FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33642/96
by Marek WIELGOSZ
against Poland
The European Court of Human Rights (Fourth Section) sitting on 11 May 1999 as a Chamber composed of
MrM. Pellonpää, President,
MrG. Ress,
MrL. Caflisch,
MrJ. Makarczyk,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić, Judges,
withMrV. Berger, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 February 1996 by Marek WIELGOSZ against Poland and registered on 4 November 1996 under file no. 33642/96;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Polish national, born in 1951 and living in Katowice.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.Particular circumstances of the case
I.
On 18 February 1992 the Katowice District Court (Sąd Rejonowy) dissolved the applicant's marriage, awarded custody of the children, P., born in 1988, and Z., born in 1979, to his wife, and granted the applicant access to the children. The Court also decided that the applicant should pay maintenance.
On 25 January 1994 the Gorlice District Court pronounced its new decision concerning access, partly allowing and partly dismissing the applicant's claims. The court allowed the applicant to visit his 5-year-old son P. on every first and third Saturday of the month from 9 a.m. on Saturday to 6 p.m. on Sunday and to take him out so that he could stay overnight with his father in Gorlice; to visit P. on other dates, for not more than 3 days per month, from 9 a.m. of the first day until 6 p.m. of the last day and to take him home, upon 7 days' notice to his mother; to take P. home every other year, for the first or second day of Christmas and Easter, to spend 15 days of the holidays with P., and as from 1994, one month of the holidays and to see his older son Z. as ordered in the divorce judgment and, additionally, on the dates suggested by the applicant, if Z. agreed to it in writing.
The court ordered the mother to respect these arrangements and dismissed the remainder of the applicant's claims.
The applicant lodged an appeal against this judgment which was dismissed by the Nowy Sącz Regional Court (Sąd Wojewódzki) on 28 April 1994.
II.
On 23 November 1994 the applicant requested the Gorlice District Court to take enforcement measures against his former wife, in particular to impose a fine on her, complaining that she had been failing to comply with the access arrangements as set out in the decisions of 25 January and 28 April 1994. The applicant submitted that his wife had been persistently hindering his access to children and that she had made it unfeasible. Inter alia, when he had come to see them on 1 October 1994, she had provoked a violent altercation in the course of which she had breached the applicant’s bodily integrity and had refused permission for him to see P. The applicant further emphasised that it had not been for the first time that she had provoked such a scene. Subsequently, the police had been called in, and following their intervention, she had allowed the applicant to take P. The applicant further submitted that she had not been respecting his right to have a say in the children’s education, as shown by the fact that P. had ceased to attend a kindergarten, contrary to the applicant’s opinion. Moreover, she had put Z. in a boarding school in Katowice, contrary to a previous arrangement to the effect that he would attend secondary school in Katowice and
that he would live with his father. The applicant maintained that Z. did not have suitable living conditions in the boarding school and that he would have had a better situation if he lived in the applicant’s apartment.
On 28 November 1994 the applicant challenged judge R.S. on the ground that she had been conducting two sets of proceedings in which he had previously been involved and that, as a result, she lacked impartiality. He submitted in particular that the records of the hearings, as dictated by her, had completely distorted the actual statements of the parties.
On 14 December 1994 the Nowy Sącz Regional Court dismissed the applicant’s challenge of judge R.S. The court considered that the challenge lacked statutory basis as it had not been shown that between the judge and the applicant there was a personal relationship of such nature as to cast doubt on her impartiality.
On 2 March 1995 the Nowy Sącz Regional Court dismissed the applicant’s appeal against this decision, considering that the statutory requirements for a judge to step down were not satisfied.
On 18 April 1995 the applicant lodged his pleadings with the court in which he asked that the police be requested to submit information concerning their intervention in his wife’s apartment on 1 October 1994 and, if possible, also on 20 July 1991. He also requested that a case-file of proceedings concerning division of marital property, pending before the Katowice District Court, or, failing that, certain pages of this file, be submitted to the court and that certain evidence obtained in the latter case be examined by the court. He argued that these documents were relevant to the outcome of the proceedings concerned.
