HC/E/PL 941
Tribunal Europeo de Derechos Humanos (TEDH)
Italia
Polonia
8 January 2008
Definitiva
Cuestiones relativas a la restitución | Cuestiones procesales
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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.
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.