CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 septembre 2009

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The Polish Government (“the   Government”) were represented by their Agent, Mr J.Wolasiewicz of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In 1994 the applicant married J.N. In 1997 the couple had a daughter Z. In 2001 the applicant and J.N separated. Since the applicant had been ill the child stayed with the mother. Initially the parents were in agreement as to contact arrangements in respect of the child. On 23 October 2002 the Płock Regional Courte issued an interim contact order. According to its terms, the applicant was allowed to visit the child every first and last weekend of the month. However, the mother refused to enforce the court’s decision and refused to make the child available for visits. Subsequently, the applicant’s contacts with his child led to serious conflicts with the mother which necessitated police intervention. The police intervened on 28 August 2004 and 25   September 2004. Meanwhile, on 20   November 2003 the Zyrardów District Court ordered J.N. to enforce the interim access order within two weeks on pain of paying a fine. Since she failed to comply with this order, on 24 March 2004 the District Court ordered her to pay a fine in the amount of 200 PLN. On   27   May 2004 the Płock Regional Court dismissed the mother’s appeal. On 8 November 2004 the Płock Regional Court dissolved the applicant’s marriage. The court held that both parties were at fault in respect of the breakdown of their marriage. It awarded parental rights to both parents. It also limited the applicant in the exercise of his rights: it ordered that Z.’s permanent residence be with her mother. The applicant was allowed to co ‑ decide about the child’s education, health and place of residence. The court specified access arrangements: the applicant could spend every first and third weekend with Z. He could also spend with her the first day of the Christmas holidays, Easter Sunday and two weeks of holidays between 15   and 30 July. On 20 December 2004 the Zyrardów District Court again ordered J.N. to pay a fine of 400 PLN for failure to comply with the access order. On 22 July 2005 the applicant filed a claim with the Płock Regional Court for protection of his personal goods against J.N. Upon his request, on 26 April 2005 the applicant received information about his daughter’s progress at school directly from the Mszczonów primary school. On 11 April 2006 the Regional Court delivered a judgment and ordered J.N. to pay 1,500 PLN for the benefit of the Warsaw Orphanage. Both parties appealed. On 21 March 2007 the Warsaw Court of Appeal gave judgment and dismissed the applicant’s claim. The court held that it could not be established that any of the applicant’s personal goods had been infringed. The applicant filed a cassation appeal. On 12 December 2007 the Supreme Court refused to entertain the cassation appeal. B.     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. COMPLAINTS 1.     The applicant complained under Article 8 of the Convention, that for several years he had not had access to his daughter, despite the court’s two contact orders. He claimed that the domestic court had not done anything to protect his and his daughter’s right to family life. 2.     The applicant also complained under Article 6 about the outcome of the proceedings concerning protection of his personal goods. 3.     The applicant further complained under Articles 6 and 13 that his cassation appeal had not been effective. 4.     Lastly, the applicant invoked Articles 1, 3, 6, 13, 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, Article 5 of Protocol   No.   7 to the Convention generally objecting to the outcome of the proceedings and alleging their unfairness. THE LAW A.     Article 8 The applicant complained that the Polish authorities had failed to take effective steps to enforce his right of contact with his daughter, Z. He alleged a violation of Article   8 of the Convention. By letter dated 16 March 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention. The declaration provided as follows: “(...) the Government hereby wish to admit – by way of a unilateral declaration ‑ that the applicant’s right to respect for his family life, contrary to Article 8 of the Convention has been violated. In these circumstances, and having regard to the particular facts of the case the Government declare to pay the applicant the abovementioned amount of PLN 15,000. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points. The Government would respectfully suggest that the above declaration be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention....” In a letter of 9 April 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. In addition he stressed that the Government disregarded his further complaints and only related to his Article 8 complaint. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article   37 §   1   (c) enables the Court in particular to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v.   Turkey , [GC], no.   26307/95, §§ 75-77, ECHR   2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26   June   2007; and Sulwińska v. Poland (dec.) no. 28953/03). The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one’s right to respect for family life (see, for example, Zawadka v. Poland , no. 48542/99, 23 June 2005 Kaleta v. Poland , no. 11375/02, 16   December   2008; P.P. v. Poland , no. 8677/03, 8 January 2008; H.N.   v.   Poland , no. 77710/01, 13 September 2007). Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c). Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ). The Court further notes that this decision constitutes a final resolution of this part of the application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of any other remedies before the domestic courts to claim further compensation or to assert his right of contact with respect to his daughter. Accordingly, this part of the application should be struck out of the list. B.     Remaining complaints The applicant further complains under Article 6 about the outcome of the proceedings concerning protection of his personal goods. In this respect, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court or to substitute its own assessment for that of the national courts or other national authorities unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, García Ruiz v.   Spain [GC], no. 30544/96, §§   28-29, ECHR 1999-I) It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. The applicant further complained under Articles 6 and 13 that his cassation appeal had not been effective. However, the Court considers that this complaint lacks substantiation. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention Lastly, the applicant invoked Articles 1,3,6,13,14 of the Convention and Article 1 of Protocol No. 1 to the Convention, Article 5 of Protocol No. 7 to the Convention generally objecting to the outcome of the proceedings and alleging their unfairness. The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. It   follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously   Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention; Declares the remainder of the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar President