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RYTCHENKO v. RUSSIA - 22266/04 [2011] ECHR 75 (20 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/75.html
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[2011] ECHR 75
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FIRST
SECTION
CASE OF RYTCHENKO v. RUSSIA
(Application
no. 22266/04)
JUDGMENT
STRASBOURG
20 January
2011
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 Rytchenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 22266/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Igor Vasilyevich
Rytchenko (“the applicant”), on 20 March 2004.
The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
On
10 September 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
On
7 October 2008 the President of the First Section decided to grant
the application priority under Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1956 and lives in Moscow.
A. Background of the case
On
11 February 1995 the applicant and Ms B. got married. Ms B. already
had a daughter, T., by a different father. On 23 December 1995 Ms B.
gave birth to a daughter, A. In May 1998 the applicant moved out of
his and Ms B.’s household. He continued to visit A. every week.
From November 1998 Ms B. refused all contact between the
applicant and the girl. His attempts to see A., with the help of the
local custody and guardianship office, were unsuccessful.
On
15 November 1998 A. was examined by M., the director of the
psychological centre, Inex-92. M. stated that A. had a wide range of
fears and displayed increased anxiety. On the basis of the tests
conducted, it was established that A. had a close relationship with
her mother and elder sister, but was distanced from her father and
tended to reject him.
On
9 December 1999 A. was examined by psychologist M-va, with a view to
determining her emotional state following the long absence of her
father. M-va’s conclusion stated:
“1. [A.] easily establishes contact
with a stranger (psychologist) which proves that [she] has developed
a feeling of safety.
2. [A.] is in stable emotional state. The
girl is cheery, clever, actively reacts to jokes, displays initiative
in communication and in games.
3. The child is surrounded by love and care
from her mother and grandmother [and] likes to play with her elder
sister.
4. The following [A.’s] statements give
rise to concern: “My father does not give me presents...”,
“I feel good without him...” and “I don’t
want to see him”.
5. The absence of the father is compensated
by communication with a great-uncle and role-play games (used as a
therapeutic means).”
On
14 January 2001 the applicant’s marriage was dissolved and Ms
B. was granted full custody of A.
B. First set of custody and access proceedings
On
22 February 2001 the applicant sued Ms B. for the obstruction of
access to his daughter, A.
On
26 April 2001 Ms B. filed a counter-claim seeking to divest the
applicant of his parental rights.
On
5 April 2001 Moscow Psychoneurological Dispensary No. 4 carried out a
psychological examination of the applicant at the request of the
Izmaylovskiy District Court of Moscow. The applicant consented to the
examination. The panel of three doctors that examined the applicant
stated that he might be suffering from paranoid personality disorder
or “sluggish schizophrenia”. However, the conclusive
diagnosis could only be made upon an in-patient examination.
On
4 November 2001 A. was examined for a second time by M., the director
of the psychological centre, Inex-92. M. stated that A. was highly
communicative, intellectually developed and emotionally free. She
also displayed a high degree of reflection, stability of mood,
optimism and an interest in life. Various tests conducted revealed
close relationships between A. and her mother and her elder sister
and a rejection of her father. The main reasons for the rejection
were expressed by A. as follows: “he offends T. (the elder
sister)”, “it is bad with him” and “he is
mean”. According to M., the latter statement could be
understood to mean that the applicant had an excessive tendency to
preach. M. further stated that A.’s rejection of her father was
of a stable psychological and motivated nature, which might have been
caused by a previous traumatic experience and was not inspired by
another person. At the same time, A. willingly accepted the father of
her elder sister, her maternal grandfather, sports coaches and a male
psychologist. M. concluded that there had been a positive development
in A. over the three years that had passed since her first
examination: the fears had disappeared, the anxiety had eased, she
displayed optimism and emotional stability. A phobic reaction to men,
which had previously been observed, had also disappeared. M. stated
that, in his view, it was necessary to take into account A.’s
opinion concerning the choice of parent so as not to cause repeated
psychological trauma.
