Communicated on 10 November 2016
THIRD SECTION
Application no. 38201/16
Vera Vladimirovna BOGONOSOVA and Georgiy Ivanovich BOGONOSOV
against Russia
lodged on 21 June 2016
STATEMENT OF FACTS
The applicants, Ms Vera Vladimirovna Bogonosova and Mr Georgiy Ivanovich Bogonosov, are Russian nationals who were born in 1955 and 1948 respectively and live in St Petersburg.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Background of the case
The applicants’ daughter, O., married K.O.V.-S., a national of Finland. The couple settled in Finland.
On 28 September 2006 O. gave birth to a daughter, M.
In May 2008 O. and M. moved in with the applicants in Russia.
On 3 April 2011 O. died. M. remained living with the applicants (her maternal grandparents).
On 16 May 2011 the second applicant (M.’s maternal grandfather) was appointed M.’s guardian.
On 24 October 2012 the Kirovskiy District Court of St Petersburg granted the second applicant’s request and deprived K.O.V.-S. of his parental rights over M.
On 2 July 2013 Ms Z. (O.’s cousin’s wife) was appointed M.’s second guardian.
On 4 July 2013 M. started living in the family of Mr and Ms Z.
B. Adoption proceedings
On 13 November 2013 Mr and Ms Z. lodged an application to adopt M.
On 25 November 2013 the second applicant agreed to M.’s adoption by Mr and Ms Z. and requested that the adoption case be heard in his absence. Due to a conflict in the applicants’ family at the material time the first applicant remained unaware of the adoption proceedings.
On 26 November 2013 the Primorskiy District Court of St Petersburg (“the District Court”) granted the application by Mr and Ms Z. to adopt M. The judgment became final on 7 December 2013.
After the termination of the adoption proceedings Mr and Ms Z. started preventing the applicants from communicating with M.
On 11 February 2015 the second applicant applied to the District Court to have the procedural time-limit for lodging his appeal against the judgment of 26 November 2013 restored.
On 16 March 2015 the District Court granted the second applicant’s application.
The applicants appealed against the judgment of 26 November 2013, claiming, in particular, that the adoption of M. had resulted in her complete isolation from her grandparents, which ran contrary to her interest. The first applicant subsequently withdrew her appeal in order to apply first for restoration of the procedural time-limit for appeal.
On 13 May 2015 the St Petersburg City Court (“the City Court”) upheld the judgment of 26 November 2013 on the second applicant’s appeal. It noted that the first applicant had withdrawn her appeal. As regards the second applicant’s argument to the effect that the child’s adoption had led to the termination of all contact between her and the grandparents, the City Court held, relying on Article 67 §§ 1 and 2 of the Family Code, that the grandfather, grandmother, brothers, sisters and other relatives have a right to contact with the child and that in the event of a refusal by the child’s parents to afford them such contact, they are entitled to apply to a court to have the obstacles to their contact with the child eliminated.
On 21 August 2015 the City Court and on 22 December 2015 the Supreme Court of Russia (“the Supreme Court”), following a prior application for review of the final judgment, decided not to refer the case for review in the cassation procedure.
Meanwhile, on 28 May 2015 the first applicant applied to the District Court to have the procedural time-limit for lodging her appeal against the judgment of 26 November 2013 restored. However, on 14 July 2015 the District Court dismissed her request. The District Court held that the applicant had not been a party to the proceedings resulting in the judgment of 26 November 2013, that the above judgment had had no bearing on her rights and obligations, and therefore she had had no standing to appeal against it. On 10 September 2015 the City Court upheld the above decision on appeal. On 11 December 2015 the City Court and on 29 January 2016 the Supreme Court”), following a prior application for review of the final judgment, decided not to refer the above decisions for review in the cassation procedure.
C. Proceedings relating to the first applicant’s contact rights
On 3 March 2014 the first applicant instituted court proceedings against Mr and Ms Z. seeking to oblige them not to thwart her contact with her granddaughter M. and to have determined the contact schedule with the latter.
