CASE OF GEN AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF GEN AND OTHERS v. UKRAINE

(Applications nos. 41596/19 and 42767/19)

JUDGMENT
 

STRASBOURG

10 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Gen and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Jovan Ilievski,
 Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications (nos. 41596/19 and 42767/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Naum Gen (“the first applicant”), Ms Tetyana Kaluzhska (“the second applicant”), Mr Semen Gen (“the third applicant”) and Polina Gen (“the fourth applicant”) on 21 and 27 July 2019;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the non-enforcement of the court decisions on contact arrangements and to declare inadmissible the remainder of the applications;

the decision to give priority to the applications (Rule 41 of the Rules of Court) and the decision to grant leave for Ms V., the mother of Ms Polina Gen, to intervene as a third party in the written proceedings before the Court (Rule 44);

the parties’ observations;

Having deliberated in private on 20 May 2021,

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

INTRODUCTION

1.  The case concerns the non-enforcement of child contact arrangements established by the court, allegedly in breach of Article 8 of the Convention.

THE FACTS

2.  The applicants, whose particulars are set out in the Appendix, were represented by Mr B. Fokiy, a lawyer practising in Chernivtsi. The first and the second applicants (Mr Naum Gen and Ms Tetyana Kaluzhska respectively) are the parents of the third applicant (Mr Semen Gen) and the paternal grandparents of the fourth applicant (Ms Polina Gen). The third applicant is the father of the fourth applicant.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  In 2004 Mr Semen Gen (the third applicant) began cohabiting with V. in the city of Kharkiv. On 29 March 2013 their daughter, Ms Polina Gen (the fourth applicant), was born. The third applicant was registered as the child’s father, and V. was registered as the child’s mother.

6.  In April 2014 the third applicant and V. separated. The child continued living with V.Court proceedings regarding contact arrangements and the enforcement of the contact schedule in respect of the child’s father (MR SEMEN GEN)

7.  In July 2015 V. lodged a civil claim, seeking to establish a schedule in respect of the father’s meetings with the child, arguing that the father had been spending excessive amounts of time with the child. The child’s father (the third applicant) and the paternal grandparents (the first and second applicants – that is to say Mr Naum Gen and Ms Tetyana Kaluzhska) lodged counterclaims, arguing that V. had been preventing them from seeing the child.

8.  On 15 August 2016 the Dzerzhynskyy District Court of Kharkiv found that the father and paternal grandparents of the child had been prevented from seeing the child. The court, having examined the family situation, established a child contact schedule for the father and another child contact schedule for the paternal grandparents in order to enable them to take part in the upbringing of the child. On 12 April 2018 the Kharkiv Regional Court of Appeal amended the father’s schedule.

9.  On 3 May 2018, at the request of the child’s father, the State Bailiffs Service (“the bailiffs”) opened enforcement proceedings in respect of his contact arrangements.Suspension of the enforcement proceedings by the Supreme Court

10.  V. appealed on points of law against the court decisions establishing contact arrangements, requesting that the enforcement proceedings be suspended, arguing that the child’s contact with the third applicant would be detrimental to her well-being. The third applicant objected to the suspension, maintaining that it had been essential for the child to see her father.

11.  On 14 May 2018 the Supreme Court suspended the enforcement of the contact arrangements, pending the examination of the appeal lodged by V. The Supreme Court ruled that V.’s request was well-founded.

12.  On 16 January 2019 the Supreme Court dismissed V.’s appeal on points of law as unfounded.

13.  On 28 January 2019 the enforcement proceedings were resumed.

14.  On 25 February the bailiffs imposed a fine on V. of 3,400 Ukrainian hryvnas (UAH) on account of her failure to comply with the contact schedule; on 1 March 2019 they imposed a second fine on V. in the same amount for the same reason.Suspension of the enforcement proceedings by the first-instance court

15.  V. lodged an application with the Dzerzhynskyy District Court of Kharkiv, requesting that the writ of execution issued regarding the third applicant’s contact schedule not be enforced. V. argued that the writ of execution had been defective and, moreover, that the child did not wish to meet with her father. V. requested the court to suspend the enforcement proceedings pending the examination of her application.

