorce and made a request to the court to regulate his contact rights with his daughter, who was born on 21 June 1998.
In 2001 an expert opinion was prepared at the request of the court.
On 23 November 2001 the Czestochowa Regional Court pronounced the applicant’s divorce and granted him visiting rights allowing him to see his child every other Saturday for four hours in the presence of her mother and a guardian.
The visits did not take place.
2. The first enforcement attempts
On 9 July 2002 the applicant applied for enforcement of the court’s order and imposition of a fine on his former wife for hindering his visits with his daughter.
He also requested the appointment of a guardian who could assist him in the enforcement of the visits.
On 9 September 2003 the Bytom District Court ordered the applicant’s former wife to comply with the order of 23 November 2001.
On 1 June 2004 the court decided to impose a fine of 300 Polish zlotys (PLN) on the applicant’s former wife. It ordered her to comply with the visiting arrangements set by the court on 23 November 2001 on pain of a further fine of PLN 600.
3. The second custody proceedings
On 2 June 2003 the applicant applied to change the contact arrangement and obtain custody of his daughter. He pointed out the mother’s negative influence on the girl and her refusal to respect the contact orders.
The court commissioned an expert opinion; it was submitted to the court after one year, on 21 September 2004. The opinion established that the emotional ties between the applicant and the child had been broken but they could be re-established.
On 14 December 2004 the Tarnowskie Góry District Court dismissed the applicant’s application to change the custody arrangement.
On 26 April 2005 the Głowicie Regional Court dismissed an appeal by the applicant but amended the contact arrangement. It ordered that the applicant had the right to visit his daughter every other Saturday for six hours in a place away from her domicile and on his own.
4. The second enforcement attempt
The order of 26 April 2005 became enforceable on 1 June 2005 and six days later the applicant applied for imposition of a fine on his former wife for her failure to comply with it.
The application was examined on 3 February 2006 and the Tarnowskie Góry District Court fined the applicant’s former wife PLN 1,000. Upon an appeal by her, the Gliwice Regional Court on 29 September 2006 reduced the fine to PLN 600. The court noted that visits had not been taking place, but the parties differed as to the reasons why. At least one visit had not taken place because the child had been sick.
5. The third enforcement attempt
On 23 October 2006 the applicant lodged another application to fine his former wife. On 29 June 2007 the Tarnowskie Góry District Court dismissed the request. It established that the meetings between the applicant and the child had not been taking place as ordered and that on some occasions the police had had to intervene. The child had been hysterical and had refused to go with the applicant. On other dates the meetings had not taken place as the applicant had stopped coming to them.
On 17 October 2007 the Gliwice Regional Court dismissed an appeal lodged by the applicant.
6. The third custody proceedings
On an unspecified date in 2008 the applicant initiated another set of proceedings relating to custody arrangements (III Nsm 250/08). On 9 September 2008 an expert opinion was prepared. On 18 March 2009 the District Court gave a ruling which was upheld on 9 April 2009.
7. The fourth custody proceedings
On 7 May 2009 the applicant initiated another set of proceedings in which he sought to amend the visiting arrangements, proposing that the visits take place in a neutral environment for the child and in the presence of a psychologist.
On 10 December 2009 the Tarnowskie Góry District Court dismissed his application. The court established that the applicant had stopped coming to the scheduled meetings with his daughter since February 2006. Moreover, the court considered that holding the meetings at her school would not be in the best interest of the child. The existing visiting arrangements allowed the applicant to take the child to any place outside her domicile but the applicant had himself taken the decision not to come to see his daughter. The court found no instances of the mother hindering contacts with the child in the period under consideration.
On 19 August 2010 the Gliwice Regional Court quashed the above decision and remitted the case to the lower court. The court pointed to the fact that the negative attitude of the child towards the applicant had clearly been influenced by her mother, who in reality had been opposed to any meetings with her father. The girl was twelve years old and did not know her father. In such circumstances the district court concluded too early that the meetings were not taking place because of the applicant’s own decision to stop coming to them.
