CASE OF A.B.V. v. RUSSIA

THIRD SECTION

CASE OF A.B.V. v. RUSSIA

(Application no. 56987/15)

JUDGMENT

STRASBOURG

2 October 2018

FINAL

02/01/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of A.B.V. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Vincent A. De Gaetano, President,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 4 September 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 56987/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr A.B.V. (“the applicant”), on 27 October 2015. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant was represented by Threefold Legal Advisors LLC, a law firm based in Moscow; he subsequently represented himself (see paragraph 5 below). The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that the domestic authorities had failed to offer him effective assistance in securing contact with his daughter, in breach of Article 8 of the Convention.

4. On 12 May 2016 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

5. After the exchange of observations between the parties was completed, on 3 March 2017 the applicant withdrew the power of attorney that he had given to Threefold Legal Advisors LLC, noting his full acceptance of the work performed by its lawyers in the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and lives in Balashikha, a town in the Moscow Region.

7. From 2008 the applicant lived together with A.D. in an extramarital relationship.

8. They separated shortly after A.D. became pregnant in autumn 2009, but continued to maintain regular contact.

9. On 6 July 2010 A.D. gave birth to a baby girl, P. The applicant had regular contact with the child.

10. In January 2011 A.D. started avoiding communication with the applicant and preventing him from visiting the child.

A. Proceedings for establishing the applicant’s paternity in respect of his daughter and the determination of his access rights to her

1. First set of proceedings

11. On 6 June 2011 the applicant brought a claim seeking the establishment of his paternity of the child and the determination of the terms of his contact with the latter.

12. On 25 June 2012 the Nagatinskiy District Court of Moscow (“the District Court”) discontinued the examination of the applicant’s claim in so far as it concerned the determination of his contact rights. The District Court reasoned that such claims could only be brought by one of the child’s parents, whereas on the date of its examination of the claim in question the applicant’s paternity of the child had not been established.

13. On the same day the District Court established the applicant’s paternity of P.

14. On 20 December 2012, following an appeal by A.D., the Moscow City Court (“the City Court”) quashed the judgment of 25 June 2012 establishing the applicant’s paternity of the child and dismissed the applicant’s claim.

15. On 4 October 2013, following an appeal by the applicant, the Presidium of the City Court, under the cassation procedure, quashed the judgment of 25 June 2012 and the appeal decision of 20 December 2012 and remitted the case to the District Court for fresh examination.

16. On 13 November 2013 the District Court left unexamined the applicant’s claims in view of new proceedings instituted by the applicant (see below).

2. Second set of proceedings

17. On 29 October 2013 A.D.’s partner, A.K., was registered as the child’s father.

18. On 11 November 2013 the applicant challenged the registration of A.K. as the child’s father, seeking that his own paternity of the child be established and that his contact rights with the latter be determined.

19. On 24 January 2014 the District Court ordered that A.K.’s registration as the child’s father be annulled, established the applicant’s paternity of the child, and held that contact between the applicant and his daughter should take place at A.D.’s place of residence on the first Saturday and second Sunday of every month from 11 a.m. until 5 p.m.

20. On 28 July 2014 the City Court upheld the judgment of 24 January 2014 following an appeal by A.D. and A.K.

B. Enforcement proceedings

21. On 5 December 2014, after failed attempts to persuade A.D. to comply with the judgment of 24 January 2014 ‒ as upheld on appeal on 28 July 2014 ‒ the applicant applied to the Tsaritsynskiy District Bailiffs’ Service in Moscow (“the district bailiffs’ service”) for the institution of enforcement proceedings.

22. On 12 December 2014 a bailiff from the district bailiffs’ service declined to institute such enforcement proceedings, because the operative part of the judgment did not oblige A.D. to carry out or to abstain from certain actions.

23. On 4 February 2015 the applicant lodged a claim challenging the lawfulness of the above-mentioned decision.

24. On 18 March 2015 the District Court dismissed the applicant’s claim.

25. On 6 July 2015 the City Court quashed the above-mentioned judgment, holding that the decision of 12 December 2014 declining to institute enforcement proceedings had been unlawful.

