CASE OF Y.U. v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
6. The applicant was born in 1980 and lives in the town of Khimki, the Moscow Region. 7. In July 2004 the applicant married Mr O.A. 8. In the applicant’s submission, after the registration of the marriage her husband told her that his father, Mr M.A., was an influential person in the criminal world. She also submits that her husband has informal connections with police officers. 9. On 19 August 2004 the applicant gave birth to a son, M. 10. In 2007 marital tensions began to develop between the couple. 11. On 28 April 2008 Mr O.A. threw the applicant out of their family home without M. He said that he would take M. to Armenia and would not allow the applicant to contact the boy. 12. The applicant kept calling her son on the phone, but her husband’s family did not allow her to speak to M. Her attempts to visit her son were futile. 13. On 15 May 2008 the applicant instituted divorce proceedings before the Moscow Kuzminskiy District Court (“the district court”). She also requested the court to make an order concerning the child’s place of residence and to restrict Mr O.A.’s parental rights (“to remove a child from a parent” within the meaning of Article 73 of the Family Code of Russia). 14. On 25 August 2008 Mr O.A. and M. officially registered their place of residence as being at the Nikitskoe residence. In the applicant’s submission, Mr O.A. did not ask for her consent when changing M.’s place of residence. 15. In September 2008 the applicant saw her son for the first time since her separation from her husband for twenty minutes in the presence of Mr O.A., his mother and sister, as well as officials of child welfare authorities. 16. Two different district child welfare authorities examined the applicant’s and Mr O.A.’s respective places of residence. The Khimki Town Child Welfare Authority (“the Khimki child welfare authority”) delivered a report stating that it was in the best interests of the child to stay with the applicant, while the Moscow Kuzminki District Child Welfare Authority (“the Kuzminki child welfare authority”) decided that it was best for M. to live with his father, who had good living conditions and was prosperous. 17. On 13 November 2008 the district court dissolved the applicant’s marriage. It further found that the best interests of M. required that he reside with his mother. The judgment read, in so far as relevant, as follows: “Having assessed all [the available] evidence as a whole, the court sees no reason to order that the child’s place of residence be with his father after the dissolution of the marriage, since it has not been proven that his mother has acted in breach of the child’s best interests. For a lengthy period of time the child has been living with the defendant without his mother’s consent. The defendant has not taken any real steps to reunite the family after the institution of court proceedings and has not provided the claimant with an opportunity to see the child. ... The court disagrees with the conclusions of the Kuzminki child welfare authority, as they are based exclusively on the fact that the defendant has certain assets ... The defendant did not deny that he had kept the child at his place [of residence against the claimant’s will], which was not taken into account by the [Kuzminki] child welfare authority when drafting the conclusions. The child was born in 2004 ... Taking into account the his mother to bring him up, [and] the conclusions of the Khimki child welfare authority, the court considers it appropriate, while dissolving the parties’ marriage, to order that the child live with his mother, while ensuring his father’s rights as a separately-residing parent. The court has thus decided to dissolve the marriage ... The child ... should continue residing with [the applicant].” 18. Mr O.A. later asked the police to institute criminal proceedings against the applicant, claiming that she had hired a hitman to kill him. On 6 March 2009 the authorities dismissed the request and refused to open a criminal investigation against the applicant. 19. Mr O.A. sent letters to child welfare authorities claiming that the applicant was trying to kill him. At some point he alleged that he had been beaten up on the street by persons hired by the applicant. Criminal proceedings instituted in this respect were suspended owing to the authorities’ inability to identify those responsible. 20. At some point the Kuzminki child welfare authority changed its view and produced another report stating that M. should live with his mother. 21. On an unspecified date Mr O.A. appealed against the district court judgment and sought the withdrawal of the applicant’s parental rights because she had allegedly organised an attempt on his life. 22. On 22 January 2009 the Moscow City Court (“the city court”) quashed the district court judgment of 13 November 2008 in part as regards the child’s place of residence for the reason that the two child care authorities had issued conflicting reports and remitted the case for fresh examination at first instance. 