European Court of Human Rights

 

 

THIRD SECTION

CASE OF K.Y. v. RUSSIA

(Application no. 5504/20)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

14 June 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of K.Y. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Georgios A. Serghides, President,
          Anja Seibert-Fohr,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 5504/20) 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”) on 16 January 2020 by a Russian national, K.Y., born in 1978 and living in Tambov (“the applicant”);

the decision to give notice of the application to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;

the decision not to have the applicant’s name disclosed;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated in private on 24 May 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the failure of the domestic authorities to secure the applicant’s contact with his son.

2.  The applicant’s son A. was born in 2012, from a marriage with Ms Ye.

3.  In 2014 the marriage between the applicant and Ye. was dissolved.

4.  On 15 June 2015 the Sovetskiy District Court of Tambov determined A.’s residence as being with his mother Ye.

5.  By the judgment of 13 May 2016 the Michurinsk Town Court of the Tambov Region (“the Town Court”) determined the contact arrangement between the applicant and his son, which was upheld on appeal by the Tambov Regional Court on 24 August 2016: every first and third weekend of the month from 10 a.m. on a Saturday to 7 p.m. on a Sunday at the applicant’s place of residence; as well as on the day of the child’s birthday from 2 p.m. to 3 p.m. at Ye.’s place of residence.

6.  On 4 October 2016 the Michurinsk District Bailiffs’ Service instituted the enforcement proceedings.

7.  In 2016-2021 the bailiffs in charge of the enforcement proceedings accompanied the applicant to Ye.’s place of residence on numerous occasions so as to assist him with the enforcement, but to no avail, Ye. being obstructive and not willing to comply with the judgment of 13 May 2016.

8.  In 2017-2018 enforcement fees were recovered from Ye. on twenty‑five occasions for failure to comply with the judgment of 13 May 2016.

9.  In 2016-2021 the Michurinsk Juvenile Commission (Комиссия по делам несовершеннолетних и защите их прав при администрации города Мичуринска Тамбовской области) examined seventy-one reports against Ye. for preventing the child from communicating with the applicant and imposed fifty-six administrative fines on the latter in the total amount of 270,600 Russian roubles, which were fully paid by Ye.

10.  To secure the enforcement Ye. was temporarily restricted from leaving the territory of the Russian Federation.

11.  The Ombudsman for Children in the Tambov Region, the local Child Protection Department and the Centre for Assistance to Child and Family Protection were involved in facilitating the enforcement, as well as psychologists from the kindergarten attended by the child, the local Mediation Service and the Centre for Development of Family Forms of Placement of Children Left Without Parental Care.

12.  None of the above measures, however, led to the enforcement of the judgment of 13 May 2016, Ye. continuing to resist the enforcement with reference to the child’s unwillingness to communicate with the applicant.

13.  Meanwhile, on 9 September 2020 the applicant applied to the Michurinsk Town Prosecutor’s Office for initiation of court proceedings for restriction of Ye.’s parental authority (Article 73 of the Russian Family Code).

14.  On 9 October 2020 the Michurinsk Town Prosecutor considered that there had been no grounds for restricting Ye.’s parental authority in respect of the child and informed the applicant of his right to apply to the court in accordance with Article 66 § 3 of the Family Code, which provided that in the event of persistent non-compliance with a court decision, the court could, upon a claim being lodged by the parent residing apart from the child, take a decision to place the child in his or her care, having taken into account the child’s interests and the child’s opinion.

15.  The applicant challenged the Prosecutor’s decision in administrative proceedings, in vain. The final decision on this matter was taken by a judge of the Supreme Court of the Russian Federation on 28 July 2021.

16.  On 21 April 2021 the bailiff applied to the Town Court for termination of the enforcement proceedings. However, on 14 May 2021 the Town Court rejected the above request, having found the absence of circumstances making the enforcement of the judgment of 13 May 2016 impractical.

17.  During most recent attempt of enforcement of 15 May 2021, of which there is a trace in the case file material, the child refused to have contact with the applicant.

