Communicated on 5 November 2015
THIRD SECTION
Application no. 68163/14
Anton Petrovich AGEYEV and others
against Russia
lodged on 28 July 2014
STATEMENT OF FACTS
The applicants are four Russian nationals listed in the appendix. The first and second applicants live in Moscow and the third and fourth applicant live in the village of Raduzhnaya of the Moscow Region. They are represented before the Court by Ms N. Yermolayeva, a lawyer practising in Moscow.
The facts of the case, as submitted by the applicants, may be summarised as follows. The first two applicants are spouses and former adoptive parents of the third and fourth applicants.
A. Factual background to the case
On 19 March 2008 a district court in Moscow approved a full adoption by the first and second applicant of the third and fourth applicants, who at that time were two unrelated children. That judgment was upheld on appeal and became final on 11 April 2008. Following the adoption, the third and fourth applicants became brother and sister, their first names were changed to Gleb and Polina respectively, and their surnames and patronymics were also changed to reflect their adoptive parents’ surname and their adoptive father’s first name respectively.
On 20 March 2009 an incident took place in the applicants’ house. All the family was at home and the children were playing. At some point the second applicant saw the third applicant lying near the stairs. He was bleeding and had burns on his face. According to the first two applicants, they did not see how the incident had occurred, but they suspected that because of a momentary lack of supervision the third applicant might have scalded himself with hot water from an electric kettle on the second floor and then run downstairs, falling on the stairs. On the same date the first applicant took the third applicant to a hospital.
These events received wide media coverage, and the first and second applicants were accused by State officials and the public of cruelty in respect of their adoptive children before any formal findings were made in the context of an official investigation.
On 29 March 2009 the authorities removed the third and fourth applicants from the applicants’ family and placed them in State care, where they remain up to date.
On 17 June 2009 the Preobrazhenskiy District Court of Moscow revoked the adoption and cancelled the relevant entries in the official database concerning the parental relationship between the first two and the third and fourth applicants. This judgment was upheld on appeal by the Moscow City Court on 13 August 2009.
Criminal proceedings that were brought against the first and second applicants in connection with the incident of 20 March 2009 ended with the first applicant’s acquittal in respect of some of charges whilst the other charges against him were dropped. The second applicant was convicted of non-fulfilment of duties relating to the care of minors and of intentional infliction of mild harm to the third applicant’s health. As regards all other charges – infliction of physical sufferings through regular beatings in respect of a minor, intentional infliction of moderate harm on health in respect of a person in a helpless situation and knowingly leaving in a dangerous situation a person incapable of taking measures to save him- or herself due to young age – the second applicant was either acquitted or the charges were dropped.
Eventually, with reference to his acquittal, the first applicant attempted to have the judgment of 17 June 2009 reviewed in the light of new circumstances. That application was rejected by the Preobrazhenskiy District Court on 22 June 2011, as the court considered that the circumstances referred to by the first applicant could not be seen as new within the meaning of the applicable domestic law.
The first applicant also attempted to have the adoption restored. Since the domestic law did not contain any legal provision allowing for restoration of adoption in respect of adoptive parents whose parental authority had been removed, the first applicant requested the competent court to apply the legal provisions applicable to natural parents which provided for the restoration of their parental rights if they had previously had such rights restricted or stripped off, and to apply them in his case by analogy.
On 9 August 2011 and 20 February 2012 respectively, the courts at two levels of jurisdiction rejected that request, taking the view that the domestic law did not provide for the possibility of restoration of adoption after it had been revoked and that the law in respect of natural parents could not be applied by analogy in such cases.
The aforementioned events were described in detail in the case of Ageyevy v. Russia (no. 7075/10, §§ 6-102, 18 April 2013) brought by the first and second applicants. In its judgment, the Court found, inter alia, a violation of the applicants’ rights under Article 8 of the Convention on account of revocation of adoption of their children (see Ageyevy, cited above, §§ 133-55). The judgment became final on 9 September 2013.
B. The applicants’ current situation
After the third and fourth applicants had been removed from the first and second applicants in March 2009, they spent some time in children’s hospitals before finally being placed in the State childcare institution of Moscow “Social Shelter for Children and Teenagers” (hereinafter referred to as “the foster home”) situated in the village of Raduzhnaya of the Moscow Region of Russia, where they remain until present.
The first and second applicants come to see the third and fourth applicants once to twice times each week, bring toys, clothes and spend time with them in the foster home. By virtue of their status as former adoptive parents, with the adoption having been revoked owing to their own fault, the first and second applicants are banned from taking the third and fourth applicants home even for a short while (see D below).
