CASO

Descargar texto completo EN

Nombre del caso

P.P. v. Poland, Application no. 8677/03

Referencia INCADAT

HC/E/PL 941

Tribunal

Instancia

Tribunal Europeo de Derechos Humanos (TEDH)

Estados involucrados

Estado requirente

Italia

Estado requerido

Polonia

Fallo

Fecha

8 January 2008

Estado

Definitiva

Fundamentos

Cuestiones relativas a la restitución | Cuestiones procesales

Fallo

-

Artículo(s) del Convenio considerados

-

Artículo(s) del Convenio invocados en la decisión

-

Otras disposiciones
Arts. 6(1), 8 ECHR
Jurisprudencia | Casos referidos

-

Publicado en

-

INCADAT comentario

Interrelación con instrumentos internacionales y regionales y Derecho interno

Convenio Europeo de Derechos Humanos (CEDH)
Fallos del Tribunal Europeo de Derechos Humanos (TEDH)

SUMARIO

Sumario disponible en EN | FR

Facts

The case related to sisters, born in 1992 and 1996, to an Italian father and a Polish mother. The family lived in Italy. In the summer of 1999 the mother took the girls to Poland on vacation, but did not return with them. On 6 September 1999 the father sought the assistance of the Polish Central Authority to secure the return of the girls under the 1980 Hague Convention.

On 17 November 1999 the Poznan District Court granted the father visiting rights. The mother unsuccessfully appealed against this award and then interfered with the exercise of the rights and the father had to seek police assistance in order to ensure enforcement.

On 11 January 2000 the Poznan Family Consultation Centre submitted a report in which it was stated that the well-being of the girls would not be threatened if they were returned to Italy with their mother. However, it added that if they were to return alone their development could suffer. The Report further stated that the girls should only be allowed to stay in Poland if the father was given a greater role in their lives, but it was questionable whether the mother would allow this to happen.

On 7 February 2000 the Poznan District Court ordered the return of the children. On 16 June 2000 the Poznan Regional Court allowed an appeal by the mother and remitted the case to the District Court. On 20 November 2000 the Poznan Family Consultation Centre submitted a new report to the Poznan District Court.

This reiterated the findings previously given and further clarified that a return to Italy alone would not cause the girls irreparable damage. It was also stated that he girls lacked the maturity to have their opinions taken into account. On 5 January 2001 the Poznan District Court again allowed an application for the return of the children.

On 1 June 2001 the Poznan Regional Court dismissed a further appeal by the mother. On 8 June 2001 the court declared that the decision was enforceable. The mother then lodged a cassation appeal against the decision of 1 June 2001. However, it was rejected on the basis that it was not provided for by the law.

On 19 July 2001 the father requested the enforcement of the final decision of 5 January 2001. On 10 September 2001 the court's bailiff requested the mother to return the children to the father within one week. On 27 December 2001 the court ordered the bailiff to enforce the court's decision. Since the mother failed to comply, on 31 December 2001, the bailiff discontinued the proceedings.

On 29 October 2001 the Poznan District Court dismissed the mother's application in which she requested that the final decision should not be enforced.

On 8 January 2002 the Poznan District Court ordered a court guardian to remove the girls forcibly from the mother under Article 5986 of the Code of Civil Proceedings. On 8 January 2002 two guardians, assisted by police officers and accompanied by a representative of the Italian embassy, visited three different houses looking for the girls.

The father was also present. The children were not found at any of those locations. Despite some indications that the children could have been in the second house visited, the police officers refused the guardians' request to enter the house since they did not have a search warrant.

On 16 January 2002 the mother appealed against the enforcement order of 8 January 2002 but on 1 February 2002 her appeal was rejected as it was not provided for by the law. Her appeal against the latter decision was dismissed on 27 May 2002.

On 17 January 2002 the court guardian requested the Poznan Regional Prosecutor to institute criminal proceedings against the mother on charges of abduction according to Article 211 of the Criminal Code. Two unsuccessful attempts at enforcement were made during 2002 and again in January 2003. On 28 January 2003 the Poznan District Court ordered that the children be taken by the court guardian at any time.

On 13 February 2003 the Poznan District Prosecutor discontinued the criminal proceedings against the mother on charges of abducting and hiding the girls because she considered that the abduction and hiding were of "minimal social harm". On 25 September 2003 the Poznan District Court dismissed an appeal by the father against this decision.

On 6 April 2003 the girls were located and an attempt at enforcement was made. However, the older sister stated that she did not wish to be reunited with her father. The girls were then examined by a doctor and the guardians decided not to proceed with the execution of the order. The mother and girls then went into hiding until September 2003 when they went to live with the paternal grandfather.

On 25 July 2003 the Poznan District Court suspended the enforcement proceedings concerning the return of the children. This decision was unsuccessfully appealed by the father. On 14 October 2003 the Poznan District Court decided that the enforcement proceedings would be stayed until the date of the final ruling on the mother's application to change the court order requiring her to return the children.