On the same day he complained to the President of the Gorlice District Court that the proceedings exceeded a reasonable time.
On 7 May 1995, the applicant requested the court to give a provisional order allowing Z. to move to his apartment. He argued that the longer the lapse of time between the beginning of the proceedings and the decision to be given, the more his relationship with Z. suffered. This, he claimed, was largely a result of his mother’s animosity towards him, and of her incessant endeavours to hinder the effective exercise of his access rights. He argued that the fact that Z. had been placed in the boarding school had contributed to a limitation of his contacts with him, and that Z. did not have adequate living conditions there.
On 16 May 1995 a hearing was held.
By a motion of 14 June 1995 the applicant requested the court to rectify the record of the hearing held on 16 May 1995, arguing that it did not reflect the actual statements of the parties.
On 16 June 1995 a next hearing was held.
On 25 July 1995 the court in part upheld and in part dismissed the applicant’s request for rectification of the record of the hearing held on 16 May 1995.
On 24 July 1995 the applicant re-entered his motion for a provisional order submitted on 7 May 1995, and requested the court to oblige his former wife to cease any actions aimed at hindering the effective exercise of his access rights, on pain of withdrawal of parental rights. He requested the court to oblige her to permit him to see P. on each and every request made by him. The applicant submitted that since the last hearing, held on 16 June 1995, Z. had not lived in the boarding school and that he had not been informed of this. This, in the applicant’s opinion, showed the flagrant disregard of the mother for his parental rights, in particular in the light of her previous objections to Z. 's moving to his apartment, the altercations which she had provoked, and the fact that she had requested the court to hear Z. in the proceedings concerning access arrangements pending before the same court, which was not beneficial to the child’s emotional stability and was stressful to him. The applicant further complained that she hindered his access rights also with regard to P. She had refused that he could see P. on 14 and 15 May 1995. He further submitted that his contacts with P. were good, the boy was normally willing to see him and requested to be allowed to see his father for a longer time. The contacts with the applicant were beneficial to the boy’s intellectual development. The applicant finally argued that the mother and her family had incessantly been making disparaging comments about him in the presence of the children, trying to negatively influence the children and to destroy the emotional links between them and their father.
On 31 July 1995 the Gorlice District Court dismissed the applicant’s request that a fine be imposed on the boys’ mother and also his request for a provisional order. The court observed that the applicant’s access rights had been set out in the decision of 25 January 1994. It further noted that on 1 October 1994, when the applicant had come to the mother’s apartment, he had demanded in writing that Z. be allowed to see him and that P. should attend kindergarten. After he had been told that Z. had been in the apartment but had not expressed a wish to see him, an altercation ensued between the parties. P. had started to cry and did not want to go with his father. The applicant had called the police. After two policemen had come, there had again been an agitated exchange of views between the applicant and the mother. The applicant had eventually apologised and taken P. for a walk, as had been planned. Z. had not met his father on that day. In the court’s view, it could not be said that the mother had acted with an intention to prevent the applicant from seeing P. It had rather been a result of the fight between the parties and of the police intervention that P. had to be calmed before he had agreed to go out with the applicant.
The court further established that in 1995 before Easter P. had spent a week with his father in Katowice, and later, three days from 1 to 3 May 1995. Only on 13 and 14 May had the mother refused the applicant permission to see P. since she had wished to spend the weekend with the boy herself.
The court noted that the fact that P. had been attending a pre-school course in a kindergarten instead of a school, as the applicant wished, could not be regarded as disrespect for the applicant’s parental rights. P. had good professional teaching here and achieved good results. The court had further regard to the questioning of Z. in the access proceedings pending before the court. The court found that Z. was a sensitive, intelligent, independent boy, strongly attached to both parents. Z. had definitely refused to give his consent to moving to the applicant’s apartment. The court considered that, as the applicant had categorically refused access to his apartment in Katowice to his former wife, even if Z. had lived there, the boy’s position was understandable. The court also took into account Z.’s statement that if he was to be obliged to move to his father’s apartment, he would leave the school in Katowice and return to Gorlice. In the Court’s view, this opinion should be respected.
