FOURTH SECTION

Application no. 17254/11 Artur KRASICKI against Poland lodged on 9 March 2011

STATEMENT OF FACTS

The applicant, Mr Artur Krasicki , is a Polish national, who was born in 1970 and lives in Warszawa. He is represented before the Court by Mr J. Hasik , a lawyer practising in Warszawa.

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

The applicant recognised his paternity in respect of his two sons, A. and J., born during his relationship with J.J. in January 1999 and December 2000.

Since 2005 onwards the mother did not let the applicant see his sons.

By a decision of 8 February 2006 the Warszawa- Mokotów District court stipulated that the applicant had a right to see the boys, in the presence of their mother, each first, second and fourth Saturday of the month, from 10 a.m. to 7 p.m., without the mother ’ s presence. It further held that the applicant was entitled to spend one week of summer holidays with his children. The mother was obliged to respect that decision. Her appeal was subsequently dismissed.

The mother failed to comply with the access order.

The applicant complained in writing, on numerous occasions, to the police about the mother ’ s failure to co-operate and about the situation resulting therefrom . The court-appointed guardians, in various notes to the court prepared in, inter alia , July 2006, April 2008 and July 2009, confirmed the mother ’ s obstructive attitude and her repeated refusals to open the door when they visited her.

On 17 April 2007 the Warszawa- Mokotów District Court imposed on the mother a fine for her failure to comply with the access order in the amount of PLN 1,000 (approx. EUR 250). Two similar orders were given later, imposing fines of PLN 1,000 and 1,200, but to no avail.

On 31 March 2008 the same court, having regard to the mother ’ s failure to comply with the access order, restricted her parental authority. It assigned a court guardian tasked with supervising her in the exercise of her parental authority. It noted that her attitude was to the children ’ s detriment.

In April 2008 the court-appointed guardian assisted by the police came to the mother ’ s apartment. She said that she disagreed with the access decision, was ready to suffer the consequences and was not prepared to allow the applicant access to the children. No police intervention was undertaken.

The mother failed to pay any of the fines imposed on her. The court, having regard to that failure, held, by a decision of 17 December 2008, that she was to serve thirty-two days of detention in lieu of the unpaid fines.

The court-guardian ’ s attempts to establish contact with the mother with a view to making her serve her sentence failed.

On 31 August 2009 the mother submitted to the Warszawa- Mokotów District Court a motion to deprive the applicant of his parental authority.

On 2 December 2009 the court dismissed that motion. In its written grounds the court acknowledged that the mother ’ s attitude towards any contacts between the applicant and his children was negative.

In the meantime, on 25 September 2009 the court fixed a three-week time-limit for the children ’ s mother to allow the applicant access to them on the terms stipulated in the access order on pain of execution of the arrest order. The mother apparently declared that she would comply, but the applicant was not allowed to see the children.

In reply to the court ’ s query, on 2 October 2009 the court-appointed guardian confirmed that the mother had consistently failed to allow access to the children.

In November 2009 the applicant tried twice to see the boys, to no avail. The boys ’ grandmother told him that the children were not at home and that he would not be allowed to see them. The presence of a police officer did not alter her attitude.

On 2 December 2009 the court found that the mother had failed to adhere to the access decisions, despite the decision of 25 September 2009, and to pay the fine. It held that she should therefore serve the penalty of detention in lieu of the fine.

On 27 July 2010 the court bailiff tried to arrest the mother, but apparently there was no one at home at that time. The police refused to assist him.

Subsequently, in October 2010 her own mother paid the fine imposed by the court.

On 26 October 2010 the applicant instituted proceedings with a view to taking the children away from the mother, having regard to her failure to respect the access decisions.

By a decision of 22 December 2010 the court allowed his request and authorised the court guardian to assist the applicant on each and every occasion when he was to visit the boys on the terms set out in the decision on access.

In 2010 the court-appointed guardians repeatedly tried to talk to the mother, but to no avail as she never opened the door. In December 2011, January 2011 and twice in February 2012 the court guardians tried to visit the mother. However, no one opened the door. They informed the court about their failure.

In December 2011 the court guardian spoke with the school about the children ’ s situation. They did not attend the school regularly. He also spoke with the children ’ s grandmother who gave evasive answers about her daughter ’ s and grandchildren ’ s situation. The guardian concluded that the mother apparently never left the apartment and was unable to conduct a normal life and to cope with the difficulties of the children ’ s education.

COMPLAINT

The applicant complains, referring to Articles 8 and 6 of the Convention about the authorities ’ continuing failure to enforce the decision concerning access rights to his sons. 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 authorities had failed to take reasonable measures to ensure that his access rights were respected by the mother acting in defiance of the judicial decisions. As a consequence of the authorities ’ failure to enforce the decision the access rights granted to the applicant have turned out to be illusory, to the detriment of the applicant and his children.

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?