P.P. v. POLAND
Inadmissible
George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr P.P., is an Italian national, who was born in 1960 and lives in Torri di Quartesolo. He was represented before the Court by Ms A. Mascia, a lawyer practising in Strasbourg. 2. 3. In 1991 the applicant married a Polish national K.P., who gave birth to their two daughters. A was born in 1992 and B was born in 1996. The family lived in Italy. 4. In the summer of 1999 K.P. took A and B on holiday to Poland. They did not return to Italy. Afterwards the applicant tried to secure the return of his daughters to Italy by applying to the Polish Ministry of Justice designated as a Central Authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention”). On 5 January 2001 the Poznań District Court allowed the application for the return of the children lodged by the applicant and ordered to return them to the applicant. The court considered that the children had been unlawfully abducted. The decision became enforceable on 8 June 2001. The facts concerning subsequent enforcement proceedings can be found in the judgment issued by the Court in the first case brought by the applicant (P.P. v. Poland, no. 8677/03, §§ 8-65, 8 January 2008). 5. On 7 June 2005 the Poznań District Court quashed the judgment given under the Hague Convention and decided that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation. 6. On 8 January 2008 the European Court of Human Rights found a violation of the applicant’s rights under Article 8 on the basis that the Polish authorities failed to take all the measures that could be reasonably expected to enforce the return order issued with respect to his two daughters under the Hague Convention and consequently to secure his visiting rights. The judgment concerned the events between 1999 and 2005. 7. On 17 November 1999 the Poznań District Court granted the applicant visiting rights. The applicant was granted the right to visit his children four times a month and to take them outside the flat in which they lived. 8. On 15 April 2005 the Poznań District Court decided that the applicant could visit his daughters every time he came to Poland and that he could take them outside their place of residence, if they agreed to it. The court indicated that the applicant should be able to visit his daughters from 5 p.m. to 8 p.m., notifying K.P. the week before the visit. In so far as the first meeting was concerned the applicant was to inform K.P. with one month advance and notify the Poznań Regional Court about it. The court would then appoint a guardian who could oversee the course of the visit. 9. On 22 January 2007 the Poznań Regional Court fixed the applicant’s access rights in the divorce judgment with reference to the conditions set out in the decision of the Poznań District Court of 15 April 2005. 10. On 7 July 2008 the Italian Central Authority requested the Polish Ministry of Justice to enforce the applicant’s access rights. On 11 August 2008 the Polish Ministry of Justice replied stating that the Hague Convention no longer applied to A, since she had already reached the age of 16 and so was not considered a child for the purposes of the Hague Convention (Article 4 of the Hague Convention). It also noted that the applicant should institute relevant proceedings before the Polish courts. 11. On 8 November 2012 the applicant instituted new proceedings in Poland in which he sought to amend the modalities of visiting rights with his younger daughter B. 12. In his pleading of 14 May 2013 the applicant specified that he wished to spend with B part of her winter and summer holidays, in Poland and abroad. Moreover, he wished to have contacts with her by phone and other means of communication. The applicant requested to impose a fine on K.P. for failing to comply with the court’s order. 13. On 28 May 2013 the Poznań District Court held a hearing at which it heard the applicant’s former wife, K.P. She stated that the applicant last time saw his daughters in May 2009 and afterwards made no attempts to see them. Following that meeting he often telephoned them. However, with time A and B stopped taking his calls. 14. On 12 August 2013 the court held a hearing at which it heard B, at that time 16 years old. She said that after she left Italy when she was three years old she met her father two or three times. She received letters and emails from him. B stated that she felt indifferent about her father and she would not seek or need contacts with him. B considered that her mother had never opposed her contacts with the applicant provided that he would not keep them in Italy. B stated that she would not like to go to Italy with the applicant as he was a foreign person to her and she would not feel safe. She admitted to having stopped taking his calls as they bothered her. If she wanted to contact him she could do it by email or phone. She opposed the idea to force herself to meet her father only to please him. 15. On 15 October 2013 the Poznań District Court dismissed the applicant’s request for interim order. The Court considered that forcing B to keep contact with her estranged father would be against her interests and could only deepen the conflict with the applicant. 16. On 4 February 2014 the court held another hearing at which it heard the applicant. The applicant submitted that he met his daughter in 2007 and 2009 but at no point he could stay with them without presence of their mother. He submitted that in reality he has not seen his daughters for 15 years. The applicant accepted that one cannot force a 17-year-old-girl to a certain behaviour, however, she should be assisted by a therapy to have her attitude to him improved. 17. On 12 February 2014 the experts from the RODK (Family Consultation Centre, Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) presented their opinion to the court. The experts observed that B has emotional ties with her mother. However, any ties with her father had been broken due to lack of contacts and his negative picture induced by the mother. She presently expressed no need for contacts with the applicant. The applicant was perceived by the experts as determined to re-establish any contact with his daughters; a responsible person and posing no threat to them. The girls’ mother imposed on them her negative vision of the applicant and perceived his attempts to contact them as threatening. She made it impossible for her daughter to build autonomous relations with the applicant and his family. The mother failed to accept the children’s needs for the presence of their father. The experts recommended that B with her mother undergo a therapy with a view to rebuild her relations with the applicant. 18. On 1 July 2014 the Poznań District Court gave a decision in the case and dismissed the applicant’s motion. The court took into account the statements made by B in which she expressed no wish to resume contacts with her father. Taking into account her age and degree of maturity the court decided not to regulate her contacts with the applicant. 19. The applicant appealed. It appears that the proceedings are pending before the domestic court. In December 2014 B turned 18. 20. The relevant domestic law concerning the enforcement of a parent’s visiting rights in force prior to 13 August 2011 is set out in the Court’s judgment in the case of P.P., cited above, §§ 69-74. 21. Before 13 August 2011, the general provisions of the Code of Civil Proceedings (CCP, Kodeks Postępowania Cywilnego) on enforcement of nonpecuniary obligations were applicable to enforcement of court decisions on parental rights or access rights. If a court obliged a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the CCP was applicable to the enforcement of this obligation. This article provides that: “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 the 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 a fine (...). 2. If the debtor fails to comply with this obligation, further time limits may be fixed and further fines may be imposed by the court.” 22. The Law of 26 May 2011 on the amendment of the CCP introduced provisions dealing specifically with the enforcement of judgments granting visiting rights in respect in children (Articles 59815 to 59821). Under those provisions as they stand as of 13 August 2011, the court decision on access arrangements shall serve as an enforceable title for a request to a court to impose a penalty payment (oznaczona suma pieniężna) on the party refusing to comply with these arrangements in respect of each and every failure to do so, to be paid to the person to whom visiting rights have been granted.