The court considered that the fact that Z. was in a boarding school, which could give him a good education, was in his best interest. The court further observed that there were no indications that the applicant was in any way prevented by his former wife from seeing Z. who had been living in the same town as the applicant. The court concluded that there were no grounds on which to accept that the mother had been acting in defiance of the access arrangements, and refused to impose a fine on her.
The applicant lodged an appeal against this decision, arguing that the court had failed to establish the facts relevant for the determination of the case, that it had disregarded the flagrant contempt for his parental rights on the part of his former wife and that the decision under appeal had given countenance to her reprehensible and persistent refusal to respect his rights.
On 31 October 1995 the Nowy Sącz Regional Court dismissed the applicant’s appeal, considering that the lower court had carefully assessed extensive evidence and had properly concluded that there were no grounds on which to find that the applicant’s former wife had been acting in defiance of the access arrangements as set out in the judgment of 25 January 1994.
III.
On 23 November 1994 the applicant lodged a request with the Gorlice District Court that custody of Z. be awarded to him. He submitted that Z. had been put in the boarding school without his knowledge and consent, that his living conditions there were inadequate since the building was old and in bad repair and as Z. shared his room with three other boys. He argued that this was contrary to Z.’s best interest and that his wife, without any sound reasons, had refused her consent to a change of Z. ‘s residence. He alleged that the fact that Z. was living in the boarding school facilitated the weakening of the emotional links between Z. and him, in accordance with his wife’s intention. He requested the court to order Z. to move to his apartment and to rule that the contacts of his former wife with Z. be limited to meetings at times decided by the applicant and outside his apartment in Katowice.
On 28 November 1994 the applicant challenged judge R.S. on the ground that she had been conducting two sets of proceedings in which he had previously been involved and that, as a result, she lacked impartiality. He submitted in particular that the records of court hearings in these proceedings, as dictated by her, had completely distorted the actual submissions of the parties.
On 14 December 1994 the Gorlice District Court dismissed his request for the judge to step down, considering that the statutory condition, i.e. a personal relationship between her and the party, capable of casting doubt on her impartiality, was not satisfied.
On 31 December 1994 the applicant lodged an appeal against this decision, arguing that judge R.S. had been conducting other proceedings concerning custody and his access
rights and that she was biased against him, which should be construed as a personal relationship casting doubt on her impartiality within the meaning of Article 49 of the Code of Civil Procedure.
On 23 February 1995 the Nowy Sącz Regional Court dismissed the applicant’s appeal, considering that the statutory requirements for a judge to step down, contrary to the applicant’s submissions, were not met. His complaints could have been raised in the previous proceedings, but even if they had been upheld by an appellate court, it would not suffice in the present proceedings for a finding that the requirements for a judge to step down were satisfied and that she should therefore be prevented from examining the present case.
In a letter of 18 April 1995 to the President of the Gorlice District Court the applicant complained about the length of both sets of proceedings. He submitted in particular that no hearings were scheduled in these proceedings, despite a significant lapse of time since they had been instituted, and that he had been prevented thereby from lodging motions for evidence to be taken by the court. He complained that the court had requested the Katowice District Court to submit the case-file of the divorce proceedings, which would unduly prolong the proceedings. He also argued that the establishing of the facts of the cases would be more difficult due to this lapse of time. He finally submitted that the proceedings were not conducted in compliance with the requirements laid down by Article 6 § 1 of the European Convention of Human Rights as to a “reasonable time”.
On the same day the applicant requested the court to give a provisional order safeguarding his custody claims in that his son Z. would be ordered to move to his apartment. He further requested the court to order his former wife to cease any actions that would negatively affect his son’s relations with him. He further asked the court to request the Katowice District Court to investigate, by way of an enquiry carried out by a court guardian, Z.’s living conditions in the boarding school and the conditions which he could have if he lived with the applicant in Katowice. The applicant also objected to any evidence being taken or any investigations undertaken by experts of the Family Diagnostics Centre at the Nowy Sącz Regional Court as they had participated in the divorce proceedings and, as a result, were biased against him. He further argued that Z.’s marks at school had perceptibly deteriorated since he lived in the boarding school, and submitted a document showing the marks.
In a letter of 7 May 1995 the applicant reiterated his request for a provisional order and requested the court to speed up its actions in respect of his request that an enquiry be made regarding Z. ‘s living conditions in Katowice.
On 16 June 1995 the Court dismissed the applicant’s request for a provisional order.
In his pleading of 21 August 1995 the applicant reiterated his request to be granted custody. He submitted that in the boarding school Z. was deprived of parental care, and that, due to lack of adequate educational supervision by his teachers, he was exposed to negative influence of his environment, including such dangers as alcoholism, drugs and venereal diseases, such as, inter alia, AIDS. It was obvious that Z.’s arguments that he felt well in the boarding school were in part motivated by this freedom from parental supervision. The applicant further stressed that Z’s statements should not be decisive as they had been made under his mother’s influence and dictated by his loyalty to her. Therefore the court should not
regard his arguments as being sincere and credible. The applicant reiterated that the mother had strong links with her children and that she deliberately abused their feelings in order to destroy his relationship with them, as shown by the incident of 1 October 1994.
On 25 August 1995 the Gorlice District Court dismissed the applicant’s request for custody of Z. The court had regard to the evidence gathered in the proceedings, which included the case-file of the divorce proceedings, the results of an enquiry made by the court guardian, a copy of the expert opinion prepared by the Nowy Sącz Court’s Family Diagnostics Centre for the purposes of the previous access proceedings, the statements of the parties and the testimony of Z.
The court recalled that in the divorce judgment the court had taken the decision concerning custody and access rights, having regard to the fact that the children had stronger emotional links with their mother and had preferred to be under her care. At that time, Z.’s opinion about his father had been rather disapproving as the child had thought that he had been too strict, very rigorous, that he had not had understanding for his needs and that he had been attaching undue weight to his orders being carried out. The court considered that the circumstances relevant for the determination of the question of custody and access, which had obtained at the time when the divorce judgment had been given, had not changed. Z. had refused to live with the applicant in Katowice in view of his categorical refusal to allow him to have contacts with his mother in his apartment. As the relation that Z. had with her mother was warm and affectionate, and since it was from her that he needed and obtained emotional support and understanding, his refusal had to be seen as justified. Z. was sixteen years’ old and therefore he was able to assess his own and his family situation reasonably and his wishes had to be taken into account.
The court went on to state that Z. lived in the boarding school in the same town as the applicant, but, as the applicant himself had stated before the court, their contacts had become even less frequent than when he had still been living with his mother in Gorlice. The court stressed that it fell to the applicant to ensure good and frequent contacts with the boy, to come to the boarding school and to show more interest in his problems and well-being. His attitude of criticising his son was not beneficial to their relationship. It would be conducive to developing a better relationship if the applicant ceased to communicate to Z. his opinion that boarding school was dangerous to him and that it exposed him to all the evils of civilisation.
In conclusion, the court dismissed the request for the transfer of custody to the applicant.
The applicant lodged an appeal against this decision, complaining that the court had been biased in its interpretation of evidence. The applicant disputed the conclusions of the court, in particular as to his parenting skills and his attitude towards his son. He stressed that he could not visit Z. more often in the school as there were no facilities therefor, and that the boarding school was located far from his apartment which, together with his professional obligations and Z.’s school duties, explained why the contacts between them were less frequent. He stressed that it was obvious that his former wife had been hindering his contacts with the children, having recourse to lengthy judicial proceedings and even to false testimony, and by lying and slandering him. He requested that the court upheld his claims in full.
On 14 November 1995 the Nowy Sącz Regional Court dismissed the appeal, considering that the lower court had taken extensive evidence, assessed it carefully and had drawn reasonable and well motivated conclusions.