18.  On 25 May 2021 the Michurinsk Juvenile Commission refused the applicant’s request to initiate the proceedings for restriction or deprivation of Ye.’s parental authority (Article 70 of the Russian Family Code), having found no grounds for the application of the above measures. The applicant was informed that it was open to him to bring such an action before the court himself.

19.  On 17 June 2021 the Michurinsk Town Prosecutor made a submission (представление) to the head of the Federal Bailiffs’ Service for the Tambov Region regarding the conduct of the enforcement proceedings, noting the bailiffs’ failure to take prompt and effective measures to secure the enforcement of the judgment of 13 May 2016.

20.  The enforcement proceedings are still pending.

21.  Relying on Articles 6 and 8 of the Convention and Article 5 of Protocol No. 7 to the Convention, the applicant complained of the failure of the domestic authorities to take effective measures for securing his contact with his son.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

22.  The complaint falls to be examined under Article 8 of the Convention.

23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

24.  The general principles on public authorities’ positive obligations to ensure the enforcement of contact rights were summarised in Y.U. v. Russia (no. 41354/10, §§ 92-94, 13 November 2012). To sum up, the obligation of the national authorities to take measures to facilitate contact by a non‑custodial parent with children after divorce is not absolute. The key consideration is whether those authorities have taken all the steps necessary to facilitate contact as can reasonably be required of them in the particular circumstances of each case (see also Krasicki v. Poland, no. 17254/11, §§ 86‑87, 15 April 2014).

25.  For over five years since the adoption of the judgment of 13 May 2016 the domestic authorities have been trying to secure the enforcement of the applicant’s contact with his son. The bailiffs accompanied the applicant to the child’s place of residence, imposed administrative fines on the child’s mother, recovered enforcement fees from her and involved various competent authorities to facilitate the enforcement (see paragraphs 7-11 above). However, all those efforts proved to have little impact on the applicant’s right to maintain contact with his son. Not once throughout this period was the applicant able to communicate with his son on the terms provided by the judgment of 13 May 2016.

26.  Indeed, the task of domestic courts was rendered difficult by Ye.’s resentfulness towards the applicant and her unwillingness to allow the applicant’s contact with the child. However, the lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Zawadka v. Poland, no. 48542/99, § 67, 23 June 2005).

27.  It should have become obvious to the bailiffs that the financial sanctions imposed on the child’s mother were inadequate to improve the situation at hand and overcome her lack of cooperation, and yet no recourse to other realistic coercive measures against her, of a type which were likely to lead to compliance, was considered by the domestic authorities (see paragraphs 13-15 and 17 above; see also Zelenevy v. Russia, no. 59913/11, § 76, 3 October 2013; Prizzia v. Hungary, no. 20255/12, § 46, 11 June 2013; and Hansen v. Turkey, no. 36141/97, § 105, 23 September 2003; and compare to Pakhomova v. Russia, no. 22935/11, §§ 88-90, 24 October 2013).

28.  There is nothing in the case file indicating that, until a late stage in the enforcement proceedings, the child was reluctant to meet his father. However, even when such reluctance eventually developed (see paragraph 17 above), it does not appear that this element was assessed by the authorities as an element justifying the non-enforcement of the judgment of 13 May 2016. The considerable time, during which the above judgment remained unenforced, frustrated the applicant’s rights, and had the eventual effect that his son became alienated from him.

29.  Having regard to the above considerations, the decision of the Town Court of 21 April 2021 rejecting the bailiff’s application for termination of the enforcement proceedings and the submission of the Town Prosecutor of 17 June 2021 established the bailiffs’ failure to take prompt and effective measures to enforce the judgment determining the applicant’s contact with his son (see paragraphs 16 and 19 above), the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment in question.

30.  There has therefore been a violation of the applicant’s right to respect for his family life, as guaranteed by Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. He further claimed EUR 22 (1,972 Russian roubles) in respect of costs and expenses incurred before the Court.

32.  The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

33.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 22 covering costs under all heads, plus any tax that may be chargeable to the applicant.

34.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 22 (twenty-two 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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                           Georgios A. Serghides
          Deputy Registrar                                                      President