CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 février 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 14 February 2020 Published on 2 March 2020   FIRST SECTION Application no. 25092/17 Jacek LIWSKI against Poland lodged on 27 March 2017 STATEMENT OF FACTS 1.     The applicant, Mr Jacek Liwski, is a Polish national who was born in 1960 and lives in Warsaw. The circumstances of the case Main proceedings 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant and E.L. married in 1997. Their son was born on 22   March 1998. 4.     On an unspecified date in 1998 the couple separated and the applicant filed a petition for divorce. On 24 August 2006 the Warsaw Regional Court granted the divorce. The court appointed a guardian with a view to supervising the exercise of parental authority by both parents. It decided that the child would reside with the mother. The applicant was granted contact with his son every first and third Saturday of the month between 3 p.m. and 6   p.m. outside his place of residence and every second and fourth Sunday of the month between 3 p.m. and 6 p.m. at the child’s place of residence and in the presence of a guardian. 5.     On 7 April 2010 E.L. lodged an application with the Warsaw ‑ Mokotów District Court for a change in the contact arrangements. She asked the court that the applicant be allowed to have contact with his son every first Saturday of the month between 3 p.m. and 6 p.m. at the child’s place of residence and on his name day and birthday between 5 p.m. and 6 p.m. 6.     On 23 September 2010 E.L. applied for an interim decision, asking for the applicant to have contact with the child every first Saturday of the month between 3 p.m. and 6 p.m. at the mother’s home. On the same day the district court granted the interim decision as requested. 7.     On 21 April 2011 the applicant applied for an interim decision and asked for the right to have contact with his son on the premises of the IKA Foundation which offered assistance to families. On 28 April 2011 the court refused this application. A subsequent interlocutory appeal was unsuccessful. 8.     On 15 December 2011 the court heard the child. The child stated that he did not want to see his father at all. 9.     On 20 September 2012 the applicant applied for a change to his contact arrangements. He asked the court to be allowed to see his son once per week between 4.30 p.m. and 7.30 p.m. on the premises of certain Foundations, in a neutral setting. 10.     On an unspecified date in 2013 E.L. made an application to divest the applicant of his parental authority. In the context of this application, in July 2013 an expert psychologist, D.D., submitted her report to the district court. Her conclusions were as follows: 1) the applicant demonstrated strong emotional ties with his son; 2) the applicant’s caring skills did not raise significant concerns; 3) due to the early break-up of the family, it was difficult for the applicant to fulfil his role as a father; the mother took control of the son’s care, there was no agreement between the parents, and the mother treated the child as her property and prevented him from having free contact with his father; 4) the applicant attempted to have contact with his son, but was unable to do so frequently enough to be able to establish a close bond with his son; 5) the main reason for emotional distance in the relationship between the applicant and his son was not the former’s lack of caring skills, but the atmosphere of aversion or even hostility to his father in which the child was being raised; 6) the child had strong emotional ties with the mother and was psychologically dependent on her; 7) there was no possibility for a significant change in the applicant’s relationship with his son without the mother changing her attitude to the applicant, given her dominant influence on the son; 8) the applicant wanted to improve his relationship with his son and had attended some courses; he also wanted to resolve family issues at a psychology centre with the participation of his son and the mother, but the latter did not agree; 9) the child needed psychological support to free himself from an emotional burden relating to the negative influence of the family environment. The applicant did not provide information about the outcome of these proceedings. 11.     On 20 August 2013 the applicant made an application for a change of the child’s residence. 12.     On 21 October 2015 E.L. applied for an order prohibiting the applicant’s contact with his son, but subsequently withdrew the application. 13.     On 19 January 2016 E.L. withdrew her application for a change in contact arrangements since, on 22 March 2016, the child would be 18 years old. 14.     On 2 February 2016 the Warsaw-Mokotów District Court gave a decision. It ruled that the applicant would be allowed to have contact with his son every first Saturday of the month between 3 p.m. and 6 p.m. at the mother’s home, that is, as per the interim decision of 23 September 2010 (see paragraph 6 above). In addition, the court dismissed the applicant’s applications for a change in the contact arrangements and for a change of his son’s place of residence. 15.     The court had regard to the following considerations. It noted that, during the four years after the divorce, the applicant had had no contact with his son except for sending him letters. In 2010 the applicant had exercised his contact rights. In the mother’s view, the applicant could not establish a proper relationship with his son. 16.     The court took into account an opinion prepared by a family consultation centre (the RODK) in 2011. According to the opinion, the applicant could not take proper care of his son during contact. The child demonstrated fear and aversion in his relationship with the applicant. He was emotionally connected to his mother and the maternal grandparents and did not have a proper relationship with the applicant. 