CASE OF KUROCHKIN v. UKRAINE
Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste
5. The applicant was born in 1955 and lives in Kyiv. 6. On 26 July 2004 the applicant and his wife, Mrs K., adopted V.G., an orphan boy born in 1993. 7. From January 2005, due to conflicts between the applicant's wife on one hand and the applicant and V.G. on the other, they ceased to keep a joint household and the applicant's wife subsequently moved to their summer house. 8. In October 2006 the applicant sought annulment of his marriage with Mrs K. before the Shevchenkivskyy District Court of Kyiv (the Shevchenkivsky Court). 9. On 27 October 2006 the child welfare authority of the Vyshgorod Administration (Вишгородська районна державна адміністрація Київської області) delivered its opinion, at the request of Mrs K., on annulment of the adoption of V.G. It found that the relations between the adoptee and Mrs K. were negative, while the applicant had authority over the adoptee and positive relations with him. The report also mentioned that the boy had expressed the wish to stay with his adoptive father and that the applicant was willing to take care of the boy's upbringing. It finally recommended cancelling the adoption with respect to the applicant and his wife, as the relations between the latter had deteriorated, which had a negative effect on the boy, so that it would not serve his interests to stay in his adoptive family. 10. In November 2006 the applicant's then wife requested the Vyshgorod Court to annul the adoption of the child by her and her husband, on the grounds that the child had attacked her physically on several occasions and that her husband, who had been present during one of the incidents, had refused to stop the attacks. She supported her claim by the report of 27 October 2006. 11. In the course of the proceedings both the applicant and the child objected to Mrs K.'s request for annulment of the adoption by the applicant. The applicant did not object to the annulment of the adoption in respect of Mrs K. He also denied that he had ever witnessed Mrs K. being physically attacked by V.G. 12. Meanwhile, on 6 March 2007 the applicant and Mrs K. divorced. 13. On 20 July 2007 the applicant married Ms V.T. 14. On 9 August 2007 the Shevchenkivskyy Court allowed the request of the applicant's former wife and annulled the adoption of V.G. by her and by the applicant. In particular, referring to Article 238 § 1 (3) of the Family Code, the court held that the adoption by the applicant's former wife was to be annulled in view of the fact that relations between her and the adoptee had worsened, rendering it impossible for them to live as a family. The court based its findings on the statements of Mrs K. and medical evidence of injuries sustained by her. The court also referred to the testimonies of neighbours of the family and a report on V.G.'s personality of 9 August 2006 provided by his school that stated that he behaved aggressively, insulted and threatened the neighbours and on some occasions had beaten some of his schoolmates. The report of 9 August 2006 also mentioned that this aggressive attitude and lack of respect for others were hereditary traits and required treatment by specialists. The child welfare authority supported the claims of Mrs K. and submitted that annulment of the adoption would be to the benefit of the boy. 15. The court further held that the adoption of V.G. by the applicant was also to be annulled in the best interest of the child, regardless of the child's wish to stay with his adoptive father, which had been expressed before the court. It found that the applicant had disregarded the child's aggressive attitude towards his adoptive mother, which had caused the child to develop a negative attitude towards women and misconceptions about normal family relationships. The court ordered the child to be transferred to the child welfare authority for subsequent placement in an unspecified specialised institution. V.G. continued to reside with the applicant and has never been taken into care. 16. On 28 August 2007 the Shevchenkivskyy Court divided the flat between the applicant and Mrs K., his former wife. They received a room each within the flat while other facilities remained in common use. 17. On 17 December 2007 the Kyiv City Court of Appeal upheld the judgment of 9 August 2007. It dismissed the applicant's appeal and found that he had not adduced any evidence testifying that he was able to influence the boy positively and secure his normal personal development. According to the court of appeal the adoption was correctly annulled by the first-instance court on the basis of Article 238 § 1 (3) of the Family Code, and the mere fact of positive relations between the applicant and the child and his desire to remain the boy's adoptive father could not serve as a basis for reversal of the above judgment. The court of appeal concluded as follows: “The court correctly took into consideration that the annulment of the adoption ... could be also regarded as a sanction imposed on the boy for his disgraceful behaviour” 18. On 27 February 2008 the Supreme Court found no grounds to review the applicant's case in cassation. 