Published on 6 December 2021

FIRST SECTION

Application no. 12730/21 Abdelhakim YOUSSFI against Poland lodged on 25 February 2021 communicated on 17 November 2021

STATEMENT OF FACTS

1. The applicant, Mr Abdelhakim Youssfi, is a Belgian national, who was born in 1968 and lives in Brussels, Belgium. He is represented before the Court by Ms S. Sarolea, a lawyer practising in Louvain-la-Neuve.

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

3. The applicant is a Belgian national of Moroccan origin. His daughter (born in April 2016) was abducted from him in 2017 by her Polish mother.

4. On 21 November 2017 the Brussels Court of First Instance ordered the child’s mother to return the child to Belgium. On 12 March 2019 the same court issued another judgment to the same effect. The child’s mother did not participate in these proceedings.

5. On 18 January 2018 the Katowice District Court ( Sąd Rejonowy ) ordered the child’s return as a result of proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. On 15 February 2018 the same court ordered that a court-appointed guardian ( kurator ) forcibly remove the child from her Polish family. On 15 June 2018 the Katowice Regional Court ( Sąd Okręgowy ) issued a final decision in the case, dismissing the appeal lodged by the child’s mother.

6. Several attempts to retrieve the child (with the assistance of a court ‑ appointed guardian and police) were made and failed as, each time, the child became hysterical and clung on to her Polish relatives.

7. Following the death of the child’s mother (on 21 November 2019), the maternal family, joined by the Warsaw Provincial and Regional Prosecutors ( Prokuratura Regionalna and Prokuratura Okręgowa ) and by the Commissioner for the Rights of the Child ( Rzecznik Praw Dziecka ), made attempts to keep the child in Poland despite the above-mentioned enforceable decisions of 2018. They argued that the applicant was a stranger to his child because he had not sought to have any contact with her, had not made any inquiries about her well-being and had not made any financial contribution to her upbringing. Moreover, they submitted that the child did not speak the applicant’s language, had lived most of her life in Poland, first with her mother and then with her maternal grandparents and had been integrated in her peer pre-school environment. It was concluded that returning the child to the applicant would cause her severe and irreversible psychological trauma.

8. It appears, based on the documents submitted to the file, that these official appeals filed by the State entities with the family courts referred to the applicant’s Belgian nationality and did not mention his Moroccan origins.

9. The child’s grandmother and subsequently, the child’s aunt sought to be appointed as the child’s foster parent. Each action failed, with the final court decisions delivered on 27 November 2019 and 9 February 2020, respectively.

10. The child’s grandmother – with whom the child has been living – sought the revocation of the 2018 decision on the child’s return. On 30 January 2020 her action was rejected by the family court on the grounds that the grandmother had no legal standing, even though she had the actual custody of the child.

11. In June 2020 the Katowice District Court issued a series of decisions in which it dismissed or rejected various appeals, lodged by the prosecutor or the Commissioner for the Rights of the Child, seeking to have the child subjected to a psychological examination, to have the execution of the binding return orders stayed, or to have these orders changed. Similar decisions were issued by the Katowice Regional Court in July and August 2020.

12. On 17 June 2020 the Deputy Minister of Justice made an official intervention in the case with the Belgian authorities. A written announcement on the website of the Polish government was accompanied by a heading that read: “The Deputy Minister of Justice ... intervenes in the case of a four-year-old girl raised in Poland whose father, a Belgian from Morocco, wants to take her away from our country”.

13. On an unspecified date, the Commissioner for Human Rights ( Rzecznik Praw Obywatelskich ) made an official intervention in response to that of the Deputy Minister of Justice. The Commissioner for Human Rights essentially appealed to the authorities to respect the binding judgments of the Polish family courts and to ensure their enforcement.

14. On 1 July 2020 the Deputy Minister of Justice and the Commissioner for the Rights of the Child held a press conference at which they called on the Commissioner for Human Rights to withdraw his intervention.

15. The above-mentioned interventions, as well as the guardian’s attempts to retrieve the child, were accompanied by tweets from the Deputy Minister of Justice and the Commissioner for the Rights of the Child. The tweets referred to the fact that the return of the child to Belgium was sought. One tweet, from the Commissioner for the Rights of the Child, stated that the child’s father was a Belgian from Morocco.

16. On 25 June 2020 the Prosecutor General ( Prokurator Generalny ), who is also the Minister of Justice, lodged an extraordinary appeal ( skarga nadzwyczajna ) with the Chamber of Extraordinary Review and Public Affairs of the Supreme Court ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ), asking that the 2018 return orders be quashed and that the case be remitted for review. These proceedings appear to be ongoing.

17. On 5 August 2020 the child’s grandmother lodged a constitutional complaint challenging the constitutionality of the provision which served as the legal basis for the decision given by the family court on 30 January 2020 (provision excluding her legal standing).