17.     The court noted that the applicant’s contact with his son had not been going well and was stressful for the son. This could have resulted from the lack of contact during the four-year period prior to 2010 and the applicant’s attitude. According to the court, the applicant used threats in order to force his son to have contact with him. 18.     The court noted that exercise of the applicant’s contact with his son had been difficult since the latter did not wish to see his father. In its view, in the light of the evidence collected, the best interests of the child did not require a change in the existing contact arrangements. 19.     The court dismissed the applicant’s application for a change in the contact arrangements and for a change of the child’s residence. With regard to the child’s place of residence, the court noted that the child had not wished to live with his father. According to the RODK’s opinion, the child had been comfortable living with his mother and was not interested in developing closer ties with the applicant. 20.     The court further considered that the applicant’s contact with his son should not have been held on the premises of certain Foundations. It noted that the child had said that he preferred contact with his father at his mother’s home. 21.     The court noted that on 22 March 2016 the child would turn eighteen and that from that date onwards he would decide about the form and frequency of his contact with the applicant. 22.     The applicant lodged an appeal. He alleged that the first-instance decision had been biased against him and aimed at isolating the child from him. 23.     The applicant submitted that E.L. had not complied with the contact arrangements as laid down in the interim decision of 23 September 2010. As a result, the applicant had had to have recourse to enforcement proceedings where, on 12 February 2015, the district court ordered E.L. to pay a fine of 1,500 Polish zlotys (PLN) for each case of non-compliance with the interim decision on contact. 24.     The applicant argued that the decision to grant him contact once per month would inevitably mean the end of his relationship with the child. He submitted that, from the child’s birth, E.L. had opposed the applicant’s contact with the child and had not respected contact arrangements. The court had omitted to note that the enforcement of the contact arrangements had been unsuccessful for a long time. 25.     The applicant submitted that the district court had refused all his requests to adduce evidence regarding the current relationship of the child with him and the mother and by doing so it favoured the mother. He submitted that the district court had relied on the RODK’s opinion of 2011 and had not obtained any up-to-date expert evidence. The applicant complained that the district court had refused his requests to adduce expert evidence from a psychologist, D.D. That psychologist had indicated that the child’s aversion to the applicant had resulted from the mother’s negative attitude. The district court further refused the applicant’s request to hear the child in the presence of a psychologist. The applicant argued that the district court had accepted the situation created by the mother’s attitude and refused to assist the applicant in his efforts to improve his relationship with the child. 26.     Lastly, the applicant submitted that the mother’s attitude had been contrary to the child’s best interests and had prevented him from participating in the upbringing of his son. 27.     On 27 September 2016 the Warsaw Regional Court quashed the first-instance decision of 2 February 2016 and discontinued the proceedings. It noted that the child had turned eighteen on 22 March 2016. Accordingly, the court could no longer decide on the question of his contact with the applicant and on his place of residence. Proceedings under the 2004 Act 28.     On 16 August 2016 the applicant lodged a complaint under the Law on complaint about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ) with the Warsaw Court of Appeal. He sought a finding that the length of the proceedings before the Warsaw ‑ Mokotów District Court and the Warsaw Regional Court had been excessive, as well as PLN 20,000 in compensation. He argued that the district court had frequently postponed or cancelled hearing dates, while the proceedings had concerned a fundamental right to have contact with his son. 29.     On 29 November 2016 the Court of Appeal found for the applicant in respect of part of the length of the proceedings before the Warsaw ‑ Mokotów District Court and awarded him PLN 3,000 (EUR 750). It dismissed the remainder of his complaint. 30.     The Court of Appeal found that the proceedings before the district court had been excessively long between 27 August 2014 and 2 February 2016. In respect of the earlier period, the delays and adjournments had been caused mainly by the applicant, who had frequently filed interlocutory appeals and challenged judges. No delays had been detected in the proceedings before the Regional Court. COMPLAINTS 1.     The applicant complains under Article 6 § 1 of the Convention of the unreasonable length of the proceedings in his case. 2.     The applicant complains under Article 8 of the Convention that the lack of a final court decision on the question of his contact with his son over a period of six years resulted in the loss of his emotional ties with his son. QUESTIONS TO THE PARTIES 1.     Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article   6 §   1 of the Convention?   2.     Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? Did the authorities take sufficient measures to facilitate contact between the applicant and his son (cf. Gnahoré v. France , no. 40031/98, § 51, ECHR 2000 ‑ IX; Kacper Nowakowski v. Poland , no. 32407/13, §§ 74 and 80-82, 10 January 2017)?