On
18 December 2001 M. examined the applicant. He noted that the
examination was of a superficial nature and could not substitute a
complete in-patient psychological examination. M. further stated that
the examination did not reveal any psychopathic symptoms. However,
taking into account A’s persistent rejection of her father, he
recommended exercising caution as regards their interaction so as not
to cause repeated psychological trauma.
On
8 February 2002 the Izmaylovskiy District Court of Moscow allowed the
applicant to visit A. every first Sunday of the month between 12 noon
and 2 p.m. in the presence of Ms B. The court relied, inter alia,
on an expert’s opinion which stated that contact with the
father would not have a negative effect on the child. At the same
time the court dismissed Ms B.’s counter-claim.
The
applicant appealed, requesting additional visiting hours. On 16 April
2002 the Moscow City Court dismissed his appeal and upheld the
judgment.
C. Enforcement of the court order
Ms
B. failed to comply with the court order and the visit scheduled for
5 May 2002 did not take place. On 27 May 2002 the bailiffs’
office opened enforcement proceedings.
The
applicant was not able to see A. on either 2 June or 7 July 2002. The
bailiff summoned Ms B. and requested her to obey the court order on
pain of an administrative fine.
The
applicant saw his daughter on 4 August, 1 September, 6 October,
3 November and 1 December 2002, and 5 January, 2 February, 2 March,
6 April, 4 May and 1 June 2003. The meetings were held in the
presence of Ms B. who, according to the applicant, prevented A. from
speaking to him, playing with him or accepting his gifts.
D. Second set of access proceedings
On
17 October 2002 the applicant applied to the Izmaylovskiy District
Court claiming additional visiting hours without Ms B.’s
supervision. Ms B. requested that the applicant’s access rights
be terminated.
On
17 February 2003 the Izmaylovskiy District Court held a hearing
during which it granted Ms B.’s motion to adduce the following
documents for examination: the medical report from the
Psychoneurological Dispensary No. 4 on A.’s psychological
state, psychologists’ reports on her mental state between
1998-2001, reports from the school and the sports centre that A. had
attended and the two reports from A.’s psychological
examinations. The applicant submitted a detailed statement in support
of his claim and requested an expert psychological examination of A.
The court granted the request. It also granted the motion of the
local custody and guardianship office to examine A. at the hearing.
Following
the examination conducted pursuant to the court order, expert K.
stated the following.
a) A.
and her mother had a close relationship characterised by an emotional
bond and cooperation. Ms B.’s attitude to her daughter was
emotionally-open, she tried to understand and accept the child’s
emotional state and the relationship was based on the girl’s
interests. The mother undertook a democratic approach to parenting,
which included a high level of verbal communication, the inclusion of
the girl in discussions on family issues, the supporting of the
child’s interests and independence. She paid sufficient
attention to the girl’s physical and intellectual development.
b) During
the previous four years A.’s contact with the applicant had
been of an episodic and formal nature and, as a rule, in the presence
of third persons. The applicant substituted direct parental
communication with moralising and attempts to obtain assurances of
A.’s affection in front of third persons or to demonstrate Ms
B’s “undue” conduct. The values and behavioural
motives of the applicant and Ms B. differed significantly. The
applicant typically had formal relationships with people devoid of
pronounced emotional involvement, which were based on certain rules,
worked out in the course of his life. His approach to parenting was
based on control, implying significant restrictions to the child’s
conduct. The applicant did not recognise his daughter’s right
to her own interests and independent choice. He poorly understood,
and did not take into account, the girl’s psycho-emotional and
age-related behaviour.
c) A
child’s “core personality” is formed at
approximately five years old. A. had a sufficiently high level of
intellectual development. However, her emotional sphere was much more
labile than that of an adult and mostly depended on her environment.
Her own values and opinions were being developed in the course of
communication within the family. Furthermore, it is typical for
children to copy the conduct of other persons, primarily the parent
of the same sex. Therefore, it might be asserted that A.’s
perspective of the issue was nearly identical to her mother’s.
