Communicated on 7 June 2018
FIRST SECTION
Application no. 70491/13
Vahe BABAYAN
against Armenia
lodged on 4 November 2013
STATEMENT OF FACTS
The applicant, Mr Vahe Babayan, is an Armenian national who was born in 1969 and lives in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In February 2011 the applicant started living apart from his wife and their child, A.B., who was 4 years old at the time.
On 13 December 2011 the applicant initiated proceedings before the Kentron and Nork-Marash District Court of Yerevan against his wife seeking to divorce, to arrange a schedule of contact with their child, and to oblige his spouse to provide access to their common apartment. As regards contact with the child, the applicant sought the following arrangement: from 4.30 to 10 p.m. on Mondays, Wednesdays and Fridays, as well as from Saturday noon to Sunday noon. He reasoned that such a schedule had been in place since February 2011, and the child had become accustomed to it. The applicant also submitted that his wife hindered his contact with the child.
The applicant’s wife lodged a counter-claim against the applicant, seeking to obtain alimony.
On 2 February 2012 the Department of Guardianship and Custody of Kentron District, Yerevan (“the Department”) concluded that the applicant could meet his child on Wednesdays from 6 to 9 p.m. and on Saturdays and Sundays from 4 to 6 p.m. in the presence of the child’s mother.
On 14 August 2012 the applicant lodged a request with the District Court seeking an interim measure obliging his spouse to refrain from hindering his contacts with the child. The applicant reasoned that such hindrance was likely to entail irreparable harm, namely the creation of distance and psychological barriers between him and his daughter, thereby making it more difficult or even impossible to enforce the judgment on the merits.
On 26 November 2012 the District Court delivered the judgment granting the divorce. As regards the contact with the applicant’s child, the District Court held that the Department’s conclusion of 2 February 2012 was not in the best interests of the child, as it unduly restricted the rights of the applicant, who enjoyed an equal right to bring up his child. It further held that the requirement to meet the child only in the presence of her mother was not in line with family legislation and was against the interests of the child. The District Court approved the following arrangement and provided the following reasons:
“On the basis of the best interests of the child and the specific circumstances of the present case, the court concludes that minor A.B. would benefit more from maternal care, affestion, assistance and help. As the child has been living with the mother, she has become accustomed to the regular course of life. The plaintiff is not deprived of the opportunity to enjoy his parental rights, including by communicating with the child at her place of residence. However, considering the existing schedule of the child’s visits to kindergarten and sporting activities, granting the requested 4 days of communication would entail negative consequences on the conditions necessary for the child’s physical, mental, and spiritual development.
Emphasising the child’s connection with her father, that parents enjoy equal rights in bringing up their child, that both parents are employed and the child currently lives with her mother, the court finds that the following arrangement must be approved: from 6 to 9 p.m. on Mondays and Wednesdays and from Saturday noon to Sunday noon.
During the proceedings, the Department of Guardianship and Custody of Kentron District of Yerevan failed to substantiate its conclusion as to why contact with the child should take place only in the presence of her mother.
Therefore, the court finds it substantiated that due to tension between [the applicant] and his wife, meetings with his child in the absence of his wife best suit the well‑being of the child.”
The District Court also granted the applicant’s claim as regards access to their marital apartment, partly granted the applicant’s claim for compulsory auction of movable property and partly granted the alimony claim of the applicant’s wife.
On 24 December 2012 the applicant appealed against the judgment of 26 November 2012. The applicant, in particular, objected to the District Court’s findings as regards the items to be included in the compulsory auction and the alimony. The applicant also emphasised his right to a trial within a reasonable time and the fact that his relationship with his child was at stake, and requested that the court resolve the case speedily.
The applicant’s wife also appealed against the judgment of 26 November 2012, including the part concerning attribution of child contact rights.
On 11 April 2013 the Civil Court of Appeal partly reversed the contested judgment and ordered a new examination of the contact hours with the child, the division of movable property and alimony. It reasoned that the District Court had failed adequately to examine and address the arguments of the child’s mother in respect of contact hours.
On 7 May 2013 the applicant lodged an appeal on points of law against the decision of 11 April 2013. In addition to arguments for upholding the meeting arrangements approved by the District Court, the applicant again stressed the importance of speedy resolution of the case, as it concerned his relationship with his child and her well-being. The applicant submitted that a new examination ordered by the Civil Court of Appeal could not ensure a trial within a reasonable time.
On 12 June 2013 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit.
On 12 July 2013 the District Court decided to admit the civil case for new examination.
