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FOURTH
SECTION
CASE OF KALETA v. POLAND
(Application
no. 11375/02)
JUDGMENT
STRASBOURG
16
December 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kaleta v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11375/02) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a German national, Mr Anton Kaleta (“the
applicant”), on 1 June 2001.
- The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs. The German Government did not make use
of their right to intervene (Article 36 § 1 of the
Convention.
- The
applicant alleged that the Polish authorities had failed to take
effective steps to enforce his right of contact with his daughter,
which had violated his rights under Article 8 of the Convention
- On
12 July 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Taufkirchen, Germany.
- The
applicant and W.K. had a daughter M., born on 11 June 1989. The
couple married in August 1989. The applicant and his wife separated
on 1 August 1992.
- On
3 September 1992 W.K lodged a divorce petition with the Katowice
Regional Court (Sąd Wojewódzki). On 9 February
1993 the proceedings were discontinued as she had withdrawn her
petition.
- In
1993 W.K. again lodged a petition for divorce, this time with the
Family Court in Munich.
- Between
23 February 1994 and 3 August 1994 W.K. was detained on charges of
child abduction and theft. On 3 August 1994 she was acquitted by the
Munich Court.
- On
27 February 1995 the Munich District Court awarded custody rights to
W.K. The court considered that the mother took great care of the
child and that the child had very good living conditions at her
mother's place.
- On
15 June 1994 the applicant lodged an application with the Będzin
District Court for sole custody of his daughter.
- On 22 June 1995 the District Court in Będzin,
Poland, gave a decision. The court awarded parental rights to W.K and
limited the applicant's rights to visiting rights. The court did not
specify the access arrangements. The court also restricted W.K.'s
parental rights by appointing a guardian to supervise her in the
exercise of her rights.
- Meanwhile,
on 9 December 1994 the applicant asked the court to specify the
access arrangements.
- On
5 October 1995 the Będzin District Court gave a decision
pursuant to the provisions of the Hague Convention. It allowed the
applicant to visit the child on the first Friday of each month
between 10 a.m. and 5 p.m. The meeting was to take place on the
premises of the Będzin Family Centre (Ośrodek pomocy
dziecku i rodzinie w Będzinie). In addition, W.K and a court
guardian were to be present during the meeting.
- On
14 November 1996 the Bedzin Family Centre confirmed that between
October 1995 and 14 November 1996 the applicant failed to report for
visits. On the other hand, the child and the mother were present at
every meeting.
- On
20 November 1996 the applicant applied to the Będzin District
Court to change the access arrangements. He wished to see his
daughter during ten days of the winter holidays and two weeks in
summer. On 27 November 1997 the Będzin District Court
dismissed his request.
- On
25 November 1996 the applicant lodged an application with the Munich
District Court challenging his paternity with respect to M.K.
However, a DNA test confirmed his paternity.
- On
15 August 1997 the Family Court in Munich dissolved the applicant's
marriage and awarded parental rights to W.K.
- On
5 January 1998 W.K. instituted proceedings before the Będzin
District Court in which she requested that the applicant be divested
of his parental rights on the ground that he had been aggressive
towards her. She further requested that the court prohibit the
applicant from having contact with his daughter.
- On
20 October 1998 the applicant asked the court to dismiss W.K.'s
request. He also requested that it grant him parental authority and
limit W.K.'s parental authority to a right to have contact with the
child. He submitted that W.K. was incapable of bringing up a child
and had a history of criminal convictions for theft. In addition,
criminal proceedings against her were pending (for assault on the
applicant).
- On
9 March 2000 the Będzin District Court gave a decision and
dismissed both the applicant's and his ex-wife's requests. It also
varied the contact arrangement of 1995. The court allowed the
applicant to visit his daughter three times a year, on the first
Friday of every fourth month between 1 p.m. and 5 p.m. The court
held that the meeting was to take place on the premises of the Będzin
Family Centre and W.K. and a court guardian were to be present during
the meetings.
- The
applicant appealed. On 7 June 2000 the Katowice Regional Court
dismissed his appeal. The court repeated the reasons given by the
District Court.
- On
20 June 2000 the Katowice District Court convicted W.K. of assault on
the applicant.
- A
further cassation appeal by the applicant was dismissed by the
Supreme Court (Sąd Najwyższy) on 12 December 2000.
