CASE OF MURUZHEVA v. RUSSIA

THIRD SECTION

CASE OF MURUZHEVA v. RUSSIA

(Application no. 62526/15)

JUDGMENT

STRASBOURG

15 May 2018

FINAL

15/08/2018

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

In the case of Muruzheva v. Russia,

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

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 April 2018,

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

PROCEDURE

1. The case originated in an application (no. 62526/15) 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, Ms Leyla Khamarzovna Muruzheva (“the applicant”), on 11 December 2015.

2. The applicant was represented by Ms V. Kogan and Mr E. Wesselink from the Stichting Russian Justice Initiative, an NGO based in Moscow. The Russian Government (“the Government”) were initially 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 complained about the authorities’ failure to enforce the judgment of 25 June 2014 granting her a residence order in respect of her children.

4. On 25 April 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1985 and lives in Moscow.

6. In May 2008 she married R.M. The couple settled in Moscow.

7. On 23 July 2008 and 31 May 2012 the applicant gave birth to two children, a son and a daughter respectively.

8. In January 2014 she and R.M. decided to separate.

9. On 14 January 2014 R.M. took the children to the Republic of Ingushetiya without the applicant knowing. He left them with his parents (the paternal grandparents) and went back to Moscow.

10. On 4 March 2014 the marriage between the applicant and R.M. was dissolved.

11. On 11 March 2014 the applicant applied to the Izmaylovskiy District Court of Moscow (“the District Court”) for a residence order in respect of the children. She also applied for child maintenance from R.M.

12. On 25 June 2014 the District Court decided that the children should reside with their mother, the applicant. It further ordered R.M. to return the children to her and pay child maintenance. The judgment became final on 14 October 2014.

13. However, R.M. refused to comply with the judgment.

14. On 10 November 2014 the District Court issued a writ of execution.

15. On 17 November 2014 the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya refused to institute enforcement proceedings since the debtor, R.M., resided in Moscow.

16. On 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings.

17. On 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya.

18. On 12 February 2015 the applicant challenged the lawfulness of the above-mentioned decision before the District Court.

19. On 8 April 2015 the District Court found the decision of 2 February 2015 to be unlawful.

20. Meanwhile, on 23 March, 2 April, 14 April and 16 April 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service tried to enforce the judgment of 25 June 2014 without success: on 23 March and 16 April 2015 due to the emotional state of the children, on 2 April 2015 because the children were outside the territory of the Republic of Ingushetiya, and on 14 April 2015 because the applicant was absent.

21. On 24 April 2015 the applicant challenged in court the lawfulness of the bailiffs’ actions during the attempt to return the children to her on 16 April 2015, in particular: involvement of the wrong district childcare authority in the enforcement, refusal of a request by her to have the enforcement filmed, refusal to examine an objection by her concerning a psychologist participating in the enforcement, delay in notification of the enforcement, establishment during the enforcement of the applicant’s son’s preferences as to his future living arrangements, as well as the bailiffs’ inaction resulting in the failure to secure enforcement of the judgment of 25 June 2014.

22. On 11 June 2015 the Magasskiy District Court of the Republic of Ingushetiya found the bailiffs’ actions during the attempt to return the children to the applicant on 16 April 2015 to be unlawful.

23. On 17 June 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service restricted R.M.’s travel within the Russian Federation for six months.

24. Meanwhile, according to the Government, on 16 June, 5 July, an unspecified date in July, 15 July and 17 August 2015 a bailiff from the Sunzhenskiy District Bailiffs’ Service informed the applicant that the enforcement was scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015 respectively. On each of the five occasions R.M. took the children to the premises of the Sunzhenskiy District Bailiffs’ Service. However, since neither the applicant nor her representative were present, the enforcement could not take place.

25. According to the applicant, she was never informed of the enforcement dates scheduled for 22 June, 6 July, 13 July, 27 July and 19 August 2015.

