CASE OF CHERNETSKIY v. UKRAINE
Violation of Article 12 - Right to marry (Article 12 - Found a family;Marry);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1963. In 2002 he was convicted and sentenced to fifteen years’ imprisonment. At the relevant time the applicant was serving his sentence in a prison. 6. On 1 February 2005, following a request submitted by the applicant’s wife in accordance with Article 107 of the Family Code, the local civil status registry dissolved their marriage. The applicant was sent a notification about the divorce. 7. Later in February 2005 the applicant and his new female partner, K., were prevented from marrying as the applicant had not obtained a divorce certificate, as required by Article 116 of the Family Code. That document could be obtained exclusively by the applicant at the relevant civil status registry. 8. The applicant requested that he be escorted to the registry in order to obtain the divorce certificate. His request was refused as the domestic law did not provide for the escorting of prisoners on such grounds. 9. On 16 June 2005 the prosecutor informed the applicant that under Article 116 of the Family Code he had the right to remarry after he had obtained a divorce certificate. However, this would be possible only after his release from prison. 10. On 17 August 2005 the Deputy Minister of Justice considered a complaint lodged by the applicant concerning the authorities’ failure to provide him with a divorce certificate for the purpose of remarriage. He stated that under domestic law it was not possible to carry out the relevant actions in prison; nor was it possible to issue a power of attorney for another person to act on behalf of the applicant in relation to that matter. The Deputy Minster informed the applicant that amendments to the domestic legislation had been prepared. 11. On 23 January 2006 and 20 July 2007 the Ombudsman’s Office informed the applicant that they were aware of that issue and that amendments to the domestic legislation had been prepared by the Ministry of Justice. 12. On 30 July 2007 the State Prison Department informed the applicant that he would be able to obtain a divorce certificate after his release from prison. The amendments to the domestic legislation had yet to be considered. 13. On 16 October 2008 the Ministry of Justice issued Order no. 1761/5 providing for a temporary procedure for registering divorces and issuing divorce certificates in prisons. 14. In December 2008 the applicant was personally informed of the procedure introduced by the Ministry of Justice. 15. On 6 February 2009, at the applicant’s request, he was provided with a divorce certificate in prison. 16. On 13 July 2009 the applicant and K. applied for the registration of their marriage. On 14 August 2009 the local civil status registry registered their marriage.