CASE OF KRAPIVIN v. RUSSIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1964 and lives in Perm. 6. The applicant’s son N. was born on 23 August 2005. 7. On 15 February 2009 the applicant killed his wife by stabbing her several times with a knife. She died on the same day. The applicant’s son, three years old at the time, witnessed the murder. 8. On 17 February 2009 the applicant was arrested. 9. On 3 April 2009 N.’s maternal grandmother V. was appointed N.’s guardian. 10. On 25 May 2010 the Dzerzhinskiy District Court of Perm found that the applicant could not be held responsible for the murder of his wife which had been committed owing to a temporary psychiatric disorder in the form of an acute reaction to stress. It ordered compulsory psychiatric treatment for the applicant in a psychiatric hospital. 11. On 3 August 2010 the Perm Regional Court (“the Regional Court”) upheld the above decision on appeal. 12. On 25 February 2011 the Ordzhonikidzevskiy District Court of Perm found that psychiatric treatment was no longer necessary and ordered the applicant’s release from the psychiatric hospital. 13. According to the certificate issued by the Perm Regional Clinical Psychiatric Hospital, the applicant remained under psychiatric supervision until March 2014. 14. On 10 March 2011 the applicant applied to the Ministry of Social Development for the Perm Region (“the childcare authority”) in order to have the child returned to him. 15. On 11 May 2011 the childcare authority rejected the applicant’s request. 16. The childcare authority and V. instituted court proceedings seeking to deprive the applicant of his parental responsibility over N. The applicant brought a counterclaim, challenging the childcare authority’s refusal to return the child to him and seeking the termination of V.’s guardianship over N. 17. On 16 August 2012 the Dzerzhinskiy District Court dismissed the application by the childcare authority and V. to deprive the applicant of his parental responsibility over N. It also dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him. In taking that decision the Dzerzhinskiy District Court relied on the report of a psychological examination of the child carried out on 6 July 2010 by a municipal centre for children’s psychological, medical and social adaptation. The report stated, in particular, that N. was in the process of developing the basis of his mental and psychological health, for which he needed stability, to be provided first and foremost by constant caregiver figures and a permanent place of residence. Based on the report the court found that N. had been living with and had been brought up by V. from the age of three, that he had not seen his father for over a year, since summer 2011, that the applicant had been working on shifts and was out of town every two months out of four, that N. was going to start primary school and that V. had already chosen a school near the boy’s place of residence. The court concluded that, in view of the age of the child and his attachment to V., a change of his place of residence could be traumatic and was therefore undesirable. The court noted, however, that the applicant still had the possibility to communicate with N. and meet him. 18. On 27 March 2013 the Regional Court upheld the above judgment on appeal. 19. On 22 May 2012 the Justice of the Peace of the 5th Court Circuit of the Dzerzhinskiy District of Perm ordered the applicant to pay child maintenance to V. in an amount that was equal to a quarter of his income, starting from 28 April 2012 until the child’s coming of age. The judgment became final on 18 September 2012. The applicant makes regular payments. 20. On 28 May 2012 the applicant applied to the Motovilikhinskiy District Court of Perm (“the District Court”) for contact rights. He submitted that V. was preventing him from seeing N. and asked to be granted visiting rights every Saturday or Sunday for three hours in V.’s presence. 21. During the hearing the applicant stated that it was very important for him to resume contact with his son. He was aware that his son, who had not seen him for a long time, needed time to get used to him again. He was ready to change his place of work to be able to adapt better to his son’s schedule. He also stressed that he paid child maintenance and supported him financially. He was under psychiatric supervision and his mental health had improved. 22. V. stated that the applicant had intentionally and cruelly killed N.’s mother. He had committed the murder in front of N. and had thereby caused him profound psychological trauma. The applicant should not be allowed to see N. as it would undermine his health and psychological development. It would therefore be against N.’s interests to resume contact with his father. 23. On 5 September 2012 the District Court ordered a psychological examination of N. to establish whether it was possible to resume contact between N. and his father, and if so what form that should take, and the frequency and duration of contact. The experts were also asked to establish whether contact between N. and his father could damage N.’s health or psychological development. 24. On 11 April 2013 the applicant informed the District Court that he would be on a business trip from 4 May to 6 June 2013 and asked that no hearings be scheduled during that period. 25. On 29 April 2013 the District Court scheduled a hearing in the case for 14 May 2013. 26. According to the Government, on the same day a court clerk notified the applicant of the hearing of 14 May 2013 by calling him on his mobile telephone, and on 7 May 2013 by sending him a letter by registered mail, which was, however, returned undelivered on 23 May 2013. 27. According to the applicant, he was never informed about the hearing of 14 May 2013. He submitted a list of telephone calls, provided by his mobile operator, showing that he had received no calls from the court. 