26. On 10 August 2015 a bailiff from the district bailiffs’ service instituted enforcement proceedings in respect of the judgment of 24 January 2014.

27. On 17 August and 24 August 2015 the bailiff telephoned A.D. On the former date A.D. answered the phone. She was informed of the institution of the enforcement proceedings and summoned to appear before the bailiff on 20 August 2015. On the latter date the bailiff telephoned the same number, only to be answered by a woman who told the bailiff that the telephone number did not belong to A.D., after which she hung up.

28. On 6 October 2015 the enforcement proceedings were transferred from the district bailiffs’ service to the newly created Inter-district Department of Bailiffs for the Recovery of Child Maintenance Payments of the Federal Bailiffs’ Service of Russia for Moscow (Межрайонный отдел судебных приставов по взысканию алиментных платежей № 1 УФССП России по г. Москве, “the Inter-district Department of Bailiffs”).

29. On 30 October 2015 a bailiff of the Inter-district Department of Bailiffs decided to accept the proceedings for enforcement.

30. On 30 October and 10 December 2015, and on 12 February and 25 July 2016 the bailiff sent A.D. notices of enforcement of the judgment of 24 January 2014.

31. On 4 December 2015 the bailiff several times called A.D.’s telephone number, but nobody answered.

32. On 7 December 2015 the bailiff again made calls to A.D.’s telephone numbers. One call was answered by a woman who introduced herself as A.D.’s mother and refused to answer any questions.

33. Over the course of 2015 the applicant lodged multiple complaints concerning the inactivity of the the Inter-district Department of Bailiffs to various authorities, including the Inter-district Prosecutor’s Office, the head of the Federal Department of Bailiffs’ Service for Moscow, and the Ombudsman for Children.

34. On 14 February 2016 a bailiff visited A.D.’s presumed place of residence. The door was opened by A.D.’s mother, to whom the bailiff handed a notice of enforcement of the judgment of 24 January 2014. She told the bailiff that she was unaware of her daughter’s whereabouts and that A.D. would not give the child to the applicant.

35. On 17 February 2016 the bailiff received a declaration by A.D., in which she stated that she was not going to let the applicant contact the child as the child did not wish to have such contact.

36. On 2 March 2016 the bailiff sent enquiries to kindergarten no. 1457 in Moscow, the Moscow City Children’s Polyclinic no. 23, the Public Services Centre of the Biryulyovo Vostochnoye District, and the Social Protection Administration for the Biryulyovo Vostochnoye District in order to establish, respectively, whether the child attended the kindergarten, was receiving medical services, and lived with A.D. at the address visited by the bailiff.

37. On 2 March, 17 March and 11 April 2016 the bailiff took decisions to involve a psychologist in the enforcement proceedings.

38. According to the Government, on an unspecified date the bailiff imposed an execution fee on A.D. for her failure to comply with the judgment of 24 January 2014 and warned her of her administrative liability[1] for not complying with that judgment.

39. On 29 April 2016 the bailiff obtained A.D.’s written declaration. A.D. submitted, in particular, that on 14 March 2016 she brought a claim before the District Court to challenge the applicant’s paternity, to withdraw his parental rights and restore A.K.’s parental authority (see 49 below). She furthermore submitted that she could not comply with the judgment of 24 January 2014 since the child strongly objected to having any contact with the applicant.

40. Meanwhile, at the applicant’s request, in June 2016 the Inter-district Department of Bailiffs appointed another bailiff to oversee the enforcement proceedings.

41. In accordance with requests lodged by A.D. on 28 April and 28 July 2016, on the latter date the District Court suspended the enforcement proceedings in respect of the judgment of 24 January 2014, pending the outcome of the proceedings initiated by A.D. on 14 March 2016.

42. Following an appeal by the applicant, on 30 September 2016 the Moscow City Court found the decision of 28 July 2016 to suspend the enforcement proceedings unlawful and unsubstantiated and quashed it.

