FOURTH SECTION

DECISION

Application no . 41276/11 P . P . against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 14 April 2015 as a Chamber composed of:

Päivi Hirvelä , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges,

and Françoise Elens-Passos, Section R egistrar ,

Having regard to the above application lodged on 14 June 2011 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr P . P . , is an Italian national, who was born in 1960 and lives in Torri di Quartesolo . He was re presented before the Court by M s A. Mascia , a lawyer practising in Strasbourg.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. In 1991 the applicant married a Polish national K.P., who gave birth to their two daughters. A was born in 1992 and B was born in 1996. The family lived in Italy.

1. The abduction of the applicant ’ s children and return proceedings

4. In the summer of 1999 K.P. took A and B on holiday to Poland. They did not return to Italy. Afterwards the applicant tried to secure the return of his daughters to Italy by applying to the Polish Ministry of Justice designated as a Central Authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention ”). On 5 January 2001 the Poznań District Court allowed the application for the return of the children lodged by the applicant and ordered to return them to the applicant. The court considered that the children had been unlawfully abducted. The decision became enforceable on 8 June 2001. The facts concerning subsequent enforcement proceedings can be found in the judgment issued by the Court in the first case brought by the applicant ( P.P. v. Poland , no. 8677/03, §§ 8-65, 8 January 2008).

5. On 7 June 2005 the Poznań District Court quashed the judgment given under the Hague Convention and decided that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation.

6. On 8 January 2008 the European Court of Human Rights found a violation of the applicant ’ s rights under Article 8 on the basis that the Polish authorities failed to take all the measures that could be reasonably expected to enforce the return order issued with respect to his two daughters under the Hague Convention and consequently to secure his visiting rights. The judgment concerned the events between 1999 and 2005.

2. De cisions concerning the applicant ’ s visiting rights

7. On 17 November 1999 the Poznań District Court granted the applicant visiting rights. The applicant was granted the right to visit his children four times a month and to take them outside the flat in which they lived.

8. On 15 April 2005 the Poznań District Court decided that the applicant could visit his daughters every time he came to Poland and that he could take them outside their place of residence , if they agreed to it . The court indicated that the applicant should be able to visit his daughters from 5 p.m. to 8 p.m., notifying K.P. the week before the visit. In so far as the first meeting was concerned the applicant was to inform K.P. with one month advance and notify the Poznań Regional Court about it. The court would then appoint a guardian who could oversee the course of the visit.

9. On 22 January 2007 the Poznań Regional Court fixed the applicant ’ s access rights in the divorce judgment with reference to the conditions set out in the decision of the Pozna ń District Court of 15 April 2005.

3. Fresh proceedings concerning visiting rights

10. On 7 July 2008 the Italian Central Authority requested the Polish Ministry of Justice to enforce the applicant ’ s access rights. On 11 August 2008 the Polish Ministry of Justice replied stating that the Hague Convention no longer applied to A, since she had already reached the age of 16 and so was not considered a child for the purposes of the Hague Convention (Article 4 of the Hague Convention). It also noted that the applicant should institute relevant proceedings before the Polish courts.

11. On 8 November 2012 the applicant instituted new proceedings in Poland in which he sought to amend the modalities of visiting rights with his younger daughter B.

12. In his pleading of 14 May 2013 the applicant specified that he wished to spend with B part of her winter and summer holidays, in Poland and abroad. Moreover, he wished to have contacts with her by phone and other means of communication. The applicant requested to impose a fine on K.P. for failing to comply with the court ’ s order.

13. On 28 May 2013 the Pozna ń District Court held a hearing at which it heard the applicant ’ s former wife, K.P. She stated that the applicant last time saw his daughters in May 2009 and afterwards made no attempts to see them. Following that meeting h e often telephoned them . H owever , with time A and B stopped taking his calls.

14. On 12 August 2013 the court held a hearing at which it heard B , at that time 16 years old. She said that after she left Italy when she was three years old she met her father two or three times. She received letters and emails from him. B stated that she felt indifferent about her father and she would not seek or need contacts with him. B considered that her mother had never opposed her contacts with the applicant provided that he would not keep them in Italy. B stated that she would not like to go to Italy with the applicant as he wa s a foreign person to her and she would not feel safe. She admitted to having stopped taking his calls as they bothered her. If she wanted to contact him she could do it by email or phone. She opposed the idea to force herself to meet her father only to please him.

15. On 15 October 2013 the Poznań District Court dismissed the applicant ’ s request for interim order. The Court considered that forcing B to keep contact with her estranged father would be against her interests and could only deepen the conflict with the applicant.

16. On 4 Febr uary 2014 the court held another hearing at which it heard the applicant. The applicant submitted that he met his daughter in 2007 and 2009 but at no point he could stay with them without presence of their mother. He submitted that in reality he has not seen his daughters for 15 years. The applicant accepted that one canno t force a 17-year-old-girl to a certain behaviour, however, she should be assisted by a therapy to have her attitude to him improved.

17. On 12 February 2014 the experts from the RODK ( Family Consultation Centre , Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ) presented their opinion to the court. The experts observed that B has emotional ties with her mother. However, any ties with her father had been broken due to lack of contacts and his negative picture induced by the mother. She presently expressed no need for contacts with the applicant. The applicant was perceived by the experts as determined to re-establish any contact with his daughters; a responsible person and posing no threat to them. The girls ’ mother imposed on them her negative vision of the applicant and perceived his attempts to contact them as threatening. She made it impossible for her daughter to build autonomous relations with the applicant and his family. The mother failed to accept the children ’ s needs for the presence of their father. The experts recommended that B with her mother undergo a therapy with a view to rebuild her relations with the applicant.

18. On 1 July 2014 the Poznań District Court gave a decision in the case and dismissed the applicant ’ s motion. The court took into account the statements made by B in which she expressed no wish to resume contacts with her father. Taking into account her age and degree of maturity the court decided not to regulate her contacts with the applicant.

19. The applicant appealed. It appears that the proceedings are pending before the domestic court. In December 2014 B turned 18.

B. Relevant domestic law and practice

20. The relevant domestic law concerning the enforcement of a parent ’ s visiting rights in force prior to 13 August 2011 is set out in the Court ’ s judgment in the case of P.P. , cited above, §§ 69-74.

21. Before 13 August 2011, the general provisions of the Code of Civil Proc eedings (CCP, Kodeks Post Ä™ powania Cywilnego ) on enforcement of non ‑ pecuniary obligations were applicable to enforcement of court decisions on pa rental rights or access rights. If a court obliged a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the CCP was applicable to the enforcement of this obligation. This article provides that:

“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.”

22. The Law of 26 May 2011 on the amendment of the CCP introduced provisions dealing specifically with the enforcement of judgments granting visiting rights in respect in children (Article s 598 15 to 598 21 ). Under those provisions as they stand as of 13 August 2011, the court decision on access arrangements shall serve as an enforceable title for a request to a court to impose a penalty payment ( oznaczona sum a pieniężn a ) on the party refusing to comply with these arrangements in respect of each and every failure to do so, to be paid to the person to whom visiting rights have been granted.

COMPLAINT

23. The applicant complained under Article 8 of the Convention that the Polish authorities failed to secure his contacts with his daughters as stipulated in the domestic decision. In particular he complained about non-enforcement of the judgment of 22 January 2007 which gave the applicant visiting rights. The applicant submitted that he was forced to institute new proceedings in 2012 but they did not improve his situation.

THE LAW

24. The applicant complained that the Polish authorities had failed to take effective steps to enforce his right of contact with his daughter s A and B particularly after January 2007 . He alleged a violation of Article 8 of the Convention, which provides

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

25. At the outset the Court notes that the relationship between the applicant and his daughters amounted to “family life” within the meaning of Article 8 of the Convention.

26. 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 certa in margin of appreciation (see Hokkanen v. Finland , judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55).

27. The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not, however, absolute. The key consideration is whether those authorities have taken all necessary steps to facilitate contact such as can reasonably be demanded in the special circumstances of each case (see, mutatis mutandis, Hokkanen , cited above, § 58).

28. The Court takes note of its judgment of 8 January 2008 in the first case brought by the applicant ( P.P. , cited above ) in which it found a violation of the applicant ’ s rights under Article 8 . The judgment concerned mainly the events between 1999 and 2005 during which the applicant had obtained a return order under the Hague Convention in respect of his two daughters . The Court conclude d that the Polish authorities failed to take, without delay, all the measures that could reasonably be expected to enforce the return order and consequently to secure his visiting rights, and thereby breached the applicant ’ s right to respect for his family life .

29. In his current application the applicant appears to concentrate on the period after his visiting rights were reaffirmed in the divorce judgment of 22 January 2007.