The court referred to the child's best interest.
- In
2000 and 2001 W.K. failed to report with the child to the Będzin
Family Centre for visits. In particular, on 7 January, 5 May, and
1 September 2000, and 5 January and 4 May 2001 the applicant was
present at the Będzin Family Centre. On all these occasions the
mother did not bring the child.
- The
applicant met his daughter on 7 September 2001, 4 January, 4 May
and 10 May 2002.
- On
October 2001 the applicant made a request for modification of his
contact arrangements. He asked to see his daughter without the
presence of the mother and the guardian. On 22 May 2002 the Będzin
District Court gave a decision. On the basis of an expert's report
the court considered that contact with the applicant had been very
stressful for the child. For these reasons and in view of the
well-being of the child the court dismissed the applicant's request.
- On
11 October 2001 the applicant made a request to the Family Division
of the Będzin District Court under Article 1050 of the Code,
asking the court to fine W.K. for failure to comply with the order of
9 March 2000. On 5 June 2002 the court dismissed his request.
- On
20 October 2003 the applicant met his daughter in the Będzin
Family Centre.
- In
August 2004 the applicant's daughter (then fifteen years old) sent a
letter to her father stating that she did not wish to see him.
- On
3 September 2004 the mother again failed to bring M. for a visit.
- On
15 December 2004 the applicant made a request to the Family Division
of the Będzin District Court under Article 1050 of the Code,
asking the court to fine W.K. for failure to comply with the order of
9 March 2000. He also asked the court to vary the contact
arrangements and to allow him to visit his daughter three times a
year, on the first Friday of every fourth month between 10 a.m. and 8
p.m.
- On
an unknown date the request to impose a fine on W.K. was transferred
to the Civil Division of the Będzin District Court. On
20 October 2005 she was fined (1,000 Polish zlotys (PLN))
for failing to appear at meetings. Her appeal against his decision
was dismissed on 15 February 2006.
- On
7 January 2005 the Będzin District Court gave a decision and
dismissed the applicant's request for modification of the contact
arrangements. The court heard the sixteen -year-old M., who stated
that she did not wish to have any contact with the applicant. The
court held that it was not in the child's best interest to vary the
visiting arrangements.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law concerning the enforcement of a parent's
visiting rights is set out in the Court's judgment in the case P.P.
v. Poland no. 8677/03, §§
69-74, 8 January 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the Polish authorities had failed to take
effective steps to enforce his right of contact with his daughter, M.
He alleged a violation of Article 8 of the Convention, which
provides
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The Government submitted a preliminary objection that
the applicant had failed to exhaust the required domestic remedies.
They stressed that the applicant had failed to appeal against the
decisions of 5 October 1995, 27 November 1997 and 7 January
2005.
- The applicant replied that he had made use of all
available remedies in respect of his complaints.
- The
Court notes, that in the present case the applicant did not object to
the contact arrangements as specified in the decisions of 5 October
1995, 27 November 1997 and 7 January 2005. He only maintained that
the Polish authorities had failed to take effective steps to enforce
his right of contact with his daughter.
- In
this respect the Court observes that it is true that the applicant
did not appeal against the decisions referred to by the Government.
However, he appealed against other decisions given in his case (see
paragraphs 21, 24). He further initiated enforcement proceedings and
asked the domestic courts to fine W.K. for failure to comply with the
access arrangements (see paragraphs 28 and 32).
- Against this background, the Court concludes that the
applicant did everything that could reasonably be expected of him to
exhaust the national channels of redress. The Court accordingly
dismisses the Government's objections.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant claimed that there had been a continuing violation of his
right to respect for family life. On many occasions he had asked to
be allowed to see his daughter without the presence of his former
wife and the court-appointed guardian, however to no avail. He had
repeatedly instituted several sets of proceedings aimed at providing
him with the opportunity to have regular contacts with M. He further
claimed that the child's mother had a negative influence on M. As a
result, emotional ties between them loosened and he became in fact
excluded from the process of bringing up his child. He concluded that
there had been a violation of Article 8 in this respect.
- The
Government stressed that the applicant was himself responsible for
not achieving a deeper emotional contact with his daughter. Between
October 1995 and October 1996 he had not participated in any meetings
with his daughter. When the meetings finally took place he had
insulted the child's mother.