43. According to the Government, on 3 November 2016 the bailiff imposed an administrative fine on A.D. under Article 5.35 § 2 of the Code of Administrative Offences of the Russian Federation for her non‑compliance with the judgment of 24 January 2014[2].

44. On 12 December 2016 the bailiff adopted a decision temporarily restricting A.D.’s travel outside the Russian Federation.

45. On 4 February 2017 in the course of the enforcement proceedings the applicant met his daughter for the first time since January 2011. According to the applicant, despite the difficult environment of the meeting, the child was willing to communicate.

46. Subsequently, the applicant tried to see his daughter on 12 February and 4 March 2017 (the second Sunday and the first Saturday of the month respectively); he was unaccompanied by the bailiff. On the first occasion A.D. prevented the applicant from seeing the child; on the second occasion neither she nor the child were present at their place of residence at the scheduled time. Reports of these events were submitted by the applicant to the police and the bailiff.

47. On 12 March 2017 the applicant again came to see his daughter; this time he was accompanied by a bailiff. A.D. brought the child into the applicant’s presence to talk with him; however, she turned the child against the applicant and asked her to decide whether she needed to have any relations with the applicant. The child replied that she refused to communicate with the applicant. A report of this was drawn up by the bailiff.

48. The case file contains no information about the further course of the enforcement proceedings.

C. Proceedings for child maintenance and the termination of the applicant’s parental rights

49. On 14 March 2016 A.D. brought an action before the District Court seeking to recover child maintenance from the applicant, to terminate his parental rights and to restore the parental rights of A.K.

50. The case file contains no further information on the outcome of those proceedings.

II. RELEVANT DOMESTIC LAW

51. For the relevant provisions of domestic law, see Pakhomova v. Russia, no. 22935/11, §§ 91-112, 24 October 2013.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

52. The applicant complained about his continuing lack of access to his daughter and about the failure of the domestic authorities to offer him effective assistance to enforce his access rights. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

53. The Government argued that the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 8 of the Convention. In particular, they submitted that it was open to the applicant to challenge before the domestic courts the bailiffs’ actions (or inaction) in enforcing the judgment of 24 January 2014, as well as A.D.’s failure to comply with the above-mentioned judgment. The Government relied in this regard on the 1993 Law on Judicial Review of Measures and Decisions Infringing Individual Rights and Freedoms, and also on Chapter 25 of the Code of Civil Procedure of the Russian Federation (“Challenging decisions, actions or the inaction of State and municipal bodies and officials”), which was replaced, from 15 September 2015, by the Code of Administrative Procedure of the Russian Federation. They furthermore referred to Article 66 § 3 of the Family Code of the Russian Federation, which provided that in the event of non-compliance with a court decision, the parent guilty of non-compliance was to be subjected to measures stipulated by the legislation on administrative offences and enforcement procedure, and that in the event of persistent non-compliance with a court decision, the court could, upon a claim being lodged by the parent residing apart from the child, take a decision to place the child in his or her care, having taken into account the child’s interests and the child’s opinion. However, the applicant had not availed himself of the above remedies and had thus not afforded the domestic authorities an opportunity to address the alleged violations of his rights.

54. The applicant challenged the Government’s objection. He argued that he had challenged the refusal of the district bailiffs’ service to institute enforcement proceedings in respect of the judgment of 24 January 2014, which had been found unlawful by the Moscow City Court on 6 July 2015. Furthermore, over the course of 2015 he had lodged multiple complaints concerning the inactivity of the bailiffs’ service to various authorities, including the Inter-district Prosecutor’s Office, the head of the Inter-district Department of Bailiffs, and the Ombudsman for Children. Most recently, the applicant had challenged the decision of the District Court of 28 July 2016 to suspend the enforcement proceedings, which on 30 September 2016 had been found unlawful and unsubstantiated by the Moscow City Court and quashed on appeal. The applicant therefore considered that any further appeals against the inactivity of the bailiffs would have been ineffective, given the circumstances of the case, and would have not offered him any redress.