On 23 September 2013 the applicant again lodged a request with the District Court seeking a similar interim measure on similar grounds to those submitted in his application of 14 August 2012. In particular, the applicant sought to meet with his daughter in accordance with the arrangement approved by the District Court’s judgment of 26 November 2012.
On 3 March 2014 the applicant lodged another request with the District Court seeking a similar interim measure.
On 6 March 2014 the District Court dismissed the applicant’s request for an interim measure as regards the schedule of meetings with his daughter, reasoning that the requested interim measure constituted the object of the dispute in the case. That decision stated that it was subject to appeal before the Civil Court of Appeal, without specifying any time-limit.
On 17 July 2014 the applicant lodged a request with the District Court seeking a similar interim measure.
On 21 July 2014 the District Court dismissed the applicant’s request on the basis of the same reasoning as on 6 March 2014. That decision stated that it was subject to appeal before the Civil Court of Appeal, without specifying any time-limit.
On 7 August 2014 the District Court delivered the judgment, which partly granted the applicant’s claim as regards the schedule of contact with his child and partly granted the counter-claim by the applicant’s former wife as regards the movable property and the alimony. As regards the child, the District Court, relying on the Department’s conclusion of 2 February 2012, held:
“On the basis of the best interests of the child and the specific circumstances of the present case, the court concludes that minor A.B. would benefit more from maternal care, affection, assistance and help. As the child has been living with her mother, she has already become accustomed to the regular course of life. The plaintiff V. Babayan is not deprived of the opportunity to exercise his parental rights, including by communicating with his child at her place of residence. However, considering the existing schedule of the child’s visits to kindergarten and sporting activities, grant of the requested 4 days of communication would entail negative consequences for the conditions necessary for the child’s physical, mental, and spiritual development.
Emphasising the child’s connection with her father, that parents enjoy equal rights in bringing up their child, that both parents are employed and the child currently lives with her mother, the court finds that the following arrangement of meetings between the father and the daughter must be approved: from 6 to 9 p.m. on Wednesdays and from 4 to 6 p.m. on Saturdays and Sundays in the presence of the child’s mother.”
On 29 August 2014 the applicant lodged an appeal. As regards contact with his daughter, the applicant argued that the grant of five hours of weekly contact with his child, while the mother of the child had the remaining 163 hours of the week, was in breach of the principle of marital equality in the child’s upbringing, even after divorce, and unfairly restricted his parental rights. The applicant stressed that the requirement of the presence of the child’s mother during their five hours of meetings per week was unjustified and potentially harmful to the child, considering the possibility of arguments between him and his former wife in the child’s presence. Moreover, the applicant submitted that, at the time the Department issued its conclusion on the schedule of contact with his child, the child had been only two years old, while at the time of lodging the appeal she was almost six years old.
On 24 March 2015 the Civil Court of Appeal decided to uphold the judgment of 7 August 2014 and amend it as regards the schedule of communication. In particular, the Civil Court of Appeal upheld the arrangement of five hours of meetings per week, but eliminated the requirement that the child’s mother be present during those meetings on the ground that the Department and the District Court had failed to justify that requirement.
On 21 April 2015 the applicant lodged an appeal on points of law.
On 20 May 2015 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
1. Family Code (in force since 2004)
According to Article 42 § 1, the child has the right to communicate with his/her parents. The parents’ divorce should not affect the rights of the child. Where parents live apart, the child shall have the right to communicate with each of them.
2. Code of Civil Procedure (in force since 1999)
According to Article 89 § 3, the court has the power to divide several claims into separate proceedings.
According to Article 97 § 2, the request for an interim measure shall be examined and decided on the day of receipt of that request.
According to Article 221 § 1(4), the Civil Court of Appeal may partly revoke and amend the judgment of a lower court, if the factual circumstances established in that judgment enable it to do so and if it is in the interests of justice.
According to Article 240 § 1(4), the Court of Cassation may partly revoke and amend the judgment of a lower court, if the factual circumstances established in that judgment enable it to do so and if it is in the interests of justice.
COMPLAINTS
The applicant complains under Article 6 of the Convention of the length of the civil proceedings in his case.
The applicant complains under Article 8 of the Convention that (a) the authorities failed to ensure his contact rights with his child during the trial and (b) five hours of contact with his child per week granted by the domestic courts disproportionately restricted his parental rights.
QUESTIONS TO THE PARTIES
1. Was there a breach of the applicant’s right to a trial within a reasonable time guaranteed by Article 6 § 1 of the Convention?
2. Was the applicant’s right to respect for family life, guaranteed by Article 8 of the Convention, breached? In particular, did the authorities take appropriate measures to ensure the applicant’s contact with his child?
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