26. It appears from the case file that the notification of 16 June 2015 was sent to R.M.’s address. The notifications of 15 July and 17 August 2015 were sent to the applicant’s address, though there is no evidence to suggest that she received them. The case file contains no evidence that she was notified of the other two scheduled dates for carrying out the enforcement measures either.

27. On 17 September 2015 the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow pursuant to the decision of the District Court of 8 April 2015 (see paragraph 19 above).

28. On 6 October and 20 October 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service in Moscow ordered R.M. to comply with the judgment of 25 June 2014 by 13 October and 23 October 2015 respectively. He further visited R.M. at his place of residence in Moscow. It was established that the children were living with R.M.’s parents in the Republic of Ingushetiya.

29. On 23 October 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of 2,500 Russian roubles (RUB) for failure to comply with the judgment of 25 June 2014.

30. On 3 November 2015 a bailiff from the Izmaylovskiy District Bailiffs’ Service invited R.M. to the bailiffs’ office on 10 November 2015 to provide explanations for his non-compliance with the judgment of 25 June 2014.

31. On 10 November 2015 the bailiff imposed an execution fee on R.M. of RUB 5,000 for failure to comply with the judgment of 25 June 2014. He was ordered to comply by 13 November 2015.

32. On 20 November 2015 the deputy chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed a further administrative fine on R.M. of RUB 2,500 for failure to comply with the judgment of 25 June 2014.

33. On the same day the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs.

34. On 14 January 2016 the Commission for the Affairs of Minors and the Protection of Their Rights of the Severnoye Izmaylovo District in Moscow imposed an administrative fine on R.M. of RUB 2,000.

35. On the same day the bailiff temporarily restricted R.M.’s travel in view of his failure to comply with the judgment of 25 June 2014, and ordered him to pay the imposed administrative fines. R.M. was invited to the bailiffs’ office on 19 January 2016 to provide explanations for his reluctance to comply with the judgment of 25 June 2014, and was ordered to comply by 20 January 2016.

36. At the applicant’s request, on 3 February 2016 the bailiff launched a search for the children and restricted R.M.’s right to drive.

37. On 5 February 2016 the chief bailiff of the Izmaylovskiy District Bailiffs’ Service imposed an administrative fine on R.M. of RUB 1,000 for failure to comply with the lawful demands of the bailiffs.

38. On 13 April 2016 the bailiff telephoned R.M. and asked him to attend the bailiffs’ office to provide explanations for his non-compliance with the judgment of 25 June 2014. He refused to do so.

39. On 14 April 2016 the bailiff suspended the enforcement proceedings.

40. According to the Government, on 5 May 2016 the bailiff informed the applicant that the enforcement was scheduled for 10 a.m. on 19 May 2016 at the children’s place of residence in the Republic of Ingushetiya. However, since she failed to attend, the enforcement could not be carried out.

41. According to the applicant, she was not informed of the enforcement scheduled for 19 May 2016.

42. It appears from the case file that the notification of 5 May 2016 was sent to R.M.’s address.

43. The judgment of 25 June 2014 remains unenforced to date. The children continue to live with their paternal grandparents in the Republic of Ingushetiya.

II. RELEVANT DOMESTIC LAW

44. 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

45. The applicant complained that the authorities had failed to enforce the judgment of 25 June 2014 granting her a residence order in respect of her children. She 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.”

46. The Government asserted that the domestic authorities had taken all the necessary steps that they could reasonably have been expected to take to enforce the judgment of 25 June 2014. However, their efforts had been unsuccessful. They considered that the applicant had prevented the enforcement herself as, despite having been duly notified of the scheduled enforcement dates, she had repeatedly failed to attend. The removal of the children and their transfer could not take place in her absence. The Government concluded that the State had complied with its positive obligation to ensure the applicant’s right to respect for her family life under Article 8 of the Convention and that there had therefore been no violation of that Convention provision.