23. On 17 April 2009 the district court again decided that M. should reside with his mother. The judgment read, in so far as relevant, as follows: “The representative of the Kuzminki child welfare authority ... considers it appropriate [for the court] to order that the child’s place of residence should be with his mother, but does not support [the applicant’s] claim to have the child removed [from his father] and considers it unsubstantiated. The representative of the Kuzminki child welfare authority supports [the applicant’s] claims and considers it necessary to order that the child live with his mother, having removed him from his father. ... The court grants the claims in part ... Under Article 73 of the Family Code of Russia a court ... may decide to remove a child from [his or her] parents (or one of them) without a withdrawal of parental rights. [Such a] restriction of parental rights is permissible where it is dangerous for a child to stay with [his or her] parents (or a parent) because of circumstances out of the parent(s) control, such as a mental illness or other disease or distressing circumstances. The Khimki and Kuzminki child welfare authorities established that ... [the applicant]’s room was equipped with everything necessary for the child ... The court has established that the defendant has impeded the claimant’s contact with the child, has breached the child’s rights to know who his mother is and to be brought up by his mother and has thus breached Articles 55, 56, 61 and 63 of the Family Code of Russia, while under the law in force he as a parent is obliged to protect the child’s rights and interests ... and not to breach the claimant’s rights concerning the child. Taking into account all the circumstances as a whole, the court finds no reason to order that the child’s place of residence be with his father, because it has been proven that his father has been violating the child’s rights and those of the claimant. For a lengthy period the child has been living with his father without the claimant’s consent, the defendant has impeded the child’s contacts with his mother. The defendant has not ensured that the claimant could stay in full contact with the child, [and] has not ensured the child’s right to be brought up by his mother ... Taking into account all the his mother to bring him up, [and] the conclusions of the child welfare authorities, the court considers it appropriate to order that the child live with his mother, while ensuring the father’s rights as a separately-residing parent. The claim to remove the child from his father is not granted [on that basis that it is] unsubstantiated, since the plaintiff has not shown, as required by Article 73 of the Family Code of Russia, that [the defendant] suffers from a mental or other illness or is in distressing circumstances. The court has decided to order that M., born in 2004, reside with his mother, [the applicant]. The remainder of the claims is dismissed.” 24. Mr O.A. appealed against the judgment. 25. On 6 August 2009 the city court upheld on appeal the judgment of 17 April 2009, which became final. 26. On 31 August 2009 the applicant was issued a writ of execution on the basis of the judgment of 17 April 2009 stating that the child should reside with his mother. The writ was issued on a form which was no longer in use after 15 August 2009. 27. The applicant sent the writ to the circuit bailiffs’ office. On 3 September 2009 the bailiffs’ service for the South-Eastern Circuit of Moscow (“the circuit bailiffs’ office”) delivered a decision refusing to institute enforcement proceedings because the writ was issued on an old form. They sent the decision to the applicant by post. She received it on 29 September 2009. 28. It appears that on a number of occasions the applicant visited the circuit bailiffs’ office premises in person. 29. On 15 September 2009, during one of those visits, bailiffs showed the applicant their office’s undated decision not to commence the enforcement proceedings but refused to officially serve it on the applicant, claiming that she would receive it by post. 30. The circuit bailiffs’ office did not return the writ of execution issued on the old form to the applicant, thus precluding her from immediately applying to the district court for a writ in the new form. 31. On 21 September and 28 October 2009 the applicant requested the district court to issue a writ of execution in the new form. 32. On 21 September 2009 the applicant’s representative requested the district court to order the immediate enforcement of the judgment of 17 April 2009. 33. In October 2009 a deputy head of the circuit bailiffs’ office notified the applicant in writing that their decision of 3 September 2009 had been unfounded. 34. On 19 November 2009 the district court issued a new writ of execution and the applicant received it on an unspecified date upon her request. 