MARUT v. POLAND

 
Communicated on 24 May 2019
 
FIRST SECTION
Application no. 38631/18
Kamil MARUT
against Poland
lodged on 5 August 2018
STATEMENT OF FACTS
The applicant, Mr Kamil Marut, is a Polish national, who was born in 1988 and lives in Rzeszów.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was in an informal relationship with A from which he has a daughter, Z, born on 26 July 2008.
On 27 April 2010 the Strzyżów District Court accepted a settlement between the applicant and A concerning contact arrangements.
On 5 May 2015 the applicant and A concluded another agreement before the Rzeszow District Court modifying contact arrangements. The applicant was to see his child every other Saturday from 10 a.m. to 5 p.m.
On 22 March 2016 the applicant requested the court to order A to pay him a penalty for hindering his contacts with the child on some occasions.
On 20 September 2016 the Strzyżów District Court decided that A shall pay the applicant a penalty of 200 Polish zlotys (PLN) each time he was denied access to his daughter. The court established that the visits in general had been taking place except for five visits when the applicant had been unable to see his daughter (on 16 May 2015 and on four occasions between March and June 2016). The mother admitted that five visits had not taken place because the child refused to go out with her father. In this respect the court considered that the child might have been negatively influenced by her mother. The court reiterated that the settlement order of 5 May 2015 was binding and enforceable; therefore, the mother’s failure to respect it must result in her paying a penalty.
On 20 January 2017 the Rzeszów Regional Court dismissed an appeal lodged by A.
Between March and 28 October 2016 only three visits had taken place out of fifteen ordered.
On 3 October 2016 the applicant lodged a request, asking the Strzyżów District Court to issue a payment order against A on the basis on the decision of 20 September 2016.
On 5 February 2017 the applicant repeated his request to order A to pay him penalties ordered by the decision of 20 September 2016. He submitted that the visits had not been taking place at all and that he had seen his daughter last time on 4 July 2016. The applicant also requested the court to increase the amount of the penalty.
On 2 March 2017 Strzyżów District Court decided that the case should be transferred to the Rzeszów District Court following a change of the address of A and Z.
On 24 May 2017 the applicant repeated his request to impose the penalty on A for each visit that had not taken place.
The above requests were examined by the Rzeszów District Court on 5 September 2017. The court decided to discontinue the proceedings as in the meantime the parties had reached another settlement of 29 June 2017 in which they had modified the contact arrangements. According to the new settlement, the applicant was to see his daughter every other Saturday from 11 a.m. to 3 p.m. in the presence of a court guardian. The court considered that the decision of 20 September 2016 had no longer been enforceable since the date of the new settlement.
The applicant appealed, contesting that approach as formalistic. He complained that the court had failed to examine his requests to order payment of the penalties for hindering his contacts with Z in the period between March 2016 and July 2017, as ordered by the court. He submitted that in the new settlement he had not waived his rights to receive penalties from A for non-enforcement of the settlement of 5 May 2015.
On 17 January 2018 the Rzeszów Regional Court dismissed the appeal. The applicant was notified of this decision on 5 February 2018.
The contacts between the applicant and Z resumed in July 2017 but were disrupted by extremely hostile attitude of the child. Z cried, refused to go with the applicant, and affirmed that her mother’s husband had been her father. The guardian was present at the meetings and attempted to negotiate with Z.
In addition, the applicant attempted to institute criminal proceedings against two family members of A, alleging that they had beaten him during one of the visits in 2014. The proceedings were discontinued. Moreover, the applicant is involved in the proceedings for having falsely calling the police to a planned meeting in August 2016, although he had been informed by the mother that the child would be absent. The proceedings are pending.
B.  Relevant domestic law and practice
The relevant domestic law concerning enforcement of a parent’s visiting rights is set out in the judgment in Wdowiak v. Poland, no. 28768/12, §§ 49 and 50, 7 February 2017.
COMPLAINT
The applicant complains under Article 8 of the Convention about the ineffectiveness of the domestic authorities in respect of securing him the visiting rights. He submits that, despite their obligation to act speedily and the sensitivity of the situation, the courts were slow and lacking in diligence. It resulted in his permanently losing contact with his child.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, can it be said that the Polish authorities failed to discharge their positive obligations to ensure that the applicant could effectively exercise his right to respect for his family life, as determined by the contact orders in his case? Reference is made to the impossibility for the applicant to see his daughter, contrary to the domestic court’s orders, and the delays in various proceedings in which he had been involved.

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