FOURTH SECTION

Application no. 43123/10 P.K. against Poland lodged on 19 July 2010

STATEMENT OF FACTS

The applicant, Mr P.K. , is a Polish national, who was born in 1978 and lives in Bychawa .

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

In 2001 the applicant filed an action for divorce with the Lublin Regional Court . On 28 October 2003 that court dissolved the applicant ’ s marriage. It held that the parental authority was to be exercised by both parents and stipulated that the place of residence of P. born in 2001 was to be with the boy ’ s mother. The applicant was allowed to visit the child at his mother ’ s address and in her presence on every third Sunday of the month between 10 a n d 12 a.m.

The mother repeatedly refused to comply with the access order. On many occasions the applicant complained to the police about her failure to co ‑ operate. From 2003 until July 2010 the applicant was able to see his son on several occasions, mostly assisted by the police.

The applicant repeatedly complained to the court about the mother ’ s obstructive attitude.

By a decision of 28 June 2007 the Lublin District Court fixed a one ‑ month time-limit for the child ’ s mother to allow the applicant access to P. on the terms stipulated by the divorce judgment. It held that she was to pay a fine of PLN 600 in case of continued failure to comply.

In July 2007 the applicant again requested the court to take measures in order to make the mother co ‑ operate. On 25 September 2007 the Lublin District Court refused to grant the applicant an exemption from the obligation to pay court fee in respect of this request.

In October 2007 the applicant complained about the mother ’ s conduct to the Lublin District Prosecutor. In reply, he was informed that compliance with decisions of civil courts did not fall within the jurisdiction of the prosecuting authorities.

On 17 December 2007 the Lublin District Court imposed on the mother a fine in the amount of PLN 600 for her failure to allow the applicant access to P. and fixed another one-month time-limit for her to comply with that order on pain of a fine in the amount of PLN 700.

Upon the applicant ’ s further complaint, by a decision of 9 April 2008 the same court ordered the mother to pay the fine of PLN 700 and fixed another one ‑ month time-limit for her to comply with the access arrangements on pain of a fine of PLN 800.

Subsequently the applicant unsuccessfully requested the president of that court to order that the judge dealing with the access case step down, alleging that she lacked impartiality.

On 1 July 2008 the Lublin District Court appointed a court guardian ( kurator ) to supervise the execution of the access arrangements determined by the divorce judgment. It held that the guardian should accompany the applicant on each and every visit to his child under the schedule determined by that judgment.

On 17 September 2008 the court ordered the mother to pay a fine of PLN 800 for her continued refusals to allow the child to see his father and fixed a new one-month time-limit on pain of a fine of PLN 1,300.

On 25 September 2008 the same court refused to examine the applicant ’ s new request for a fine to be imposed on the mother.

On 12 February, 5 March, 16 April and 10 December 2008 the applicant requested the Lublin District Court to take more vigorous enforcement measures. He submitted that he could not see his son and that the measures applied so far had failed.

In March 2009 the applicant requested the Ombudsman ( Rzecznik Praw Obywatelskich ) to assist him in the effective enforcement of his access rights.

On 1 July 2009 the Lublin District Court authorised the court ‑ assigned guardian to take the child from the mother to ensure compliance with the access arrangements on days and time specified in the access arrangements order.

In September 2009 the applicant again requested the court to take more vigorous measures to ensure an effective enjoyment of his access rights.

In a reply of 16 September 2009 the Lublin District Court informed the applicant that the court order of 1 July 2009 remained valid and that it was operational in respect of each and every new attempt by him to see his son.

In reply, the applicant informed the court on 28 October 2009 that on 16 A ugust 2009 the court guardian had gone with him to the mother ’ s apartment. She had refused to open the door. The applicant further submitted that the guardian had remained passive. Afterwards, the head of the court-appointed guardians had informed the applicant that no new attempts to assist him in seeing his son would be made as the previous attempt failed. He had also informed the applicant that he regarded his case as closed and that he had forwarded the file case to the court.

On 8 October 2009 the same court refused to entertain the applicant ’ s request for enforcement of his access rights, referring to the decision given on 1 July 2009. An identical decision was given by the same court on 12 January 2010 in respect of the applicant ’ s new request for assistance in the execution of the access arrangements.

On 20 January 2010 the applicant again requested the court to assist him. On 29 March 2010 the Lublin District Court made another order, identical to that of 1 July 2009.

On 6 April and 21 April 2010 the applicant again requested the court to assist him. On 19 May 2010 he again complained to the Ombudsman about his difficulties in enjoying his access rights.

On 23 June 2010 the applicant again requested the court to assist him. In reply, the court asked him whether his request was to be understood as a new request for assistance by court 8 appointed guardians. The applicant replied that he had simply sought the court ’ s advice as to how he could deal with his situation which remained unchanged.

In July 2010 the applicant twice complained to the District Prosecutor about his situation.

On 18 July 2010 the applicant again sought, unsuccessfully, to see his son. The court ‑ appointed guardian was not present. The applicant called the police. The police allegedly told him that he should not further insist on having contacts with his son.

COMPLAINT

The applicant complains under Article 8 of the Convention about the authorities ’ continuing failure to enforce the judgment concerning access rights to his son. He submits that the State has a positive obligation to take effective measures aimed at securing his right to respect for his private and family life. The court ’ s guardians have been acting without due diligence in the face of the mother ’ s un ‑ cooperative and obstinate behaviour. The applicant had unsuccessfully complained about their failings to the supervisory authorities. As a consequence of the authorities ’ failure to enforce the decision the access rights granted to the applicant have turned out to be illusory. Such ineffectiveness has been harmful for both the applicant and his child.

QUESTION TO THE PARTIES

Has there been a failure by the State to comply with its positive obligations to secure the applicant ’ s right to respect for his family life under Article 8 of the Convention?