CASE OF NAZARENKO v. RUSSIA
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1965 and lives in Ulan-Ude. 6. In 2007 the applicant’s wife, N., gave birth to a daughter, A. 7. In 2010 the applicant and N. divorced. 8. On 18 January 2011 the Oktyabrskiy District childcare and guardianship authority (hereafter “the childcare authority”) determined that A. would reside with the applicant during even weeks and with her mother, N., during odd weeks. In January, June, July and August A. was to live with the applicant for one week of his choice per month. 9. On 22 March 2011 the applicant discovered several bruises on A.’s body. Suspecting that she had been beaten and sexually abused by N.’s new partner, he refused to return A. to N. 10. During the following year A. lived with the applicant and her paternal grandmother. On several occasions the applicant allowed N. to visit A. in his presence. 11. On 25 March 2011 the applicant complained to the police and to the Oktyabrskiy District investigation committee that his daughter A. had been beaten and sexually abused by N.’s partner. The investigation committee opened a pre-investigation inquiry. 12. The applicant and N. both applied to the Oktyabrskiy District Court of Ulan-Ude for a residence order in respect of A. 13. On 25 April 2011 A. was questioned by an investigator in the presence of a psychologist, in the framework of the pre-investigation inquiry. A. stated that she wanted to live with the applicant because he was nice, whereas her mother and her mother’s new partner had treated her badly. She was again questioned by the investigator in the presence of a psychologist on 27 June and 3 August 2011, and confirmed her previous statements. 14. On 19 May 2011 the Oktyabrskiy District Court granted N.’s application for a residence order and refused the applicant’s similar application. The court found that both parents had taken an equal share in A.’s upbringing. They both had sufficient financial means and their standard of living was equally satisfactory. However, taking into account A.’s gender and age, it was preferable for her to be brought up by her mother. A child under the age of twelve could be separated from the mother only in exceptional circumstances. No such circumstances had been established in the present case. N. was employed and had sufficient income. There was no evidence of negligence or mistreatment on her part. A.’s bruises could have been sustained as a result of a fall or in the course of a game, and were insufficient to prove mistreatment. A criminal inquiry into the allegations of mistreatment was still pending. The court-appointed expert psychologist’s finding that A. was emotionally closer to her father and paternal grandmother than to her mother could not be taken into account in the absence of established evidence of mistreatment by the mother. The court concluded that it was therefore in A.’s best interests to live with her mother. 15. On 20 May 2011 the childcare authority noted that A. wished to live with her father. An inspection of the applicant’s flat had revealed that he had created all the appropriate conditions for A.’s normal development. The childcare authority therefore found that A. should reside with the applicant. 16. On 22 June 2011 the Supreme Court of the Buryatiya Republic upheld the judgment of 19 May 2011 on appeal. It found that the District Court had failed to consider the childcare authority’s findings and opinion and had therefore committed a serious breach of the procedure prescribed by law. However, given that the childcare authority’s opinion was advisory rather than binding on the court, the failure to consider that opinion did not warrant reconsideration of the judgment, which was correct in substance. 17. On 30 June 2011 the Oktyabrskiy District investigation committee opened criminal proceedings into the alleged mistreatment and sexual abuse of A. 18. As the applicant continued to retain A., N. applied to the Oktyabrskiy District Court for an injunction requiring the applicant to return A. to her. 19. On 29 November 2011 the Oktyabrskiy District Court allowed N.’s application. It found that the applicant had refused to comply with the judgment of 19 May 2011, upheld on appeal. It ordered that, in compliance with that judgment, the applicant should return A. to N. On 30 January 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal. 20. On an unspecified date the applicant applied for a second time to the Oktyabrskiy District Court for a residence order in respect of A. At the same time he applied for a restriction of N.’s parental authority over A. 21. On 23 January 2012 the Oktyabrskiy District Court dismissed the application and confirmed its previous order to the effect that A. should live with her mother, citing the same reasons as in the judgment of 19 May 2011. The court found no reasons to restrict N.’s parental authority over A. On 2 April 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal. 22. On 13 March 2012 N. kidnapped A. from the applicant. She has since prevented the applicant from seeing his daughter. 23. On 20 March 2012 A. was again questioned by the investigator in the presence of a psychologist. She said that she liked living with her mother and that her mother was treating her well. 24. On 23 April 2012 A. was examined by a panel of psychologists appointed by the investigator in the framework of the criminal proceedings. They found that A. was not suffering from any learning difficulties or disorders. However, owing to her age, level of development and susceptibility to external influence, she was unable to give reliable evidence about her relationships with her mother, her father or her mother’s new partner. 25. On 30 April 2013 the Oktyabrskiy District investigation committee discontinued the criminal proceedings, finding that there was no evidence of mistreatment or sexual abuse and that the bruises could have been caused by a fall. According to the experts, A.’s statements that her mother’s partner had treated her badly were unreliable. The witnesses had been unable to provide any information confirming the applicant’s allegations of child abuse. 26. The applicant applied for a third time to the Oktyabrskiy District Court for a residence order in respect of A. He also asked that N. be deprived of parental authority over A. 27. While those proceedings were pending, N. lodged an application with the Oktyabrskiy District Court, contesting the applicant’s paternity of A. She requested that his name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed. 28. On 23 July 2012 a DNA paternity test established that the applicant was not A.’s biological father. 29. On 18 September 2012 the Oktyabrskiy District Court allowed N.’s claims. It found that the applicant was not A.’s biological father and terminated his parental status in respect of her. It ordered that the applicant’s name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed to a family name and a patronymic not connected with the applicant. On 19 November 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal. 30. On 16 January 2013 the Oktyabrskiy District Court discontinued the proceedings concerning the applicant’s application for a residence order and an order to deprive N. of parental authority over A. The court reasoned that as the applicant was not A.’s biological father, he had no standing under domestic law to lodge civil actions concerning parental authority over A. or A.’s residence arrangements. The applicant was absent from the hearing because he was ill. 31. On 27 February 2013 the Supreme Court of the Buryatiya Republic upheld that decision on appeal. According to the applicant, he had not been informed of the date of the hearing. Nor was he informed about the appeal decision until 12 March 2013. 32. On 31 May 2013 a judge of the Supreme Court of the Buryatiya Republic refused to refer a cassation appeal lodged by the applicant to the presidium of that court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. It noted, in particular, that there was proof in the case file that a letter had been sent to the applicant on 7 February 2013 informing him of the date of the appeal hearing. Information about the hearing date had also been published on the court’s official website. The applicant had therefore been duly informed of the date of the appeal hearing.