19. On 3 June 2008 the Shevchenkivskyy District State Administration of Kyiv, at the request of the applicant and V.G. and in the interest of the latter, appointed the applicant guardian (піклувальник) of V.G. As guardian the applicant was entrusted with “protection of the rights and property interest of the child” and with “financial support and constant care for the boy's upbringing and his physical growth and development”. 20. On 11 September 2008 the applicant's former wife, Mrs K., lodged a claim with the Shevchenkivskyy Court and sought annulment of the decision of the Shevchenkivskyy District State Administration of Kyiv of 3 June 2008. She alleged that that decision had been taken in contradiction to the judgment of the Shevchenkivskyy Court given on 9 August 2007 and that V.G.'s residence in the flat posed a threat to her life. 21. On 23 September 2008 the Shevchenkivskyy Court assumed jurisdiction over the proceedings in the case. The parties did not inform the Court about further developments. 22. The relevant provisions of the Constitution read as follows: “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...” “...The family, childhood, motherhood and fatherhood are under the protection of the State.” 23. The relevant provisions of the Family Code of Ukraine read as follows: “(...) 4. The participation of a child welfare authority is obligatory during the examination of the cases concerning ... annulment of adoption by a court. 5. The child welfare authority shall submit to the court an opinion as to settlement of the dispute. The opinion should be based on the information obtained after inspection of the living conditions of the child, parents, other persons that wish to reside with the child or to take part in its upbringing, and any other documents related to the case. 6. The court may disagree with the opinion of the child welfare authority provided it is ill-founded and does not serve the interests of the child.” “1. Parents shall bring up their child in the spirit of respect for the rights and freedoms of others and of love for one's family, people and Motherland. 2. Parents shall take care of their child's health and well-being and of its physical, intellectual and ethical development. 3. Parents shall ensure that the child receives a full general secondary education... 4. Parents shall respect the child... 6. It shall be prohibited for parents to exploit their child. 7. It shall be prohibited for parents to apply corporal punishment to their child or any other punishment which may degrade the child's human dignity.” “(...) 4. The adoption confers the same rights and imposes the same obligations on the adoptive parent in respect of the adoptee as the [biological] parents have in respect of their child. 5. The adoption confers the same rights and imposes the same obligations on the adoptee in respect of the adoptive parents as the [biological] child has in respect of its parents.” “1. A court may order the annulment of adoption if: 1) the adoption contravenes the interests of the child, or does not ensure that the child is brought up in a family environment; 2) the child is mentally retarded, or suffers from a mental or other serious incurable illness, of which the adoptive parent was not aware and could not have been aware at the moment of adoption; 3) relations between the adoptive parent and the adoptee, independently of the adoptive parent's will, render it impossible for them to live together and for the adoptive parent to fulfil his or her parental obligations.” “1. Orphans or children deprived of parental care may be placed under tutelage or guardianship. 2. (...) guardianship is assigned in respect of a child who is between fourteen and eighteen years old.” “(...) The child welfare authority takes into consideration personal qualities, ability to bring up the child, attitude to the child and the wishes of the child itself when nominating a person as a tutor or guardian...” “1. The tutor or guardian shall bring up the child, take care of the child's health and well-being and of its physical, mental and ethical development, and ensure that the child receives a full general secondary education (...)” 24. The relevant provisions of the Law read as follows: “Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment” 25. This Resolution on judicial practice in cases related to adoption, deprivation and restoration of parental rights repeats the grounds for annulment of an adoption set out in Article 238 § 1 of the Family Code. 26. The relevant provisions of the Convention read as follows: “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence (...)” 27. The relevant provisions of the Convention read as follows: “1. An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration. 2. An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority.”