B.Relevant domestic law and practice
Article 443 of the Polish Code of Civil Procedure provides that the court competent to deal with an action for divorce is also competent to issue any interim orders concerning the manner in which the care of the parties' minor children should be carried out and about the access rights until the divorce judgment is pronounced. Either of the parties can file a request to have such an order made; or the court gives a ruling acting ex officio.
.
Such an order can be appealed against to a second-instance court.
Under Article 106 of the Family and Custody Code, a final court decision as to parental rights and access arrangements can be changed at any time if the interests of the child so require, either upon a motion from either parent or by the court acting ex officio.
Pursuant to Article 107 of that Code, if both parents who are not married retain their parental rights in respect of their children, a court may award custody to one of them, limiting the exercise of other person’s parental rights to certain obligations and rights specified in the court’s decision.
If a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, access decisions are liable to enforcement. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement proceedings concerning judicial decisions on parental rights and access arrangements (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976/7-8).
Enforcement proceedings are instituted following a motion to this effect by an applicant, i.e. that parent to whom access rights have been granted, but are not respected by the other parent. The motion shall be accompanied by the decision concerned, certified as to its being executory. The motion is submitted to the bailiff who carries out the enforcement. The respondent is informed at the first enforcement measure that the enforcement proceedings have been instituted. He is also informed of the manner in which the enforcement is to be carried out (Article 805 § 1 of the CCP).
Enforcement of decisions concerning access arrangements aims at compelling the parent who has custody of the child to comply with the access decision.
If the parent refuses to comply with the enforcement measures, a motion to have a fine imposed on him or her can be submitted to the court in whose district the enforcement is carried out. The court hears submissions of the parties and imposes a fine if the decision is not complied with within this time-limit. Further fines can be imposed if the creditor persists in his or her refusal (Article 1051 of the CCP).
In pursuance of Article 49 of the Code of Civil Procedure, a judge steps down, upon the motion of one of the parties, if there exists a personal relationship between him or her and one of the parties which may cast doubt on his or her impartiality.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the judge in the first-instance proceedings in both sets of proceedings instituted on 23 November 1994 lacked impartiality and that his challenges of the judge were turned down. He submits that the proceedings lasted too long and that the court was not expedient enough in taking the evidence. He maintains that the court wrongly assessed the evidence, reached untenable conclusions as to the facts and, as a result, gave decisions that were wrong.
The applicant complains, invoking Article 8 of the Convention, that the decisions of the Nowy Sącz Regional Court given in 1995, concerning custody of Z. and the enforcement of his access rights, amount to a breach of his right for respect for his family life as his access to the children is insufficient. He complains that he was not granted custody of Z. He submits that the District Court’s refusal to impose a fine on his former wife gave countenance to her behaviour in defiance of the access arrangements.
THE LAW
1.The applicant raises various complains under Article 6 of the Convention. He submits that the first-instance judge in both sets of proceedings lacked impartiality. He submits that the proceedings lasted too long. He finally argues that the courts wrongly assessed the evidence, reached untenable conclusions as to the fact and, as a result, gave decisions that were wrong.
Article 6, insofar as applicable, reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”
a)Insofar as the applicant alleges that the first-instance court lacked impartiality, the Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party to the proceedings is important, but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, § 30; the Remli v. France judgment of 23 April 1996, Reports of judgments and decisions 1996-II, p. 574, § 46).
Turning to the circumstances of the present case, the Court notes that the applicant relies essentially on the fact that judge R.S. gave decisions in the access proceedings in which the Nowy Sącz Regional Court rendered the second-instance judgment on 28 April 1994. The applicant further alleges that this judge, who had participated in those proceedings, was biased against him in the proceedings under examination in the present case. However, the applicant has failed to show that any doubts he might have had about the objectivity of the judge were objectively justified. He refers essentially to the fact that the court refused to allow his requests. In the Court’s view, the fact that the judge had participated in other proceedings in which the applicant’s earlier request to have the access arrangements extended and modified had was allowed in part, does not in itself justify a finding that the judge lacked impartiality in the next proceedings in which related issues, but concerning a later period, were examined.
b)The applicant further complains that the both sets of the proceedings under examination exceeded a reasonable time.
