CASE OF KUIMOV v. RUSSIA
(Application no. 32147/04)
8 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kuimov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 4 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Adoption proceedings
B. Placement in hospital and the child's urgent removal
C. Court proceedings concerning the emergency removal order
D. Access to A. by the applicant and E. following the removal order
E. Court proceedings for revocation of the adoption
“... On 6 May 2000 the Leninskiy District Court granted the applicants' request to adopt A. ... and ordered immediate execution of the decision. At that time the applicants already had two adoptive daughters: K., born on 28 May 1995, and P., born on 7 October 1999, who died following her adoption from a disease similar to that suffered by A. Furthermore, after A.'s adoption the applicants adopted another girl, S., in respect of whom the Prosecutor's Office also brought an action for revocation of the adoption order because the parents refused to allow her to receive necessary medical treatment. In addition to the adopted girls, the applicants have two biological sons: I., born on 22 July 1986, and K., born on 8 April 1985. Both have been convicted by the Leninskiy District Court and sentenced to 6 years' and 7 years' imprisonment respectively ...
The family's living and financial conditions are satisfactory ...
... The court has established that the parents initially contacted the Kirov Regional Children's Hospital on 2 October 2003 with complaints about A.'s deteriorating eyesight. On 9 October 2003 a medical board sent the parents and the girl to the Russian Children's Hospital in Moscow where, after examination, the parents were invited to hospitalise A. They declined to do so. On 22 October 2003 the parents were advised to place the child in the Kirov Regional Children's Hospital as a matter of urgency, which they did not agree to do until 23 October 2003.
The girl's condition deteriorated: convulsions, vomiting and a high temperature became more and more frequent; several life-threatening bouts of the disease occurred.
On the basis of the available witness testimonies by the medical staff, the court has established that E. prevented the medical staff from examining A. In particular, she prevented them from taking A.'s temperature, using a drip and catheters or giving her medicines. Despite the fact that the illness was atypical, the parents categorically refused to allow A. to be placed in the special care unit. Taking into account the special circumstances, namely the deaths of two previously adopted girls, this may amount to a deliberate failure to provide assistance to a child in a life-threatening situation.
[In these circumstances,] the hospital authorities were forced to apply to the head of the Kirov municipal education department for the child's emergency removal. A. was removed from her parents on 11 December 2003.
By a judgment of 24 January 2004, which was upheld on appeal, the Pervomayskiy District Court confirmed the emergency removal order and noted that the removal had taken place in a situation in which the child's life was endangered ...
Under Article 77 of the Family Code, in the event of an imminent threat to a child's life or health, a custody and guardianship agency [('the Agency')] may immediately remove him or her from the parents or other persons having custody.
The Agency carries out the emergency removal on the basis of an order from the local authority.
The Agency has an obligation to inform a prosecutor immediately [of the measures taken], to provide for the child's provisional placement elsewhere and to lodge a court action for withdrawal or restriction of parental rights within the following seven days.
In accordance with the requirements of the law and having identified no grounds for restriction of parental rights [in the present case] under Article 73 of the Family Code, the prosecutor ... brought court proceedings for revocation of the adoption order.
... According to a medical certificate issued by a psychotherapist and dated 10 November 2003, E. showed symptoms of schizoid personality disorder. In this connection, and with E.'s consent, the court ordered that she undergo a forensic psychiatric examination, which she failed to attend ...
... Under Article 141 of the Family Code, the adoption of a child may be revoked for failure by the adoptive parents to fulfil their parental obligations, for abuse of parental rights, abusive treatment of the adopted child or if the parents suffer from chronic drug or alcohol addiction ...