35. The applicant complained to a prosecutor’s office about the failure to institute enforcement proceedings. On 4 December 2009 the prosecutor’s office for the South-Eastern Circuit of Moscow dismissed her complaint, stating that a decision making an order in respect of a child’s place of residence was of a factual nature and could not be enforced under the Federal Enforcement Act 1997. 36. Nevertheless, on 11 December 2009 the circuit bailiffs’ office instituted enforcement proceedings but delivered a decision to postpone the use of enforcement measures for the reason that the manner in which the judgment required to be executed was not clear. For this reason, on 16 December 2009 the circuit bailiffs’ office requested the district court to clarify the requirements of the writ of execution and to specify the manner in which it should be enforced. 37. While awaiting the district court’s decision, the circuit bailiffs’ office postponed the use of enforcement measures because the writ of execution was unclear on 25 December 2009 and 18 January 2010. 38. On 28 January 2010 the Federal Migration Service issued M., upon his father’s request, with a passport enabling him to leave the territory of the Russian Federation. 39. On 29 January 2010 the district court dismissed the circuit bailiffs’ office’s request for clarification stating that, when performing his duties, a bailiff should use all powers provided for by law. 40. On 4 February 2010 the circuit bailiffs’ office sent an official summons to Mr O.A.’s address and also sent him an order to immediately comply with the judgment of 17 April 2009 as upheld on appeal on 6 August 2009. Furthermore, on 3 and 11 February and 21 April 2010 bailiffs from the circuit bailiffs’ office visited Mr O.A.’s place of residence indicated in the writ of execution on Zelenodolskaya Street in Moscow (“the Zelenodolskaya flat”). Mr O.A. was absent on all three occasions. The bailiffs established that Mr O.A. resided at the address in question and that M. was absent. 41. On 11 February 2010 the circuit bailiffs’ office received a request for termination of the enforcement proceedings from Mr O.A. for the reason that M. had moved from Moscow to the village of Nikitskoe, in the Ramenskiy District of the Moscow Region. 42. On 25 February 2010 Mr O.A.’s representative was served with an order requiring Mr O.A. to comply with the court judgment. The representative explained that Mr O.A. resided together with his son M. in the village of Nikitskoe. The representative asked the circuit bailiffs’ office to terminate the enforcement proceedings for the reason that Mr O.A. had moved away from Moscow, which resulted in a delay in the execution of the judgment. 43. On the following day the circuit bailiffs’ office asked the bailiffs’ service for the Ramenskiy District of the Moscow Region (“the Ramenskoe bailiffs’ office”) to visit Mr O.A. at the Nikitskoe residence. A bailiff from that office visited the Nikitskoe residence on 19 March 2010. Nobody was home but the bailiff established that both Mr O.A. and M. resided there. 44. On 7 and 10 April 2010 the applicant notified the police that her son had been kidnapped. 45. On 20 April 2010 a bailiff from the Ramenskoe bailiffs’ office again visited the Nikitskoe residence. Nobody was home but the bailiff established that Mr O.A. resided there and M. was absent. On the same day, however, police officers paid a visit to Mr O.A.’s house in Nikitskoe. Both Mr O.A. and M. were there. M.’s identity was confirmed by his passport, which Mr O.A. presented to the police. A police officer talked to M. in the presence of Mr O.A.’s adult family members. No further action was taken. 46. Towards the end of April 2010 the applicant visited the Moscow City Department of the Interior. Officers P. and O. told her that they had gone to Nikitskoe on 20 April 2010 and had seen her son. They produced a picture of a boy. The applicant did not recognise her son in that picture. 47. On 21 April 2010 a bailiff from the circuit bailiffs’ office visited Mr O.A.’s flat at 11 Ferganskaya Street in Moscow. Nobody opened the door at first. Mr O.A. later appeared and told the bailiff that M. was absent from the flat. He refused to receive a copy of the decision ordering the commencement of enforcement proceedings and requiring him to comply with the judgment. 48. On 19 May 2010 an investigator from the South-Eastern Circuit Investigative Unit of the Investigative Committee of the Russian Prosecutor’s Office (“the investigator”) visited the village of Nikitskoe. He met Mr O.A., his father, as well as M.’s aunt, uncle and cousin near a café not far from the Nikitskoe residence. The investigator talked to M. and his minor cousin in the presence of the adults. M. said that he lived with his father and the latter’s wife and that he did not want to live with his mother. The investigator made a video of M. and his minor cousin. 