16.  On 5 March 2019 the first-instance court suspended the enforcement proceedings, pending examination of V.’s application. The court ruled that the suspension order had been essential for the proper examination of the application.

17.  On 6 March 2019 the child’s father lodged a request with the court for the suspension order to be lifted, arguing that it had been baseless. His request was not allowed.

18.  On 18 July 2019 the court dismissed V.’s application as unfounded. The bailiffs resumed the enforcement proceedings.

19.  On 30 July, 1, 5 and 6 August, 10 September, 7, 8 and 22 October, 9 and 12 November and 3, 7, 10 and 12 December 2019 the bailiffs reported that the child had refused to see her father during the meetings scheduled for those dates.

20.  On 12, 15, 25 and 29 October, 4 and 26 November and 13, 17 and 24 December 2019 the bailiffs reported that the meetings scheduled for those dates had not taken place owing to the fact that the child had been ill.

21.  On 19 December 2019 the bailiffs issued an order for the local childcare authority to join the enforcement proceedings.

22.  On 26 December 2019 the Kharkiv Court of Appeal quashed the court decision of 18 July 2019 and ordered the first-instance court to hold a fresh hearing in respect of the application lodged by V. (see paragraph 15 above).

23.  On 27 December 2019 and 7 January 2020 the bailiffs reported that the child had refused to see her father during the meetings scheduled for those dates.

24.  On 10 January 2020, following a request lodged by V., the bailiffs suspended the enforcement proceedings, deeming that, after the ruling of the appellate court of 26 December 2019, the suspension order of 5 March 2019 had once more become valid. The parties did not provide further information in respect of the court proceedings relating to V.’s application (see paragraph 15 above).Enforcement of the contact schedule relating to the child’s paternal grandfather (Mr Naum Gen)

25.  On 7 March 2019 Mr Naum Gen (the first applicant) lodged a request with the bailiffs, asking them to enforce the court order establishing the schedule for his meetings with the child.

26.  On 12 and 14 March 2019 the bailiffs returned the writ of execution (regarding the first applicant’s schedule in respect of contact with the child) to the first applicant without having enforced it.

27.  The first applicant lodged a challenge against the bailiffs’ actions with the supervising bailiffs, who found on 11 April 2019 that there had been no grounds for returning the execution writ unenforced.

28.  On 16 April 2019 the bailiffs initiated enforcement proceedings.

29.  On 26 May 2019 the bailiffs reported that the child had refused to see her grandfather during the meeting scheduled for that date.

30.  On 28 May 2019 the bailiffs issued a report stating that the court decision setting the first applicant’s contact schedule had been fully enforced. They therefore closed the enforcement proceedings.

31.  On 26 June 2019 the enforcement proceedings were reopened at the request of the first applicant.

32.  On 28 July and 22 September 2019 the bailiffs reported that the child had refused to see her grandfather during the meetings scheduled for those dates.

33.  On 16 March 2020, following a complaint lodged by the first applicant, the first-instance court found that on 26 May 2019 the bailiffs had not taken all the measures when supervising the meeting between the grandfather and the child, given the fact that the execution of a court decision should not be thwarted by mere wishes of a child. The court held that failings on the part of the bailiffs had resulted in a violation of the child’s right to communicate with her grandfather according to the contact schedule established by the court.

34.  On 18 May 2020, following a complaint lodged by the first applicant, the first-instance court again found that on 22 September 2019 the bailiffs had not taken all the measures necessary when supervising the meeting between the first applicant and the child.Enforcement of the contact schedule as regards the child’s paternal grandmother (Ms Tetyana Kaluzhska)

35.  On 4 June 2019 Ms Tetyana Kaluzhska (the second applicant) lodged a request with the bailiffs, asking them to enforce the court order establishing the schedule for her meetings with the child.

