CASE OF LAZORIVA v. UKRAINE
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Egidijus Kūris;Eva Brems;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
6. The applicant was born in Chernivtsi in Ukraine in 1966. In 1984 she moved to Magadan in Russia (which is about 12,000 kilometres away from Chernivtsi), where she obtained a teaching degree and has been working as a school teacher for over twenty years. 7. Her sister, K.T.O., a Russian national, also lived in Magadan for a certain period of time. In February 1993 K.T.O. gave birth to a girl, K.L.S., who is also a Russian national. In December 1993 K.T.O. together with K.L.S. moved to Chernivtsi, where her parents (the grandparents of K.L.S.) lived. Subsequently, the grandparents raised K.L.S. for about ten years. 8. In 2004 the applicant’s parents and K.L.S. moved to Ludinovo, the Kaluga Region in Russia (which is about 1,100 km away from Chernivtsi and about 11,000 km away from Magadan). In August 2007 K.L.S. moved to Magadan and, since that time, has lived together with the applicant in her flat. 9. By a decision of 29 December 2007, the mayor of Magadan appointed the applicant as the guardian of K.L.S., on the grounds that the child’s parents did not take care of her. 10. On 20 February 2009 the Magadan Town Court allowed a claim by the applicant and deprived the parents of K.L.S. of their parental rights in respect of the child, on the grounds that they had failed to take care of her for over fifteen years. No appeal was lodged and on 11 March 2009 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.L.S. had been informed of that judgment. 11. In March 2007 K.T.O. gave birth to a boy, K.O.S., whose nationality was disputed by the parties. According to the material submitted by the applicant, K.T.O., who was raising the child alone, failed to take care of him. For that reason, in November 2008 the Shevchenkivskyy District Court (hereafter “the Shevchenkivskyy Court”) in Chernivtsi ordered his placement in care (an orphanage). In March 2010 the same court ordered the child’s return to his mother. Subsequently, K.O.S. was taken to an orphanage on four other occasions. 12. The applicant claims that she and her parents visited K.O.S. in Chernivtsi on several occasions and maintained “a close family link” with him. In particular, she referred to her parents’ visits in April 2010 and May 2012 and her visit in August 2010. According to a copy of an undated letter from K.T.O., the applicant visited her and K.O.S. in Chernivtsi between 2010 and 2012 (no specific dates being indicated), and sent them parcels with food and clothes. 13. In March 2012 K.O.S. was taken into care as his mother had left him alone in her flat for over twenty-four hours. 14. On 5 July 2012 the Shevchenkivskyy Court deprived K.T.O. of her parental rights in respect of K.O.S., holding that she had not cared for him and had not played a part in his upbringing. No appeal was lodged and on 15 July 2012 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.O.S. had been informed of that judgment. 15. On 27 July 2012 K.O.S. was put on the list of children deprived of parental care who could be adopted. On 14 August 2012 the Executive Committee of the Chernivtsi Town Council gave K.O.S. the formal status of a child deprived of parental care. 16. In the meantime, on an unspecified date in July 2012 K.L.S. had visited Chernivsti to meet K.O.S. She discovered that he had been placed in an orphanage and informed the applicant accordingly. The applicant decided to become her nephew’s legal tutor (a guardian for children under fourteen). She informed the Tutelage and Guardianship Service of Magadan of her wish to become a tutor, and started collecting documents and certificates to make a formal application. In particular, on 22 August 2012 her flat was inspected by representatives of the Magadan Public Health Service, who found that the flat had adequate hygienic and sanitary conditions for the applicant’s family to accommodate K.O.S. 17. In August and September 2012 the applicant made a number of telephone calls to the Childcare Service of Chernivtsi and to the orphanage, asking them to take into account that she wished to become K.O.S.’s legal tutor, and that she was preparing the necessary documents to make a formal application. 18. At the applicant’s request, the Tutelage and Guardianship Service of Magadan sent a letter to the Childcare Service of Chernivtsi informing them that she wished to become K.O.S.’s legal tutor and that she had fulfilled her obligations as K.L.S.’s tutor. The Tutelage and Guardianship Service of Magadan also asked the Childcare Service of Chernivtsi not to consider other candidates for the role of K.O.S.’s tutor. 19. By a letter of 17 September 2012, the Childcare Service of Chernivtsi informed the Tutelage and Guardianship Service of Magadan that they had received the information about the applicant’s wish to become K.O.S.’s legal tutor on 4 September 2012. The Childcare Service of Chernivtsi further informed the Tutelage and Guardianship Service of Magadan: that a couple wishing to adopt K.O.S. had been given permission to establish contact with him prior to that date and had already submitted all the necessary documents for his adoption (see paragraphs 22-23 below); that an opinion in favour of that adoption would be issued; and that, on the basis of such an opinion, the couple would submit an adoption application to the Pershotravnevyy District Court in Chernivtsi (hereafter “the Pershotravnevyy Court”). Lastly, the Childcare Service of Chernivtsi noted that the applicant had the right to lodge a tutelage application with the same court, and advised her to do so “as soon as possible”. 