FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 63896/00
by Krzysztof STENZEL
against Poland
The European Court of Human Rights (Fourth Section), sitting on 28 February 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MrJ. Borrego Borrego,
MsL. Mijović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 19 August 1999,
Having regard to the partial decision of 21 January 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Krzysztof Stenzel, is an Polish national who was born in 1964 and lives in Rumia, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1990 the applicant married J.S. In 1991 their daughter P. was born. On an unspecified date in 1992 the applicant moved out of the family home.
1. First set of access proceedings
A. Period before January 1994
On 4 June 1992 the applicant applied to the Gdynia District Court (Sąd Rejonowy) for a residence order in respect of P.. Consequently, access proceedings were instituted.
In June 1992 the applicant filed a petition for divorce with the Gdynia District Court.
On 13 July 1992 the applicant requested the Gdynia District Court to make an interim order on access arrangements during the custody and access proceedings. On 27 July 1992 he also requested that J.S. be divested of parental rights.
On 10 August 1992 the applicant was awarded interim access to the child by the Gdynia District Court. This allowed him to visit the child on Saturdays. J.S. refused to comply with that order.
On 3 September 1992 the applicant applied for a court order prohibiting his wife from removing the child from Poland without his consent. On 4 November 1992 the court refused his request.
On 30 December 1992 he requested the Gdynia District Court to change the access arrangements determined on 10 August 1992.
On 8 June 1993 the Gdańsk Regional Court (Sąd Wojewódzki) dissolved the applicant’s marriage. The court awarded parental rights to both parents. It also limited the applicant in the exercise of his rights: it ordered that P.’s permanent residence be with her mother, but allowed the applicant to co-decide about the child’s education and health. The court did not specify access arrangements. On 10 December 1993 the applicant appealed against the divorce.
On 9 December 1993 J.S. instituted proceedings in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her.
On 14 December 1993 the custody and access case was joined with the case instituted by the applicant’s wife.
In January 1994 J.S. left Poland together with the child and settled in Germany. She did not inform the applicant about it and did not give their new address in Germany.
B. Period after January 1994
In February 1994 the court gave J.S. three months in which to ensure compliance with the access arrangements provided for by the order of 10 August 1992. In February and in April 1994 the applicant again amended his application concerning the access arrangements and requested that the court issue a new interim decision to replace that of August 1992.
On 5 April 1994 the Gdynia District Court issued a decision allowing the applicant to see P. every Tuesday for two hours at the Family Diagnostics Centre in Sopot in her mother’s presence. The mother appealed.
On 6 September 1994 the Gdańsk Regional Court quashed this decision and remitted the case.
In October 1994 J.S. married a German citizen, changed her name to J.V. and moved to Hamburg with P.. She did not inform the applicant of her whereabouts. The applicant subsequently established their address with the assistance of the Polish consulate in Hamburg.
On 1 November 1994 the mother submitted that she would agree to report with the child at the Family Diagnostics Centre for an interview if she was granted appropriate protection against the applicant’s aggressive behaviour.
Following the remittal, on 19 October 1995 the Gdynia District Court issued its decision. The court dismissed J.V.’s motion that the applicant be divested of his parental rights, and the applicant’s motion that the child reside permanently with him. The court found that J.V was living with her new husband, a German citizen, his parents and P. in a house with a garden. It had been established by German social assistance authorities that P. got on well with her new environment and called her stepfather “dad”. P was happy, healthy and well cared for in her mother’s house. In April 1995 J.V. gave birth to another child. Conversely, the applicant was unemployed, lost his right to social security assistance and lived in his parent’s house. He had been also paying maintenance for another child – a six-year old son. The court considered that P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother, her step-father and half-sister. She had a sense of security and stability in her mother’s house and it had been in the child’s interest to stay there. The court did not find any reasons to divest J.V of her parental rights. The fact that she had left Poland without informing the applicant thereof had certainly been an abuse of her parental rights, but could not serve as a ground on which to divest her of her rights in respect of P.’s custody. As to the applicant, there were also no grounds on which to divest him of his parental rights.
The applicant lodged an appeal with the Gdańsk Regional Court. He submitted that since 1992 the mother had made it impossible for him to have any contacts with P.
On 11 April 1996 the Gdańsk Regional Court upheld this decision. The court repeated the arguments of the first-instance court.
2. Second set of access proceedings.
On 15 April 1996 the applicant instituted new proceedings in which he again requested the Gdynia District Court to establish access arrangements. On 23 April 1996 he lodged a further motion asking that full custody rights be restored to him.
