European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF BAHAROV v. UKRAINE

(Application no. 28982/19)

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

4 May 2023

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

In the case of Baharov 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. 28982/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 May 2019 by a Bulgarian national, Mr Daniel Krastov Baharov (“the applicant”), born in 1973 and living in New York, who was represented by Mr D.S. Krugovyi, a lawyer practising in Kyiv;

the decision to give notice of the complaint under Article 8 of the Convention regarding the duration of the domestic proceedings to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

 

Having deliberated in private on 30 March 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the allegedly excessive length of proceedings in which the applicant had sought the return of his child, born in January 2010, from Ukraine, where he had been living since July 2016 after having been taken there by his mother without the applicant’s consent, to the United States of America, the country of his habitual residence, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The applicant complained of a violation of Articles 6 and 8 of the Convention.

2.  The applicant’s aforementioned application was submitted to the Ukrainian authorities in October 2016. Upon that application, in April 2017 the Kharkiv Regional Department of Justice, acting on his behalf, instituted proceedings in the Kyivskyi District Court of Kharkiv, which eventually dismissed the application on 29 May 2017, having relied in particular on Article 13 of the Hague Convention setting out grounds for refusing the child’s return to the country of his or her habitual residence. The appeals lodged by the applicant against that decision were rejected by the Kharkiv Regional Court of Appeal on 30 August 2017 and by the Supreme Court on 29 November 2018. The child’s mother did not allow the applicant any contact with his child during the entire duration of the proceedings. After October 2018 the applicant was officially banned from entering Ukraine. According to the Government, the ban was issued because he was “involved in unlawful activities” and had “ties with criminal organisations”. More concrete information in that regard was classified and could not be provided.

THE COURT’S ASSESSMENT

3.  Relying on Articles 6 and 8 of the Convention, the applicant complained that the domestic proceedings in the present case, during which he had been unable to contact his minor child, had been excessively long. This allegedly led to the child’s alienation from the applicant.

4.  The Government contended that the duration of the proceedings had been justified by the need for a comprehensive examination of the circumstances of the case and that the applicant had been responsible for some of the delays as he had lodged appeals and procedural applications. The only delay attributable to the authorities had occurred during the examination of the applicant’s appeal on points of law by the Supreme Court and was a consequence of the judicial reform being implemented at that time in Ukraine.

5.  The Court considers that the applicant’s complaint falls to be examined solely under Article 8 of the Convention.

6.  The Court finds that the 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.

7.  The general principles concerning the requirement of urgent examination of cases under the Hague Convention, where the passage of time can have irremediable consequences for relations between children and a parent who does not live with them, have been summarised in, among other authorities, Vilenchik v. Ukraine (no. 21267/14, § 53, 3 October 2017).

8.  The Court notes that the domestic proceedings for the return of the applicant’s then six-year-old child lasted for over two years before the courts at three levels and involved delays attributable mainly to the authorities.

9.  In particular, it took the Kharkiv Regional Department of Justice around six months to institute the domestic court proceedings following the submission of the applicant’s application (see paragraph 2 above). This is too long given the urgent nature of the application, even if it can be accepted that the authorities had to clarify certain aspects of the case.

10.  The Court is mindful that a further delay for about one year before the Supreme Court (see paragraph 2 above), which started functioning in December 2017 following the implementation of the judicial reform of September 2016, might have been caused by the serious challenges it faced in the examination of appeals on points of law at that time, including a heavy workload (see Gumenyuk and Others v. Ukraine, no. 11423/19, §§ 6-16, 22 July 2021). Nonetheless, the overall length of the present type of proceedings, which significantly exceeded the six-week time-limit set out in Article 11 of the Hague Convention, even though that time-limit is not mandatory (see, for instance, M.R. and D.R. v. Ukraine, no. 63551/13, § 60, 22 May 2018, with further references), appears to be excessive.

11.  The applicant indeed partly contributed to the overall length of the proceedings by lodging procedural applications and appeals, but there is no evidence that he abused his procedural rights instead of engaging in legitimate procedural activity, and his actions caused no significant delays.

12.  In the light of the above considerations and also of the fact that the applicant was precluded from contacting his child, who was six years old when he was taken away by his mother, for such a long time during the proceedings, the Court finds that the authorities failed to examine the case in the most expeditious manner as required by Article 8 of the Convention in this type of dispute (see Vilenchik, cited above, §§ 53-56).

13.  There has therefore been a violation of that provision.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant claimed 25,000 euros (EUR) for non-pecuniary damage.

15.  The Government contended that the claim was unsubstantiated.

16.  The Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his 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 the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 4 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President