CASE OF YUSUPOVA v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1973 and lives in Grozny. 6. In September 2006 the applicant began living with A.A. 7. On 24 June 2007 she gave birth to a son, A.-M. 8. In September 2007 relations between the couple deteriorated and they separated. The child continued to live with the applicant. 9. In August 2011 the applicant’s brother-in-law, M.A., asked the applicant’s permission to take the child for a couple of days to see his father, A.A., who was visiting from Moscow. The applicant agreed. 10. The child was never returned to the applicant. A.A. took the boy to Moscow, and the applicant has not seen him since. She twice went to Moscow to find A.A., but in vain. 11. On 30 September 2011 the applicant applied to the Oktyabrskiy District Court of Grozny (“the District Court”), seeking to determine the child’s place of residence as being with her. She also asked the court to order A.A. to pay child maintenance. 12. On 24 October 2011 the District Court took a decision to leave the applicant’s claim without consideration owing to a failure by the parties to appear. 13. The applicant went to the police, asking for their help to locate A.A. 14. On 10 June 2012 the proceedings were resumed at the request of the applicant. 15. A.A. lodged a counterclaim with the District Court, seeking to have the child’s place of residence to be determined as being with him. 16. On 27 December 2012 the District Court decided that the child should live with his mother, the applicant, and that A.A. should pay the applicant child maintenance. A.A.’s application for a residence order was dismissed. A.A. appealed. 17. On 7 May 2013 the Supreme Court of the Chechen Republic (“the Supreme Court”) upheld the judgment of 27 December 2012 on appeal. 18. On 24 July 2013 the District Court clarified its judgment of 27 December 2012 and held that the operative part of the judgment should read as follows: “to remove the minor [child’s name], born on 24 June 2007, from [A.A.], residing at the address ..., and to hand him over to his mother P.A. Yusupova”. 19. However, A.A. refused to comply with the judgment. 20. On 12 August 2013 the District Court issued a writ of execution. 21. On 21 August 2013 bailiffs from the Inter-district Bailiffs Service of the Chechen Republic opened enforcement proceedings. 22. It was established from A.A.’s mother that A.A. lived in Moscow. Consequently, the enforcement file was referred to the Golovinskiy District Bailiffs Service in Moscow. 23. On 22 August 2013 a bailiff from the Golovinskiy District Bailiffs Service visited A.A.’s presumed place of residence in Moscow and established that A.A. and the child did not live there and were not registered there. The relevant report was drafted. 24. On 5 September 2013 the bailiff received a statement from the owner of the above-mentioned flat, who stated that A.A. and the boy had left the flat in August 2013. 25. The bailiff obtained further information that in 2013 the child had not attended his kindergarten in Moscow, kindergarten no. 615, and that there was no data about A.A. in the individual personalised tracking system of the Russian Pension Fund for Moscow and Moscow Region. 26. On 9 December 2013 the enforcement file was returned to the bailiffs service in the Chechen Republic. 27. On 25 March 2014 a bailiff from the Oktyabrskiy District Bailiffs Service of Grozny found that his counterparts in the Golovinskiy District Bailiffs Service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment of 27 December 2012. Namely, they had failed to inspect the premises and draw up the relevant act of inspection, to involve the local police in carrying out the enforcement measures, to question A.A.’s partner O.S., named as the child’s mother in his medical record, and to institute a search for A.A. and the child. On the same day the enforcement file was again referred to the Golovinskiy District Bailiffs Service in Moscow. 28. In June 2014 the applicant enquired with the Golovinskiy District Bailiffs Service about the progress of the enforcement proceedings. She was informed about the referral of the enforcement file to the Oktyabrskiy Bailiffs Service in Grozny in December 2013. 29. The applicant then contacted the Oktyabrskiy District Bailiffs Service of Grozny, which on 16 October 2014 informed her that they did not know the whereabouts of the enforcement file. 30. At the request of the Oktyabrskiy Bailiffs Service, on 10 November 2014 the District Court issued it with a duplicate of the writ of execution of the judgment of 27 December 2012. 31. On 10 February 2015 the applicant filed a court complaint about the inaction of the Oktyabrskiy District Bailiffs Service of Grozny. 32. On 11 March 2015 the District Court held that between 21 August 2013 and 10 February 2015 no enforcement actions had been carried out by the Oktyabrskiy District Bailiffs Service of Grozny to enforce the judgment of 27 December 2012. The District Court further held that the inaction of the bailiffs service had led to an unjustifiably long delay in the enforcement of the judgment, which violated the applicant’s right to judicial protection, including her right to have the judgment enforced. It therefore found the bailiffs service’s inaction unlawful and ordered it to remedy the above violations. 