On 25 October 2004 the parties agreed that the father would have a right to two phone calls per month with the girls. This order was amended on 15 April 2005 by the Poznan District Court, which decided that the father could visit his daughters every time he came to Poland and that he could take them outside their place of residence.

On 27 March 2005 the applicant met his daughters for the first time since 2001. On 7 June 2005 the Poznan District Court quashed the decision of 5 January 2001 and decided not to return the children to the father. This was justified under Article 13 of the Hague Convention, by reference to a risk that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation.

The court established that during their six-year stay in Poland the girls had fully assimilated in the country, spoke Polish, and had forgotten their life in Italy. Their emotional bond with their mother was very strong. The emotional tie between the older child and her father was distorted as she rejected him, disapproved of him and wished to stay with her mother in Poland.

The bond between the younger child and the father was considered by the experts as suppressed. In those circumstances, the court found that the best interest of the children required quashing the decisions ordering their return to Italy, as separating the girls from their mother could be dangerous for their mental state and could place them in an intolerable situation.

On 11 October 2005 the Poznan Regional Court dismissed the father's appeal against this decision. On 28 November 2005 the Poznan District Court held that the enforcement of the order to return the children should be finally discontinued.

Between 1999 and 2005 the father was involved in parallel litigation in Poland over the payment of child support to the mother. Criminal proceedings were issued against the father and an arrest warrant issued. Finally the decision was taken that since the mother had been keeping the children illegally and had not allowed the enforcement of final decisions, supporting the children should remain her sole responsibility.

The father lodged an application with the ECHR on 24 February 2003.

Ruling

In a unanimous ruling the Court held that Poland had breached Article 8 of the ECHR in failing to make adequate and effective efforts to reunite the applicant with his daughters. The Court also made an award of compensation to the father under Article 41 of the ECHR.

Grounds

Issues Relating to Return

The applicant complained under Article 8 of the Convention about the failure of the domestic authorities to enforce the Polish courts' decisions concerning his visiting rights and the return of his daughters to Italy. In particular: the authorities had taken no serious action to enforce the decisions granting him the right to visit his daughters and ordering the return of the children to Italy; nothing had been done to trace his daughters, who had been hidden by the mother and her relatives every time a visit by the Polish authorities was expected; and the criminal proceedings against him in respect of child support had de facto deprived him of exercising his visiting rights as he could not come to Poland for fear of being arrested. After reviewing previous case law the Court reiterated that a change in the relevant facts may exceptionally justify the non-enforcement of a final return order. However, having regard to the State's positive obligations under Article 8 and the general requirement of respect for the rule of law, the Court must be satisfied that the change of relevant facts was not brought about by the State's failure to take all measures that could reasonably be expected to facilitate execution of the return order (see Sylvester v. Austria, 24 April 2003 [INCADAT cite: HC/E/ 502]). The Court further observed that in the proceedings dealing with the applicant's request for the return of the children, the case lay dormant on several occasions and that the periods of inactivity lasted several months each. In particular it took the appellate court from 2 February to 3 June 2000 to reach a decision, and similarly no hearing was held between 16 June and 21 October 2000 before the District Court and between 5 January and 1 June 2001 before the Poznan Regional Court. The Court considered that no satisfactory explanation has been put forward to justify those delays. The Court further noted that periods of inactivity on the part of the local baliffs must be attributed to the domestic authorities. It also noted that there were periods of inactivity on the part of the guardians. While the use of coercive measures against the children is not desirable, the Court reiterated that the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live. In the instant case the domestic authorities discontinued criminal proceedings against the mother, judging that the abduction and hiding of the children were of “minimal social harm”. Without overlooking the difficulties created by the resistance of the children's mother, the Court found that the lapse of time was to a large extent caused by the authorities' own handling of the case. In this connection, the Court reiterated that effective respect for family life requires that future relations between parent and child not be determined by the mere effluxion of time. Additionally the Court noted that the upholding for a period of over three years of the detention order against the father, although it originated in his own decision not to pay child support for his children, made it more difficult for him to come to Poland to see his children and to help in the enforcement of the decision to remove them. The Court concluded that the Polish authorities had failed to take, without delay, all the measures that could reasonably be expected to enforce the return order and consequently to secure his visiting rights, and thereby breached the father's right to respect for his family life, as guaranteed by Article 8. Having regard to its above findings under Article 8 the Court considered that it was not necessary to examine the facts also under Article 6 (see Sylvester v. Austria, cited above, § 76). Regard being had to the above conclusion, the Court did not consider it necessary to examine separately the applicant's complaint about the alleged non-enforcement of visiting rights.

Procedural Matters

Damages Under Article 44 § 2 of the Convention, the father was awarded damages in the following amounts: (i) EUR 7,000 (seven thousand euros) in respect of non pecuniary damage; (ii) EUR 7,000 (seven thousand euros) in respect of costs and expenses.

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments