FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63896/00 by Krzysztof STENZEL against Poland and Germany

The European Court of Human Rights ( Fourth Section) , sitting on 21 January 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr G. Ress , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr L. Garlicki , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application introduced on 19 August 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Krzysztof Stenzel , is a Polish national, who was born in 1964 and lives in Rumia .

A. The circumstances of the case

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

In 1990 the applicant married J.S. The couple had a daughter, P., born in 1991.

In January 1992 the applicant agreed that P.’s name be put in her mother’s passport.

Apparently the applicant has not lived with his wife and P. since an unspecified time in 1992.

On 4 June 1992 the applicant requested the Gdynia District Court to issue a residence order regarding P. in his favour, submitting that the mother was incapable of bringing up the child correctly. Accordingly, access proceedings were instituted.

Later in June 1992 the applicant brought a divorce claim to the Gdynia District Court.

At a hearing held on 9 July 1992 in the custody and access proceedings the applicant’s wife stated that she would not agree that the child reside with him as he had shown  a tendency to violent behaviour.

On 13 July 1992 the applicant requested the Gdynia District Court to give an interim decision on access arrangements during the custody and access proceedings. On 27 July 1992 he also requested that the mother be divested of parental rights.

On 10 August 1992 the Gdynia District Court gave an interim decision and established the access arrangements allowing the applicant to see P. on Saturdays.

As the mother refused to comply with that order, the applicant could not see the child at all.

On 3 September 1992 the applicant applied for the court’s order prohibiting his wife from removing the child from Poland without his consent. The court ordered a social assistant to carry out an interview at the child’s home, where she lived with her mother and with her maternal grandparents. The result of the interview did not confirm the applicant’s suspicion, and, therefore, on 4 November 1992 the court refused to uphold his request.

On 14 December 1992 the applicant requested again that P.’ live with him permanently.

On 30 December 1992 he further requested the Gdynia District Court to change the access arrangements determined under the interim decision of 10 August 1992 so that the child would be allowed to visit him once a week.  He submitted that since that decision had been given he had not had any access to P.

In a judgment of 8 June 1993 the Gdańsk Regional Court dissolved the applicant’s marriage. The court awarded parental rights to both parents. It also limited the applicant in the exercise of his rights in that 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 15 November 1993 the applicant requested that in the custody and access proceedings, instituted in June 1992, a hearing be scheduled as soon as possible. He emphasised that the mother had consistently refused to comply with the access arrangements set out in the interim decision of August 1992, and that she had left Poland and had been working in Germany, leaving P. in the care of her grandparents.

On 9 December 1993 P.’s mother J.S. instituted proceedings in which she requested that the applicant be divested of his parental rights, stating that he was aggressive towards her. Each contact between him and P. had resulted in the child being upset as he was beating and pushing P.’s mother in her presence. She further submitted that his parenting skills were inadequate and that he had consistently failed to pay maintenance.

On 10 December 1993 the applicant requested that the divorce judgment be amended, restoring his parental rights in full.

On 13 December 1993 the applicant requested again that a hearing be scheduled in the custody and access proceedings, the last one having been held on 11 December 1992. 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 failed to inform the applicant of her leaving Poland and to give their address in Germany.

In February 1994 the court fixed for J.S. three months in which to ensure compliance with the access arrangements provided for by the order of 10 August 1992.

On 14 February 1994 the applicant modified his access claim, requesting to be allowed to meet P. every Tuesday for four hours at the Family Diagnostics Centre in Sopot . He submitted that he wished that the meetings went smoothly, and that he was in a need of professional assistance as to the child’s upbringing.

In February and in April 1994 the applicant again amended his request concerning the access arrangements and requested that the court give a new interim decision to replace that of August 1992.

On 5 April 1994 the court gave an interim 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.

By a letter of 19 April 1994, in reply to the applicant’s complaint, the President of the District Court informed him that the court could not prevent the mother from taking the child to Germany, as neither party had informed the court of the mother’s intention to leave Poland. Moreover, the border authorities were not obliged to inform courts of underage persons leaving the country if he/she had a valid passport.

In June and July 1994 the applicant complained about the lack of progress in the custody and access proceedings, reiterating that he had not had any access to the child for the last two years, in defiance of the 1992 decision, and that the mother’s and child’s whereabouts were unknown.

On 6 September 1993 the Gdańsk Regional Court, following the mother’s appeal, set aside the interim access decision of 5 April 1994.

