PROCEDURE

The case originated in an application (no. 11375/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Anton Kaleta (“the applicant”), on 1 June 2001.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The German Government did not make use of their right to intervene (Article 36 § 1 of the Convention.

The applicant alleged that the Polish authorities had failed to take effective steps to enforce his right of contact with his daughter, which had violated his rights under Article 8 of the Convention

On 12 July 2006 the President of the Fourth Section decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1948 and lives in Taufkirchen, Germany.

The applicant and W.K. had a daughter M., born on 11 June 1989. The couple married in August 1989. The applicant and his wife separated on 1 August 1992.

On 3 September 1992 W.K lodged a divorce petition with the Katowice Regional Court (Sąd Wojewódzki). On 9 February 1993 the proceedings were discontinued as she had withdrawn her petition.

In 1993 W.K. again lodged a petition for divorce, this time with the Family Court in Munich.

Between 23 February 1994 and 3 August 1994 W.K. was detained on charges of child abduction and theft. On 3 August 1994 she was acquitted by the Munich Court.

On 27 February 1995 the Munich District Court awarded custody rights to W.K. The court considered that the mother took great care of the child and that the child had very good living conditions at her mother’s place.

On 15 June 1994 the applicant lodged an application with the Będzin District Court for sole custody of his daughter.

On 22 June 1995 the District Court in Będzin, Poland, gave a decision. The court awarded parental rights to W.K and limited the applicant’s rights to visiting rights. The court did not specify the access arrangements. The court also restricted W.K.’s parental rights by appointing a guardian to supervise her in the exercise of her rights.

Meanwhile, on 9 December 1994 the applicant asked the court to specify the access arrangements.

On 5 October 1995 the Będzin District Court gave a decision pursuant to the provisions of the Hague Convention. It allowed the applicant to visit the child on the first Friday of each month between 10 a.m. and 5 p.m. The meeting was to take place on the premises of the Będzin Family Centre (Ośrodek pomocy dziecku i rodzinie w Będzinie). In addition, W.K and a court guardian were to be present during the meeting.

On 14 November 1996 the Bedzin Family Centre confirmed that between October 1995 and 14 November 1996 the applicant failed to report for visits. On the other hand, the child and the mother were present at every meeting.

On 20 November 1996 the applicant applied to the Będzin District Court to change the access arrangements. He wished to see his daughter during ten days of the winter holidays and two weeks in summer. On 27 November 1997 the Będzin District Court dismissed his request.

On 25 November 1996 the applicant lodged an application with the Munich District Court challenging his paternity with respect to M.K. However, a DNA test confirmed his paternity.

On 15 August 1997 the Family Court in Munich dissolved the applicant’s marriage and awarded parental rights to W.K.

On 5 January 1998 W.K. instituted proceedings before the Będzin District Court in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her. She further requested that the court prohibit the applicant from having contact with his daughter.

On 20 October 1998 the applicant asked the court to dismiss W.K.’s request. He also requested that it grant him parental authority and limit W.K.’s parental authority to a right to have contact with the child. He submitted that W.K. was incapable of bringing up a child and had a history of criminal convictions for theft. In addition, criminal proceedings against her were pending (for assault on the applicant).

On 9 March 2000 the Będzin District Court gave a decision and dismissed both the applicant’s and his ex-wife’s requests. It also varied the contact arrangement of 1995. The court allowed the applicant to visit his daughter three times a year, on the first Friday of every fourth month between 1 p.m. and 5 p.m. The court held that the meeting was to take place on the premises of the Będzin Family Centre and W.K. and a court guardian were to be present during the meetings.

The applicant appealed. On 7 June 2000 the Katowice Regional Court dismissed his appeal. The court repeated the reasons given by the District Court.

On 20 June 2000 the Katowice District Court convicted W.K. of assault on the applicant.

A further cassation appeal by the applicant was dismissed by the Supreme Court (Sąd Najwyższy) on 12 December 2000. The court referred to the child’s best interest.

In 2000 and 2001 W.K. failed to report with the child to the Będzin Family Centre for visits. In particular, on 7 January, 5 May, and 1 September 2000, and 5 January and 4 May 2001 the applicant was present at the Będzin Family Centre. On all these occasions the mother did not bring the child.

The applicant met his daughter on 7 September 2001, 4 January, 4 May and 10 May 2002.

On October 2001 the applicant made a request for modification of his contact arrangements. He asked to see his daughter without the presence of the mother and the guardian. On 22 May 2002 the Będzin District Court gave a decision. On the basis of an expert’s report the court considered that contact with the applicant had been very stressful for the child. For these reasons and in view of the well-being of the child the court dismissed the applicant’s request.

On 11 October 2001 the applicant made a request to the Family Division of the Będzin District Court under Article 1050 of the Code, asking the court to fine W.K. for failure to comply with the order of 9 March 2000. On 5 June 2002 the court dismissed his request.

On 20 October 2003 the applicant met his daughter in the Będzin Family Centre.

In August 2004 the applicant’s daughter (then fifteen years old) sent a letter to her father stating that she did not wish to see him.

On 3 September 2004 the mother again failed to bring M. for a visit.

On 15 December 2004 the applicant made a request to the Family Division of the Będzin District Court under Article 1050 of the Code, asking the court to fine W.K. for failure to comply with the order of 9 March 2000. He also asked the court to vary the contact arrangements and to allow him to visit his daughter three times a year, on the first Friday of every fourth month between 10 a.m. and 8 p.m.

On an unknown date the request to impose a fine on W.K. was transferred to the Civil Division of the Będzin District Court. On 20 October 2005 she was fined (1,000 Polish zlotys (PLN)) for failing to appear at meetings. Her appeal against his decision was dismissed on 15 February 2006.

On 7 January 2005 the Będzin District Court gave a decision and dismissed the applicant’s request for modification of the contact arrangements. The court heard the sixteen -year-old M., who stated that she did not wish to have any contact with the applicant. The court held that it was not in the child’s best interest to vary the visiting arrangements.