The execution of a court decision for the delivery of a minor child by one parent to another consists of a state obligation!

JUDGMENT

Gubasheva and Ferzauli v. Russia 05.05.2020 (no. 38433/17)

 see here  

SUMMARY

Execution of court decisions by the domestic authorities and the responsibility of the state. The first applicant, acting for herself individually but also on behalf of her minor daughter and the second applicant, applied for custody after her divorce from her husband, who had abducted her. The court granted the applicant the right to reside with her daughter, but the authorities were unable to enforce the decision for four and a half years.

The Court points out that the failure to comply with the court ruling for four and a half years has disrupted the family life of the applicans with adverse effects on the child’s mental health.

The ECHR found that the Russian authorities had failed to take, without delay, all the measures that could reasonably be expected of them in order to enforce the decision, although the father had been found and was not of unknown residence, therefore found that the right of the applicants  to their family life had been violated. The court awarded the mother the sum of 12,500 euros for non-pecuniary damage.

COMMENT

The decision of the Court on the responsibility of the state in the execution of civil judgments, especially those concerning the stay of minor children, is very useful. It is particularly pointed out that the negligence and inefficiency of the bailiffs is charged to the state, that is obliged to find solutions for the execution of the decisions and within a reasonable time.

PRINCIPAL FACTS

The applicants, Asya Gubasheva and Ramina Ferzauli, are Russian nationals who were born in 1989
and 2012 respectively and live in the Chechen Republic and the Republic of Ingushetia (Russia)
respectively. They are mother and daughter.

The case concerned the authorities’ failure to enforce a court order that the second applicant should
reside with her mother, the first applicant.

The first applicant separated from her husband R.F. in 2012. The second applicant continued to live
with her mother until August 2014, when R.F. abducted her. In February 2015 the first applicant
obtained a court order from the Sunzhenskiy District Court of the Republic of Ingushetia that the
second applicant should live with her.

The Sunzhenskiy District Bailiffs’ Service began enforcement proceedings in August of the same year.
The enforcement proceedings were subsequently passed between bailiffs services in Ingushetia and
the Republic of Chechnya as they tried to ascertain where R.F. lived, although they were never able
to find him at presumed places of residence in either Republic. In August 2016 a bailiff found him at
his workplace, when R.F. stated that he worked in the Republic of Ingushetia and lived in the
Chechen Republic, and that he did not intend to return the child.

R.F. was given an administrative fine of 1,000 Russian roubles (approximately 15 euros (EUR)) in
April 2016 for failure to comply with the residence order judgment. In November 2016 the District
Court held that the Sunzhenskiy District Bailiffs’ Service’s actions had been manifestly insufficient to
secure enforcement of the order and ordered the service to remedy the violations it had found.

The residence order in favour of the first applicant has yet to be enforced.

Relying in particular on Article 8 (right to respect for private and family life), the first applicant
complained on her own behalf and that of the second applicant that the authorities had failed to
enforce the residence order judgment.

THE DECISION OF THE COURT…

The Court notes, firstly, that it was common ground between the parties that the tie between the applicants constituted “family life” for the purposes of Article 8 of the Convention. The Court further notes that the judgment of the Sunzhenskiy District Court of the Republic of Ingushetia of 9 February 2015 granting the first applicant a residence order in respect of her daughter, the second applicant, then aged two years and eight months, remains unenforced some four and a half years later. Accordingly, it has to be determined whether in the particular circumstances of the case the national authorities took all the necessary steps which could reasonably have been expected of them to facilitate enforcement of that judgment.

The Court observes that the judgment of 9 February 2015 entered into force on 9 June 2015 and that on 5 August 2015 bailiff Ye. from the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetia opened enforcement proceedings in this connection.

The Court further observes that between 5 August 2015 and 27 February 2017 the enforcement file was on three occasions transferred from the Bailiffs’ Service in the Republic of Ingushetia to the Bailiffs’ Service in the Chechen Republic and back. This resulted from the domestic authorities’ failure to establish whether R.F. resided in the Republic of Ingushetia or in the Chechen Republic and, consequently, to determine which bailiffs’ service had competence to lead the enforcement proceedings.

The Court further notes that despite having established R.F.’s workplace in the Republic of Ingushetia and the fact that the second applicant was attending a kindergarten in the Republic of Ingushetia, the Bailiffs’ Service continued to transfer the enforcement proceedings to the Bailiffs’ Service in the Chechen Republic. Moreover, the fact that the second applicant’s whereabouts were ascertained would have enabled the bailiffs to take immediate measures in order to transfer her to the first applicant. However, no such measures were taken by the bailiffs.

Furthermore, despite R.F.’s open refusal to comply with the judgment of 9 February 2015, only one administrative fine, amounting to about EUR 15, was imposed on him on 11 April 2016.

The Court observes that on 22 November 2016 the District Court found the inaction of the Sunzhenskiy District Bailiffs’ Service to have been unlawful and noted that the actions taken by the bailiffs to enforce the judgment of 9 February 2015 had been manifestly inadequate, that the demands made by them had been of a limited and formal nature, and that long periods of inactivity had been attributable to the bailiffs. However, despite the District Court’s instruction that the bailiffs remedy the deficiencies in the enforcement proceedings, there is nothing in the case file to suggest that this was actually done.

The Court observes with serious concern that the judgment of 9 February 2015 determining the second applicant’s place of residence as being with her mother (the first applicant) remains unenforced, more than four and a half years after it was delivered. This inordinate period represents a very large part of the child’s life, with all the consequences this might have for her physical and mental well-being. It further undermines the tie between the applicants and thus seriously compromises their family life.

Having regard to the foregoing, and without overlooking the difficulties created by the refusal of the child’s father to comply, the Court concludes that the Russian authorities failed to take, without delay, all the measures that they could reasonably have been expected of them to enforce the judgment of 9 February 2015 and thereby breached the applicants’ right to respect for their family life, as guaranteed by Article 8.

There has accordingly been a violation of Article 8 of the Convention.

Having regard to its finding with regard to Article 8 of the Convention the Court considers that it is not necessary to examine whether there has been a violation of Article 13 in this case.

Just satisfaction

For the first applicant : EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, EUR 3,155 (three thousand one hundred and fifty-five euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, to be paid to the bank account of the SRJI.

For the second applicant holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the second applicant.


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