33. On an unspecified date after the above judgment the enforcement file was referred back to Moscow, where a search for A.A. and the child was instituted. 34. On 26 August 2015 A.A.’s right to leave the country was temporarily restricted. On the same day the Bailiffs’ Service for Moscow Region was entrusted with carrying out enforcement actions in Moscow Region aimed at establishing A.A.’s and the child’s place of residence with A.A.’s partner O.S. Enquiries were sent to the Health and Education Departments of Moscow to trace the child. Two of A.A.’s presumed places of residence in Moscow, including the one visited in August 2013 (see paragraph 23 above), were visited. Nobody opened the door at the flats in question or at the neighbouring flats. 35. On 5 October 2015 the enforcement file was referred to the interdistrict special enforcement unit of the Moscow Bailiffs’ Service (межрайонный отдел по особым исполнительным производствам неимущественного характера Управления Федеральной службы судебных приставов по Москве). 36. It was established that the child was not attending a school in Moscow and that he was not attached to any public health-care structure in that city. However, on several occasions he had consulted doctors and received treatment in medical establishments there, most recently in June 2015. It was further established that between January and October 2015 A.A. had not made any payments using his bank cards and that he had not married. 37. On 15 October and 21 December 2015 another two of A.A.’s presumed places of residence in Moscow were visited. It was established that A.A. had never lived at the first address. He had lived at the other address, but by that time the flat had been rented to someone else. 38. On 18 December and 24 December 2015 a bailiff asked the Moscow Veshnyaki District Department of the Interior (ОМВД по району Вешняки ГУ МВД России г. Москвы) and the State Inspectorate for Road Safety in Moscow (УГИБДД ГУ МВД России по г. Москве) respectively for assistance in searching for the child and locating A.A.’s vehicle. 39. On 30 December 2015 the bailiff ordered that A.A. be brought in by force. 40. On 31 December 2015 the bailiff attempted to bring in A.A. by force by paying a visit to another of his presumed places of residence in Moscow. However, the door was opened by a Ms V.I. who explained that A.A. did not live at that address on a regular basis, that he rarely visited and that she did not know his whereabouts. 41. On 14 January 2016 the bailiff sought the help of the joint stock company the Federal Passenger Company in order to obtain information about any railway travel by A.A. On 3 February 2016 it reported that A.A. had bought a train ticket from Nazran to Moscow for 30 April 2015. No tickets had been bought for the child. 42. On 27 January 2016 Sberbank of Russia provided the bailiff with information on the movement of money in A.A.’s bank accounts, with information about the cash dispensers where withdrawals had been made. 43. The search dossier was subsequently sent to the Department of the Federal Bailiffs Service for the Chechen Republic to establish the whereabouts of A.A. and the child and to obtain information from people residing at an address that had been indicated in Grozny. 44. To the present date the domestic authorities do not know the whereabouts of A.A. and the child and the judgment of 27 December 2012 remains unenforced. 45. The applicant sought to have criminal proceedings instituted against her brother-in-law for the alleged abduction of the child, but without success. After several rounds of pre-investigation inquiries, the Investigations Department of the Leninskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings for lack of evidence of a crime. The most recent refusal, dated 26 July 2012, was set aside on 10 August 2015 and an additional pre-investigation inquiry was ordered. 46. According to the applicant, she saw her son and A.A on 31 May 2012 while she was on her way to the Investigations Department. The applicant bent down to hug the boy. At that moment A.A. punched the applicant close to her left ear. She fell down, hitting her head on the pavement and lost consciousness. The applicant recovered in hospital and was subsequently diagnosed by a forensic medical expert as having a traumatic rupture of the left eardrum, intracranial hypertension syndrome, astheno-neurotic syndrome and bruising of the soft tissues of the left cheekbone. After several rounds of pre-investigation inquiries about the above incident, the Investigations Department of the Staropromyslovskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings against A.A. for lack of evidence of a crime. The most recent refusal, dated 23 October 2014, was set aside on 10 August 2015 and an additional preinvestigation inquiry was ordered. 47. No further information was made available to the Court regarding the outcome of the additional pre-investigation inquiries.