36.  On 5 June 2019 the bailiffs initiated enforcement proceedings.

37.  On 28 July and 22 September 2019 the bailiffs reported that the child had refused to see her grandmother during the meetings scheduled for those dates.

RELEVANT LEGAL FRAMEWORK

38.  Under the Family Code of Ukraine (2002), a child’s mother and father have equal rights and responsibilities towards that child, regardless of whether they are or have been married to each other (Article 141 § 1). Divorce between parents or the fact that one parent lives apart from the child does not affect the scope of their rights and does not release them from their obligations towards their child, save for exceptions established by the Code (Article 141 § 2).

39.  Other relevant provisions of domestic law can be found in Shvets v. Ukraine ([Committee] no. 22208/17, § 23, 23 July 2019) and Bondar v. Ukraine ([Committee] no. 7097/18, §§ 17 and 18, 17 December 2019).

THE LAWJOINDER OF THE APPLICATIONS

40.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.STANDING OF THE THIRD APPLICANT TO ACT ON BEHALF OF HIS DAUGHTER

41.  Mr Semen Gen (the third applicant) lodged the application on his own behalf and on behalf of his daughter (the fourth applicant).

42.  The Government submitted that at the domestic level the child had repeatedly refused to see her father during the scheduled contact sessions. In the Government’s opinion, in such circumstances the third applicant had acted in a manner contrary to the child’s interests in lodging the application with the Court on behalf of that child.

43.  The Court reiterates that in cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests (see Moog v. Germany, nos. 23280/08 and 2334/10, § 41, 6 October 2016). As regards the present case, it was not disputed that both parents exercised parental authority and that neither of them had been granted sole custody of the child. By virtue of domestic law, the mere fact that the third applicant lived separately from his child did not deprive him of his parental rights and duties in respect of that child (see paragraph 38 above).

44.  The Court furthermore considers that the child’s behaviour during the contact sessions – notably her refusal to communicate with her father – could not have prevented the third applicant from exercising his parental authority and from undertaking such actions, including procedural steps, as he deemed appropriate in order to protect the interests of his daughter. Accordingly, the Court finds that the third applicant had standing to institute the present proceedings on behalf of the fourth applicant.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

45.  The applicants complained under Articles 6 and 8 of the Convention that the contact arrangements established by the court decisions of 15 August 2016 and 12 April 2018 had not been effectively implemented by the authorities.

46.  The Court, as master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018, and Vyshnyakov v. Ukraine, no. 25612/12, §§ 29 and 30, 24 July 2018), will examine the complaint from the standpoint of Article 8 of the Convention alone. Article 8 reads as follows:

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

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.”AdmissibilityCompatibility ratione materiae

47.  First of all, the Court has to examine whether Article 8 of the Convention is applicable to the present case (see Denisov v. Ukraine [GC], no. 76639/11, §§ 93-94, 25 September 2018).

48.  The Court reiterates that 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 (see, among other authorities, Kacper Nowakowski v. Poland, no. 32407/13, § 70, 10 January 2017). The Court considers that the relationship between the third and the fourth applicants falls within the ambit of “family life”.

49.  Furthermore, there may be “family life” within the meaning of Article 8 of the Convention between grandparents and grandchildren where there are sufficiently close family ties between them (see, for example, Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 59, 16 April 2015, and Shvets v. Ukraine ([Committee] no. 22208/17, § 30, July 2019).

50.  In the present case the domestic courts, having examined the family situation, considered it appropriate to establish a contact schedule not only in respect of the child’s father, but also in respect of the paternal grandparents, in order to enable them to take part in the upbringing of the child (see paragraph 8 above). The Court accepts that in the instant case the relationship between the paternal grandparents and the child also amounts to “family life”.

51.  Article 8 is therefore applicable to the complaints submitted by all the applicants.The alleged abuse of the right of application

52.  The Government submitted that the applicants had abused their right of application to the Court in that they had not presented a full picture of the events, notably the measures taken by the bailiffs, apparently to mislead the Court.