47. The applicant challenged the Government’s assertion that the domestic authorities had taken all necessary steps to facilitate the reunion between her and the children. She considered that throughout the enforcement proceedings the bailiffs had failed to display due diligence in handling her calls for assistance. They had appeared unprepared to face the task and had had no clear idea or action plan as to what could and should be done. As a result, the children continued to live with their parental grandparents instead of either parent. The applicant submitted that she had been present for all the enforcement attempts of which she had been duly and properly notified, namely 23 March, 2 April and 16 April 2015, except for the enforcement planned for 14 April 2015. She had been absent on that date due to illness. She had not been informed of any other enforcement dates. The case file contains no evidence to the contrary. The applicant further deplored the bailiffs’ conduct during the enforcement proceedings (see paragraph 21 above), the delay in transferring the enforcement file from the Republic of Ingushetiya back to Moscow pursuant to the District Court’s decision of 8 April 2015, and the failure to properly notify her of the enforcement dates, which rendered the enforcement measures completely useless. The total amount of administrative fines imposed on R.M. for his failure to comply with the judgment of 25 June 2014 was too small to be capable of inducing him to comply with the bailiffs’ demands. Besides, none of the fines had actually been recovered from him. Bailiffs from the Izmaylovskiy District Bailiffs’ Service in Moscow should have exercised their right under section 33(10) of the Enforcement Proceedings Act to travel to Ingushetiya to facilitate enforcement of the judgment rather than sending requests for assistance to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya, which was clearly biased against the applicant and not predisposed to enforcing the judgment in her favour. The latter allegation was supported by references to unlawful actions by the bailiffs of that Bailiffs’ Service, as well as by the existence of a common phenomenon in cases concerning custody decisions from Chechnya and Ingushetiya.

A. Admissibility

48. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. General principles

49. 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 Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). In cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and Zawadka v. Poland, no. 48542/99, § 55, 23 June 2005), the Court’s case‑law has consistently held that this Convention provision includes, among other things, a right for a parent to have measures taken with a view to his or her being reunited with their child, and an obligation on the national authorities to take such measures.

50. At the same time, the national authorities’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately, and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. Whilst the 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 should be, more particularly, the best interests of the child and his or her rights under Article 8 of the Convention (see P.P. v. Poland, no. 8677/03, § 82, 8 January 2008; Hokkanen, cited above, § 53; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 96, ECHR 2000‑I). 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 the child and the parent (see P.P. v. Poland, cited above, § 83). Although coercive measures involving a child are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo‑Zenide, cited above, §§ 105-106).

2. Application in the present case

51. The Court notes that it was not disputed between the parties that the ties between the applicant and her children constituted “family life” for the purposes of Article 8 of the Convention. The Court next notes that the District Court’s judgment of 25 June 2014 ordering that the children, then aged six and two, live with their mother, the applicant, remains unenforced some three and a half years later. Accordingly, it has to be determined whether in the particular circumstances of the case the national authorities took all the necessary steps which they could reasonably have been expected to take to facilitate the enforcement.

52. The Court observes that on 24 November 2014 the Izmaylovskiy District Bailiffs’ Service in Moscow opened enforcement proceedings. It further notes that on 2 February 2015 the enforcement proceedings were transferred to the Sunzhenskiy District Bailiffs’ Service in the Republic of Ingushetiya. On 8 April 2015, however, the District Court found the decision of 2 February 2015 to be unlawful. It appears that it took the domestic authorities four and a half months to determine the bailiffs’ service competent to lead the enforcement proceedings. The Court further notes that, despite the decision of 8 April 2015 finding the transfer of the enforcement proceedings from Moscow to the Republic of Ingushetiya to be unlawful, it was not until over five months later, on 17 September 2015, that the enforcement file was returned to the Izmaylovskiy District Bailiffs’ Service in Moscow (see paragraph 27 above).