In his application of 19 January 2011 the applicant reiterated his previous request that therapy sessions be ordered for his daughter, pointing out that this solution had been proposed in expert opinions. The applicant requested that the court specify the exact place where the therapy was to take place. In another application the applicant requested that the court examine the validity of various medical certificates which had been used by his former wife to justify her absences from the hearings. The applicant suggested that his former wife had been working normally and had been avoiding attending the court in order to prolong the proceedings.
On 27 April 2011 the Gliwice Regional Court dismissed the applicant’s complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
On 18 May 2012 the Tarnowskie Gory District Court, after reconsidering the case, ordered the applicant and his former wife to undergo therapy. The court established that the applicant had seen his daughter twice since February 2006, in June 2009 when he came to her school and in May 2010. In both instances, however, the applicant had been unable to engage her in any conversation. The therapy ordered by the court could ameliorate the relation between the parents and to help to rebuild the father-daughter relationship. The court reiterated that, taking into account the best interest of the child, the meetings should not take place at her school.
On 17 April 2013 the Gliwice Regional Court partly amended the decision in that for the duration of the therapy, and for a maximum of eight months, the applicant’s contact with his daughter should be limited to phone calls only.
The applicant applied for an enforcement clause and on 20 December 2013 the Tanowskie Góry District Court granted his request. However, on 14 May 2014 the Gliwice Regional Court overruled the enforcement clause, finding that the final order to undergo therapy of 17 April 2013 did not lend itself to forcible enforcement by the State.
8. The last set of custody proceedings
It appears that the applicant and his former wife had attempted therapy sessions with the psychologist, as indicated by the court, but stopped them in November 2013.
On 22 November 2013 the applicant’s former wife applied to the court to amend the order of 14 April 2013 by changing the psychologist with whom she had been ordered to undergo therapy since she considered him incompetent.
It appears that for the following year the applicant’s former wife sent the court various medical certificates proving her inability to appear before it.
On 18 July 2015 the court obtained an expert opinion which concluded that the illnesses cited by the applicant’s former wife had not been serious enough to warrant such long-term inability to appear before a court.
On 20 January 2016 the Tarnowskie Góry District Court ordered the parties to undergo therapy, but left the choice of therapist to them. The court took also into account a letter of 24 March 2014 from the then psychologist, who confirmed that there was no prospect of success of this therapy.
On 6 October 2016 the Gliwice Regional Court examined an appeal lodged against the above decision and discontinued the case as the applicant’s daughter had turned eighteen and was no longer subject to parental authority.
Between 2001 and 2016 the applicant wrote numerous complaints to the Minister of Justice, the Ombudsman, the President of the courts dealing with his cases, the Head of the Medical Board, and the Helsinki Foundation for Human Rights. He received replies in particular from the Presidents of the courts, who on each occasion expressed the view that the courts had dealt with his cases diligently and speedily. The Ombudsman also intervened on his behalf on several occasions.
B. Relevant domestic law and practice
The relevant domestic law concerning enforcement of a parent’s visiting rights in force prior to 13 August 2011 is set out in the Court’s judgment in P.P. v. Poland (no. 8677/03, §§ 69-74, 8 January 2008). As regards the period after that date, it is set out in the judgment in Wdowiak v. Poland, no. 28768/12, §§ 49 and 50, 7 February 2017.
COMPLAINTS
The applicant complains under several Articles of the Convention about the ineffectiveness of the domestic authorities in dealing with his requests to enforce the decisions granting him visiting rights. He submits that, despite their obligation to act speedily and the sensitivity of the situation, the courts were slow and lacking in diligence. That led to a total severance of the relationship between the applicant and his daughter. He also complains about the unreasonable length of the proceedings, in particular the set in which he lodged a complaint under the 2004 Act.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, can it be said that the Polish authorities failed to discharge their positive obligations to assure the applicant of the effective exercise of his right to respect for his family life, as determined by the contact orders at issue? Reference is made to the impossibility for the applicant to see his daughter ‒ as ordered by the domestic courts ‒ and the length of the various proceedings in which he has been involved.
2. Being mindful of the Court’ s pilot judgment in the case of Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11, 7 July 2015) and its finding that the excessive length of judicial proceedings in Poland has revealed a systemic problem, was the length of the civil proceedings ‒ which lasted from 7 May 2009 to 14 May 2014 (the fourth custody proceedings) ‒ in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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