From the point of view of further social adaptation, her female
upbringing (mother, grandmother, elder sister) was sufficiently
auspicious as it enabled a model of “female conduct” in
society to be successfully put into practice. The remote negative
result is that A. might have difficulties in building her own family,
due to the absence of an adequate model of conjugal partnership.
However, this applies to all children from single-parent families.
d) The
feeling of safety is a vital human need. The basic feeling of safety
is provided by the family. In the first seven years of a child’s
life, communication with the mother is more important, irrespective
of the child’s gender. The child forms an image of the father
through the prism of the mother’s perception and his/her own
communication with him, which A. had been deprived of for the last
four years. At the time in question, A. saw the applicant as an
incomprehensible stranger, whose actions had subverted her feeling of
safety. Her mother and grandmother, in compliance with the court
order, had effectively forced A. to communicate with her father, whom
she did not love and was afraid of. As a result, A.’s immediate
family (mother and grandmother) and relatives (father), instead of
being the safety factor, became the danger factor. A.’s
negative emotional stress, brought about by the meetings with her
father was expressed in affective reactions (shouts, tears, obsessive
movements) observed after the meetings. The increase of the duration
of the meetings, especially in the mother’s absence, would
entail the risk of the child’s persistent neurosis or
depression, due to the impossibility of avoiding the subjectively
distressing situation. The extreme manifestation of such a condition
is self-aggression (suicidal tendencies, thoughts and actions).
e) The
so-called “female upbringing” was not a factor that would
foster a negative or “wrong” attitude by the girl towards
men in general. A. was unlikely to develop serious problems from the
point of view of social or professional adaptation. She had
sufficient experience of communication with the opposite gender
through contacts with her peers, teachers, sports coaches, and so on.
f) Blood
relations do not guarantee mutual love, respect or deep attachment.
Emotional relationships are formed in the course of cohabitation,
communication, upbringing and communal activity. The inability or
unwillingness of the parents to establish a civilised relationship
might have affected the negative attitude of A. towards the
applicant. The prolonged conflict between the applicant and Ms B.,
with whom A. identifies, resulted in the child’s lack of belief
in the possibility of a positive development of her relationship with
her father.
g) Ignoring
the girl’s emotional and rational rejection of her father and
forcing her to meet with him might cause irretrievable adverse
effects on the latter’s health and psychological well-being. It
might also adversely affect A.’s moral development, since in
such a situation neither the family nor the State would provide her
with psychological support and safety.
On
24 June 2003 the Izmaylovskiy District Court delivered its judgment.
The court had studied several expert reports. In particular, in
August and September 2002 A. had been referred to a psychologist at
the Izmaylovo centre for children. In the report, the psychologist
stated that in August 2002 A. had been provided with
psychological aid after meetings with her father since, after the
resumption of contacts with her father, the girl was highly agitated,
irritable and suffered from nightmares. The same psychologist had
consulted the applicant and stated that he was showing no parental
interest in or affection for his daughter. His perception of the
child was “inadequate” and he displayed “a
pathological tendency towards litigation”.
The
court also studied the report of the expert examination conducted
pursuant to its order of 17 February 2003 and examined expert K.
during the hearing. She confirmed the conclusions she had stated in
the report and emphasised that forcing A. to meet with the applicant,
especially without the presence of Ms B., might irreversibly affect
her physical and psychological well-being and possibly lead to
neurosis and depression. Furthermore, expert K. asserted a strong
opinion that the applicant was interested in having contact with A.
only to boost his self-esteem and not to establish a relationship
with the child. The absence of such a relationship was acknowledged
by the applicant himself in his letters to Ms B. and the bailiff,
where he stated that his daughter did not wish to see him, hated him,
wanted to change her surname and refused to accept his gifts.
The
District Court further examined the opinion of the local custody and
guardianship service which stated that meetings between the applicant
and A. should be discontinued, having regard to the interests and
wishes of the latter, who strongly resisted communication with her
father.