55. The Court reiterates that States do not have to answer before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system in question (see, among many other authorities, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 115, 23 February 2016, and Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 35, 17 January 2017).

56. The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mozer, cited above, § 116, with further references).

57. The Court has also established that, if more than one potentially effective remedy is available, an applicant is only required to have used one remedy of his or her own choice (see Tavares de Almeida Fernandes and Almeida Fernandes, cited above, § 37).

58. The Court notes that in the present case the Government submitted that it had been open to the applicant to challenge the efficiency of the bailiffs’ service in having the judgment of 24 January 2014 enforced, and to bring proceedings against A.D. for her failure to abide by the above‑mentioned judgment. It furthermore takes notes of the fact that the applicant chose to have recourse to the first remedy. In particular, he on several occasions challenged the bailiffs’ actions (or inaction) before the domestic authorities (see paragraphs 22-25, 33 and 41-42 above). There can, therefore, be no doubt that the applicant raised the arguments that he derives from Article 8 of the Convention before the domestic authorities prior to addressing himself to the Court. It follows that the applicant must be considered to have exhausted domestic remedies in this respect and that the Government’s objection must consequently be dismissed.

59. Moreover, the Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

(a) The Government

60. The Government submitted that the relationship between the applicant and the child, P., did not constitute a family life within the meaning of Article 8 of the Convention. They noted, in particular, that the applicant and the child’s mother had ceased living together when the latter had become pregnant, and that the applicant had never lived with the child and had barely seen her. Moreover, he had demonstrated no interest in the child, either before her birth or afterwards; he had lodged a claim to establish his paternity in respect of the child only a year after the child had been born and had never paid child maintenance or otherwise supported the child, which had prompted the child’s mother to bring a claim for child maintenance and the termination of the applicant’s parental rights. Furthermore, the child had continuously lived in a family unit and was brought up by her mother’s husband, A.K., with whom she had established family ties.

61. The Government accepted that the domestic authorities had been unable to organise a meeting between the applicant and his daughter until February 2017. However, they had taken all the necessary steps that could have reasonably been required to secure the applicant’s contact with the child. There had been no omissions or delays in the conduct of the enforcement proceedings, which had been handled with due regard to the best interests of the child and the family as a whole. The Government noted that the unresolved conflict between the applicant and the child’s mother had rendered the judgment’s enforcement very difficult: A.D. had been absent from home at the time scheduled for meetings because the child had been unwilling to see the applicant; had strongly opposed the applicant’s presence while the bailiff was carrying out enforcement actions; had hidden the child; and had complained that the bailiff’s actions had put too much pressure on her. She had made it clear to the bailiffs that no meetings between the applicant and the child would take place. The Government accordingly concluded that the State had complied with their positive obligation under Article 8 of the Convention to ensure the applicant’s right to respect for his family life and that there had been no violation of that Convention provision.

(b) The applicant

62. The applicant argued that although he had not been able to establish contact with his daughter and to contribute to her care and upbringing after his separation with A.D. owing to the latter’s refusal to let him have contact with the child, he had always recognised P. as his child and established de facto family ties with her. During the court proceedings wherein the applicant’s paternity in relation to P. had been established the applicant had provided ample evidence of his de facto family relationship with A.D. before and after the child’s birth, including photographs taken of them at home with A.D.’s relatives, on vacation, during A.D.’s pregnancy, and even after P.’s birth. The domestic courts had also examined correspondence (provided by the applicant) between the applicant and A.D. wherein the applicant and A.D. had discussed the child’s birth and had chosen a name for the child. A.D. had sent the applicant a list of things which had been necessary for the child’s birth. In that correspondence the applicant and A.D. had also discussed the child’s baptism. Furthermore, the applicant had lived with A.D. from 2008 and had maintained regular contact with her until January 2011 – almost half a year after the child’s birth. The applicant furthermore disputed the Government’s assertion that he had shown no interest in his child. Over a period of five years the applicant had attempted to establish contact with P. by applying to various domestic authorities and, finally, to the Court. It had taken the applicant more than three years to establish his paternity and even longer in his – still unsuccessful – attempts to see the judgment of 24 January 2014 enforced. The applicant had never refused to support his daughter, but all his attempts to participate in her life had failed owing to A.D.’s behaviour and the failure to enforce the judgment of 24 January 2014.

