FOURTH SECTION
Application no. 2210/12
Piotr FIJAŁKOWSKI
against Poland
lodged on 4 January 2012
STATEMENT OF FACTS
The applicant, Mr Piotr Fijałkowski, is a Polish national, who was born in 1963 and lives in Warszawa. He is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Access arrangements
Since May 2003 the applicant and A.W. were in a relationship. On 13 April 2004 their twin daughters were born (A and J). Subsequently, in February 2005 the applicant and A.W. separated.
On 2 November 2007 the applicant lodged a motion with the Warsaw Mokotów District Court (Sąd Rejonowy) for establishing contacts and an interim contact order.
At the same time A.W. filed a motion with the Warsaw Prosecutor alleging that the applicant sexually abused his children.
On 21 January 2008 the Warsaw Mokotów District Court issued an interim contact order. According to its terms, the applicant was allowed to visit the children every second Sunday between 10 a.m and 2 p.m. The mother on many occasions did not comply with these arrangements.
On 28 March 2008 the court stayed the custody proceedings as the criminal proceedings against the applicant were pending.
In October 2008 the prosecution discontinued the criminal proceedings against the applicant on the ground that there was no evidence that the alleged offences were committed. A.W. appealed. The prosecutor’s decision was upheld by the Warsaw Mokotów District Court.
On 20 January 2009 the Warsaw Mokotów District Court resumed the proceedings for establishing of contacts.
On 10 June 2009 the District Court modified the interim contact order in that it allowed the applicant to see his daughters every Saturday between 9 a.m and 6 p.m. in their home. The court also ordered A.W. to set a new time in case the Saturday visit was not possible. Both parties lodged interlocutory appeals. They were dismissed on 9 November 2009.
Meanwhile, on 3 September 2009 the applicant filed a report with the court indicating that the mother failed to comply with the terms of access arrangements.
On 23 December 2009 the mother applied for a change of access arrangements. She asked the court to order visits every two weeks for four hours.
On 24 February 2010 the Warsaw Mokotów District Court again modified the interim contact order and allowed the applicant to visit his children every Saturday between 10 a.m. and 2 p.m. in their home. The court also ordered that the parents and children be examined by experts in the Regional Family Consultation Centre (Rodzinny ośrodek diagnostyczno-konsultacyjny) (“RODK”).
The meeting scheduled in RODK for June 2010 did not take place because of the daughters’ illness. The next meeting took place on 20 September 2000. According to the experts’ opinion the daughters were involved by their mother in the parents’ conflict. Both daughters sought contact with their father and wished to visit him in his home. The experts recommended therapy with both parents and children.
Subsequent court hearings could not be scheduled due to the presiding judge’s illness. Following the change of the presiding judge a hearing date was set on 2 March 2011.
Subsequently, the applicant applied for a change of access arrangements. On 9 March 2011 the court gave yet another interim contact order and held that the applicant could meet his children every second Saturday and Sunday between 10 a.m. and 4 p.m. outside their home. However, the mother refused to comply with this order and filed an appeal. On 25 July 2011 the Warsaw Regional Court upheld the first-instance decision.
Subsequently, A.W. cancelled most of the visits on the ground that the children had been away and as of 3 September 2011 she refused all visits.
On 7 October 2011 A.W again applied for modification of access arrangements. Her motion was dismissed by the Warsaw Mokotów District Court on 24 October 2011.
On 16 December 2011 the Warsaw Mokotów District Court gave a final decision in the case. It ordered that the applicant could meet his children every second Saturday and Sunday between 10 a.m. and 4 p.m. The visits would take place in the children’s home with the mother present and in the applicant’s home with the presence of a court-appointed guardian. The court considered that the applicant could be allowed to meet his daughters outside their home and without the mother’s presence since the girls needed contact with their father. However, the court stressed that the applicant did not know much about his daughters since he had not had much contact with them.
The applicant appealed and the proceedings are pending before the Warsaw Regional Court.
The applicant submits that since 3 September 2011 he has not seen his children.
2. Enforcement proceedings
The applicant instituted proceedings for enforcement of the interim contact orders and made several applications for fines to be imposed on A.W. under Article 1051 of the Code of Civil Procedure.
On 23 November 2009 the applicant lodged a motion for imposing a fine on A.W. for failure to comply with the access arrangements.
On 17 May 2010 the Warsaw Mokotów District Court ordered the mother to enforce the interim contact order within 30 days on pain of paying a fine of 500 polish zlotys.
On 24 August 2010 the applicant lodged a motion for a fine to be imposed on A.W. He submitted that she had failed to comply with the order of 17 May 2010.
On 15 March 2011 the Warsaw Mokotów District Court discontinued the enforcement proceedings. The court held that meanwhile the interim contact order had been modified (on 9 March 2011) and therefore there was no need to deliver a decision in the present set. The applicant appealed asking the court to impose a fine on A.W. His appeal was dismissed by the Warsaw Regional Court on 11 August 2011. The court repeated the reasons given by the District Court and held that the interim order of 10 June 2009 had been replaced by a new interim order of 24 February 2010.
B. Relevant domestic law and practice
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 the other parent’s access to a child, Article 1050 of the 1964 Code of Civil Proceedings (Kodeks Postępowania Cywilnego) 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.”
COMPLAINT
The applicant complains under Article 8 of the Convention that the authorities failed to take the necessary measures to secure 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 order at issue?
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