The
court questioned the applicant, who reiterated his claim. It also
questioned Ms B., who stated that during the meetings the applicant
had provoked a negative reaction on the part of A., for example, by
forcibly removing her glasses or earphones, forcing her to accept a
book as a present and then taking pictures so as to document her
refusal. He failed to establish a relationship with the girl, did not
take into account her opinion, applied
coercion and brought her to tears. After the meetings
with the applicant A. developed nervousness, problems sleeping and
refused to leave the house. This behaviour was noted in the
psychologists’ reports.
The
District Court further examined several other witnesses. A.’s
school sports coach and her aunt stated that the girl was very
sociable, but reacted negatively to her father, wanted to have her
mother’s surname, had not allowed him to take a picture of her
and had left the classroom when the applicant had come to visit her
at school. The applicant’s father and brother believed that Ms
B. had turned her daughter against her former husband. Ms B.’s
step-father said that the applicant and his child had had a wonderful
relationship until the parents’ separation.
The
District Court also questioned A. in the presence of a teacher.
A. explained that she did not like her father, did not want to
see or talk to him and wanted to have her mother’s surname.
The
District Court held as follows:
“In accordance with Article 66 § 4 [of the
Family Code] and section 8 of ruling no. 10 of 28 May 1998 of
the Plenum of the Supreme Court of the Russian Federation, in
exceptional cases a court may refuse a parent’s claim to
determine the order of [his or her] participation in the child’s
upbringing when communication between the child and ... the parent
may adversely affect the child, his physical and psychological
well being.
The court grants the claim to discontinue the father’s
contact with his daughter and dismisses [his] claim for additional
visiting hours, having regard exclusively to the interests of the
minor, in particular: the contact ... affects the child’s
physical and psychological well-being, which is demonstrated by the
lack of mutual understanding and communication between the father and
the daughter during the meetings ordered by the court’s
previous decision; having the father’s surname is a
traumatising situation for the child; the meetings have a very formal
nature; the child’s conduct at the appearance of her father,
when in her mother’s presence, is characterised by strong
rejection ([she] hid under the desk; ran away; tore up [her] letter
of commendation bearing the surname “Rytchenko”; after
seeing her father, she refused to go to a picnic with her
classmates), which is not conducive to creating psychological comfort
and a feeling of safety for the child; the very litigation is
psychologically traumatising since it was initiated by [the
applicant] but is centred around the seven year-old child, who knows
about it because the court decision of 8 February 2002 is being
enforced with her participation. Furthermore, the court takes into
account that the child was being seen repeatedly by psychologists ...
The lack of contact between the father and the daughter
and the psychologically traumatising environment for the child is
corroborated by the parties’ explanations, documentation from
the case, statements by witnesses and the opinion of the local
custody and guardianship office.”
At
the hearing of 24 June 2003 the judge removed one of the applicant’s
representatives from the courtroom. The applicant also asked his
second representative to leave the courtroom and requested that the
judge provide him with legal representation. After the refusal to
grant his request, the applicant unsuccessfully challenged the judge.
On
22 September 2003 the Moscow City Court upheld the first-instance
judgment. It also mentioned that the applicant’s
representatives had been removed for contempt of court.
II. RELEVANT DOMESTIC LAW
A. The 1995 Family Code
Article 65. Exercise of parental rights
“1. The exercising of parental rights
shall not be in contradiction with the children’s interests.
Providing for the children’s interests shall be an object of
the parents’ primary care.
In exercising the parental rights, the parents will not
have the right to inflict damage on the physical and psychological
well-being of the children, or on their moral development. The
methods of the children’s upbringing must exclude neglectful,
cruel, rude or degrading treatment, insults or exploitation of the
children.
Parents exercising parental rights to the detriment of
children’s rights and interests shall be made answerable in
conformity with the law-established procedure.