63. The applicant considered that the domestic authorities had failed to take all the necessary steps that could have reasonably been required to secure his contact with his daughter. He noted that the enforcement proceedings had been instituted only after a delay of eight months and had not been handled with the required expedition. Between the opening of the enforcement proceedings on 10 August 2015 and the end of September 2015 the bailiffs’ activity had been limited to sending a copy of the decision of 10 August 2015 to A.D. and attempting to reach the latter by phone. The transfer of the enforcement proceedings from the district bailiffs’ service to the Inter-district Department of Bailiffs had taken several weeks. After the transfer very few attempts had been made by the bailiff to have the judgment of 24 January 2014 enforced. Those attempts had amounted to several phone calls and a few written requests. During all that time the applicant had had to monitor closely the enforcement process, to the detriment of his personal life and career. He had regularly visited the premises of the Inter-district Department of Bailiffs, spoken to various State officials, and made numerous requests and complaints. The passive attitude on the part of the bailiff in charge of the enforcement had prompted the applicant to request his replacement. Later, the enforcement proceedings had been unlawfully suspended. No active enforcement actions had taken place after the decision on the suspension of the enforcement proceedings had been found unlawful by the City Court. No real and timely sanctions had been imposed on A.D. for her failure to comply with the judgment of 24 January 2014. All of the above-mentioned defects in the enforcement proceedings had been caused by the authorities’ handling of the case.

2. The Court’s assessment

(a) Applicability of Article 8 of the Convention

(i) General principles

64. The notion of family under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth (see Hoffmann v. Germany, no. 34045/96, § 34, 11 October 2001, with further reference).

65. However, a biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, is insufficient to attract the protection of Article 8. As a rule, cohabitation is a requirement for a relationship amounting to family life. Exceptionally, other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto “family ties” (see Anayo v. Germany, no. 20578/07, § 56, 21 December 2010, with further references).

66. Intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant. In particular, where the circumstances warrant it, “family life” must extend to the potential relationship which may develop between a child born out of wedlock and the natural father. Relevant factors which may determine the real existence in practice of close personal ties in these cases include the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth (see Krisztián Barnabás Tóth v. Hungary, no. 48494/06, § 27, 12 February 2013, with further references, and Anayo, cited above, § 57).

(ii) Application in the present case

67. The Court notes that in the present case the domestic courts established that there had been sufficient factual elements indicating the existence of close personal ties between the applicant and his daughter to acknowledge the applicant’s paternity in respect of the child and determine the terms of their contact with each other. The Court considers, therefore, that the findings of the domestic courts implied that the relationship between the applicant and his daughter fell within the scope of family life, within the meaning of Article 8 of the Convention.

(b) Compliance of the domestic authorities with their positive obligation under Article 8 of the Convention

(i) General principles

68. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life”, within the meaning of Article 8 of the Convention (see, for instance, Zoltán Németh v. Hungary, no. 29436/05, § 40, 14 June 2011).

69. The essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities. There may also be positive obligations inherent in an effective “respect” for family life (see Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000‑VIII; Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290; and Zoltán Németh, cited above, § 41).

70. The obligation of the national authorities to take measures to facilitate meetings between a parent and his or her child is not absolute, especially where the two are still strangers to one another. Such access may not be possible immediately and may require preparatory measures being taken to this effect. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned will always be an important ingredient. While national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests (as well as the rights and freedoms) of all concerned must be taken into account, as must the best interests of the child and his or her rights under Article 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them. What is decisive is whether the national authorities have taken all necessary steps to facilitate access as can reasonably be demanded in the special circumstances of each case (see Nuutinen, cited above, § 128). In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between a child and a parent who do not cohabit (see Zoltán Németh, cited above, § 45).