30. The Court reiterates that the domestic authorities had an obligation to ensure enforcement of contact arrangements since it is they who exercise public authority and have the means at their disposal to overcome problems obstructing execution (see, among other authorities, P.K. v. Poland , no. 43123/10 , § 89, 10 June 2014 ). However, in the present case, there is no evidence that the applicant made any attempt to seek this enforcement. The applicant clearly stated that he did not attempt any of the possible remedies (see also paragraphs 20-22 above).

31. The applicant had visiting rights secured by the decisions of Polish courts of 15 April 2005, reiterated in the divorce judgment of 22 January 2007. According to those arrangements the applicant could visit his daughters every time he came to Poland and he could take them outside their place of residence . Moreover, prior to the first meeting after April 2005 the applicant was to inform the Regional Court so that a guardian oversees how the meeting was carried out.

32. In this context , the Court observes, firstly, that the applicant, in the domestic proceedings or in the proceedings before the Court, failed to specify on which dates, particularly after January 2007, he came to Poland but was not allowed to see his daughters. It is not clear if the applicant took advantage of those arrangements and actually came to Poland in order to visit his daughters.

33. Secondly, if the applicant felt hindered in the execution of his contacts with A and B it was open to him to request domestic court to enforce the judgments under the CCP. The courts could have imposed a fine on his former wife, obliging her to comply with the access agreements, and fixed time-limits for her to do so. As of 13 August 2011 the applicant could request a penalty payment from his former wife be paid to him in respect of her failure to respect the access arrangements.

34. Thirdly, the applicant had other means to obtain assistance in his contacts with his daughters, by requiring the court to appoint a guardian who could supervise the execution of the contact orders.

35. The applicant failed to use any of the above remedies expressly provided for by the domestic law. Instead, he contacted the Italian and Polish Central Authority; however, already in 2008 the Hague Convention was no longer applicable in respect of his older daughter. Most recently, in November 2012 the applicant initiated fresh proceedings by which he sought to regulate anew his contacts with his younger daughter B, at that time 16 years old. In the course of those proceedings it was established that the tie between the girl and the appli cant had been totally destroyed . However, in this set of proceedings the domestic courts had not been able to force, on a 17-year-old girl, contacts with the applicant due to her clear opposition to them.

36. The applicant claims that during 15 years after the girls ’ removal from Italy to Poland he saw them only on a few occasions. In October 2007 and May 2009 meetings took place organised with the help of the Italian Embassy. In 2014 he saw his younger daughter in the context of court proceedings. However, the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. Recourse should therefore be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. As a consequence, complaints intended to be made before this Court should have first been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and Others v. Turkey , 16 September 1996, § 34 , Reports of Judgments and Decisions 1996 ‑ IV and Vučković and Others v. Serbia [GC], no. 17153/11 , § 70, 25 March 2014 ).

37. As explained above, the applicant in the instant case failed to initiate enforcement proceedings, request imposition of a fine on K.P., assistance of a guardian , or claim a penalty payment from his former wife. He failed to justify that, during the period covered by the instant application, there had been instances when he had come to Poland but had been prevented from seeing A and B contrary to access arrangement. The Court thus considers that the Polish authorities had not been given opportunity to take actions in exercise of their responsibilities as regards parental authority, which the Court could, in turn, review under Article 8 of the Convention (see, for instance, P.F. v. Poland , no. 2210/12 , § 63, 16 September 2014, Kaleta v. Poland , no. 11375/02, § 58 , 16 December 2008 , and P.K. , cited above, § 97) .

38. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

39. In 2012 the applicant initiated the most recent set of proceedings aiming at modification of his access arrangements towards his younger daughter B. T his set of proceedings appears to be still pending , however , B reached the age of majority in December 2014. On 11 July 2014 the Pozna ń District Court dismissed the applicant ’ s action at first instance and considered that the applicant ’ s daughter should not be forced to meet with the applicant given her age and clear hostility towards him. The domestic courts acted with due diligence, heard the applicant and his daughter and ordered an expert opinion to be prepared. The Court considers that given the age of the applicant ’ s daughter, who opposed any meetings with the applicant, and a total breakdown of the ties between them, it cannot be said that in this set of proceedings the State failed to comply with its positive obligations to protect the applicant ’ s right to respect for his family life under Article 8 of the Convention .

40. In so far as it can be understood that the applicant complains about those proceedings, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see Kijowski v. Poland , no. 33829/07 , § 59 , 5 April 2011 ) .

41. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 7 May 2015 .

Françoise Elens-Passos Päivi Hirvelä Registrar President