The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Styranowski v. Poland judgment of 30 October 1998, § 48, to be published in the Court’s official Reports).
The Court observes that the applicant instituted both sets of proceedings on 23 November 1994. In the enforcement proceedings, the final decision of the Nowy Sącz Regional Court was given on 31 October 1995. In the proceedings concerning the applicant’s request to be awarded custody, the Nowy Sącz Regional Court gave its final decision on 14 November 1995. The first set of proceedings lasted, therefore, eleven months and seven days, whereas the second set of proceedings came to an end after eleven months and twenty days.
As regards the complexity of the enforcement proceedings, the Court notes that they concerned the applicant’s request for a fine to be imposed on his former wife for the alleged non-compliance with the access arrangements in the period which began to run on 25 January 1994, i.e. the date on which the Nowy Sącz Regional Court gave its final decision in this respect. The Court considers that this subject matter cannot be considered as complex as the only issue to be examined by the court was whether the creditor had acted in compliance with the relevant executory title. As regards the second set of proceedings, in which the courts had to decide whether to award custody of Z. to the applicant, the Court finds no grounds on which to hold that they concerned matters of particular complexity, having regard in particular to the fact that the previous judicial decisions in this respect were recent and there was no major change of the family situation since then.
In respect of the applicant’s conduct, the court notes that the applicant, immediately after the proceedings were instituted, challenged the presiding judge, which prolonged the custody proceedings for almost two months and the enforcement proceedings for over two months. The Court further observes that in the access proceedings the applicant, by a letter of 18 April 1995, requested the court to take additional evidence by ordering investigation of Z.’s living conditions by the court guardian and that the court granted his request.
There were no delays in the proceedings which could be attributed to the authorities. The Court also notes that the overall length of proceedings was not significant. Accordingly, the court concludes that the proceedings were conducted within a reasonable time within the meaning of Article 6 § 1 of the Convention.
c)The applicant submits that the courts wrongly assessed the evidence, reached untenable conclusions as to the fact and, as a result, gave wrong decisions.
The Court recalls that, according to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46; the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’s official Reports).
The Court notes that the domestic courts in the custody proceedings had regard to the evidence gathered in the proceedings, which included the case-file of the divorce proceedings, the results of an enquiry made by the court guardian, a copy of the expert opinion prepared by the Nowy Sącz Court’s Family Diagnostics Centre for the purposes of the previous access proceedings, the statements of the parties and the testimony of Z. In the enforcement proceedings the court heard the parties and one policeman involved in the intervention of 1 October 1994. There is no indication that the courts were arbitrary in the assessment of evidence or that they reached conclusions which would be unreasonable. The Court concludes that the applicant was not prevented in any way from presenting his arguments to the courts and that had the benefit of adversarial proceedings in compliance with the requirements of Article 6 § 1 of the Convention.
It follows that this part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicant complains under Article 8 of the Convention of the decisions concerning access to his children, which in his opinion, amount to a breach of his right for respect for his family life.
Article 8 provides, insofar as relevant:
“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 health or morals, or for the protection of the rights and freedoms of others.”
The Court recalls that the natural link between a parent and a child is of fundamental importance and that, where the actual family life in the sense of living together has come to an end, continued contact between them is desirable and should in principle remain possible. Respect for family life under Article 8 of the Convention thus implies that this contact should not be denied unless there are strong reasons which justify such an interference. The Court further recalls that, in accordance with the Convention organs case-law, the right to respect for family life within the meaning of Article 8 of the Convention includes the right of a divorced parent who is deprived of custody following the break-up of the marriage to have access or contact with his child. The State may not interfere with the exercise of that right otherwise than in accordance with the conditions set out in Article 8 § 2 (cf. inter alia No. 9018/80, Dec. 4.7.1983, D.R. 33, p. 9 and No. 24482/94, Dec. 29.11.1995, unpublished).
The Court finally recalls that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition be positive obligations inherent in an effective "respect" for family life. Whilst the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55).