- The
Government pointed to the experts' opinion given in the domestic
proceedings, according to which the applicant had a negative
influence on his daughter. They stressed that the experts recommended
limitation or suspension of the applicant's contacts with M. They
submitted that despite the fact that the child had expressly stated
that she did not wish to see her father, the public authorities
maintained the applicant's right to continue to have contact with his
child.
- They
further stressed that when the mother had failed to comply with the
court's decision of 9 March 2000 the Bedzin District Court had
imposed a significant fine on her. Therefore, the steps taken by the
courts to protect the applicant's rights were quick and efficient.
The Government concluded that the authorities had done everything
they could to protect the applicant's rights to respect his family
life.
- They
concluded that there was no violation of the applicant's right to
family life.
2. The Court's assessment
- The
relationship between the applicant and his daughter amounted to
“family life” within the meaning of Article 8 § 1
of the Convention. This has not been disputed.
- The essential object of Article 8 is to protect
an individual against arbitrary action by the public authorities.
There are in addition positive obligations inherent in effective
“respect” for family life. In both contexts regard must
be had to the fair balance that has to be struck between the
competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation (see, Hokkanen v. Finland, judgment of
23 September 1994, Series A no. 299-A, p. 20, § 55).
- Where
the measures in issue concern parental disputes over their children,
however, it is not for the Court to substitute itself for the
competent domestic authorities in regulating contact questions, but
rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of
appreciation. In so doing, it must determine whether the reasons
purporting to justify any measures taken with regard to an
applicant's enjoyment of his right to respect for family life are
relevant and sufficient (see, amongst other authorities,
Olsson v. Sweden, judgment of 24 March 1988,
Series A no. 130, p. 32, § 68).
- The
obligation of the national authorities to take measures to facilitate
contact by a non-custodial parent with children after divorce is not,
however, absolute (see, mutatis mutandis, Hokkanen, cited
above, § 58). The key consideration is whether those
authorities have taken all necessary steps to facilitate contact such
as can reasonably be demanded in the special circumstances of each
case (see, mutatis mutandis, Hokkanen, cited above,
§ 58).
- In
examining whether non-enforcement of the access arrangements ordered
by the domestic court amounted to a lack of respect for the
applicant's family life the Court must strike a balance between the
various interests involved, namely the interests of the applicant's
daughter and her mother, those of the applicant himself and the
general interest in ensuring respect for the rule of law.
- In
the light of the above principles, what is decisive in this case is
whether the Polish authorities took all the necessary adequate steps
to facilitate the enforcement of the contact arrangements as
specified on 5 October 1995 and 9 March 2000.
According to the access orders the applicant was firstly authorised
to meet M. every first Friday of the month for seven hours;
subsequently he was authorised to meet M. three times a year for two
hours.
- The
difficulties in arranging contact were admittedly in large measure
due to the animosity between the applicant's former wife and the
applicant.
- The
Court notes that between October 1995 and November 1996 the applicant
failed to report at any meeting in the Będzin Family Centre. On
the other hand, M. and W.K were present at every meeting (see
paragraph 15). It is true that in 2000 and 2001 it was W.K. who had
failed to bring her daughter to the family centre for several visits
(see paragraph 25).
- The
Court considers that the domestic authorities had an obligation to
ensure enforcement of contact arrangements, since it is they who
exercise public authority and have the means at their disposal to
overcome problems in the way of execution. In this respect the Court
notes that the applicant's enforcement request eventually led to the
imposition of a fine (PLN 1,000) on W.K. on 20 October 2005.
- The
Court observes that the conflict between the applicant and W.K. made
it particularly difficult for the domestic authorities to act in
order to enforce the applicant's visiting rights. Moreover, for some
time the applicant himself failed to undertake effective steps in
order to improve his contact with M. As time went by, M. matured and
was able to take her own decisions in respect of her contacts with
her father. The Court notes that the domestic authorities were also
aware of the fact that the nature of the applicant's contact with M.
became dependent not only on the attitude of her mother, but also on
the child's own wishes (see paragraphs 27 and 34 above). In this
respect the Court reiterates that it is not seeking to substitute
itself for the domestic authorities in the exercise of their
responsibilities as regards parental authority, but rather to review
under the Convention the decisions taken by those authorities in the
exercise of their power of appreciation (see Olsson, cited
above, § 68)
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been no violation of Article 8 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 16 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
