MIROSHNICHENKO v. UKRAINE
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicant, Mr Dmytro Vladyslavovych Miroshnichenko, is a Ukrainian national who was born in 1975 and lives in Lugansk, Ukraine. He was represented before the Court by Ms O. Seredynska, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy, of the Ministry of Justice of Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 July 2003 the applicant married Y. On 18 February 2006 their daughter was born. On 20 November 2006 the applicant’s wife attempted to commit suicide by jumping from a balcony. According to the applicant, on the same date his parents-in-law arrived and took away his nine-month-old daughter, whom the applicant had asked their neighbours to look after shortly before the incident. On 24 November 2006 the applicant’s wife died from her injuries without ever having regained consciousness. On 11 January 2007 the applicant instituted proceedings in the Artemivsky District Court in Lugansk seeking to have his daughter returned to him. The applicant’s parents-in-law lodged a counterclaim seeking to have full custody of the child. They alleged, in particular, that the applicant had ill-treated Y. and had taken poor care of his daughter. On 17 October 2007 the court found for the applicant. The court held that both the applicant and his parents-in-law were positively characterised and offered appropriate living conditions but that a father should be given priority over grandparents in determining the residence of a child. The court considered that it could not rely on various witnesses’ statements to the effect that the applicant had ill-treated his wife, because the witnesses were his wife’s friends, disliked the applicant and had never directly witnessed the events described by them. On 21 May 2008 the Lugansk Regional Court of Appeal quashed this decision and found against the applicant. It noted that on 16 February, 16 April and 9 October 2007 the Child Care Board for the Artemivsky District Council (“орган опіки та піклування Виконавчого комітету Артемівської районної у місті Луганську Ради”) had recommended that the applicant’s daughter should remain resident with the applicant’s parentsin-law as a change of home could lead to her suffering serious psychological trauma. According to the medical records submitted, the applicant’s daughter suffered from residual cerebral insufficiency and showed signs of “early childhood nervousness” syndrome. A medical expert assessment performed by the Lugansk Regional Forensic Medical Bureau (Луганське обласне бюро судово-медичної експертизи) on 14 November 2007 had concluded that a change of home could aggravate her state of health. The court also noted that a criminal investigation into whether the applicant had been culpable in Y.’s death (in particular, whether he had caused or contributed to her suicide) was still pending. The first-instance court had also erroneously disregarded the witnesses’ statements to the effect that the applicant had had a negative attitude towards his wife and his family. The applicant appealed, stating, inter alia, that his daughter’s illnesses had been diagnosed six months after she had been taken to live with his parents-in-law. On 1 October 2008 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. On 10 November 2009 the Zhovtnevyy District Court rejected an application by the applicant’s parents-in-law, lodged in October 2008, to deprive the applicant of his parental rights and noted that they were preventing him from seeing his daughter. This decision was upheld on 1 February 2010 by the Lugansk Regional Court of Appeal. On 19 September 2007 the Leninskyy District Prosecutor’s Office, after several refusals, instituted criminal proceedings against the applicant on suspicion that he had caused his wife to commit suicide. In 2008 the same prosecutor’s office twice terminated the proceedings for want of evidence of a crime. It would appear that these decisions were quashed and the case remitted for fresh investigation. On 9 September 2010 the criminal proceedings against the applicant were finally terminated for want of evidence of a crime. It was concluded that the applicant’s wife had been depressed, that she had been under the influence of the teachings of an esoteric sect and that she had jumped from the balcony. According to a medical expert report, Y. had had no injuries other than those resulting from her fall. This decision was not appealed against. On 15 January 2009 the applicant instituted proceedings requesting contact with his daughter. On 15 May 2009 the applicant modified his claims, requesting the award of a residence order regarding his daughter. Between May 2009 and April 2010 twenty court hearings were scheduled. Nine of them were postponed because the defendants or their lawyers failed to appear or requested additional time to make copies of the case file or to prepare their case. Three hearings were postponed because both parties or their lawyers failed to appear. In February-April 2010 the defendants did not appear at four subsequent hearings for various reasons. On 15 April 2010 the Artemivskyy District Court decided to consider the case in the defendants’ absence finding no serious reason to justify such absence, and found in favour of the applicant. On 30 June 2010 the Lugansk Regional Court of Appeal quashed this decision and remitted the case for fresh consideration. The court noted that on 15 April 2010 the defendants had requested the postponement of the hearing because their lawyer was ill and the first-instance court had disregarded this request in breach of Article 6 § 1 of the Convention. Between June 2010 and January 2011 seven hearings were scheduled, only one of which was postponed because the parties failed to appear. On 25 January 2011 the Artemivskyy District Court found for the applicant and held that his daughter should live with him. According to the medical reports referred to by the court, since 2007 the child had had consultations with a neuropathologist and had been diagnosed with a number of nervous system disorders which had a prenatal origin. However, during 2009-2010 the child’s mental and emotional health had improved and her condition was now stable. Therefore, the court concluded that there was no threat that the child’s health would worsen because of a change of home. Moreover, it was considered that the absence of contact with her father might aggravate the child’s health problems. On 19 May 2011 the Lugansk Regional Court of Appeal upheld the decision of 25 January 2011. It appears that these decisions were appealed against in cassation and by August 2011 the case was pending before the Supreme Court of Ukraine. The decision of 25 January 2011 became enforceable and there is no evidence that the defendants requested that its enforcement be postponed pending the cassation proceedings. No further information about these proceedings and about the current place of residence of the applicant’s daughter was provided by the parties. 1. The parents enjoy preferential right for their minor child to live with them. 2. The parents have the right to demand taking a minor child from any person who keeps him/her not in accordance with law or judicial decision. 3. The court may refuse to remove a minor child and to give him/her to the parents or one of them if it is established that this is contrary to the child’s interest.”