49. On 20 May 2010 the police unit in charge of cases involving minors paid a visit to the Nikitskoe residence and issued a certificate upon its examination confirming that Mr O.A. and his son M. lived in good conditions. The following day the Ramenskoe Town Prosecutor’s Office notified the applicant of the following. Mr O.A., his wife, parents and M. were residing in Nikitskoe in a six-room house. M. did not go to kindergarten but was receiving daily private lessons from a teacher hired by Mr O.A. In the event of M. having medical problems Mr O.A. personally took him to a Moscow hospital. Mr O.A. performed his parental duties in full and the child had a separate bedroom. M. resided in Mr O.A.’s house in Nikitskoe on a permanent basis. 50. On 22 May 2010 the investigator issued a decision not to institute a criminal investigation into the alleged kidnapping for lack of a criminal event, because the child lived with his father. 51. On 3 June 2010 the circuit bailiffs’ office issued a decision to search for the applicant’s son which was forwarded to the police on 29 June 2010. 52. On 8 July 2010 the applicant and a journalist went to Nikitskoe and saw Mr M.A. and M.’s cousin. Mr M.A. told the applicant that her son was not in the village. On the same date the police established that M. resided at the Nikitskoe residence confirmed by a photo of a police officer together with M. and his cousin. On 12 July 2010 the police communicated this information to the circuit bailiffs’ office. 53. The decision of 22 May 2010 not to institute criminal proceedings into the kidnapping was quashed on 30 July 2010 by the Moscow City Investigative Committee of the Russian Prosecutor’s Office. On 6 August 2010 a new decision not to open an investigation into M.’s kidnapping was taken but this decision was also quashed. 54. On 13 August 2010 Mr O.A. came to the Ramenskoe Town Prosecutor’s Office to give “explanations” concerning his son. 55. On 25 August 2010 a bailiff from the Ramenskoe bailiffs’ office again visited the Nikitskoe residence. Nobody was home. The bailiff established that Mr O.A. resided there and M. was absent. 56. On 2 September 2010 the Ramenskoe bailiffs’ office took over the case, having received the writ of execution, and opened enforcement proceedings. 57. On 9 September and 2 and 25 November 2010 bailiffs from the Ramenskoe bailiffs’ office visited the Nikitskoe residence. Nobody was home on these dates. 58. On 18 October 2010 the Ramenskoe District Council Child Welfare Authority (“the child welfare authority”) paid a visit to the Nikitskoe residence and established that M. lived there with his father. 59. On 2 November 2010 the investigator together with a bailiff from the Ramenskoe bailiffs’ office, a representative of the child welfare authority, the applicant and her mother came to the Nikitskoe residence. Nobody was home. The investigator questioned the neighbours, who confirmed that Mr. O.A.’s family lived there most of the time. The authorities established that Mr O.A. might reside at three other Moscow addresses. 60. On 9 November 2010 the investigator visited two flats in Moscow: one at 11 Ferganskaya, and another one at 13 Ferganskaya Street. It was established that Mr O.A.’s brother lived at 11 Ferganskaya Street, while Mr O.A.’s sister resided at 13 Ferganskaya Street. Both explained that Mr O.A. lived at the Nikitskoe residence. 61. On 10 November 2010 the investigator again decided not to open a criminal case concerning the allegation of kidnapping. 62. On 29 November 2010 the Ramenskoe bailiffs’s office summoned Mr O.A. to their premises on 1 December 2010. Mr O.A. failed to appear. 63. On 30 November 2010 the applicant complained to the district court about the investigator’s decision of 10 November 2010 not to open criminal proceedings. The complaint was returned to the applicant in order for her to eliminate defects in the document. 64. On 2, 17, 25, 26, 27 and 29 December 2010 bailiffs from the Ramenskoe bailiffs’ office, accompanied on some occasions by the police and the applicant, visited the Nikitskoe residence. Nobody was home. 65. On 23 December 2010 the Ramenskoe bailiffs’ office ordered a temporarily limit on Mr O.A.’s freedom to leave the Russian Federation and forwarded the order to the border control service. On the same date the Ramenskoe bailiffs’ office decided to search for the child and forwarded a decision in that regard to the police. They repeated their request on 28 December 2010. 66. On 29 December 2010 a bailiff from the Ramenskoe bailiffs’ office imposed a fine of 1,000 Russian roubles (approximately 25 euros) on Mr O.A. for a continuing failure to comply with the requirements of the writ of execution. 67. On 4 January 2011 the district court dismissed the applicant’s complaint about the prosecutors’ refusal of 10 November 2010 to institute criminal proceedings in connection with her son’s kidnapping. 