Published on 28 August 2023

FIRST SECTION

Application no. 48422/21 Krzysztof JACYNA against Poland lodged on 24 September 2021 communicated on 11 July 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s contact rights with his two children (born in 2011 and 2014) during divorce proceedings and afterwards.

Since 2014, when the divorce proceedings started, domestic courts issued a series of interim decisions granting the applicant contact rights according to a specified schedule (last decision issued on 11 January 2021). The final judgment on the applicant’s contact rights and divorce was issued by the Wrocław Court of Appeals on 26 March 2021.

In June 2017 the domestic court ordered the children’s mother, under the pain of a fine payable to the applicant, not to hinder the exercise of the applicant’s contact rights. In July 2018 the domestic court imposed a fine on the children’s mother, in the amount of 4,400 Polish zlotys (approximately 1,000 euros) for systematic non ‑ compliance with contact arrangements. The applicant’s subsequent applications to have the children’s mother fined for continued hinderance of his contact rights were not granted.

It appears that on 28 March 2022 the applicant filed another application regarding the non-enforcement of his contact rights.

The applicant complains under Article 8 of the Convention that the domestic authorities have not ensured a swift or effective protection of his parental and contact rights. In particular: (i) the divorce and contact right proceedings were unreasonably long; (ii) the domestic courts’ interim decisions gradually restricted his contact rights and were a contributing factor to the children’s alienation from him, while the domestic court’s final ruling on his contact rights was too restrictive, and not based on relevant and sufficient reasons or any expert opinion regarding parental alienation and the children’s needs; and (iii) the domestic courts’ insufficient or inadequate reaction to his ex-wife’s obstruction, starting in 2016, has made it impossible for him to exercise his contact rights with his children and completely estranged his daughter whom he has not seen since 2019.

QUESTIONS TO THE PARTIES

1. Has there been a failure by the State to comply with its positive obligations to protect the applicant’s right to respect for his family life under Article 8 of the Convention? Reference is made, in particular, to the following elements:

(i) the length of the divorce proceedings;

(ii) the content of the domestic courts’ interim decisions regarding the applicant’s contact rights;

(iii) the decision-making process and the content of the domestic court’s final ruling on the applicant’s contact rights; and

(iv) the authorities’ reaction to the children’s mother obstructing the applicant’s contact with his children (see, for example, Kijowski v. Poland , no. 33829/07, §§ 48-59, 5 April 2011, and M.H. v. Poland , no. 73247/14, §§ 66-80, 1 December 2022).

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention (see, mutatis mutandis , Kijowski , cited above, § 44; Oller Kamińska v. Poland , no. 28481/12, § 75, 18 January 2018; Leszniewska v. Poland (dec.), no. 5313/12, § 67, 22 October 2019; J.N. v. Poland , no. 10390/15, § 106, 10 November 2022; and M.H. v. Poland , cited above, § 57).