FOURTH SECTION
Application no. 28623/12
Jaroslaw MALEC
against Poland
lodged on 7 May 2012
STATEMENT OF FACTS
The applicant, Mr Jaroslaw Malec, is a Polish national, who was born in 1973 and lives in Bibice.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1997 the applicant married E. In 2004 their daughter N was born. Subsequently, the applicant and E separated.
On 16 January 2009 the applicant lodged a divorce petition with the Kraków Regional Court (Sąd Okręgowy) together with a motion for an interim contact order.
On 2 June 2009 and 14 October 2010 the applicant again applied for interim contact orders specifying different arrangements.
On 22 November 2010 the Kraków Regional Court issued an interim contact order. According to its terms, the applicant was allowed to take his daughter every first and third weekend of the month between 3 p.m. on Friday until 5 pm on Sunday and also between 3 p.m. on Tuesday until 3 p.m. on Wednesday. In addition, he could spend every first week of the winter school holidays with her, every second Christmas Eve, every First Day of Christmas, every Easter Sunday and summer holidays between 1 and 21 July.
On 21 January 2011 the Kraków Regional Court issued a writ of execution in respect of this decision.
The applicant submits that the interim order was served on him only on 22 January 2011, that is two months after it had been issued.
On 14 December, 20 December 2010 and 17 January 2011 the applicant complained to the court that the mother refused to comply with the access arrangements.
On 7 March 2011 the applicant lodged two motions requesting the court to impose a fine on the mother for failure to comply with the access arrangements.
The court scheduled a hearing for 27 May 2011. However, E failed to appear on that date. The next hearing was scheduled for 31 August 2011.
Meanwhile, the applicant filed another three motions requesting the court to impose fines on E for failure to comply with the access arrangements.
On 28 October 2011 the Kraków District Court ordered the mother to comply with the interim contact order within two weeks on pain of paying a fine of 1,000 Polish zlotys (PLN). On 30 December 2011 the Kraków Regional Court dismissed E’s appeal against this decision.
On 15 March 2012 the Kraków District Court imposed a fine of PLN 1,000 on E. It further ordered her to comply with the interim contact order within two weeks on pain of paying another fine of PLN 1,000.
Subsequently, the applicant asked the court to impose a fine on E under the newly introduced Articles 598 15-21
On 18 April 2012 the Kraków District Court dismissed his motion.
On 15 May 2012 the Kraków District Court gave a decision and ordered a guardian to collect N from her mother on 1 July 2012 and deliver her to her father (to spend the summer holidays with him). However, E was not living at the address she had submitted to the court and consequently the guardian was unable to collect the applicant’s daughter.
The applicant submits that he is not able to see his daughter and to enforce the court’s interim order.
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 (Kodeks Postępowania Cywilnego) “CCP” 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 CCP 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.”
On 13 August 2011 the CCP was amended and Chapter 6 on “Cases concerning execution of contacts with a child.” was added. Articles 59815 to 59821 provide for a procedure for imposing a fine on a parent who fails to comply with access arrangements.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention of the Convention about delays in the enforcement proceedings.
2. The applicant further 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?
Full & Egal Universal Law Academy