68. On 5, 12 and 17 January 2011 bailiffs from the Ramenskoe bailiffs’ office visited the Nikitskoe residence. Nobody was home. They also asked the police to send a police officer on a daily basis to the Nikitskoe residence in order to check whether Mr O.A. and M. resided there. 69. On 18 January 2011 the applicant lodged another complaint with the district court about the investigator’s decision of 10 November 2010. On 4 February 2011 the complaint was dismissed. On 23 March 2011 the Moscow City Court upheld the first-instance decision at final instance. 70. It appears that on an unspecified date the Ramenskoe district department of the interior decided to resume the investigation into the applicant’s allegations of kidnapping. In the course of this investigation, on 2 February 2011 an official from the unit in charge of cases involving minors questioned M. in the presence of his father. M.’s identity was confirmed by his passport. M. told the official that he wanted to live with his father. 71. On 7 February 2011 it was decided once more not to institute criminal proceedings into the alleged kidnapping. The applicant did not challenge the decision. 72. On an unspecified date the transport police informed the Ramenskoe bailiffs’ office that Mr O.A. had purchased a plane ticket to Sochi for 27 February 2011. On 27 February 2011 bailiffs came to the airport to question Mr. O.A. but he was not among the passengers boarding the plane. On the same date the bailiffs went to the Nikitskoe residence but Mr O.A. and M. were not there. 73. On 2 March 2011 the Khimki Town Police Department opened a file concerning the search for M. and put him on the federal search list. 74. On 10 March 2011 the Ramenskoe bailiffs’ office requested the district court to clarify the manner in which the execution of its judgment of 17 April 2009 should be carried out. On 21 March 2011 the district court issued a clarification concerning the execution of its judgment of 17 April 2009, stating that Mr O.A. was under an obligation to take M. to the applicant’s place of residence. 75. On 26 April 2011 the bailiffs suspended the execution proceedings in the absence of Mr O.A. and M. 76. On 10 May 2011 the police visited the Nikitskoe residence. Mr O.A. and M. were absent. Mr O.A.’s father explained that they were in the Zelenodolskaya flat. 77. On 11 May 2011 Mr O.A. talked to a prosecutor on the phone and stated that he and his family were on vacation until the end of May 2011 and refused to give the particulars of M.’s whereabouts. 78. According to the Government’s submissions of 30 May 2011, M.’s whereabouts remained unknown to that date. 79. According to the information provided by the applicant on 13 September 2012, the judgment of 17 April 2009 remains unenforced to that date and M. continues to live with his father. The applicant submitted that she had not seen her son for several years. 80. Both parents have equal parental rights (Article 61 § 1). Parents have a right and an obligation to bring up their children. The parents’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1). A child’s place of residence in case of separation of the parents should be established by an agreement between the parents. If the parents disagree on a child’s place of residence, the dispute should be resolved by a court, taking into account the child’s best interests and their opinion. The court should consider how attached a child is to each parent, his or her age, the moral qualities of the parents, their material welfare, family status, and so forth (Article 65 § 3). A parent residing separately from his or her child has a right to contact him or her and to participate in his or her upbringing (Article 66 § 1). A court may restrict parental rights (“to remove the child from the parent”) if a parent could be dangerous to his or her child because of circumstances out of their control (a mental or other illness, distressing circumstances) or where their behaviour is dangerous for the child but not to the extent necessary to warrant withdrawal of parental rights (Article 73 § 2). 81. A bailiff must issue a decision to open enforcement proceedings or to refuse to do so within three days of receipt of a writ of execution (Article 30). The creditor, the debtor and the bailiff can ask the court which issued the writ of execution to clarify its provisions and the manner of its enforcement (Article 32 § 1). If the debtor fails to fulfil the obligations contained in the writ of execution within the time-limit established for doing so voluntarily, the bailiff shall recover an execution fee from the debtor and set up a new time-limit for the execution of those obligations (Article 105 § 1). If the debtor does not fulfil the obligations within the newly established time-limit, the bailiff shall impose a fine on the debtor (Article 105 § 2). The court must examine complaints about the decisions, actions or inaction of bailiffs within a ten-day time-limit (Article 128 § 4).