53.  The applicants disagreed and maintained that in their applications they had presented all the relevant facts in good faith.

54.  The Court reiterates that the submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).

55.  In the present case, there is no indication that the failure by the applicants to present some pieces of information regarding the domestic proceedings was premediated and could be viewed as indicating the intention to mislead the Court. Accordingly, this objection by the Government must be dismissed.The alleged lack of victim status

56.  The Government submitted that the first and the second applicants had demonstrated a perfunctory attitude towards the domestic proceedings because their claims had essentially been pursued by the third applicant, acting as their representative. Given those circumstances the first and the second applicants could not claim to be victims, within the meaning of Article 34 of the Convention.

57.  The first and the second applicants disagreed and claimed that there was no reason to consider that they had no interest in the case or that they had lost their victim status.

58.  The Court reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be the victim of a violation of the rights set forth in the Convention or the Protocols thereto. It considers that the first and the second applicants made arguable complaints under Article 8 of the Convention, and the fact that those applicants acted at the domestic level with the assistance of their son cannot deprive them of their victim status in the Convention proceedings. The Government’s objection is therefore dismissed.

59.  The Court notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.Merits

60.  The applicants maintained that the domestic authorities had failed to take appropriate measures to ensure that the contact schedules fixed by the courts would be adhered to in practice. They insisted that the courts had suspended the contact regime without any grounds and that the bailiffs had not made sufficient efforts to ensure that the child’s mother, V., complied with the contact arrangements. The Court has not received any comments from V. who was admitted to the case as a third party.

61.  The Government submitted that the authorities had taken all the steps necessary to ensure that the contact arrangements were adhered to and to ensure respect for the applicants’ family life.

62.  The Court refers to the general principles concerning the State’s positive obligations with respect to the contact rights of parents, which are described in Vyshnyakov (cited above, §§ 35-37, with further references). These principles also apply to cases where contact and residence disputes concerning children arise between parents and/or other members of their children’s family (see Mitovi, cited above, § 55, and N.Ts. and Others v. Georgia, no. 71776/12, § 70 in fine, 2 February 2016), even though the relationship between grandparents and grandchildren differs in nature and degree from the relationship between a parent and his or her child, and thus by its very nature may call for a lesser degree of protection (see Mitovi, cited above, § 58).

63.  In the present case the father and the paternal grandparents of the child submitted that they had been hindered in their efforts to maintain contact with the child (who lived apart from them, with her mother). In response to the applicants’ assertions, the courts found that they had indeed been so hindered; they accordingly established the contact schedules (see paragraph 8 above). Compliance with these court orders had to be ensured by the bailiffs. However, the Court has doubts that the domestic authorities took all the reasonable steps to ensure respect for the applicant’s family life.

64.  Firstly, even though the courts established the contact schedule for the child’s father, its implementation was suspended for considerable periods by virtue of further court decisions (see paragraphs 11, 13, 16, 18, and 24 above). Given the serious nature of such measures and their prolonged effect, the courts were obliged to cite relevant and sufficient reasons in their decisions in order to demonstrate that they were not arbitrary. However, in their reasoning the courts did not refer to any specific circumstances justifying those measures or explain how the suspension of contact arrangements served the best interests of the child (contrast Süß v. Germany, no. 40324/98, § 90 et seq., 10 November 2005, and Buchleither v. Germany, no. 20106/13, § 46 et seq., 28 April 2016).

65.  Secondly, there is nothing to suggest that during the periods when the enforcement proceedings were ongoing the authorities ever considered putting in place arrangements to monitor voluntary compliance with the judgment. Furthermore, it remains unclear to what extent the childcare and family services could have been involved in that regard and whether any family mediation could have been employed. At a certain point the bailiffs decided that the local childcare authority should join the enforcement proceedings (see paragraph 21 above), but there was no indication that that childcare authority had any influence on the implementation of contact arrangements.