C. The first and second applicants’ attempt to have the revocation of adoption cancelled in the light of new circumstances
1. Proceedings before a first-instance court
On 17 October 2013 the first and second applicants lodged with the Preobrazhenskiy District Court a request for review of its judgment of 17 June 2009 owing to new circumstances. They pointed to the findings made in paragraphs 133-55 of the Court’s judgment of 18 April 2013 as regards the revocation of adoption, and argued that, by virtue of Article 392 § 4 (4) of the Russian Code of Civil Procedure, a finding of a violation by the European Court was the ground for re-opening of the relevant domestic proceedings and reviewing of the domestic courts’ decisions taken in breach of an individual’s relevant rights under the Convention. They further argued that they as well as the third and fourth applicants continued to suffer very serious negative consequences of the domestic authorities’ decision on revocation of adoption, and insisted that those could not be adequately remedied by the just satisfaction award and could only be rectified by reconsidering the impugned decision. The first and second applicants therefore requested the Preobrazhenskiy District Court to set aside its judgment of 17 June 2009 and to take a new one rejecting an application for revocation of the first and second applicants’ adoption of the third and fourth applicants.
On 8 November 2013 the Preobrazhenskiy District Court examined the request. It heard the first two applicants and their representative as well as a public prosecutor and a representative of the Russian Representative for Human Rights. They all supported the request, stating that it would be in the children’s interests to annul the decision on revocation of their adoption by the first two applicants. A representative of a district department for social protection and a representative of the foster home, acting as the children’s legal representative, left the issue at the discretion of the court.
The Preobrazhenskiy District Court then found that the first and second applicants’ request should be rejected, as “it [had been] established that the finding by the European Court of violations of Article 8 of the Convention did not have a particular significance (существенное значение) for a correct resolution of [the applicants’] civil case, as those violations had not entailed an incorrect determination by the [Preobrazhenskiy District Court] of the legally significant circumstances of that case”.
The court further considered that disturbing the principle of legal certainty by reviewing a court’s decision that had become final may “provoke a significant change of the parties’ legal status that had been determined by such a decision, including to their disadvantage”.
The court also “took into account” the fact that in its judgment of 18 April 2013 the European Court had not “directly ordered” a review of the impugned judgment of the domestic court, as it restored the first two applicants’ rights by obliging the respondent State to pay them a just satisfaction award.
The court concluded that the arguments advanced by the first and second applicants in their request aimed at reassessing the evidence examined during the proceedings on revocation of adoption and reestablishing the circumstances of that case, which was not a ground for reopening the proceedings due to new circumstances.
2. Proceedings before an appellate court
The first and second applicants appealed against the decision of 8 November 2013 before the Moscow City Court, arguing that it had been taken in breach of Article 392 § 4 (4) of the Russian Code of Civil Procedure.
A representative of the foster home, acting on the third and fourth applicants’ behalf and in protection of their interests, also appealed against the aforementioned decision, stating, in particular, that it had contradicted to the principles of justice and humanity and had breached the third and fourth applicants’ right to live and be brought up in a family. The representative pointed out that for the last four years the children had to live in an orphanage and had been deprived of an opportunity to have a normal family life with their former adoptive parents. The official further submitted that in its decision of 8 November 2013 the Preobrazhenskiy District Court had failed to examine or even address a question of an unprecedented affection of the third and fourth applicants towards the first and second applicants whom the children considered to be their parents; the fact that the children wished to return to their home and family, as well as the existence of harmonic family relations between all the applicants which positively contributed to the children’s development. Moreover, the Preobrazhenskiy District Court had not considered nor taken into account the children’s age, the relations between them, and more specifically, the fact that they considered themselves to be natural brother and sister, which made it impossible their transfer to another family without inflicting a serious psychological trauma on them. The representative insisted that the court had not given due consideration to the protection of the third and fourth applicants’ rights and interests and failed to assess duly all relevant circumstances. The representative thus requested the Moscow City Court to set aside the first-instance decision of 8 November 2013 and to grant the first and second applicants’ request to reconsider the judgment of 17 June 2009.
Lastly, a public prosecutor, acting in protection of the children’s interests, also appealed against the decision of 8 November 2013 as taken in breach of national law and unfounded.
On 24 January 2014 the Moscow City Court rejected all appeals and upheld the decision of 8 November 2013. The appellate court endorsed the conclusions of the Preobrazhenskiy District Court summarized above. It further held as follows:
“... A finding by the European Court of Human Rights of violations of a particular applicant’s rights is not, as such, an unconditional ground for a review of a court decision taken in that applicant’s respect at the domestic level.
Where the European Court of Human Rights finds a violation of the Convention provisions aiming at securing the principle of fairness of proceedings before the national courts, [such a finding] can be a ground for a review of a domestic court’s decision in accordance with procedure established by law, unless there are any objective obstacles [for such a review].
Where the European Court of Human Rights finds a violation not involving any breach of the principle of fairness of proceedings before national courts ..., [such a finding] cannot be a ground for a review of the domestic court’s decision, as the violation that, in the European Court’s view, took place in respect of a particular applicant is compensated either by a finding of a violation, as such, or by payment of a just satisfaction awarded by the European Court of Human Rights in that applicant’s favour.
The right to a fair trial is secured by Article 6 of the Convention.
At the same time, there is no objective reliable evidence that [the first two applicants’] application has ever been found admissible by the European Court of Huma Rights under Article 6 of the Convention.
It is clear from the aforementioned judgment of the European Court of Human Rights that the Court did not examine a question on whether the proceedings before this court in [the first two applicants’] civil case had met the requirements of Article 6 of the Convention.
...
Having examined [the first two applicants’] application, the European Court of Human Rights established violations of the provisions of Article 8 and not Article 6 of the Convention [in respect of the first two applicants].
Thus, the European Court of Human Rights did not establish any procedural errors or shortcoming capable of influencing the outcome of the proceedings at the domestic level.
As for the European Court’s considerations in paragraphs 143-155 of its judgment, those were of a general nature and did not amount to any finding that the legally significant circumstances had been established incorrectly by the domestic court in [the first two applicant’s] case.
Therefore, the European Court’s judgment cannot be, as such, a sufficient ground for a review of [the first two applicant’s] case due to new circumstances, as the guarantees of Article 6 in their respect were respected and their right to a fair trial was secured.”
The Moscow City Court further noted that in its judgment the Court awarded the first and second applicants 25,000 and 30,000 euro (EUR) respectively in respect of non-pecuniary damage, which, in the Moscow City Court’s view, constituted adequate redress for the violations of their rights under Article 8 established by the Court. The Moscow City Court thus concluded that in such circumstances the first-instance court had been justified in rejecting their request for reopening of their case.
3. Proceedings before courts of cassation
The applicants disagreed with the court decisions of 8 November 2013 and 24 February 2014 and on the latter date the first applicant lodged a cassation appeal before the Moscow City Court. He mentioned, in particular, that all the applicants endured severe suffering being unable to live together as one family, and that the third and fourth applicants were deprived of their home, family and the first two applicants’ parental love.
By a decision of 13 March 2014 judge T. of the Moscow City Court refused to accept the first applicant’s cassation appeal for examination, stating that the first-instance and appellate courts’ decisions did not disclose any violation of substantive or procedural provisions of the relevant domestic law. It upheld the lower courts’ conclusion that the violations of the first and second applicants’ rights established by the European Court of Human Rights had been redressed by the payment of the monetary compensation awarded to them by the Court, and that the Court’s judgment in the case of Ageyevy v. Russia had not expressly indicated that it was necessary to review court decisions taken in that case at the national level.
On 24 April 2014 the first two applicants lodged before the Supreme Court of Russia a cassation appeal against the previous court decisions. They argued, in particular, that the payment of pecuniary award in no circumstances could be regarded as adequate redress in their case, as their only wish was to have their family reunited, to be able to take care of their children – the third and fourth applicants – on a daily basis rather only once to twice times per week as had been the case for the last five years; they referred to the materials enclosed to their request for review confirming that the third and fourth applicants considered them as their only family, that they were looking forward to returning home to their loving and caring parents. The first two applicants requested the Supreme Court to set aside the court decisions of 8 November 2013 and 24 January and 13 March 2014, and to take a new decision by which to quash the judgment of the Preobrazhenskiy District Court of 17 June 2009 in the light of the newly discovered circumstances.
The first and second applicants’ cassation appeal of 24 April 2014 was supported by Ms E. Pamfilova, the Russian Representative of Human Rights, who in a letter of the same date addressed to the Supreme Court of Russia, stated, among other things, that during the examination of the first and second applicant’s request for the review of the judgment on revocation of the adoption, the Russian courts at three levels of jurisdiction had completely ignored the fact that the first and second applicants, on one part, and the third and fourth applicants, on the other part, had kept their affectionate parent-child relationship. Ms Pamfilova further pointed out that the fact that they had been remaining separated from their former adoptive parents for the last five years was causing a severe psychological trauma to the third and fourth applicants, who were very unlikely ever to find any new family for a number of objective reasons, including their age, their strong affection to the first and second applicants, their wish to be brought up only in the latter’s family. With reference to relevant provisions of national law and appealing to the principles of justice and humanity, Ms Pamfilova thus invited the Supreme Court of Russia to quash the lower courts’ decisions and to reopen the proceedings for revocation of adoption and to review the judgment of 17 June 2009. The representative also invited the court to inform her whether her presence was necessary during the examination of the first two applicants’ cassation appeal and to notify her of the results of that examination.
On 9 June 2014 judge P. of the Supreme Court of Russia examined the first and second applicants’ cassation appeal and Ms Pamfilova’s application in their support and rejected them, relying on the reasoning of the lower courts.
On 26 June and 1 July 2014 respectively, the first and second applicants as well as the Russian Representative for Human Rights appealed against the decision of 9 June 2014 to the President of the Supreme Court of Russia. They argued that the monetary compensation had not redressed the violations found by the European Court in its judgment of 18 April 2013, that by refusing to reopen proceedings and review the judgment on revocation of adoption, the domestic courts at four levels of jurisdiction had breached the applicable procedural law, and also had completely ignored all evidence confirming the continuing link between the first two and last two applicants and all arguments aiming at reuniting that family, including numerous motions to that end by the representatives of the foster home and custody and guardianship agencies.
It is unclear whether any reply followed.
D. Application to an administrative body
On 19 March 2014 the first two applicants wrote a letter to the Head of the Moscow Department for Social Protection, in which they described in detail their family’s situation. In particular, they pointed out that it had been five years since the third and fourth applicants had been removed from their family and placed in a foster home. They further stated that during all that period they would visit the third and fourth applicants in the foster home once to twice times per week, that they would express interest and participate in their children’s development, would bring toys, and clothes and would try, in so far as possible to compensate a lack of parental love to the third and fourth applicants. The latter, on their part, would express lively interest in the first two applicants’ life, would ask how the things were at home of which they kept distinct and clear memories, and would ask when the first two applicants would take them back home.
The first and second applicant went on to indicate that during all those years they would not lose hope to return their children to their family; that they would not cease to apply to domestic courts to that end, which attempts were fully supported by the third and fourth applicants’ legal representative – the director of their foster home – as well as by representatives of two custody and guardianship agencies in charge of their case. The first and second applicants further pointed to the Court’s judgment of 18 April 2013 in which a violation of Article 8 of the Convention had been found on account of revocation of the third and fourth applicants’ adoption by the first two applicants. They indicated that their application for review of the domestic courts’ decisions on revocation of adoption in the light of the Court’s judgment was now pending before the courts. The first and second applicants then added that at the same time they realised that the judicial proceedings would take time, which their children, aged 9 and 8 at that moment, did not have. Indeed, they continued growing in the foster home undoubtedly was very stressful and traumatising for them. The first two applicants argued that however good conditions in the foster home were, the third and fourth applicants were looking forward to returning home, and that keeping them there despite the fact that they had loving and caring parents – the first two applicants – was awful and inhuman.
The first two applicants thus requested the Moscow Department for Social Protection to enable them at least to take the third and fourth applicants home for the week-ends.
In a succinct reply of 10 April 2014, the Moscow Department for Social Protection quoted decree no. 432 of 19 May 2009 of the Government of Moscow, which prohibited a transfer, even for a limited period, of children from a foster home to their former adoptive parents if the adoption had been revoked owing to the latter’s fault, and Article 143 of the Russian Family Code, which stated that after revocation of adoption, all mutual rights and obligations of adoptive parents and an adopted child were cancelled. The letter then concluded that in the light of the aforementioned legal norms and the decision of the Preobrazhenskiy District Court of Moscow of 17 June 2009 by which the third and fourth applicants’ adoption by the first and second applicants had been revoked, a transfer of the third and fourth applicants to the first two applicants, even for a limited period, was impossible.
E. An interview of the applicant’s representative with the director of the foster home
On 22 July 2014 the applicant’s representative interviewed Mr A., the director of the foster home, who stated as follows:
“The [first and second applicants’] children, Gleb and Polina, knew that their parents’ case was being examined by the European Court of Human Rights in Strasbourg. They were hoping for and very much looking forward to that judgment of the Court, as they knew that when it was delivered, they would go home. Gleb repeats every year: “When the snow covers the ground, we will be taken home”. The children are constantly recalling their mummy and daddy, they love them very much. But so many years have already passed, and the children still cannot return home.
When the European Court delivered its judgment, the children found out about it and were very much hoping that in September they would go to a new school; in September 2013 Polina was to start school. The children were constantly asking when they would finally return home.
When the decision on revocation of adoption was not reviewed after the European Court’s judgment, it seriously traumatised the children. They are still taking this situation hard, up to the present day. That stress has a very negative impact on the children. Polina is very anxious, she has difficulties with her studies, even though she is following an individual curriculum.
Gleb is also anxious, he feels that it is his fault that he and his sister were placed to the foster home; negative aspects in his day-to-day conduct can be noted.”
COMPLAINTS
The applicants complain under Article 8 of the Convention about the authorities’ failure to take any steps with a view to re-establishing the adoption and to reuniting their family despite the existence of strong family ties between them. They allege, in particular, that the domestic courts’ refusal to reopen the proceedings on revocation of adoption and review of the relevant judgment was unlawful, did not pursue a legitimate aim and constituted a disproportionate interference with their right to respect for their family life.
The applicants further complain under Article 13 that they have had no effective remedies in respect of the alleged violation of their rights under Article 8 of the Convention, as the Russian family law does not provide for any mechanism for reinstatement of adoption, once it was revoked.
QUESTIONS TO THE PARTIES
1. Do the first and second applicants have standing to lodge the present application on behalf of the third and fourth applicants (see S.D., D.P., and T v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unpublished)?
2. Does the present application fall within the Court’s competence ratione materiae, in the light of the principles established in the Court’s case law (see, among other authorities, Verein gegen Tierfabriken Schweiz (VgT) (no. 2) [GC], no. 32772/02, ECHR 2009‑...; Mehemi v. France (no. 2), no. 53470/99, ECHR 2003-IV; Wasserman v. Russia (no. 2), no. 21071/05, 10 April 2008; Liu v. Russia (no. 2), no. 29156/09, 26 July 2011; Bochan c. Ukraine (no 2) [GC], no 22251/08, CEDH 2015, and Kudeshkina v. Russia (dec.), no. 28727/11, 17 February 2015)?
3. Do the current relations between the first two applicants and the last two applicants constitute family and/or private life, within the meaning of Article 8 § 1 of the Convention (see Moretti and Benedetti v. Italy, no. 16318/07, §§ 44-52, 27 April 2010)?
4. Did the decisions dated 8 November 2013 and 24 January, 13 March and 9 June 2014 by which the Russian courts at four levels of jurisdiction refused to review the judgment of the Preobrazhenskiy District Court of 17 June 2009 in the light of new circumstances constitute an interference with the applicants right to respect for their family and/or private life? If so, was that interference “in accordance with the law” and “necessary” in terms of Article 8 § 2?
In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?
5. In view of the domestic authorities’ obligation under Article 8 of the Convention to act in a manner calculated to enable a family tie with a child – where the existence of such a tie has been established – to be developed and to take measures with a view to reuniting that child with his or her family (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 150, ECHR 2004‑V (extracts); Wagner et J.M.W.L. v. Luxembourg, no. 76240/01, § 119, 28 June 2007; Emonet and Others v. Switzerland, no. 39051/03, § 64, 13 December 2007, and Harroudj v. France, no. 43631/09, § 41, 4 October 2012), have the domestic authorities at any moment taken any steps to discharge that obligation in the present case? If not, has there been a breach of the State’s positive obligation to respect for the applicants’ family and/or private life, as required by Article 8 § 1 of the Convention?
6. Do the applicants have any effective remedy:
(a) to enable them to have the adoption of the third and fourth applicants by the first and second applicants restored?
(b) to appeal against the continued failure by the domestic authorities to ensure that their family is reunited?
If not, has there been a breach of Article 13, in conjunction with Article 8 of the Convention?
Appendix
Anton Petrovich AGEYEV, born in 1962; Larisa Vladimirovna AGEYEVA, born in 1963; Gleb Antonovich AGEYEV, born in 2005; Polina Antonovna AGEYEVA, born in 2006.
Full & Egal Universal Law Academy