2. All issues concerning the children’s
upbringing and education shall be resolved by the parents by mutual
consent based on the children’s interests and taking into
account [their] opinion. In the case of a disagreement, the parents
(or one of them) shall have the right to apply to a custody and
guardianship office or to a court to resolve any differences.
3. If the parents live apart, the children’s
place of residence shall be established by an agreement between the
parents.
In the absence of an agreement, a dispute between the
parents shall be resolved in court, proceeding from the children’s
interests and taking into account [the children’s] opinion. The
court shall take into account the child’s attachment to each of
his parents and to his brothers and sisters, the child’s age,
the moral and other personal qualities of the parents, the relations
existing between each of the parents and the child, the possibility
to create optimal conditions for the child’s upbringing and
development (the parents’ activity, their work routine, their
financial and family situation, etc.).
Article 66. Exercise of parental rights by the parent
residing apart from the child
1. The parent residing apart from the child
shall have the right to communicate with the child, participate in
[the child’s] upbringing and take decisions concerning the
child’s education.
The parent with whom the child resides shall not prevent
the child from communicating with the other parent, unless the
communication damages the child’s physical or psychological
well-being and his moral development.
2. Parents shall have the right to conclude a
written agreement concerning the way in which the parent residing
apart from the child exercises his parental duties.
If the parents fail to reach an agreement, the dispute
shall be settled in court, upon the parents’ claim (or one of
them), with the participation of a custody and guardianship office.
3. In the case of failure to comply with the
court’s decision, the parent at fault shall be subjected to the
measures provided in the Code of Civil Procedure. In the case of
persistent failure to comply with the court’s decision, the
court may decide, upon the claim of the parent residing apart from
the child, to transfer the child to that parent, proceeding from the
child’s interests and taking into account his opinion.
4. The parent residing apart from the child
shall have the right to receive information about the child from
educational and medical establishments, institutions for social
protection and other similar bodies. The information may be withheld
only if the parent presents a threat to the child’s life and
well-being. The refusal to provide information may be challenged
before a court.
B. Ruling no. 10 of 28 May 1998 of the Plenum of the
Supreme Court of the Russian Federation
Section
8 of the Ruling provides that, when a court has to determine the
level of participation in a child’s upbringing of the parent
who resides apart from the child, it has to take into account the
child’s age, his state of health, his attachment to each of his
parents and other circumstances which could affect the child’s
physical and psychological well-being and moral development. In
exceptional cases, when communication with the parent who resides
apart from the child may adversely affect the latter, the court may
dismiss that parent’s claim to participation in the child’s
upbringing on the basis of Article 65 § 1 of the Family Code.
The reasons should be stated in the court’s decision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained under Article 8 of the Convention that the State
had deprived him of the right of access to his child. Article 8 reads
as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
The
Government submitted that the decisions of the domestic courts had
been in accordance with the domestic law and had taken into account
the interests of the child. In particular, the courts had had before
them numerous reports by psychologists corroborating the negative
impact on A. of contact with the applicant and emphasising the
possible irreversible harm to her well-being if contact was not
discontinued. The courts had also examined numerous witnesses,
including A., who had stated that she had not wished to communicate
with her father. The domestic courts had thus fully complied with the
requirement to attach particular importance to the best interests of
the child, which, depending on their nature and seriousness, may
override those of the parents (see Eski v. Austria, no.
21949/03, § 35, 25 January 2007).
The
applicant contended that the courts had not duly assessed the
evidence before them. In particular, he alleged that A.’s
rejection of him was a result of her mother’s psychological
pressure and that he was a good father and only cared about A.’s
well-being.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court observes that it was not disputed between the parties that the
decision refusing the applicant access to his daughter amounted to an
interference with his right to respect for his family life, as
guaranteed by Article 8 § 1. The Court takes the same view. Nor
did the parties question that the decision had a basis in national
law. The decision thus may be regarded as “in accordance with
the law”. Furthermore, it was aimed at protecting the “health
or morals” and the “rights and freedoms” of the
child and thus pursued aims that are legitimate under paragraph 2 of
Article 8. It remains to be examined whether the refusal of parental
access can be considered “necessary in a democratic society”.