In October 1994 J.S. married a German citizen, changed her name to J.V. and moved to Hamburg with P., without informing the applicant of her whereabouts. The applicant subsequently established their address with the assistance of the Polish consulate in Hamburg and made a number of unsuccessful attempts to see the child.

In her pleadings of 1 November 1994 the mother’s lawyer submitted that the mother 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. 

In a letter to the applicant of 5 December 1994 the President of the Gdańsk Court of Appeal, in reply to his complaint, partly acknowledged that the access proceedings had not been conducted expeditiously. However, the reasons for the delay were complex, and it was also the parties’ mutual hostility and conflict that had contributed to their overall length.   In a letter of 16 December 1996 the President again agreed with the applicant’s complaint about the excessive length of the access proceedings.

Apparently, on 12 December 1994 the Gdynia District Court, in the enforcement proceedings concerning the interim order of August 1992, imposed a fine on P.’s mother in the amount of approximately PLN 10, since she had failed to comply with that order.  

In his pleadings of 24 May 1995 the applicant submitted that he did not have any access to the child, who lived with her mother in Germany, and that the mother had abused her parental rights by leaving Poland without leaving any address. He argued that the child, if educated in Germany, ran the risk of losing her nationality and that he did not have any effective access to her as the mother had been frustrating all of his attempts. He referred to a report prepared by the Sopot Family Diagnostics Centre, which had stressed that it would be in the child’s interest to have regular contact with her father.

By a decision of 19 October 1995 the Gdynia District Court dismissed the mother’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 first recalled the course of the proceedings and the parties’ claims. It further recalled that at the last hearing in the case the applicant had been requested to clarify his claim. He had then withdrawn his claim to have the access arrangements established, because he wished that P. lived permanently with him. Conversely, at the same hearing, his lawyer had reiterated his request that a decision on access arrangements be given.

The court found that when the divorce judgment had been pronounced, P. had been living with her mother and her grandparents and was a well-developed, healthy child, obviously emotionally attached to her mother. In January 1994 the mother had left Poland with P. without informing the applicant, had settled in Germany, obtained a visa for three years, married a German citizen, and lived with him and his parents in a house with a garden. In April 1994 she had given birth to another child. As was stated in a report submitted at the court’s request by German social assistance authorities, P. got on well with her new environment and called her stepfather “dad”.

The applicant, despite the interim access order given in the proceedings in 1992, could not have any access to P.  He had seen her for the last time during an accidental meeting in the street in July 1993. At that time he agreed with the mother that he would see the child again, but despite his efforts, no further meetings had been organised.

The mother had repeatedly stated during the proceedings that she did not agree to the child seeing his father, referring to his aggressive behaviour.

The applicant had taken steps to discover the child’s whereabouts in Germany and eventually succeeded thanks to the services of the Polish consulate in Hamburg. He had written a number of letters to P. and had in 1995 spent a month in Germany, trying to visit P., to no avail.

The applicant was unemployed, lived at his parent’s house and was trying to find work.

The court noted that under Article 111 of the Family and Custody Code the access arrangements could be changed if the interest of the child so required and if the circumstances in which these arrangements had been determined had changed. In the present case, none of these requirements were met. There was a deep and persistent conflict between the parents. The mother took good care of the child. The fact that she had left Poland and lived in Germany had obviously changed the child’s circumstances, but only for the better as she now lived in good material conditions. P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother, her step-father and half-sister. The applicant’s argument that she would lose her nationality was demagogic and had to be outweighed by other considerations concerning P.’s best interest.

There were no grounds on which to divest J.V of her parental rights as her parenting skills left nothing to desire. The fact that she had left Poland without informing the applicant thereof was certainly 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 no grounds either on which to divest him of his parental rights, as shown by his persistent efforts to obtain access to the child. Not only had he not neglected her, but he had done all that was possible so as not to lose the link with his daughter. It was only because of the mother’s hostility that the meetings with the child never materialised, despite the expert reports which had twice confirmed that the child should have contacts with both parents Neither were there any grounds on which to prohibit his access to P.

The applicant lodged an appeal with the Gdańsk Regional Court. He submitted that the child should not be brought up without any contact with his father and that the mother had consistently been abusing her parental rights, by leaving her daughter for months under the care of her parents, and, in particular, by taking the child away from Poland without leaving any address. He reiterated that since 1992 she made it impossible for him to have any contacts with P. He stressed that the child’s interest required that she had contacts with her home country, instead of being brought up in an exclusively German environment. He pointed out that he continued his education, that he lived in a comfortable big house with his parents and that he was able to care for his child properly.