On 20 May 1997 the Gdynia District Court dismissed the applicant’s motion of 23 April 1996 and refused to award custody to him. The court found, on the basis of new evidence obtained meanwhile from the German authorities, that P. was well integrated in her new family in Hamburg. She had no distinct memory of her life with her father before the divorce. Moreover, she received affection from her mother, her mother’s husband and his family. The spouses cared well for her, providing P. with the best conditions for her upbringing. The court accepted J.V.’s testimony that she had not deprived the applicant of effective access to the child as it had been the applicant who had made the contacts difficult due to his aggressive behaviour. The court concluded that removing P. from her mother’s custody, or even establishing a permanent access arrangement with the applicant, would harm the health and development of the child.
On 19 June 1997 the applicant appealed against this decision.
On 16 September 1997 the Gdańsk Regional Court upheld the contested decision and dismissed his appeal. It noted that having regard to the child’s well-being there were no circumstances which would justify a new decision on access arrangements.
3. Third set of access proceedings
On 10 April 1998 the Ombudsman lodged a motion on the applicant’s behalf with the Gdynia District Court to determine access arrangements. It was argued that the question of the applicant’s access to P. had never been settled except for the interim order of 10 August 1992. The child’s mother had deprived the applicant and the child of any possibility of contact. The applicant was right in emphasising that J.V. had abused her parental rights by removing the child from Poland without the applicant’s or the court’s permission or knowledge. That had constituted a violation of the domestic regulations and relevant provisions of international law. The Ombudsman stressed that J.V.’s actions had been clearly unlawful.
On 18 December 1998 the Gdynia District Court dismissed the applicant’s request for an interim access decision allowing him to send letters and presents to P.
On 18 March 1999 the Gdynia District Court established a temporary access arrangement and allowed the applicant to call P. once a week and to send letters to her. The applicant’s further appeal against this access arrangement was dismissed by the decision of the Gdańsk Regional Court on 28 May 1999.
On 6 July 2001 the Gdańsk District Court gave a decision on access arrangements. The child would visit the applicant once a year and he would be allowed to spend 14 days with her during the summer holidays. In addition the child would twice a month call the applicant. The applicant was allowed to send letters to his daughter.
The child’s mother appealed against this decision
On 14 June 2002 the Gdańsk Regional Court amended the first instance decision. The court considered that there were no grounds on which to accept that the child should have direct contacts with the applicant. P. had been brought up without any contacts with her father and she did not know him. Furthermore, as it appeared from her statements given in the proceedings before the German authorities, she had not been interested in having contact with the applicant. The court held that establishing a permanent access arrangement with the applicant could harm the child’s health and her development. In conclusion, the court allowed the applicant to send letters and gifts to his daughter.
4. Proceedings relating to the imposition of a fine on the mother.
On 12 December 1994 and 26 January 1996 the Gdynia District Court imposed fines on J.V. in the amount of 10 PLN for failure to comply with its order of 10 August 1992. On an unknown later date J.V. paid the fine which had been imposed on her on 12 December 1994. The enforcement proceedings concerning the second fine were discontinued in July 1997.
On 10 November 1999 the applicant again requested the court to impose a fine on J.V, alleging that she had prevented him from talking to P. on the phone and that she had refused to accept letters he had sent to P.
On 16 November 2000 the Gdynia District Court dismissed his request. The court considered that the applicant had failed to contact the mother in order to obtain her telephone number, and that it was not established that the mother had sent back any applicant’s letters.
On 27 March 2001, the Gdańsk Regional Court dismissed the applicant’s appeal against the first-instance decision. The court considered that it had not been confirmed that J.V. had obstructed the applicant’s attempts to contact his daughter.
5. Proceedings in Germany
On 20 January 2000 the Reinbeck District Court in Germany decided to change the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother. It considered that the parents were in conflict and that, in any event, the applicant and the child lived far away from each other. The applicant had failed to appeal against this decision.
B. Relevant domestic law and practice.
The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides:
Article 58 § 1
“In a decision on divorce, the court is competent to issue orders as to the care of the parties’ minor children (...). The court may grant custody right to one parent and limit the custody rights of the other one.”
The Code of Civil Proceedings (Kodeks Postępowania Cywilnego) provides:
Article 557
“The custody court can change its decision if the best interest of the person whom it concerns so require. “
According to the Supreme Court’s resolution, if a parent who has been obliged by a court decision to respect the other parents’ access rights refuses to comply therewith, access decisions are liable to the enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to 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):
Article 1050
“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 the court.”