The
Court has to consider whether, in the light of the case as a whole,
the reasons adduced to justify this measure were relevant and
sufficient for the purposes of paragraph 2 of Article 8 of the
Convention. Undoubtedly, consideration of what is in the best
interests of the child is of crucial importance in every case of this
kind. Moreover, it must be borne in mind that the national
authorities have the benefit of direct contact with all the persons
concerned. It follows from these considerations that the Court’s
task is not to substitute itself for the domestic authorities in the
exercise of their responsibilities regarding custody and access
issues, but rather to review, in the light of the Convention, the
decisions taken by those authorities in the exercise of their power
of appreciation (see Hokkanen v. Finland, judgment
of 23 September 1994, Series A no. 299-A, p. 20, § 55, and
Kutzner v. Germany, no. 46544/99, §§ 65-66,
ECHR 2002-I).
The
margin of appreciation to be accorded to the competent national
authorities will vary in accordance with the nature of the issues and
the importance of the interests at stake. Thus, the Court has
recognised that the authorities enjoy a wide margin of appreciation
when deciding on custody matters. However, a stricter scrutiny is
called for as regards any further limitations, such as restrictions
placed by those authorities on parental rights of access, and as
regards any legal safeguards designed to secure the effective
protection of the right of parents and children to respect for their
family life. Such further limitations entail the danger that the
family relations between a young child and one or both parents would
be effectively curtailed (see Sahin v. Germany [GC], no.
30943/96, § 65, ECHR 2003 VIII; Elsholz v. Germany
[GC], no. 25735/94, § 49, ECHR 2000-VIII; and Kutzner,
cited above, § 67).
Article 8 requires that the domestic authorities
should strike a fair balance between the interests of the child and
those of the parents and that, in the balancing process, particular
importance should be attached to the best interests of the child,
which, depending on their nature and seriousness, may override those
of the parents. In particular, a parent cannot be entitled under
Article 8 to have such measures taken as would harm the child’s
health and development (see Elsholz, cited above, §
50; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §
71, ECHR 2001-V; Ignaccolo Zenide v. Romania, no.
31679/96, § 94, ECHR 2000-I; and Nuutinen v. Finland, no.
32842/96, § 128, ECHR 2000-VIII).
In
the present case, the domestic courts adduced relevant reasons to
justify their decisions refusing access, namely the lack of mutual
understanding between the applicant and A., A.’s strong
rejection of the applicant, the fact that contacts with the latter
adversely affected A., who had had recourse to psychological aid in
this regard, and the risk that visits would further affect her and
interfere with her development in the residual family provided by the
mother.
The
Court considers that it cannot satisfactorily assess whether those
reasons were “sufficient” for the purposes of Article 8 §
2 without, at the same time, determining whether the decision-making
process, seen as a whole, provided the applicant with the requisite
protection of his interests (see W. v. the United Kingdom,
judgment of 8 July 1987, Series A no. 121, pp. 28-29, § 64;
Elsholz, cited above, § 52; and T.P. and K.M. v. the
United Kingdom, cited above, § 72).
In
the proceedings before the Izmaylovskiy District Court and Moscow
City Court, the applicant was in a position to put forward all the
arguments in favour of obtaining a visiting arrangement and had
access to all the relevant information upon which the courts had
relied (see, mutatis mutandis, T.P. and K.M. v. the United
Kingdom, cited above, §§ 78 83; and P., C. and
S. v. the United Kingdom, no. 56547/00, §§ 136 38,
ECHR 2002 VI).