(ii) Application in the present case

71. In the light of the above-mentioned principles, the Court considers that the decisive question in the present case is whether or not the Russian authorities took all the appropriate steps that could reasonably have been demanded to facilitate the enforcement of the contact arrangements, as specified by the judgment of 24 January 2014.

72. The Court notes at the outset that the applicant and the child’s mother, A.D., stopped living together several months before their daughter was born in July 2010. They remained in touch both before and after the child’s birth, and managed the applicant’s contact with the child between themselves. However, from January 2011 A.D. started preventing the applicant’s contact with the child, which prompted the applicant to seek through the courts the establishment of his paternity in respect of his daughter and the determination of contact arrangements between them. On 24 January 2014 the District Court recognised the applicant’s paternity and awarded him contact rights in respect of his daughter at her place of residence on the first Saturday and the second Sunday of every month from 11 a.m. until 5 p.m. (see paragraph 19 above). However, A.D. refused to comply with the contact order, and on 5 December 2014 the applicant applied to the bailiffs’ service for the institution of enforcement proceedings.

73. The Court observes, however, that it was not until eight months later, on 10 August 2015, that the enforcement proceedings were opened by the district bailiffs’ service (see paragraphs 22-26 above). It took almost another month in October 2015 to complete the transfer of the enforcement proceedings from the district bailiffs’ service to the newly created Inter‑district Department of Bailiffs (see paragraphs 28-29 above).

74. The Court furthermore notes that between August 2015 and February 2016 the bailiffs only tried to contact A.D. by telephone and sent her by post notices of enforcement (see paragraphs 27, 30-32 above). It was not until February and March 2016, respectively, that the bailiff visited A.D.’s presumed place of residence for the first time and sent out enquiries in an effort to establish the child’s actual place of residence (see paragraphs 34-36 above). There was no progress in the enforcement proceedings between April and July 2016, apart from the obtaining of written declarations by A.D. and the imposition of an execution fee on the latter (see paragraphs 38-39 above).

75. The Court furthermore notes that in July 2016 the enforcement proceedings were suspended. They were resumed two months later, in September 2016, after the Moscow City Court had found the decision to suspend the enforcement to be unlawful (see paragraphs 40-42 above).

76. The subsequent enforcement measures undertaken in November and December 2016 were limited to the imposition of an administrative fine on A.D. for her failure to comply with the judgment of 24 January 2014 and restricting her travel outside Russia (see paragraphs 43-44 above).

77. The Court observes that it was not until 4 February 2017 that the domestic authorities finally organised the first contact between the applicant and his daughter – over two years after the applicant had sought the domestic authorities’ assistance in securing his contact with the child under the judgment of 24 January 2014. Despite the fact that the general environment of the meeting was rather tense, no assistance was provided to the applicant for his subsequent visits on 12 February and 4 March 2017, which could not take place because of A.D.’s resistance on the first occasion and her not being at home with the child at the scheduled time on the second occasion. Although it can be seen from the case file that in March and April 2016 the bailiff decided to involve a psychologist in the enforcement proceedings (see paragraph 37 above), there is no evidence that any psychological counselling actually took place in order to prepare the child and the applicant for meeting each other; such counselling would appear to have been crucial for the renewal of the contact between the father and the daughter that was interrupted in January 2011. The enforcement proceedings are still pending, perpetuating a situation wherein the applicant is unable to have contact with his child.

78. Having regard to the foregoing, the Court considers that the domestic authorities did not act sufficiently promptly or make reasonable efforts to facilitate the reunion of the applicant with his child. On the contrary, the inaction of the authorities forced the applicant to resort to a succession of remedies in an effort to enforce his rights (see paragraphs 22‑25, 33, 40-42 above).