On 26 January 1996 the court, in an enforcement proceedings, imposed a new fine of PLN 10 on J.V, in order to make her grant access to the child in compliance with the access order of 10 August 1992.

By a decision of 11 April 1996 the Gdańsk Regional Court, taken in the appellate proceedings, upheld the contested judgment . The court noted that the lower court had taken ample evidence and was conscientious in establishing the facts of the case. The court further considered that there were no grounds on which to accept that the child’s life circumstances had changed since the divorce judgment in a way that would justify that the custody and access arrangements were changed.

The court further observed that the child’s mother had not adduced any arguments to show that the applicant should be divested of his parental rights. In particular, her argument that he should be divested of his parental rights because there was a long-term obstacle in their exercise, as she alleged, was clearly erroneous. Under the relevant case-law such a long-term obstacle, for instance residing abroad and lack of interest for the child, could only be invoked against a person who was to be divested of these rights. In the case at hand, it was the mother herself who resided abroad and who had made it impossible for the applicant to exercise his parental rights effectively. Therefore she could not rely on that argument.

Following the second-instance decision on the merits, the 1992 interim access order ceased to be valid.

On 15 April and on 8 May 1996 the applicant instituted new proceedings in which he again requested the Gdynia District Court to establish the access arrangements and to rule that the child could regularly visit him, and that he be allowed to take her for holidays. On 23 April 1996 he further lodged a motion claiming that full custody rights be restored to him, invoking J.V.’s failure to allow any access so far.

In a letter of 15 July 1996 the Ministry of Justice, in reply to his complaint, acknowledged that the order imposing a fine on J.V. had been enforced only after eighteen months. As to the complaint about the length of the access and custody proceedings, in which the second-instance judgment had been given on 11 April 1996, it was stressed that the parties were in a deep conflict, which had also contributed to their prolongation.

On 4 February 1997 the applicant requested the court to limit J.V.’s custody rights and to issue a residence order in his favour, so that P. could attend Polish school. He emphasised that J.V. had consistently made it impossible for him to have access to P. On 20 February 1997 he requested the court to impose a new fine on J.V. for her failure to comply with the interim access order of August 1992.

In the course of the new access and custody proceedings instituted by the applicant against J.V., the Gdynia District Court summoned her to give the applicant access to P. and imposed a further fine on her for her non-compliance with its order of 12 December 1994, by which a fine had been imposed on her. Apparently, the enforcement proceedings concerning the fine were terminated in July 1997.

By a decision of 20 May 1997 the Gdynia District Court dismissed the applicant’s motion of 23 April 1996 and refused to award the custody to him. The court also refused to establish the access arrangements that would allow the applicant to contact his daughter.

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, having 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, having regard both to her psychological and physical well-being and 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, having regard to P.’s well-being, concluded that removing her from the mother’s custody, or even establishing a permanent access agreement with the applicant, would harm the health and development of the child.

On 19 April 1997 the applicant, being represented through his lawyer, appealed against this decision.

By a decision of 16 September 1997 the Gdańsk Regional Court upheld the contested decision and dismissed his appeal, having regard to the child’s well-being and noting that there were no circumstances of the case which would justify that a new decision be given as to access arrangements.

The applicant complained to various Polish authorities about lack of access to the child, including the Ministry of Justice and the Ombudsman.

On 10 April 1998 the Ombudsman, at the applicant’s request, lodged a motion on his behalf with the Gdynia District Court for establishing access arrangements between the applicant and P. It was argued that the applicant’s parental rights had been limited by the divorce judgment , but that the question of his access had never been settled except by the interim order of August 1992. The conditions provided for by Article 113 of the Family Code for prohibiting the applicant to have access to his child clearly did not obtain. 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 and court’s permission or knowledge. It was only thanks to the assistance of the consulate that the applicant was eventually able to obtain information about the child’s whereabouts. That constituted by itself a violation of the domestic regulations and relevant provisions of the international law. The Ombudsman stressed that J.V.’s actions were clearly unlawful. Moreover, the Ombudsman requested that a court supervisor be appointed in order to facilitate the contacts between the applicant and J.V. in the child’s interest.

On 18 December 1998 the Gdynia District Court dismissed the applicant’s request to give an interim access decision in the proceedings instituted by the Ombudsman, allowing the applicant to send letters and presents to P. The court considered that in the circumstances of the case such a decision would be premature.

On 4 February 1999 the Ombudsman drew the court’s attention to the lack of progress in the proceedings, instituted at his request.