The evidential basis for the domestic courts’
decisions included the parents’ submissions, the statements
from five other witnesses and an expert, the statement from A.
herself, the opinion of the local custody and guardianship office and
numerous psychologists’ reports, including the report of the
examination conducted pursuant to the court’s order upon the
applicant’s request. The reports pertaining to the period from
1998 to 2001 showed that, while in 1998 A. had displayed increased
anxiety and a wide range of fears, in the course of the subsequent
period, during which she had had no contact with the applicant, she
displayed optimism and emotional stability. At the same time, she
continued to reject her father. Upon the resumption of contact with
the applicant in 2002, pursuant to the court order, A. was referred
to a psychologist. The psychologist stated that after the meetings
with the applicant the girl had been highly agitated, irritable and
suffered from nightmares. The same psychologist examined the
applicant and stated that he had had no genuine parental interest in
or affection for his daughter and that his perception of A. was
“inadequate”. Furthermore, according to the report of the
expert examination of A., ordered by the court, the applicant sought
to see his daughter only to boost his self-esteem and not to
establish a genuine relationship with her. The same report stated
that further compulsory contact between the applicant and A. could
have irretrievable adverse effects on the latter’s health and
psychological well-being as the girl was afraid of her father and did
not love him. The expert feared that spending more time with the
applicant in the absence of her mother could entail A.’s
persistent neurosis or depression. The local custody and guardianship
office also submitted that all meetings between the applicant and A.
should be discontinued having regard to the latter’s interests.
Finally, the courts took into account A.’s statement before the
District Court to the effect that she did not like her father and did
not wish to see him or talk to him.
Having
regard to the foregoing and to the respondent State’s margin of
appreciation, the Court is satisfied that the domestic courts’
procedural approach was reasonable in the circumstances and provided
sufficient material to reach a reasoned decision on the question of
access in the case at hand. The Court thus finds that the
interference was “necessary in a democratic society”
within the meaning of Article 8 of the Convention.
Accordingly,
there has been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 of the Convention about the
allegedly excessive length of both sets of proceedings. He also
complained about the District Court’s refusal to provide him
with legal representation and alleged that the judge had been biased.
Article 6 provides, in so far as relevant:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair ... hearing
within a reasonable time by [a] ... tribunal ...”
In
so far as the complaint concerns the first set of custody and access
proceedings that ended with the decision of the Moscow City Court of
16 April 2002, the Court finds that, since the present
application was introduced on 20 March 2004, the complaint must be
rejected for non-compliance with the six month time-limit, pursuant
to Article 35 §§ 3 and 4 of the Convention.
In
so far as the complaint concerns the second set of access
proceedings, the Court observes that they lasted approximately eleven
months before two levels of jurisdiction, which is not “unreasonable”
within the meaning of Article 6 § 1 of the Convention.
As
regards the complaint concerning the District Court’s refusal
to provide the applicant with legal assistance, the Court notes that
one of the applicant’s representatives was removed from the
courtroom for contempt of court. The applicant then requested his
second representative to leave the courtroom and requested the judge
to appoint counsel for him. His request was refused. Firstly, there
is no indication that the order to the applicant’s first
representative to leave the courtroom was arbitrary. Secondly, in the
present circumstances the Court does not find that the domestic
courts were under an obligation to provide the applicant with legal
assistance. The complaint concerning the alleged bias of the judge is
unsubstantiated. Accordingly, there is no indication of unfairness
within the meaning of Article 6 of the Convention.
It
follows that this part of the application must be rejected, pursuant
to Article 35 §§ 1 and 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Article 14 of the Convention that he had
been discriminated against on the ground of his gender and under
Article 5 of Protocol No. 7 about lack of equality between spouses
because his former wife had been granted full custody over the child
while he had been deprived of access to his daughter. He also
complained under Article 13 of the Convention that he had had no
effective remedies in relation to his complaint under Article 8 of
the Convention. Relying on Article 17 he asserted that the
deprivation of access rights to his child had not pursued any
legitimate aims.
The
Court has examined those complaints and considers that, in the light
of all the material in its possession and in so far as the matters
complained of are within its competence, they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols other then those examined above.
Accordingly, these complaints must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 8
admissible and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 8 of the Convention;
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