If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Proceedings is applicable to the enforcement of this obligation.
The Hague Convention on Civil Aspects of International Child Abduction of 1980 provides in so far as relevant.
Article 21
“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of such rights may be subject. The central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
COMPLAINT
The applicant complained under Article 8 of the Convention that he could not have access to his child and objected to the outcome of the access proceedings.
THE LAW
The applicant complained under Article 8 about the fact that he could not have access to his child.
Article 8 provides in so far as relevant, as follows:
“1. Everyone has the right to respect for his ... family life ...
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 ... for the protection of the rights and freedoms of others.”
The Government maintained that neither before January 1994 (when the child had been in Poland) nor after that date had the applicant requested the Bailiff of the District Court to enforce the interim order of 10 August 1992. In addition, the applicant had only asked the Gdynia District Court to issue a writ of execution in October 1994 that was after the child had already left Poland. They argued that at least before the child’s departure for Germany, the applicant had had at his disposal an effective domestic remedy that he had failed to exhaust. They agreed that the applicant had difficulties in obtaining access to his child in view of his wife’s hostility towards him. However, the domestic courts’ decisions were motivated by the child’s best interests. The Government concluded that in 2002 the applicant had been allowed to send gifts and letters to his daughter. In view of the particular circumstances of the present case, this fact demonstrated that the applicant had been given sufficient recognition and protection of his relationship with his daughter.
The applicant maintained that in 1992 he had applied for the court’s order prohibiting his wife from removing the child from Poland without his consent. However, this was to no avail. He further claimed that after 10 years of access proceedings he had been finally deprived of access to his daughter on the ground that she had been brought up without any contacts with her father. As a result of the court’s decision of 2002 he had lost any contact with his daughter. He concluded that the authorities had failed to provide him with assistance in exercising his parental rights.
1. Period before January 1994
The Court recalls that the aim of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer before an international body for their acts. However, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that in cases where the national law provides for several parallel remedies in the sphere of both civil and criminal law, the person concerned, after a sustained but eventually unsuccessful attempt to obtain redress through one such remedy, must necessarily try all other means (see H.D. v. Poland, no. 33310/96, 7 June 2001).
The Court observes that the applicant has not contested the availability of the remedy relied on by the Government.
Examining the instant case, the Court notes that the applicant had never instituted enforcement proceedings as regards the interim order of 10 August 1992. According to the Supreme Court’s resolution of 30 January 1976 the provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement of court decisions on access rights. It was thus open to the applicant to request institution of the appropriate proceedings with respect to the interim order of 10 August 1992. He did not so.
Having regard to the criteria laid down in its case-law, the Court finds that the Government’s objection should be allowed.
It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
2. Period after January 1994
The Court reiterates that 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 Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49).
In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Haase v. Germany, no. 11057/02, § 93, ECHR 2004-III, with further references).
Turning to the facts of the present case, the Court notes that once the child left Poland, the Polish authorities could no longer monitor the developments of the case. A considerable share of responsibility was transferred to the German authorities.
With reference to the conduct of the Polish authorities in the present case, the Court firstly observes that the Polish consulate in Hamburg helped the applicant to establish the address and whereabouts of the child’s mother. In addition, the German authorities on two occasions carried out an interview at the child’s home in Germany. Moreover, the Polish courts when giving their decisions were motivated by the child’s best interest and based on the evidence submitted by the German authorities. In the final decision on access arrangements, the Gdańsk District Court underlined that establishing a permanent access arrangement would harm the development of the child. Nevertheless, it allowed the applicant to send gifts and letters to his daughter.
The Court further stresses that domestic authorities thoroughly analysed the situation of the applicant and his child. It is true, that the applicant had difficulties in obtaining effective access to his daughter. However, the Court notes that the applicant never applied to the German authorities for assistance in securing the right to visit his child, which he could have done under the Convention on the Civil Aspects of International Child Abduction.
In this context it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It is therefore not the Court’s task 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 power of appreciation (see, amongst other authorities, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130 p. 32, § 68)
The Court further stresses that Article 8 cannot be understood as extending to an obligation to secure to the applicant an exclusive custody over his child or unlimited access, in particular, in the special circumstances of the present case, when the child and her mother had moved to another country.
In view of the above, it appears that in the present case the applicant had been given sufficient recognition and protection of his relationship with his daughter.
The Court is, therefore, of the opinion that the facts of this part of the application do not disclose a breach of Article 8 of the Convention.
It follows that the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention
For these reasons, the Court by a majority
Declares inadmissible the remainder of the application.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy