THIRD SECTION
DECISION
Application no. 59064/18
Andrey Aleksandrovich ASTAPENKO
against Russia
The European Court of Human Rights (Third Section), sitting on 1 June 2021 as a Committee composed of:
Georgios A. Serghides, President,
María Elósegui,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 27 November 2018,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Andrey Aleksandrovich Astapenko, is an Estonian national, who was born in 1962 and lives in Tallinn. He was represented before the Court by Mr A.A. Kristenko, a lawyer practising in Kharkiv.
2. The Russian Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 20 November 2006 in Tallinn, Estonia, the applicant’s partner Ms Ye.A., a Russian national, gave birth to their son A.
5. In 2013 the applicant married Ye.A.
6. In 2014 they separated and in 2015 – divorced.
7. In February 2015 the Harju County Court approved a friendly settlement agreement between the applicant and Ye.A. regarding, in particular, the applicant’s contact with A.
8. In September 2015 Ye.A. and the child moved to Ivanovo, Russia. The applicant remained in Tallinn.
9. On 11 July 2016 the applicant brought proceedings before the Frunzenskiy District Court of Ivanovo (“the District Court”) against Ye.A. seeking to have determined the terms of his contact with the child.
10. In response, Ye.A. brought proceedings to determine the child’s residence as being with her and to change the contact arrangement between the applicant and the child as approved by the Harju County Court in February 2015. She submitted that her and A.’s having moved from Estonia to Russia to take up permanent residence there had made the previous contact arrangement impractical.
11. On 18 September 2017 the District Court determined A.’s place of residence as being with Ye.A. and established the schedule for his contact with the applicant as follows: not more than three consecutive days once every month on the condition that A. was healthy and willing to communicate with his father; seven days alternately during the spring or autumn holidays, from 2 to 8 January each year, fifteen days in the period from 10 June to 31 July each year, with a one-month prior written notice to Ye.A. The District Court further determined that the applicant could not travel with the child internationally without Ye.A.’s consent.
12. On 13 December 2017 the Regional Court upheld the judgment of 18 September 2017 on appeal.
13. On 17 May and 10 July 2018 the applicant’s cassation appeals were rejected by a judge of the Regional Court and a judge of the Supreme Court of the Russian Federation, respectively.
14. Following the communication of the applicant’s complaint about the alleged failure of the domestic authorities to enforce the contact arrangement as determined by judgment of 18 September 2017, the childcare authority of the Ivanovo Regional Department of Social Protection had a conversation with the applicant’s son. The latter submitted that since October 2017 he communicated with the applicant without any obstacles. The applicant arrived to Ivanovo once every two months, and they passed their time together going to the cinema, bowling, playing pool and dining in restaurants. They also enjoyed each other’s’ company during their travels. Namely, in August 2018 and July 2019 they went to Croatia, in the period between end of December 2018 and beginning of January 2019 – to Estonia and France, in October 2019 – to the United Arab Emirates. The child expressed his desire to maintain his contact with the applicant.
15. According to Ye.A., the applicant regularly pays child maintenance, communicates with A. by phone, congratulates him with holidays and gives him presents. He arrives to Ivanovo every two months, visits shopping malls and restaurants with the child. She does not interfere with their communication.
COMPLAINT
16. The applicant complained under Article 8 of the Convention about the failure of the domestic authorities to secure contact with his son in accordance with the judgment of 18 September 2017.
THE LAWThe parties’ submissions
17. The Government submitted that the applicant’s failure to inform the Court that since October 2017 he had been freely communicating with his son had amounted to an abuse of his right of individual application. They further submitted that the applicant had never sought the assistance of a childcare authority in facilitating his contact with the child or applied to the bailiffs’ service for the institution of the enforcement proceedings in respect of the judgment of 18 September 2017. The Government considered, therefore, that the applicant’s complaint should be rejected as abusive or manifestly ill-founded, in accordance with Article 35 § 3 (a) of the Convention.
18. The applicant submitted that he had never complained about absolute lack of contact with his son, but rather about the obstacles that the child’s mother Ye.A. had been creating for such contacts, manipulating the applicant and gaining financial benefits for herself in exchange for the applicant’s contacts with the child. The applicant made a conscientious choice to accept Ye.A.’s conditions instead of having recourse to the assistance of a childcare authority or bailiffs’ service fearing that the passage of time would have irremediable consequences for his relations with his son.The Court’s assessment
19. The Court notes that the applicant has indeed failed to inform it of the modalities of his contact with the child after the judgment of 18 September 2017 came into force. However, it does not need to rule on the issue of abuse, within the meaning of Article 35 § 3 (a) of the Convention as, for the reasons set out below and taking into account these developments, the application is in any event inadmissible.
20. The Court reiterates that in cases concerning the implementation of the contact rights of one of the parents, Article 8 includes a parent’s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion (see Kacper Nowakowski v. Poland, no. 32407/13, § 74, 10 January 2017, with further references). However, the State’s obligation to facilitate the reunion between a parent and a child does not arise unless the issue of the alleged impossibility to implement contact rights in respect of the child is brought to the attention of the competent domestic authorities by one of the child’s parents.
21. Turning to the present case, the Court notes that the applicant has never sought assistance from or complained to the domestic authorities about the non-enforcement of the judgment of 18 September 2017 determining his contact rights with his son. No obligation on the part of the State was therefore triggered in this respect. Furthermore, it follows from the Government’s submissions that since October 2017 the applicant has been enjoying unhindered contact with the child (see paragraphs 14-15 and 17-18 above). In so far as the applicant alleged that the contact was being made difficult by the child’s mother, it remains open to him, should the need arise, to bring this up with the domestic authorities.
22. In such circumstances, the Court finds that this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 June 2021.
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Olga ChernishovaGeorgios A. Serghides
Deputy RegistrarPresident
Full & Egal Universal Law Academy