... The Family Code does not provide a definition of the term 'abuse of parental rights'. This is to be found in the Ruling of the Plenary Supreme Court of 27 May 1998 N 10 'Application of the legislation by the courts in disputes concerning the upbringing of children'. The ruling defines the term as 'making use of these [parental] rights to the detriment of the children's interests, in particular, creating obstacles to their education; inducement to beggary; theft; prostitution; abuse of alcohol or drugs etc.' The list of possible adverse consequences of abuse of parental rights is not exhaustive, since these consequences may vary. However, as can be seen from the definition, abuse of parental rights constitutes a use of ... [those] ... rights ... that will entail harm to their children. In other words, this is a use of parental rights contrary to their purpose, defined in Article 63 of the Family Code as the parents' obligation to raise their children, to take care of their health, physical, psychological, mental and moral development and to provide for their basic educational needs.
In reaching its decision the court has recognised that by obstructing the child's medical treatment the defendants created a situation in which her life and health were endangered. After her removal the child's medical condition improved, resulting in her recovery. According to the medical examination carried out by the Russian Children's Hospital, the treatment provided by the Kirov Regional Children's Hospital fully corresponded to the child's diagnosis and medical condition.
In accordance with the requirements of the law, in reaching its decision the court was guided by the best interests of the child, particularly her right to life, and took into account the specific circumstances of the case. The evidence at the court's disposal, in particular the psychological examination of the child, reveals that her removal did not entail any negative consequences for her health and emotional development. On the contrary, there is evidence that she does not want to return home.
The court revokes the adoption order in respect of both defendants since they acted in concert, a fact which they did not dispute.”
“... In its judgment the trial court stressed that the defendants had created a life-threatening situation by obstructing medical treatment of the child.
As is clear from the materials of the case ..., A. has not had contact with her adoptive parents since being removed on 11 December 2003. A year has passed since that date and obstruction of the child's medical treatment by the parents is no longer a relevant factor for consideration.
Furthermore, according to the trial court judgment – which referred to the explanations given by the hospitals' head physician – treatment of the minor has now been terminated.
The court has been unable to establish that there is evidence of deliberate conduct by the adoptive parents either before 23 October 2003 or after 11 December 2003 which would be contrary to the child's interests.
Taking this into account, the court finds that the revocation of the adoption order is premature, since it lacks sufficient justification.
Under paragraph 12 of the Ruling of the Supreme Court of 27 May 1998 N 10 'Application of the legislation by the courts in disputes concerning the upbringing of children' ... in circumstances where, on examining a case, the court is unable to establish sufficient grounds for revocation of the adoption order but considers that it is dangerous for the child to remain with his or her parents, it may order that the child be removed from the parents and that custody be transferred to a local custody and guardianship agency.
In accordance with Article 141 of the Family Code, an adoption order may be revoked for failure by the adoptive parents to fulfil their parental obligations, for abuse of parental rights, abusive treatment of the adopted child or if the parents suffer from chronic drug or alcohol addiction.
In the present case no sufficient grounds for revocation of the adoption order can be established, but there are grounds for restricting [the applicants'] parental rights.”
F. Subsequent proceedings concerning access to A.
“... Under Article 63 of the Family Code of the Russian Federation, parents have a right and an obligation to raise their children.
Under Article 66 § 1 of the Family Code, a parent living separately from a child has the right to communicate with him or her and to participate in his or her upbringing and in meeting her or his educational needs. A parent living with a child cannot obstruct the child's communication with the other parent so long as such communication does not harm [the child's] physical, psychological and moral health.
The court has established that on 11 December 2003 A. was removed from her parents because of an imminent danger to her life and health and was placed in the custody of the Kirov Custody and Guardianship Agency.
At present the applicants are denied any access to their daughter, participation in her upbringing or information about her ...
... The court takes cognisance of the fact that on 18 November 2004 the Pervomayskiy District Court revoked A.'s adoption. However, the decision has not yet acquired final force. Consequently, the issue of termination of the applicants' parental rights has not been resolved as the negligence on the part of applicants has not been established ...
... In the present case the court is unable to find that the applicants deliberately harmed the girl's physical or psychological health (Article 65 of the Family Code).