79. The Court does not overlook the fact that the task of the domestic authorities was rendered difficult by the strained relationship between the applicant and A.D. However, the lack of cooperation between separated parents is not a circumstance which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child (see Zawadka v. Poland, no. 48542/99, § 67, 23 June 2005). There is no indication in the present case that the authorities took any practical steps that would, firstly, encourage the parties to cooperate in the enforcement of the access arrangements, and, secondly, secure specific and appropriate assistance by competent State agents within a specific legal framework suited to the needs of separated parents and their underage child. In any event, there are no indications that it is the conflict between the applicant and A.D. itself that was the reason for the delays in the enforcement proceedings and their lack of effectiveness (see Stasik v. Poland, no. 21823/12, § 93, 6 October 2015, with further references).

80. The Court furthermore observes that over the years the domestic authorities tolerated A.D.’s unlawful actions, which they were under a duty to prevent. Aside from imposing an execution fee and an administrative fine on A.D., they did not take any further recourse to sanctions in order to tackle her lack of cooperation. Moreover, there is no evidence that the execution fee and the fine imposed on A.D. were actually recovered from her.

81. Accordingly, the Court concludes that, notwithstanding the margin of appreciation enjoyed by the relevant authorities and bearing in mind the interests involved, those authorities failed to take all the necessary steps they could reasonably have been demanded to facilitate the enforcement of the contact arrangements, as specified by the judgment of 24 January 2014.

82. There has therefore been a violation of Article 8 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

83. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

84. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.

85. The Government considered that the applicant’s claim should be rejected.

86. The Court considers that the applicant must have suffered, and continues to suffer, distress as a result of his inability to have a relationship with his daughter. In the light of the circumstances of the case, and making an assessment on an equitable basis, as required by Article 41, the Court awards the applicant EUR 12,500 under this head.

B. Costs and expenses

87. The applicant claimed EUR 2,500 for his legal representation before the Court. He submitted (i) a copy of a legal services agreement with Threefold Legal Advisors LLC dated 10 November 2016, under which, if the Court awarded the applicant costs and expenses incurred in the proceedings before it, he was to pay his lawyers EUR 100 per hour, and (ii) a copy of an annex to the above-mentioned agreement dated 30 December 2016 reflecting the amount of legal work performed in the case. The applicant also claimed 1,264 Russian roubles (RUB) for photocopying expenses and RUB 7,140 for postal expenses. He requested that costs and expenses be paid directly into the bank account of Threefold Legal Advisors LLC.

88. The Government considered that the applicant’s claim for compensation of the cost of legal services should be rejected, since contingency-fee agreements were not enforceable under Russian law. They considered that the applicant’s claim for postal expenses should also be rejected, since sending the documents by special international courier service rather than Russian postal service, which is far less expensive, did not correspond to the criterion of “necessity”.

89. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In addition, the Court has found that conditional fee agreements may show, if they are legally enforceable, that the sums claimed are actually payable by the applicant and that it must, as always, assess whether they were reasonably incurred (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 54 and 55, ECHR 2000‑XI, with further references, and, more recently, Adam v. Slovakia, no. 68066/12, § 102, 26 July 2016).

90. The Court notes the Government’s argument to the effect that the legal services agreement between the applicant and Threefold Legal Advisors LLC is not enforceable in Russia. However, that argument was not supported by any reference to a relevant established domestic practice. The Court will therefore proceed on the assumption that the sums claimed are actually payable by the applicant, in accordance with the legal services agreement between him and Threefold Legal Advisors LLC.

91. Regard being had therefore to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,600 for the proceedings before the Court, to be paid directly into the bank account of Threefold Legal Advisors LLC, plus any tax that may be chargeable to the applicant on that amount.

C. Default interest

92. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 8 of the Convention concerning the domestic authorities’ failure to offer the applicant effective assistance in securing contact with his daughter admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid to the bank account of Threefold Legal Advisors LLC;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsVincent A. De Gaetano
RegistrarPresident

[1]. No relevant document was submitted to the Court.

[2]. No relevant document was submitted to the Court.

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