European Court of Human Rights

 

 

FIFTH SECTION

CASE OF PLESHKOV AND PLESHKOVA v. UKRAINE

(Application no. 5783/20)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

9 March 2023

 

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

In the case of Pleshkov and Pleshkova v. Ukraine,

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

          Carlo Ranzoni, President,
          Mattias Guyomar,
          Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 5783/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 13 January 2020 by two Ukrainian nationals, Mr Dmytro Gennadiyovych Pleshkov (“the first applicant”) and his daughter, Ms Alisa Dmytrivna Pleshkova (“the second applicant”; together “the applicants”), who were born in 1974 and 2011 respectively and, according to the most recent information, live in Kyiv and Irpin respectively, and were represented, most recently, by Ms M. Korniyenko, a lawyer practising in Kyiv;

the decision to give notice to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice, of the complaint under Article 8 of the Convention concerning the non-enforcement of a judgment on contact arrangements between the applicants, and to declare the remainder of the application inadmissible;

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

the parties’ observations;

Having deliberated in private on 9 February 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged failure of the authorities to implement a judgment given by the Dniprovskyi District Court of Kyiv on 24 October 2016 and amended by the Kyiv Court of Appeal on 21 February 2017, setting out contact arrangements between the first and the second applicant, who were living separately from each other. The applicants complained of a violation of Article 8 of the Convention.

2.  The second applicant’s mother, L., with whom she was living, failed to comply with those arrangements. For that reason, in the course of enforcement proceedings, which were initiated in September 2018 and are still ongoing, the bailiffs imposed two fines on L., which she did not pay, and ordered a temporary suspension of her driving licence. In addition, because L. had repeatedly failed to respond to their summons, the bailiffs unsuccessfully sought the initiation of criminal proceedings against her and a temporary ban on her leaving the country. On 10 November 2018, during the only meeting which the bailiffs organised between the applicants in the presence of L., the second applicant refused to communicate with the first applicant because she was afraid of him. According to the conclusions of a psychological examination, ordered by the bailiffs, of the second applicant on 26 June 2019, her negative attitude towards the first applicant was linked to the conflict between him and L. The psychologist pointed to the need to improve the relationship between the first applicant and L. as a precondition for re-establishing “psychological contact” between the applicants. The Government submitted that a representative of the local child welfare services had been involved in the enforcement proceedings, but they did not provide any further details.

THE COURT’S ASSESSMENT

3.  The first applicant complained, on his own behalf and on behalf of the second applicant, about the non-enforcement of the judgment given by the Dniprovskyi District Court on 24 October 2016. He relied on Articles 8 and 46 of the Convention, stating that the issue disclosed structural and systemic deficiencies in the domestic legal system.

4.  The Government contended that the first applicant had abused his right of application, as he had not presented all the relevant facts. He had been responsible for the lack of contact with the second applicant, since he had failed to “peacefully cooperate” with L. and instead had “prematurely” involved the police and the bailiffs in the dispute, whereas the latter had taken reasonable actions in view of the animosity which existed between L. and the first applicant. In addition, he could have applied to the courts to grant him custody of the second applicant.

5.  The Court considers that the present complaint is to be examined solely under Article 8.

6.  There is no indication that the first applicant failed to inform the Court of any essential facts. Even though he did not mention some information regarding the domestic proceedings, there is no reason to believe that this was premeditated or that it should be viewed as indicating an intention to mislead the Court.

7.  The Court further finds that the applicants’ 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 and the Government’s objections in this regard should be dismissed.

 

 

10.  Those findings are equally pertinent to the present case. Although it was promptly established and later confirmed by a psychologist that the second applicant was unwilling to communicate with the first applicant, the authorities took no further measures to assist the child in adapting to her father, from whom, it appears, she had become seriously alienated. In particular, no professional targeted support was provided to assist her in getting used to the idea of communicating with the first applicant, as well as to help L. to understand that this was in the child’s best interests, according to the binding judgment given by the Dniprovskyi District Court on 24 October 2016 (see paragraph 2 above, and compare Zhupan, cited above, § 33). In addition, the nature and the extent of the child welfare services’ involvement in that regard is unclear.

 

12.  On the whole, the Court, being mindful of the fact that the domestic authorities’ task in the present case was rendered difficult by the strained relationship between the first applicant and L., finds that the authorities did not fulfil their positive obligation under Article 8 to enforce the applicants’ contact arrangements as set out in the Dniprovskyi District Court’s judgment of 24 October 2016 (compare Begović, cited above, §§ 69-73). In these circumstances, the first applicant cannot be reproached for not applying to the courts to grant him custody of the second applicant.

13.  There has accordingly been a violation of Article 8.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicants jointly claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. The first applicant also claimed 68,000 Ukrainian hryvnias (equivalent to approximately EUR 1,800), plus value-added tax, corresponding to the sum he had undertaken to pay to the applicants’ representatives in the proceedings before the Court pursuant to the relevant legal assistance contracts, and EUR 500 for postal expenses.

15.  The Government contended that the claims were unsubstantiated and excessive.

16.  The Court awards the applicants jointly EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and EUR 1,000 to the first applicant for the costs and expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to him. The Court rejects the remainder of the applicants’ claim.

17.  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, 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 4,500 (four thousand five hundred euros) to the applicants jointly, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(ii) EUR 1,000 (one thousand euros) to the first applicant, plus any tax that may be chargeable to him, 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;

Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 9 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President