The court finds it established that throughout A.'s entire stay at the hospital the applicants attempted to visit her several times a week, despite the fact that they were not allowed to see her and that they were not provided with any information about her. They brought her food, clothes, toys and other things. Taking account of the fact that the applicants still enjoy parental rights until otherwise determined by a final court decision, the court considers the defendants' refusal to grant [the applicants'] access to A. and participation in her upbringing to be unacceptable. Taking into consideration the child's interests, the court finds it necessary to provide the applicants with a genuine possibility of enjoying their right to participate in her upbringing and to communicate with her.
G. Proceedings for lifting restrictions on the parental rights of the applicant and his spouse and return of custody of A. to the parents
II. RELEVANT DOMESTIC LAW
Article 56 of the Family Code: The Child's Right to Protection
“1. The child shall have the right to the protection of his rights and legal interests.
The child's rights and legal interests shall be protected by his parents (or the substitute parents), and, in the cases stipulated in the present Code, by the Custody and Guardianship Agency, the Prosecutor and the court.
2. The child shall have the right to protection from abuse on the part of the parents (or substitute parents).
If the child's rights and legal interests are violated, including where the parents (or one of them) fail to discharge or improperly discharge their duties related to the child's upbringing and education, or where they abuse their parental rights, the child shall have the right to apply on his own initiative for the protection of the Custody and Guardianship Agency, and – upon reaching the age of 14 years – to the court.
3. Officers of organisations or other citizens who have learnt of a threat to the life or health of the child or a violation of his rights and legal interests shall be obliged to report this to the Custody and Guardianship Agency for the place of the child's actual residence. Upon receipt of such information, the Custody and Guardianship Agency shall be obliged to take the necessary measures to protect the child's rights and legal interests.”
Article 74: Consequences of the Restriction on Parental Rights
“1. Parents whose parental rights are restricted by the court shall lose the right to bring the child up in person, and also the right to the privileges and state allowances granted to citizens with children.
2. The restriction on parental rights shall not relieve the parents from the duty to maintain the child.
3. A child whose parents' (or one of them) parental rights are restricted shall retain the right of ownership of the living premises or the right to use the living premises, and shall also retain property rights, based on his kinship with his parents and with his other relatives, including the right to receive an inheritance.
4. If the parental rights of both parents are restricted, the child shall be put into the charge of the Custody and Guardianship Agency.”
Article 75: The Child's Contacts with Parents whose
Parental Rights are
Restricted by the Court
“Parents whose parental rights are restricted by the court may be allowed to maintain contacts with the child, unless this has a negative impact on the latter. The parents' contacts with the child shall be permitted with the consent of the Custody and Guardianship Agency, or with the consent of the child's guardian (trustee), of his foster parents or of the authorities of the institution where he resides.”
Article 76: Lifting the Restriction on the Parental Rights
“1. If the grounds on which one or both parents' parental rights were restricted cease to exist, the court may, upon an application by the parents (or one of them) make a decision returning the child to the parents (or one of them) and lifting the restrictions stipulated by Article 74 of the present Code.
2. The court shall have the right, taking into account the child's interests, to refuse to grant the application if the child's return to the parents (or one of them) is contrary to his interests.”
Article 77: Removal of the Child in Cases of a Direct
to his Life or Health
“1. If a direct threat exists to the child's life or health, the guardianship and trusteeship body shall have the right to remove the child from his parents (or from one of them) or from another person in whose charge he is.
The immediate removal of the child shall be carried out by the Custody and Guardianship Agency pursuant to the corresponding order of the local self-governing body.
2. When removing the child, the Custody and Guardianship Agency must inform the Prosecutor without delay, provide for the child's temporary accommodation and, within seven days of the decision of the local self-governing body to remove the child, lodge an application with the court for withdrawal or restriction of the parental rights.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties' observations
B. The Court's assessment
1. Whether there was an interference with the applicant's family life
2. Whether the interference was “in accordance with the law”
3. Whether the interference pursued a legitimate aim
4. Whether the interference was “necessary in a democratic society”
(a) 11 December 2003-25 January 2005
(b) 26 January-2 November 2005
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis