The inability to execute an interim measure order and a court decision for the assignment of temporary and final custody violated the family life of a parent and a child
JUDGMENT
Υ.Υ. and Υ.Υ. v. Russia 08.03.2022 (app. no. 43229/18)
SUMMARY
Obligation of the authorities to assist in the execution of custody decisions. Right to respect for family life.
The plaintiffs, mother and son were alienated when the ex-husband and father of the child, without any right, abducted the child after school and “hid” it from the mother. The mother appealed to the courts, which granted her temporary custody by an interim measure and then, with an irrevocable decision, the final custody of the child. However, these decisions could not be executed for 2.5 years due to the inability of the bailiffs and other competent authorities to take the necessary actions.
The Court found that the enforcement efforts made by the bailiffs in the present case were not sufficient to ensure the speedy execution of the judgments. The ECtHR considered that the Russian authorities had failed to take, as they should have, all the measures reasonably expected for the execution of the decisions granting temporary and final custody to the first applicant.
The ECtHR found a violation of the applicants’ right to respect for their family life, as guaranteed by Article 8 of the ECHR, and awarded the first applicant EUR 3,300 in respect of non-pecuniary damage and EUR 4,000 in respect of costs and expenses.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, Y.Y. and Y.Y., are Russian nationals who were born in 1983 and 2011 respectively and
live in St Petersburg. They are mother and son.
The case concerns court proceedings concerning the determination of the second applicant’s place
of residence, and the enforcement of the subsequent order that he should live with his mother. The
first applicant’s marriage with the child’s father ended in 2014, after which the latter collected the
child from school and refused to return him to his mother.
Relying on Article 8 (right to respect for private and family life) of the European Convention on
Human Rights, the applicants complain of a failure on the part of the domestic authorities to enforce
the domestic court decision regarding their family situation.
THE DECISION OF THE COURT…
The general principles relevant for the Court’s assessment are summarised in Gubasheva and Ferzauli v. Russia (no. 38433/17, §§ 43-44, 5 May 2020).
The Court observes that on 14 January 2016 the Kuybyshevskiy District Court of St Petersburg decided that, pending the outcome of the residence proceedings between the first applicant and the second applicant’s father, the second applicant, then aged four years and ten months, should reside with the first applicant, his mother. It further observes that by the judgment of 22 September 2016, which became final on 13 February 2017, the District Court granted the first applicant a residence order in respect of the second applicant. It was not however until 8 August 2018, that is, two and a half years later, that the applicants were reunited. Accordingly, it has to be determined whether the national authorities took all the necessary steps which could reasonably have been expected of them to facilitate enforcement of the above judgments.
The Court notes that, following a claim by the first applicant, on 6 September 2017 the Meshchanskiy District Court of Moscow found the bailiffs’ inaction in the enforcement proceedings in the period between January 2016 to July 2017 unlawful and awarded her the equivalent of 650 euros in compensation for non-pecuniary damage.
The Court considers that, although the domestic court expressly acknowledged that there had been a breach of the first applicant’s right to respect for her family life in the period between January 2016 and July 2017 and awarded her compensation for non-pecuniary damage, she retained her victim status as no proper enforcement had been secured and the applicants continued to be separated.
As regards the subsequent period between July 2017 and August 2018, the Court observes that between 26 July and 28 December 2017 only two attempts were made to reunite the applicants, both of which were unsuccessful owing to organisational oversights: firstly, failure to notify the first applicant in sufficient time and, secondly, failure to co-ordinate the enforcement measure with the other competent authorities . While it became clear during the subsequent attempt at enforcement carried out on 23 January 2018 that it would be complicated by the child’s emotional state and prolonged separation from his mother, no measures were taken by the bailiffs to prepare him for the subsequent enforcement attempts carried out at short intervals in May to June and August 2018. The Court notes the presence of the childcare authority and a psychologist during some of the enforcement measures. However, given the irremediable consequences that the passage of time has on the relationship between a child and parent, the Court finds that the implementation measures taken by the bailiffs were not adequate in the present case to ensure swift implementation of the enforcement order.
Having regard to the foregoing, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the interim decision of 14 January 2016 and judgment of 22 September 2016, 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.