By a letter of 5 March 1999 the Ombudsman informed the applicant that the refusal of 18 December 1998 had become final as the applicant had failed to lodge an appeal against it. It was suggested that the applicant again submit such request. It was further recalled that the court had requested that a German court interview the mother and P. as to whether the latter wanted to have contacts the applicant. This was, in the Ombudsman’s opinion, premature, as it was most likely that the child would say that she did not want to see her father, as she could not possibly remember him. The court should have created for the applicant and for P. an opportunity to get to know each other gradually, by ordering that they meet, and it would only be afterwards that P. would be able to give a valid opinion. It was stressed that the fact that the applicant could not have contacts with his child was in breach of his statutory rights, as he had never been divested of his parental rights, and also in breach of the Constitution.

By a decision of 18 March 1999 the Gdynia District Court established a temporary access arrangement in that it allowed the applicant to call P. once a week and to send letters to her. The applicant’s complaint as to this access arrangement was dismissed on 28 May 1999 by the decision of the Gdańsk Regional Court.

In the meantime, on 31 March 1999 and on 21 April 1999, the applicant requested the Gdynia District Prosecutor to institute criminal proceedings against J.V. on suspicion of giving false testimony and of having kidnapped P. By a decision of 4 May 1999 the prosecuting authorities refused to institute the proceedings, finding that J.V.’s acts did not amount to a criminal offence.

Apparently, the case was later placed under the administrative supervision of the President of the Gdańsk Regional Court.

In November 1999 the applicant requested the court to impose a fine on the mother, 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 20 January 2000 the Reinbek 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, considering that the parents were in conflict and that, in any event, the applicant and the child lived far away from each other. The applicant was not represented before the court in these proceedings.

On 16 November 2000 the Gdynia District Court refused to impose a fine on the mother. The court considered that the applicant had in fact failed to contact the mother in order to obtain the number of her telephone, and that it was not established that the mother had sent back any letters he had sent to P.

In the letter of 14 February 2001 the Ombudsman requested the President of the GdaÅ„sk Regional Court to take practical steps towards the enforcement of the interim decision of 18 March 1999. It could not have been enforced, since the mother had not provided the court or the applicant with the telephone number and the address, and the court had not ordered her to do so. It was also stated that there was no progress in the proceedings, which led to a de facto elimination of the applicant from his daughter’s life. 

Apparently, on an unspecified date the Gdynia District Court, upon the Ombudsman’s request, gave certain temporary orders on access arrangements and the applicant made further attempts to contact P., but, again, to no avail.

By a decision of 27 March 2001, upheld on 29 May 2001, the Gdańsk Regional Court dismissed the applicant’s request to impose a fine on J.V. for her failure to comply with the interim access order of 18 March 1999.

On 20 June 2002 the Gdansk Regional Court exempted the applicant from court fees due in the case concerning the recognition of the validity of the judgment of the Reinbek court of 20 January 2000.

Both sets of the proceedings, those concerning the access arrangements and the recognition of the validity of the German judgment , are currently pending.

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 concerning the manner in which the care of the parties’ minor children should be carried out (...). 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 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 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 a 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 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.”

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.

COMPLAINTS

The applicant complains under Article 8 of the Convention that he cannot have access to his child and that his parental rights were restricted under the divorce judgment . He submits that Polish authorities have failed to respect his family life, that they failed to take reasonable steps to effectively enforce the orders on access arrangements and to allow him to form a relationship with a daughter. He submits that all his efforts to have access to P. have proved to be unsuccessful in the face of court’s refusal to establish effective access to the child and the mother’s persistent and unlawful non-compliance with the access arrangements. He complains that the courts refused to rule on access arrangements in the custody and access proceedings, terminated by the judgment of 11 April 1996.

The applicant also complains under Article 8 of the Convention about the judgment given by the Reinbek District Court in Germany on 20 January 2000 by which that court changed the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother.

THE LAW

1. The applicant complains under Article 8 of the Convention about the judgment given by the Reinbek District Court in Germany on 20 January 2000 by which that court changed the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother.

Under Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted. In the present case it has not been shown that the applicant has lodged an appeal against the judgment complained of with a higher court. It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complains under Article 8 of the Convention that he cannot have access to his child and that his parental rights were restricted under the divorce judgment . He submits that Polish authorities have failed to respect his family life, that they failed to take reasonable steps to effectively enforce the orders on access arrangements and to allow him to form a relationship with a daughter. He submits that all his efforts have proved to be unsuccessful in the face of court’s refusal to establish effective access to the child and the mother’s persistent and unlawful non-compliance with the courts orders.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints against Poland concerning the alleged lack of respect for his right to family life;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza                   Deputy Registrar President