66.  Thirdly, as regards the bailiffs’ conduct, it appears that on numerous occasions they arrived at contact meetings with the sole purpose of documenting the fact that the child was unwilling to communicate with her father and her paternal grandparents. The limited extent of the bailiffs’ intervention was criticised by the domestic courts as being inappropriate (see paragraphs 33 and 34 above). The Court reiterates that the right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children without any other factors being considered and an examination being carried out to determine their best interests; moreover, such interests normally dictate that the child’s ties with his or her family must be maintained, except in cases where this would harm his or her health and development (see A.V. v. Slovenia, no. 878/13, § 72, 9 April 2019, with further references). However, in the case at hand, when the authorities were faced with the persistent refusal of a very young child to see members of her family, they failed to ensure that professional targeted support was effectively provided to the child; such support was critical for her to get used to the idea of having regular meetings with her father and grandparents as well as for V. to come to understand what was in the child’s best interests, according to the reasoning of the binding court decisions (see paragraph 8 above). Such assistance constituted, given the specific circumstances of this case, part of the necessary measures that the authorities were reasonably required to undertake, in line with their positive obligations under Article 8 (see, for similar approach, A.V., cited above, § 84).

67.  Lastly, even though voluntary compliance is preferable, the entrenched positions often taken by the parents in such cases can render such compliance difficult, making it necessary, in certain cases, to have recourse to proportionate coercive measures (see Vyshnyakov, cited above, § 43, with further references). In this regard the bailiffs imposed fines on V. (see paragraph 14 above), but it is doubtful that the amounts of those sanctions were significant enough to have an appropriate coercive effect on V. (compare Kuppinger v. Germany, no. 62198/11, § 105, 15 January 2015).

68.  The Court has found in cases against Ukraine that the inappropriate means of enforcing court judgments regarding child contact arrangements are the result of a lack of any developed legislative and administrative framework that could facilitate voluntary compliance arrangements involving family and childcare professionals. Furthermore, the available framework did not provide for appropriate and specific measures to ensure, subject to the proportionality principle, coercive compliance with contact arrangements (see the above-cited cases of Vyshnyakov, § 46, and Shvets, § 38; see also Bondar v. Ukraine ([Committee] no. 7097/18, § 36, 17 December 2019). The Court considers that these findings are equally pertinent to the present case.

69.  Accordingly, the Court finds that there has been a violation of Article 8 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

70.  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.”Damage

71.  The applicants claimed the following amounts in respect of non‑pecuniary damage: 3,600 euros (EUR) for the first applicant, EUR 3,600 for the second applicant, EUR 7,500 for the third applicant, and EUR 7,500 for the fourth applicant.

72.  The Government considered those claims unfounded.

73.  The Court considers that the applicants must have suffered distress and anxiety on account of the violation that it has found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the first and the second applicants EUR 4,500 jointly, and the third and the fourth applicants EUR 7,500 jointly, in respect of non-pecuniary damage.Costs and expenses

74.  The applicants claimed EUR 7,403 for the costs and expenses incurred before the domestic authorities and the Court.

75.  The Government contended that that claim was unfounded.

76.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants jointly EUR 1,500, plus any tax that may be chargeable thereon, in respect of costs and expenses. The amount awarded under this head should be paid directly into the bank account of Mr B. Fokiy (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).Default interest

77.  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, Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 8 of the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, to be paid to the first and the second applicants jointly, in respect of non-pecuniary damage;

(ii)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, to be paid to the third and the fourth applicants jointly, in respect of non-pecuniary damage;

(iii)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, this amount to be paid into the bank account of Mr B. Fokiy;

(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;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller  Stéphanie Mourou-Vikström
Deputy Registrar President

Appendix

List of applicants:

No.

Applicant

Year of Birth

Place of Residence

Nationality

1

Naum Samuilovich GEN

1937

Kharkiv

Ukrainian

2

Tetyana Yakivna KALUZHSKA

1938

Kharkiv

Ukrainian

3

Semen Naumovych GEN

1969

Kharkiv

Ukrainian

4

Polina Semenivna GEN

2013

Kharkiv

Ukrainian

 

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