Communicated on 12 May 2017
FIRST SECTION
Application no. 1694/14
Łukasz Maksymilian BRYSKE
against Poland
lodged on 28 December 2013
STATEMENT OF FACTS
The applicant, Mr Łukasz Maksymilian Bryske, is a Polish national who was born in 1983 and lives in Bydgoszcz.
A. Background to the case
The applicant and E. had a daughter (P.) who was born on 3 September 2009. Since July 2011 E. has obstructed the applicant’s contact with P.
B. Contact proceedings
On 10 November 2010 the applicant and E. reached an agreement before the Bydgoszcz District Court. It was decided that the applicant could see his daughter every other weekend between 11 a.m. and 5 p.m. at her mother’s home, could have the right to take P. for a walk on Wednesdays from 3 p.m. to 6 p.m., and also see her every Christmas Day and every Easter Sunday from 3 p.m. to 6 p.m., with the right to take her to his home.
On 13 June 2012 a new arrangement was signed and on 30 October 2012 it was further amended. On 22 November 2012 the decision of 30 October 2012 was amended.
On 7 January 2013 the previous decision was amended.
On 14 February 2013 the Bydgoszcz District Court quashed the previous access agreement and issued a new contact order. It was decided that the applicant could see his daughter every other weekend between 12 a.m. and 7 p.m. on Saturday and between 11 a.m. and 7 p.m. on Sunday without her mother’s presence, and also that every other Friday he could collect his daughter at 2 p.m. from the kindergarten and at 7 p.m. drive her back to her home. In addition, he could spend every Christmas Day and every Easter Sunday with her without her mother’s presence. The court ordered that both the applicant and E. undergo counselling.
C. Enforcement proceedings
On 1 September 2011 the applicant lodged a claim to enforce his access rights pursuant to the agreement of 10 November 2010 and impose a fine on E. He instituted proceedings pursuant to Articles 1050-10501 of the Code of Civil Procedure, and the case was later prosecuted pursuant to Article 598 of the Code of Civil Procedure.
On 5 March 2013 the Bydgoszcz District Court ruled that E. was to pay a fine of PLN 150 in the event of failure on her part to comply with the contact order of 7 January 2013. The applicant appealed.
On 1 July 2013 the Bydgoszcz Regional Court quashed the decision of 5 March 2013 and discontinued the proceedings. The court found that as the applicant had lodged a request to enforce the agreement of 10 November 2010 and that the parties had signed a new agreement on 13 June 2012, this set of proceedings should be discontinued.
On 18 November 2013 the Bydgoszcz District Court held that E. was to pay a fine of PLN 400 in the event of failure on her part to comply with the contact order.
On 26 June 2014 the Bydgoszcz District Court issued an interim order (udzielił zabezpieczenia) ordering E. to pay PLN 1,600 to the applicant monthly for failure to comply with the contact orders. The applicant appealed against this order.
On 6 October 2014 the Bydgoszcz District Court again issued an interim order imposing a fine on E. in the amount of PLN 2,100 for her failure to comply with the contact orders.
On 23 February 2014 the applicant applied for the imposition on E. of a fine in the amount of PLN 400 for failure to comply with the contact orders. He subsequently modified his application, referring to 62 occasions on which the mother had obstructed contact. He alleged that on these dates he had been due to collect his daughter from the kindergarten but she had not been at kindergarten on that day or she had already been collected by her mother.
On 9 November 2015 the Bydgoszcz District Court imposed a fine on the mother in the amount of PLN 1,600 for her failure to comply with the contact order on four occasions. The court also quashed the interim orders of 26 June 2014 and 6 October 2014. The court found that in 2013 the contact orders had been executed but in 2014 the applicant had not been able to see his daughter on several occasions. Evidence was heard from the guardian, the police officers who were called by the applicant, both parties and P., and an expert opinion was commissioned. The court held that P. had not wanted to see the applicant and so the visits had not taken place. The court found that E. could not be held responsible for the non-enforcement of the contact orders on numerous occasions as it had been the child who had not wanted to meet the applicant, as confirmed by the expert.
On 17 May 2016 the Bygdoszcz Regional Court amended the judgment by imposing on E. a fine in the amount of PLN 21,200 for her failure to comply with the contact orders on 53 occasions. The court found that on 53 dates E. had obstructed the applicant’s contact with the child. On nine dates there were genuine reasons for not allowing the contact: on 19 September and 28 November the child had not felt well and had not gone to kindergarten; on 3 October the child had had a compulsory vaccination; on 17, 25 and 26 October and 8, 9 and 14 November the child had been sick. The court considered that the child’s reluctance to have contact with the applicant resulted from her mother’s and her step-father’s attitude and found that E. had failed to propose alternative dates to facilitate the access arrangement.
On 26 February 2016 the Bygdoszcz District Court imposed a fine on E. in the amount of PLN 12,400 for her failure to comply with the contact orders of 31 April 2015 on 31 occasions.
On 4 July 2016 the Bygdoszcz Regional Court dismissed the interlocutory appeals lodged by the applicant and E.
D. Proceedings under the 2004 Act
On 2 May 2013 the applicant lodged a complaint with the Bydgoszcz Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He submitted that the length of the enforcement proceedings instituted on 1 September 2011 had been excessive. On 11 September 2013 the Bydgoszcz Regional Court discontinued the proceedings. It acknowledged that the proceedings had been excessively long. It further noted that at the hearing on 13 June 2012, which had lasted from 10 a.m. to 1 p.m., the court had not heard evidence from E. “as it had been too late” and had adjourned the case to 2 October 2012. The proceedings were consequently terminated on 1 July 2013.
On 30 June 2014 the applicant again lodged a complaint under the 2004 Act about the excessive length of the enforcement proceedings instituted on 23 February 2014. On 25 August 2014 the Bydgoszcz Regional Court allowed the complaint under the 2004 Act and awarded the applicant PLN 2,000.
On 15 October 2015 the applicant lodged a third complaint under the 2004 Act about the excessive length of the proceedings concerning the imposition of a fine on E. On 23 November 2015 the Bydgoszcz Regional Court dismissed his complaint. The court found that the applicant had lodged a request for the imposition of a fine on E. on 12 May 2015. On 13 May 2015 he had been asked to modify the request, which was dealt with on 3 June 2015. On 23 June 2015 E. lodged an interlocutory appeal. The hearing was scheduled for 16 December 2015 and the length of proceedings had therefore not been excessive.
COMPLAINT
Relying on Articles 1, 6, 8 and 14 of the Convention, the applicant complains about delays in the enforcement proceedings and alleges that the authorities have failed to take the measures necessary to assure respect for his family life.
QUESTION TO THE PARTIES
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 secure to the applicant 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 length of enforcement proceedings.
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