20. On 10 October 2012 the Tutelage and Guardianship Service of Magadan issued an opinion stating that, given her personal situation and qualities, the applicant could become a legal tutor or guardian. 21. On 22 October 2012 the applicant went to Chernivtsi, mainly to initiate procedures with a view to becoming K.O.S.’s tutor and to meet him there. Ultimately, this was not possible, as he had been adopted by S.S.V. and S.O.V. prior to her arrival in Ukraine (see paragraph 26 below) and the Ukrainian authorities refused to help her to meet K.O.S. 22. On 30 August 2012 a married couple, S.S.V. and S.O.V., who were on the list of persons wishing to adopt a child, were allowed to meet with K.O.S. at the orphanage. 23. On 6 September 2012 they informed the Childcare Service of Chernivtsi that they wished to adopt K.O.S. and asked it to issue an opinion in favour of the adoption. 24. On 19 September 2012 the Executive Committee of Chernivtsi, acting in the exercise of its childcare related functions, issued an opinion in favour of the requested adoption. According to the committee, S.S.V. and S.O.V. were physically fit and had sufficient funds and facilities to accommodate and take care of K.O.S. They had established contact and a good relationship with the child and, according to the orphanage’s psychologist, the child wished to live in their family, although he could not give written consent as “he didn’t understand what adoption was because of his age”. It was also noted: that the child had a half-sister and an aunt who lived in Magadan; that in August and September 2012 the applicant and the Magadan authorities, respectively, had informed the Childcare Service of Chernivtsi of her wish to become the child’s legal tutor; that the applicant had been informed in reply that she could lodge an application for tutelage with a district court; and that no such application had been lodged. Lastly, the opinion read that, generally, adoption was “the preferred form of [a child’s] placement”, and that, in the present case, the adoption would be appropriate and in the interests of the child. 25. On 24 September 2012 S.S.V. and S.O.V. lodged an adoption application in respect of K.O.S. with the Pershotravnevyy Court. 26. On 2 October 2012 the Pershotravnevyy Court, having examined the case at a closed hearing with the participation of S.S.V. and S.O.V. and representatives from the Childcare Service and the orphanage, delivered a judgment granting the adoption. It also ordered that K.O.S.’s surname be changed to that of the adoptive parents and that S.S.V. and S.O.V. be registered respectively as his father and mother instead of his biological parents. 27. The court essentially relied on the information contained in the opinion of the Executive Committee of Chernivtsi. The court held that the requested adoption was in the interests of the child in being raised in “stable life conditions and in [an atmosphere of] harmony”. 28. The applicant was informed of the judgment of 2 October 2012 following a delay, though she did not specify how long the delay had been. 29. On 1 February 2013 the applicant lodged an appeal with the Chernivtsi Court of Appeal against that judgment, stating that it had violated her right to become her close relative’s legal tutor and her right to submit arguments against the adoption. In particular, the applicant argued: (i) that the Pershotravnevyy Court had failed to take into account the fact that K.O.S. had close relatives, his half-sister and aunt, who had not been informed of the proceedings and had not taken part in them; (ii) that the Pershotravnevyy Court had not checked K.O.S.’s nationality; (iii) that K.O.S. was a Russian national, as his biological mother had been a Russian national at the time when he had been born in 2007; (iv) that the procedure provided for in Ukraine’s relevant international treaties in relation to the adoption of foreign nationals had not been followed; and (v) that the Pershotravnevyy Court had disregarded the fact that she had informed the Ukrainian Childcare Service of her wish to become K.O.S.’s legal tutor and the fact that she had been preparing the necessary documents for this. 30. On 18 March 2013 K.L.S. sent a letter to the Court of Appeal stating that she and the rest of her family (notably her grandparents and the applicant) had a close connection with K.O.S. and that he wished to live with them. 31. On 4 April 2013 the Court of Appeal refused to examine the applicant’s appeal on the grounds that the judgment did not concern her right or interest in becoming the child’s legal tutor, or any obligations in that regard which in principle could be the subject matter of a separate claim. 32. The applicant appealed in cassation, mainly arguing that the Court of Appeal had failed to examine her arguments and that she had been deprived of access to a court, in violation of the procedural rules. 33. On 10 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal on the basis that it had not been demonstrated that the contested decision of the Court of Appeal was unlawful. 34. According to the applicant’s submissions of 29 March 2016, on an unspecified date K.T.O. left Ukraine for Russia and she currently resides with her parents (the grandparents of K.O.S.) in Ludinovo. 35. In December 2015 the Government submitted a copy of a verbatim record of an interview with K.O.S. which had been carried out by the childcare service in the locality where he had lived with S.S.V. and S.O.V. on 19 February 2013. According to that record, the child, inter alia, expressed the wish to continue living with his adoptive parents, who were present during the interview, and said that he had no aunt or uncle. The applicant contended that this information could not be accepted, as it had not been checked with her participation and contradicted other material in the case file.