28. On 14 May 2013 the District Court held a hearing. The applicant and his counsel were absent. V. did not attend either. The record of the hearing reads as follows: “The secretary reported on the appearance [of the parties at the hearing]. Failed to appear: plaintiff, defendant, notified. [Defendant] informed that impossible to participate at hearing owing to visit to a sanatorium with the child. ... The possibility of examination of the case in the absence of the parties is considered. [Representative of childcare authority]: [I] consider it possible. The court ... held: continue examination of the case ...” 29. On the same day the District Court dismissed the applicant’s application. The District Court took the following factual elements into consideration: - the applicant was the father of N., a minor, aged seven years old at the time; - the child’s mother had died on 15 February 2009 from multiple stab and cut wounds inflicted on her by the child’s father, the applicant; - pursuant to the decision of 25 May 2010 the applicant had been exempted from criminal responsibility for the murder of his wife and ordered to have compulsory psychiatric treatment in a psychiatric hospital; - the murder had been committed in the presence of the child; - on 25 February 2011 the compulsory psychiatric measures in respect of the applicant had been lifted; - on 3 April 2009 the child’s maternal grandmother V. had been appointed the child’s guardian; - the child resided with V., his housing conditions were adequate and he had been provided with the necessary clothing, a place for play and rest, as well as toys and books; - the applicant wished to see the child on a weekly basis, on Saturdays or Sundays, by taking him out to the cinema, theatre and other places for children and by being afforded an opportunity to stay with the child at his paternal grandparents’ house; - on 16 August 2012 the Dzerzhinskiy District Court had dismissed the claims of the childcare authority and V. to deprive the applicant of his parental responsibility over N. and had dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him; - the applicant’s housing conditions were adequate; - the childcare authority had expressed a view that the applicant’s claim should be dismissed as being contrary to the child’s interests; - that according to the report of 2 May 2009 issued by the municipal centre for children’s psychological, medical and social adaptation, presented by V.: “During the examination N. behaved restlessly, he wandered from room to room and performed chaotic movements with the keys. It can be assumed that the child is in a state of stress ... Only after a certain time ... the boy relaxed and started talking calmly, and agreed to draw a family. N. appeared stressed when drawing. On the drawing the boy depicted his mum, dad and himself. However, it is unclear why the whole family was drawn by the boy. This could reflect the child’s wish to have a full family, or it could mean that the murder of his mother has been erased from the child’s memory, which could be a defensive mechanism. Having compared N.’s references from the nursery school dated November 2008 and the above observations of 2 May 2009, it can be noted that the child’s behaviour has changed, showing signs of acute psychological and traumatic distress. This is confirmed by the child’s grandmother, who submitted that the child is agitated ... has difficulty falling asleep, cries in his sleep and has started to show aggression ... In the [psychological centre] N. also displayed verbal aggression to other children. [The psychologist] therefore came to the conclusion that N. needed timely psychological or psychotherapeutic assistance to overcome the consequences of a psychological trauma.” - reports from N.’s nursery school, dated November 2008, and from his current kindergarten; - the carrying out of a psychological examination of the child, as ordered by the court on 5 September 2012, had been impossible owing to V.’s refusal to allow the experts to have access to the boy, meaning the case material was returned to the court by the expert without enforcement. In the light of the foregoing, the District Court concluded that it was not in N.’s interests to resume contact with his father. The District Court noted, in particular, that the applicant had not submitted any information about the current state of his mental health, and he had not shown that his mental health had improved or that he did not present a danger to N. Furthermore, the District Court took into account the fact that N. had been brought up by his grandparents from the age of three, that he had an established way of life and that he had not seen his father for a long time. The applicant often left on long business trips, which would prevent weekly meetings. Lastly, both grandparents had refused to see the applicant because of their hostility towards him, which made it impossible to organise meetings between N. and the applicant. 30. In his appeal submissions the applicant complained, in particular, that a psychological examination of N. had never been performed. The finding that it was not in N.’s interest to resume contact with his father had therefore not been based on the assessment of an expert. He also complained that neither he nor his counsel had been informed of the date of the hearing of 14 May 2013. Lastly, he enclosed an expert opinion of 17 May 2013, which read as follows: “Conclusions: 1. In view of the incompleteness of the data [failure to examine N. in view of V.’s refusal to give the experts access to N.], the experts consider that at the present time only short meetings between [the applicant] and the child are possible (not more than two hours 2-3 times per month) in public places on condition that the child has a positive or neutral attitude towards the father. 2. An assessment of whether contact between the child and his father could damage the child’s health or psychological development is impossible given the absence of any data on the child’s psychological stability, his attitude to his father at the present time, or the influence of relatives on the child’s attitude to his father.” 