On 10 February 2015 the Pushkinskiy District Court of St Petersburg established, on the basis of the relevant reports and expert examinations, that M. still had a positive image of her grandmother (the first applicant) and had expressed a wish to have contact with her, and that it was therefore possible to establish a contact schedule between them. The Pushkinskiy District Court therefore ordered Mr and Ms Z. not to put up obstacles to the first applicant’s communication with M. and held that contact between the first applicant and M. should take place as follows: during the first six months after the finalisation of the judgment – each second and fourth Sunday of the month from 3 p.m. to 6 p.m. outside the parents’ and the grandparents’ places of residence in the presence of the parents, and thereafter on the same conditions without the parents present. A year after the finalisation of the judgment the first applicant could, in addition to the above arrangements, spend two weeks with M. during the summer holidays with sixty days’ prior notice to the parents of the place of the planned holiday. Mr and Ms Z. appealed.
On 17 September 2015 the City Court quashed the above judgment on appeal and discontinued the proceedings. The City Court held as follows:
“Under Article 137 § 4 of the Family Code of the Russian Federation if one of the parents of an adopted child dies, at the request of the deceased parent’s parents (the child’s grandfather or his grandmother) their personal non-pecuniary and pecuniary rights and obligations in respect of the child can be maintained if this is required in the child’s interest. The right of the relatives of the deceased parent to contact with the adopted child should be exercised in conformity with Article 67 of the present Code.
Pursuant to Article 137 § 5 of the Family Code the continuation of the adopted child’s relations with one of the parents or relatives of the deceased parent should be indicated in the decision on adoption.
The relevant clarifications are contained in clause 18 of the ruling of the Plenary of the Supreme Court of the Russian Federation no. 8 of 20 April 2006 on application by the courts of legislation when examining adoption cases, which provides that the operative part of the adoption judgment ... should indicate whether the court grants the application for continued personal non-pecuniary and pecuniary rights by one of the [adopted child’s grandparents] or by relatives of the adopted child’s deceased parent.
...
It is not clear from the copy of [the judgment of 26 November 2013 on the adoption of M.] that [the first applicant] lodged an application for continuation of personal non‑pecuniary rights in respect of her granddaughter, M.
This indicates an absence of the relevant application from [the first applicant] for continuation of family ties with M., who was adopted by the defendants.
This is further apparent from [the appeal decision of 13 May 2015].
At the appeal examination of the case [the City Court] noted that on 12 May 2015 [it] received [the first applicant’s] appeal against the judgment in the present case. [The first applicant’s representative] withdrew the above appeal in the court session on 13 May 2015.
Taking into consideration the above facts, the judicial chamber arrives at the conclusion that [the first applicant] did not apply to the court for continuation of her right to contact with the child and this issue was therefore not examined by the court and not reflected in the adoption judgment.
Furthermore, by withdrawing her appeal [the applicant] actually agreed with the conclusion of the [adoption judgment of 26 November 2013].
The judicial chamber also takes into consideration that on 10 September 2015 [the City Court] upheld on appeal the decision of the District Court of 14 July 2015 rejecting [the first applicant’s] application to have restored the procedural time-limit for lodging an appeal against the judgment of the said court of 26 November 2013.
... in the absence of direct indication in the adoption judgment of 26 November 2013 concerning continuation of family ties between [the first applicant] and her granddaughter, the former does not have a right to claim the elimination of obstacles to contact with the child and determination of the terms of her contacts with her granddaughter. Civil and family law do not enable her to do so.
...”
On 7 December 2015 the City Court and on 29 February 2016 the Supreme Court”), following a prior application for review of the final judgment, decided not to refer the decision of 17 September 2015 for review in the cassation procedure.
The applicants have not had any contact with their granddaughter for over two years.
COMPLAINTS
The applicants complain under Articles 8 and 13 of the Convention of a violation of their right to maintain family ties with their granddaughter and the absence of an effective domestic remedy in this respect.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention? In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?
2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
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