CASE OF M.S. v. UKRAINE
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1986 and lives in Sumy. 6. The applicant had relations with V., a female student born in 1989. On 24 March 2008 V. gave birth to their daughter. On 29 August 2008 the applicant and V. registered their marriage. 7. From the time of the birth of the child the couple and their daughter lived in the applicant’s flat in Sumy. The applicant’s parents lived in the same flat and assisted the parents in bringing up the child. 8. In 2009 the applicant and V. were absent from home for six months, as they were working abroad. During their absence the applicant’s parents took care of the child. 9. In October 2010 the child was admitted to a child-minding centre in Sumy. 10. Between 2010 and 2011 V. worked abroad for six months. During that time the child was taken care of by the applicant and his parents. While working abroad, V. transferred funds to the applicant to support the family. 11. Relations between the applicant and V. grew worse and on 20 September 2011, after a quarrel with the applicant, V. took the child and moved from the flat without the agreement or knowledge of the applicant. The applicant was not informed of the place to where V. and the child moved to live. 12. On 28 September 2011 the applicant asked the police to establish the whereabouts of the child. He and his parents also conducted their own enquiries. 13. As was further established in the course of the domestic proceedings, V. moved to the village of Bezdryk, near Sumy, where she apparently cohabited with her uncle, F. (born in 1967). The applicant’s child was admitted to the child-minding centre located in the same village. 14. On 1 December 2011 the applicant found the child at the Bezdryk child-minding centre. According to the applicant, the child’s body bore bruises. He took the child back to his flat in Sumy and the following day submitted her for medical examination. 15. On 2 December 2011 a forensic medical expert examined the child and reported a red spot on the chin, measuring 1.5 cm by 0.8 , which – in the expert’s opinion – was “a sign of an earlier abrasion”. The expert also documented two abrasions on the nose, measuring 0.4 cm by 0.3 cm and 0.3 cm by 0.2 cm; a bruise on the back, measuring 2 cm by 1 cm; two bruises on the right shin, measuring 1.8 cm by 1 cm and 1.5 cm by 1 cm; and a red, itchy spot in the abdominal area. The expert stated that the injuries could have been caused by blunt objects three or four days before the examination. 16. The applicant asked the police to carry out a criminal investigation in connection with the injuries sustained by his daughter, who had allegedly explained that the injuries had been inflicted by V. 17. After her return to Sumy, the child continued to live with the applicant and his parents. V. was given access to the child only in the presence of the applicant or other persons that he trusted. 18. On 9 December 2011 the Zarichnyy district police of Sumy refused to open a criminal investigation in respect of the alleged abduction of the child, stating that the facts of the case did not indicate that the crime of child abduction had been committed. It was noted that the couple had not divorced and it had yet to be determined by the court with whom the child should reside. 19. On 13 December 2011 the Trostyanetskyy district police of the Sumy Region refused to open a criminal investigation in connection with the child’s injuries, as determined on 1 December 2011, for lack of corpus delicti. According to the police decision, the seriousness of the injuries had not been established; however, if the injuries had been minor, the applicant was free to institute a private prosecution against the person concerned. 20. On 28 March and 9 April 2012 the applicant’s mother requested the law-enforcement authorities to institute criminal proceedings against V. and F. under Article 156 § 2 of the Criminal Code. She considered that the child could have been a victim of sexual abuse in the period during which the latter had been living together with V. and F. in the village of Bezdryk. The applicant’s mother submitted that the child had told her personal stories which suggested that V. and F. might have engaged in sexual activities in view of the child and that F. had shown his genitals to the child. 21. On 9 April 2012, in the course of a pre-investigation inquiry, the applicant’s daughter was interviewed in the presence of the applicant’s mother. The child explained that during her stay with the mother in the village of Bezdryk she had regularly observed V. and F. naked, embracing and kissing each other and engaging in some “backwards and forwards movements” which she had not been able to understand; F. had taught the child how to kiss in an adult fashion, uncovered his genitals in front of her and asked her to touch his genitals. 22. On 14 April, 16 May and 31 October 2012 the Sumy district police, having conducted the pre-investigation inquiries, refused to open criminal proceedings for lack of corpus delicti. Those decisions were quashed as unsubstantiated by the supervising prosecutors, who ordered further measures, such as establishing the whereabouts of F. (who had not been interviewed), identifying and interviewing possible witnesses, inspecting the premises and the yard where the alleged crime could have been committed, and undertaking medical and psychological examinations of the child. 23. On 8 November 2012 the Sumy district police once again refused to open criminal proceedings against V. and F. on the grounds that there had been no corpus delicti. In their decision the police referred to the interviews with the applicant’s child, V., and other people. V. denied the allegations. F. could not be interviewed as he had moved abroad. In sum, the Sumy district police concluded that the available material had been insufficient to suggest that any crime had been committed. 24. On 8 May 2013 the applicant, relying on the new Code of Criminal Procedure of 2012, requested that an investigation be opened against V. and F. in respect of the alleged child sexual abuse. On the same day the Sumy district police opened a criminal investigation under Article 156 § 2 of the Criminal Code. The applicant was admitted to the proceedings as the representative of his daughter. 25. The investigator ordered that measures be undertaken to establish the whereabouts of F. During the investigation V. denied the allegations and submitted that she had been a victim of domestic violence, that she had been threatened and beaten by the applicant, and that this had prompted her to run away with the child on 20 September 2011; she also submitted that she had moved to the village of Bezdryk, where her grandfather lived, and that she had had no sexual relations with F., her uncle. When questioned, the applicant and his mother insisted on the truth of their previous statements. They underwent polygraph examinations which suggested that they had told the truth in their submissions. 26. On 3 October 2013 the applicant’s daughter was questioned in the presence of a psychologist and her grandmother (the applicant’s mother). The applicant’s daughter submitted in particular that F. had taken her hand and placed it on his genitals; that F. had taught her to kiss in an adult fashion; and that F. and V. had engaged in certain activities which she had not been able to understand and which she had earlier described to the applicant and the grandmother. 27. On 21 November 2013 a panel of experts carried out a forensic psychiatric examination of the applicant’s daughter. In the course of the examination, the child stated that F. had been touching her genitals and she, in compliance with his commands, had had to touch F.’s genitals. F. taught her to kiss in an adult fashion. The child stated that she had seen V. and F. naked and kissing each other; she then described the movements that she had observed V. and F. engaging in while in bed. 28. The experts found that the child had not been suffering from any mental illness at the time of the events or at the time of the examination; that she had not shown any tendency to fantasise; and that she was able to remember the circumstances of the events at issue and to give truthful statements in that regard. However, she could not understand the meaning of the actions that she had observed or in which she had participated. The experts concluded that the child could take part in the investigative measures. 29. On 9 April 2014 the deputy head of the investigation division of the Sumy regional police department ordered the investigator in charge of the case to immediately speed up the investigation, which, in his opinion, was being conducted too slowly. He requested the investigator to undertake a number of investigative measures. 30. On 28 April and 29 September 2014 the Sumy district police closed the criminal proceedings for lack of corpus delicti in the actions of V. and F. Having assessed the available material, the investigator found that there had been insufficient evidence submitted to enable the bringing of charges of sexual abuse. In the last decision the investigator also referred to the statements by F. who was questioned on 20 September 2014 and who denied all the allegations, arguing that they were totally false. 31. These two decisions were reversed as unsubstantiated by the supervising prosecutors, who ordered further investigation. 32. On 27 December 2014 the Sumy district police decided once again to close the criminal proceedings. In examining the statements of the applicant’s daughter, the investigator considered that these statements could not convincingly prove the alleged events since the child had made those statements belatedly; furthermore, the child had only been three years old at the time of the events in question. The investigator furthermore noted that these statements did not suggest anything in respect of mens rea, in particular whether there was any sexual intent in V.’s and F.’s alleged actions in relation to the child, or whether they had been aware of the fact that the child had been observing them during the alleged instances of sexual intercourse. 33. The investigator then referred to the statements of the applicant and his mother, as well as of the mothers of two girls with whom the child had used to play. The latter two women stated in particular that the applicant’s daughter had told them stories which had suggested that she had been subjected to sexual abuse while she had been living with V. and F. The investigator noted that those individuals had not directly observed the alleged instances of sexual abuse and that they had simply repeated statements made by the child. The investigator then stated that V. and F. denied the allegations of child sexual abuse. Other people, such as the child’s teacher at the child-minding centre and village inhabitants, had not provided any more precise information. Overall, the investigator concluded that the available material had been insufficient for him to conclude that V. and F. had committed the alleged crime. 34. On 6 March 2015 the Sumy district prosecutor’s office reversed the decision of 27 December 2014 as unsubstantiated. The supervising prosecutor found that the previous instructions given by the prosecutor’s office had not been followed and that it was necessary to take further investigative measures. 35. As of 20 January 2016, the investigation was ongoing. 36. On 20 June 2012 the Zarichnyy District Court of Sumy dissolved the marriage between the applicant and V. and ruled that the child should live with V. The court ordered the applicant to hand over the child to V. and to pay her a monthly amount for the support of their daughter. 37. In determining the place of the child’s residence, the court first established that until 20 September 2011 the child had lived with both parents and her paternal grandparents in the applicant’s flat and that all of them had participated in the upbringing of the child; the paternal grandparents had taken care of the child when both parents had been abroad for six months in 2009; when V. had been abroad for six months over 2010 and 2011 she had transferred money earned by her to the applicant to cover the needs of the family. On 25 October 2010 the child had been admitted to the child-minding centre in Sumy; the child had been accompanied to and from the centre by the applicant. 38. The court also established that on 20 September 2011 V. had taken the child and moved from the flat because of conflict between her and the applicant. On 25 October 2011 the child had been admitted to the childminding centre in the village of Bezdryk. The child had been accompanied to and from the centre by her mother. On 1 December 2011 the child had been taken from the centre by her father. Since that time the child had been living again in the applicant’s flat in Sumy. 39. In comparing the applicant’s flat and the flat where V. was then living, the court found that both flats were located in Sumy and offered appropriate conditions for the residence of the child. In that regard the court referred to the report of the local guardianship office, which stated that both parents provided adequate residential conditions for the child. As to the income of the parents, the father was employed and received a salary; the mother was a student but worked unofficially and had been abroad to earn money. Both parents had positive reference letters and the child had an equal attitude towards both of them. 40. The court dismissed as unsubstantiated the applicant’s allegation that the mother was negligent with the child and that she might have exercised physical violence against the child: in contrast to the results of the medical examination of 2 December 2011 documenting the injuries on the child’s body (see paragraph 15 above), the staff of the Bezdryk child-minding centre had signed a certificate stating that on 1 December 2011 the child had had no injuries; furthermore, the police had refused to institute criminal investigation in respect of the child’s injuries (see paragraph 19 above). The court concluded that there was no link between V.’s attitude towards the child and the latter’s injuries. 41. Relying on the United Nations Declaration of the Rights of the Child of 1959 the United Nations Convention on the Rights of the Child and Article 161 of the Family Code, the court found that the facts did not disclose any exceptional circumstances which could justify the separation of the child from her mother. Consequently, it determined that the child should reside with her mother. 42. The applicant appealed against that decision, arguing that the firstinstance court had breached substantive and procedural provisions of domestic legislation and international law. He submitted that in determining the place of the child’s residence the court should have been guided by the principle of the best interests of the child. The applicant insisted that on 20 September 2011 V. had secretly moved with the child from the flat and destroyed the stability of the child’s everyday life. The court had failed to properly examine the allegations that V. had behaved violently towards the child and the possibility that the child had been the target of sexual abuse during the period when she had lived apart from her father with her mother. The applicant emphasised that on 1 December 2011 he had lawfully taken the child back to his flat since the child had previously been permanently living in his flat and he had never given any consent for V. to change the child’s place of residence. In his opinion, the court had paid no attention to the fact that the child had been attached to the paternal grandparents and that her separation from them would be detrimental to her interests. Furthermore, the respective financial capacity of the applicant and V., as well as the residential conditions, had not been properly assessed. Important pieces of evidence had not been included in the case file and part of the evidence had been assessed wrongly – namely, the certificate issued by the Bezdryk child-minding centre regarding the child’s good state of health was a fabricated document that had been discredited by the forensic medical expert report of 2 December 2011. 43. On 9 August 2012 the Sumy Regional Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court. The Court of Appeal found that the allegations of child abduction, sexual abuse and physical violence had been groundless. As to the child’s attachment to the paternal grandparents, the Court of Appeal considered that the parents played a more important role in the upbringing of the child. Overall, the findings of the first-instance court had been lawful and reasonable. 44. On 14 September 2012 the Higher Specialised Court for Civil and Criminal Matters dismissed a cassation appeal lodged by the applicant as unfounded.