18. On 25 August 2020 the Constitutional Court, sitting in the bench of five judges, namely Judges J.S. (president of the panel), L.K., M.M. (rapporteur), B.S., and R.W., issued an interim ruling by virtue of which it stayed the enforcement of the 2018 decision on the child’s enforced return to the father. It was held that it was in the child’s best interest not to change the status quo while the examination of the constitutional complaint was ongoing. According to the French translation of the interim order in question that was provided by the applicant, the Constitutional Court gave the following reasons for its interim ruling. (i) Returning the child to her father would have irreversible consequences for the petitioner grandmother who would not be able care for the child and raise her. The grandmother’s ability to watch over the child’s well-being was particularly important given that the child’s father had been abusive towards the child’s mother. (ii) The stay of the execution of the return order was also in the public interest, namely fulfilling the positive obligation of ensuring respect for the child’s bests interest. The interim ruling was given in camera and the applicant had not been informed of, or participated in, the proceedings.

19. Judge M.M. who was assigned as the case rapporteur, had been elected by the eighth-term Sejm (the Polish Parliament) to a judicial post at the Constitutional Court that had already been filled by another judge elected by the previous Sejm (see Xero Flor w Polsce sp. z o.o. v. Poland no. 4907/18, §§ 255-291, 7 May 2021).

20. As things stand now, the applicant cannot enforce the 2018 decisions ordering the child’s return to Belgium; there are no pending proceedings before the family courts; and proceedings before the Supreme Court and the Constitutional Court are ongoing.

COMPLAINTS

21. The applicant complains under Article 6 of the Convention about the non-enforcement of final and binding decisions (dated 18 January and 15 February 2018) on the child’s return. To this end, the applicant argues that the public authorities, including the Prosecutor General, have unjustly extended the proceedings, thus impeding the enforcement of the final judgments issued by the family courts. Lastly, the applicant complains that the ensuing judicial process has not been independent because of the involvement of the Prosecutor General/Minister of Justice and various other representatives of the executive power.

22. The applicant also complains under Article 6 of the Convention with respect to the proceedings that are currently pending before the Constitutional Court - in so far as that court stayed the execution of the binding order to have the child returned to the applicant. In particular, the applicant complains that: (i) the principle of equality of arms has been breached, given that the interim order was issued in camera, without the applicant having been informed of or participated in the proceedings; (ii) given that the 2015 election process in respect of several Constitutional Court judges was widely contested, the Polish Constitutional Court is not an independent tribunal established by law.

23. The applicant further complains that the failure of the Polish public authorities to reunite him with his child in line with a binding court order violated his right to respect for his private and family life, breaching the substantive and the procedural limbs of Article 8 of the Convention. In this connection, the applicant submits that his child has been completely detached from him, isolated from society, living in an anxiety-provoking family environment and under the constant watch of the media, instrumentalised by her maternal grandmother and left without a possibility to flourish.

24. Lastly, the applicant complains under Article 14 of the Convention, in conjunction with Articles 6 and 8 of the Convention, that making it impossible for him to retrieve his child is a result of racial and national prejudice on the part of the Polish authorities and constitutes discrimination on the ground of his ethnic origin and his foreign nationality.

QUESTIONS TO THE PARTIES

1. Is the non-enforcement of the 2018 family court’s orders to have the applicant’s child returned to him in breach of the requirements of Article 6 § 1 of the Convention, especially given the involvement of the deputy Minister of Justice and the Commissioner for the Rights of the Child?

2. Is Article 6 § 1 of the Convention under its civil head applicable to the proceedings before the Constitutional Court?

If so, in so far as that court stayed the enforcement of the 2018 return orders, did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

Moreover, was the bench of the Constitutional Court, which included Judge M.M. and has been dealing with the child’s grandmother’s constitutional complaint a “tribunal established by law” as required by Article 6 § 1 of the Convention, having regard to the applicant’s arguments regarding the validity of election of Judge M.M. (see Xero Flor w Polsce sp. z o.o. v. Poland , no. 4907/18, § 289-91, 7 May 2021)? Was the Constitutional Court independent and impartial, as required by Article 6 § 1 of the Convention?

Lastly, was the principle of equality of arms respected, given that the applicant had not been informed of and had not taken part in the proceedings on-going before the Constitutional Court, and given that the Constitutional Court issued its interim ruling after a session held in camera ?

3. Is the non-enforcement of the 2018 family court’s orders to have the applicant’s child returned to him in breach of the substantive and procedural requirements of Article 8 of the Convention?

4. Given the non-enforcement of the 2018 family court’s orders to have the applicant’s child returned to him, has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention, in conjunction with Articles 6 and 8 of the Convention?