53. The Court further observes that following the institution of the enforcement proceedings on 24 November 2014, it was four months later, on 23 March 2015, when the first enforcement attempt took place (see paragraph 20 above). The Court notes that four attempts were made to return the children between March and April 2015. It appears, however, that no preparatory measures had been undertaken by the bailiffs to make the scheduled enforcement attempts practicable, especially given that the children had been living with their parental grandparents since January 2014. As a result, on two occasions the enforcement could not take place because the children were outside the territory of the Republic of Ingushetiya, and on two occasions due to their emotional state. The Court notes, furthermore, that the bailiffs’ actions during the attempt to return the children on 16 April 2015 were found to be unlawful by the domestic courts (see paragraph 22 above).

54. The Court observes that the subsequent attempts to enforce the judgment of 25 June 2014 took place two months later, in June 2015. The Court notes that in the period between June and August 2015 five enforcement dates were scheduled by the bailiffs, however, none of them could take place because the applicant was absent. The Court notes that the documents contained in the case file explain her absence on those dates. There is no proof that she has been duly notified (see paragraph 26 above). Therefore, the inability of the bailiffs to proceed with the enforcement on those occasions cannot be attributed to the applicant.

55. The Court further notes that between October 2015 and February 2016 several administrative fines were imposed on R.M. for his failure to comply with the lawful demands of the bailiffs and with the judgment of 25 June 2014, as well as an execution fee. The total penalties amounted to RUB 14,000[1] (see paragraphs 29, 31-34 and 37 above). However, nothing in the case file suggests that the penalties in question were actually recovered from R.M.

56. The Court further observes that, having restricted R.M.’s right to travel and drive a vehicle and launched a search for the children in January to February 2016, in May 2016 the bailiffs undertook another attempt to enforce the judgment of 25 June 2014. However, they failed to duly notify the applicant (see paragraph 42 above) and could not, therefore, proceed with the enforcement in her absence.

57. The Court notes that the judgment of 25 June 2014 determining the children’s place of residence with the applicant has remained unenforced for nearly four years now, a major part of the children’s lives, with all the consequences that that might have for their physical and mental well-being. It appears that not once in that period has the applicant been able to communicate with her children.

58. Having regard to the foregoing, and without overlooking the difficulties created by the resistance of R.M., the children’s father, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment concerning the applicant’s custody of her children.

59. There has therefore been a violation of the applicant’s right to respect for her family life, as guaranteed by Article 8 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

60. 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

61. The applicant claimed compensation for non‑pecuniary damage sustained as a result of the alleged violation of the Convention in an amount to be determined by the Court.

62. The Government considered that, since the applicant had failed to quantify her claim for non-pecuniary damage, her claim should be rejected.

63. The Court considers that the applicant must have suffered, and continues to suffer, profound distress as a result of her inability to have a relationship with her children. 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 12,500 euros (EUR) under this head.

B. Costs and expenses

64. The applicant also claimed EUR 6,136.45 for costs and expenses, including legal fees (EUR 4,875 in the proceedings before the Court and EUR 700 in domestic proceedings), administrative expenses, including telephone, fax, e-mail, copying and paper expenses, secretarial fees (EUR 390.25), and postal expenses (EUR 171). She submitted a legal fee agreement in accordance with which, if she “won” her case and was awarded compensation by the Court, she was to pay her lawyers EUR 150 per hour. She also submitted lawyers’ time-sheets and relevant invoices.

65. The Government submitted that contingency fee agreements were not enforceable under Russian law. They further argued that it had not been shown that the expenses incurred in the domestic proceedings had had any relevance to the present case, and that the applicant’s recourse to international courier service for sending her documents to the Court had not been strictly necessary.

66. 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 the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads, to be paid directly to the bank account of the Stichting Russian Justice Initiative NGO, plus any tax that may be chargeable to the applicant on that amount.

C. Default interest

67. 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 application 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 3,000 (three thousand 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 the Stichting Russian Justice Initiative NGO;

(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 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

[1]. Approximately EUR 200 at the current official exchange rate.

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