31. On 26 June 2013 the applicant complained to the Perm Regional Judicial Department that the judge had included a false statement in the case file that he had been informed of the date of the hearing by mobile telephone. He enclosed a list of telephone calls provided by his mobile operator showing that he had not received any calls from the court. He also complained that a letter notifying his counsel of the date of the hearing of 14 May 2013 had only been dispatched on 20 May 2013. 32. On 23 July 2013 the Perm Regional Judicial Department replied that the fact of the belated notification of the applicant’s counsel had been confirmed. Given that an appeal against the judgment of 14 May 2013 was pending, that issue would be examined during the appeal proceedings. 33. On 18 September 2013 the Regional Court held an appeal hearing. The applicant and his counsel were both present. The Regional Court upheld the judgment of 14 May 2013, finding that it had been lawful, sufficiently reasoned and justified. It noted that an expert opinion could not be obtained because V. had avoided the experts. It was impossible to take into account the expert opinion of 17 May 2013 because it had been made after the firstinstance judgment. The District Court also found that a notification letter about the hearing of 14 May 2013 had been sent to the applicant’s address but had been returned to the court as undelivered. The failure to collect the notification letter from the post office had amounted to a waiver of the right to attend the hearing. 34. On 24 December 2013 a judge of the Regional Court refused to refer the applicant’s cassation appeal to the Presidium of the Regional Court for examination, finding that the judgment of 14 May 2013 had been lawful, sufficiently reasoned and justified. She noted, in particular, that the expert opinion of 17 May 2013 could not lead the court to change its findings because the experts had not been able to examine N. 35. On 13 February 2014 a judge of the Supreme Court of the Russian Federation also refused to refer the applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. 36. Despite the court’s decisions, the applicant resumed contact with N. over time, meeting the boy at school, and having telephone and Skype conversations with him. 37. On 23 December 2014 the applicant brought new proceedings against V., seeking to have her guardianship of N. terminated and for N. to be returned to him. V. brought a counterclaim to have the applicant’s parental responsibility restricted and to prevent the applicant’s contact with the child. 38. On 23 April 2015 the District Court dismissed the applicant’s application, having regard to the evidence below. 39. The District Court noted that N. lived with his maternal grandmother and guardian V. and that his housing conditions were adequate. During an inspection of the child’s living conditions, he had explained that he was comfortable living with V., and that they had a trusting and warm relationship. He also explained that he wished to continue living with his grandmother, but maintain contact with his father by meeting him from time-to-time and communicating with him by telephone. 40. The applicant’s housing conditions were also adequate. 41. The District Court noted the applicant’s submission to the effect that during his absences for work the child would live with his paternal grandparents. It further noted that the conditions at the paternal grandparents’ house were also suitable and that they were ready to look after N. in the applicant’s absence. 42. The District Court questioned N., who explained that he lived with his maternal grandparents and that he liked living with them. The boy also submitted that he communicated with his father, who visited him at school and had regular telephone and Skype conversations with him. His father took an interest in his health and his school results. N. expressed a wish to remain living with his grandmother because he had got used to it. 43. The District Court further found that it was clear from school reports that N. was showing good results at school, that his mental capacity was above average and that he was interested in studying. N. was being brought up by his grandmother V., who was actively engaged in N.’s school life. The applicant regularly visited N. at school. After such meetings N. only talked about computers and computer games, was less interested in studying, and became more sensitive and reserved. 44. Having therefore taken into consideration N.’s age, the fact that he had been living with V. from the age of three, was attached to her, loved her and had expressed a wish to continue living with her, and that the applicant’s working schedule required long absences, the District Court held that the child’s interests required that he continue to live with his grandmother, which would be more favourable to his development. 45. The District Court dismissed V.’s counterclaims. It held that there were no grounds to restrict the applicant’s parental responsibility or to ban his communicating with N. The applicant had positive references from work, the compulsory medical measures he had been undergoing had been lifted and he was no longer under psychiatric supervision. The applicant also cared about his son’s life and health, sought communication with him, maintained contact with him over the telephone and Internet, visited him at school, and made regular child maintenance payments. There had furthermore been no evidence that the applicant had any harmful influence on the child. The District Court emphasised that domestic law provided that a child had a right to communicate with his parents and that a guardian had no right to prevent such communication, except if it was contrary to the child’s interests. 46. On 2 September 2015 the Regional Court upheld the above judgment on appeal. 47. On 30 September 2015 the childcare authority carried out a monitoring visit at the child’s place of residence. It was established that V. did not prevent N.’s communicating with the applicant. N. submitted that he saw the applicant during breaks between classes at school and communicated with him over the telephone and by Skype.