Even assuming that the decisions of the Polish authorities concerning access to his children constituted an interference with the applicant's right to respect for his family life, it falls to the Court to examine whether it was justified under Article 8 § 2 of the Convention.
The Court first observes that the decisions taken in the access proceedings were based on Article 107 of the Family and Custody Code. As regards the enforcement proceedings, the court declined the applicant’s motion to have a fine imposed on the creditor considering that the requirements laid down by Article 1051 of the Code of Civil Procedure were not met. The interference was thus in accordance with the law within the meaning of Article 8 § 2 of the Convention.
The Court accepts that the interference with the applicant's right was aimed to protect the interests of the children and thus pursued a legitimate purpose recognised in Article 8.
The question remains whether the interference in question was “necessary” within the meaning of Article 8 § 2 of the Convention. According to the established case-law of the Convention organs, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is "necessary in a democratic society", the Court will take into account that a margin of appreciation is left to the Contracting States. That does not mean, however, that the Court’s review is limited to ascertaining whether the respondent State has exercised its discretion reasonably, carefully and in good faith. Furthermore, it cannot confine itself to considering the relevant decisions in isolation but must look at them in the light of the case as a whole. It must determine whether the reasons adduced to justify the interference at issue are "relevant and sufficient" (cf. Eur. Court HR, Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, pp. 31-32, paras. 67-68).
In the present case the Court notes that the national courts examined the applicant’s request that the access arrangements be modified. The courts also examined his submissions that his former wife had been hindering the applicant’s access to the children in defiance of judicial decisions. The first-instance court took extensive evidence from documents and witnesses. The Court also notes that the court granted the applicant’s motions for evidence to be taken. The Court observes that the applicant, although he repeatedly complained to the domestic courts about the failure of his former wife to comply with the access arrangements as set out in the divorce judgment and later judicial decisions, did not in fact refer to any concrete occurences which would show that she refused to give him access to children or that she was hindering him in the exercise of his access rights. It is true that there was an altercation between the parties on 1 October 1994 when the applicant came to see P. and that the applicant called the police. However, after the parties calmed down, the applicant took P. out, as provided for in access order. No further evidence was adduced by the applicant to support his allegations as regards his former wife’s conduct.
Insofar as the applicant relies on the fact that the court did not oblige Z. to move to his apartment in Katowice, the Court first notes that such an arrangement was not provided for by the earlier decisions of access. It cannot therefore be said that this decision amounts to a breach of the applicant’s access rights as set out in the relevant judicial decisions. The Court also observes that since Z. begun to attend the boarding school, he lives in the same town as the applicant. The applicant argues that this fact had led to the limitation of his contacts with Z. The Court does not find it established that the fact that Z. lived in the boarding school must have, in the nature of things, led to this limitation, or that the applicant was prevented in any way from seeing Z. as a result of any actions on the part of his mother, which would be approved by the national courts.
The Court further observes that the applicant did not allege that that during the proceedings and after the litigious decisions were taken, the children’s mother prevented him from either seeing Z. or coming to visit P., and does not adduce any evidence to the effect. On the contrary, it transpires from the applicant’s own submissions to the national courts, in particular from his pleading of 23 November 1994, that the applicant’s relationship with his sons were good and that the emotional link between them had not deteriorated. Likewise, in his letter to the 24 July 1995 the applicant stated that P. liked to meet him very much, that he enjoyed his contacts with his father and requested that he could see him more often, including the visits in his Katowice apartment where he had been twice.
The Court finally notes that in the access proceedings the District Court heard Z. The Court considers that it was in the child’s interest that the court took his submissions into account in giving its decision.
Having regard to the foregoing, the Court considers that the applicant has not substantiated before the national courts his essential submission that his access rights were infringed as a result of deliberate actions of his former wife. The Commission finds that the courts decisions to reject the applicant's claims were supported by relevant and sufficient reasons. Consequently, the Court is of the view that the national authorities in their decisions struck a fair balance between the interests involved and did not overstep the margin of appreciation provided for by the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent BergerMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy