CASE OF SOTO TREVINO v. UKRAINE

FIFTH SECTION

CASE OF SOTO TREVINO v. UKRAINE

(Application no. 12498/21)

JUDGMENT
 

STRASBOURG

11 April 2024

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

In the case of Soto Trevino v. Ukraine,

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

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 12498/21) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 March 2021 by a Mexican national, Mr Carlos Eduardo Soto Trevino (“the applicant”), who was born in 1968 and lives in Mexico;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently, Ms M. Sokorenko, of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 21 March 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the allegedly excessive length of proceedings in which the applicant had sought the return of his daughter, born in January 2018, from Ukraine, where she had been living with her mother since June 2018 without the applicant’s consent, to Mexico, the country of the child’s habitual residence, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), and the Ukrainian authorities’ alleged failure to enforce the domestic court’s interim order concerning contact arrangements while those proceedings were ongoing. The applicant complained of a violation of Article 8 of the Convention.

2.  The applicant submitted an application for his daughter’s return to the Ukrainian authorities in December 2018. Upon that application, in May 2019 the Zaporizhzhya Regional Department of Justice, acting on his behalf, brought proceedings in the Ordzhonikidzevskyi District Court of Zaporizhzhya (the first-instance court), which dismissed the application on 10 January 2020, having relied in particular on Article 13 of the Hague Convention and having found in the main that the child was entirely settled in Ukraine living with her mother. On 14 July 2020 the Zaporizhzhya Court of Appeal (the appellate court) granted the applicant’s appeal and quashed the first-instance court’s judgment. Eventually, following several reconsiderations of the case, by the decisions of 29 April and 6 October 2021, the appellate court and the Supreme Court, respectively, upheld the first‑instance court’s judgment of 10 January 2020.

3.  In the course of the judicial proceedings, on 1 July 2019 the first‑instance court issued an interim order that, among other things, obliged the mother to allow the applicant to meet with the child every day between 9 a.m. and 2 p.m. The meetings had to take place in the mother’s presence and to last no longer than two hours. The mother was also ordered not to change the child’s place of residence, which was at the mother’s registered address, until the proceedings ended. The interim order specified that it was subject to immediate enforcement and that any appeals lodged against it would have no suspensive effect. On 19 November 2019 the appellate court upheld those interim measures. By the decision of 15 February 2021, the same court dismissed the applicant’s application for a new interim order, noting, inter alia, that the contact arrangements set out by the interim order of 1 July 2019 as upheld by the appellate court on 19 November 2019 had not been cancelled.

4.  The child’s mother refused to comply with the interim order in question and obstructed the applicant’s contact with the child. His applications of 5 December 2019 and 18 June 2020 for the order’s compulsory enforcement were dismissed by decisions of the Khortytskyi District Bailiffs Service (“the Bailiffs Service”) of 6 December 2019 and 22 June 2020 respectively. The latter decision, partially upheld by the Khortytskyi District Court, refused to start the enforcement proceedings because the order contained no deadline for bringing it to be enforced.

5.  From 14 July 2020 onwards the child and her mother no longer lived at the mother’s registered address and their whereabouts were unknown. Following the applicant’s complaints, on 19 August 2020 the police opened a criminal case regarding the child’s alleged disappearance. By a decision of the Khortytskyi District Court of 25 September 2020, the mother was placed on a wanted list. On 16 October 2020 the police decided to close the criminal case, having noted that close relatives of the child’s mother had been unable to provide any information about the whereabouts of the child or her mother and that there was reliable information that the child was with her mother in an “orderly condition”. In that connection, the police referred to photos and videos of the mother and child that had been posted on the mother’s pages on various social media platforms and those sent by the mother to the police on various dates in September 2020, and to their participation in a programme broadcast by a Ukrainian television channel in October 2020. The police concluded that the mother was hiding with the child from the applicant. On 20 November 2020 the Khortytskyi District Court set aside the police’s decision of 16 October 2020 on the ground that the police had failed to comprehensively examine all the relevant circumstances. There is no information regarding any further developments in that criminal case.

THE COURT’S ASSESSMENT

6.  The applicant’s new complaints, raised essentially under Article 8 in his submissions of 17 July 2023, concerning the outcome of the proceedings on his application for the child’s return to Mexico and several other sets of child custody and care proceedings are not an elaboration of his original complaints on which the parties have commented (see paragraph 1 above), and therefore it is not appropriate to take those matters up in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

7.  Relying on Article 8, the applicant complained that the domestic proceedings in the present case, during which he had been unable to contact his minor child, had been excessively long.

8.  The Government contended that the applicant had been responsible for most of the delays since he or his representatives or interpreter had failed to appear at two hearings: one in April 2020 and the other in March 2021. Also, four hearings had been adjourned in 2019 following procedural applications by the parties.

9.  The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

10.  The general principles concerning the requirement of urgent examination of cases under the Hague Convention, where the passage of time can have irremediable consequences for relations between children and a parent who does not live with them, have been summarised in, among other authorities, Vilenchik v. Ukraine (no. 21267/14, § 53, 3 October 2017).

11.  The Court notes that the domestic proceedings for the return of the applicant’s then one-year-old child lasted for approximately two years and ten months, which significantly exceeded the six-week time-limit set out in Article 11 of the Hague Convention, and involved delays attributable mainly to the authorities.

12.  In particular, it took the Zaporizhzhya Regional Department of Justice approximately six months to bring domestic court proceedings following the submission of the applicant’s application and a further delay of over a year was primarily caused by reconsiderations of the case by the higher courts (see paragraph 2 above).

13.  While the applicant might indeed have partly contributed to the overall length of the proceedings, his actions caused no significant delays.

14.  Accordingly, the Court finds that there has been a violation of Article 8 in that the authorities failed to examine the case in the most expeditious manner as required in this type of dispute (see Vilenchik, cited above, §§ 53-56).

15.  Relying on Article 8, the applicant complained that the authorities had failed to enforce the contact arrangements set out in the first-instance court’s interim order of 1 July 2019 as upheld by the appellate court’s decision of 19 November 2019.

16.  The Government argued that the interim order in question had ceased to be enforceable on 14 July 2020 when the appellate court had quashed the first-instance court’s judgment of 10 January 2020 (see paragraph 2 above); the period during which the interim order had remained unenforced had not been excessive; and, in any event, as was indicated in the Bailiffs Service’s decision of 22 June 2020, the authorities had been precluded from enforcing the interim order.

17.  The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

18.  The Court previously found violations of Article 8 of the Convention in cases which concerned the prolonged non-enforcement of judicial interim orders regarding contact arrangements with children (see, among other authorities, Kuppinger v. Germany, no. 62198/11, §§ 99-110, 15 January 2015; Milovanović v. Serbia, no. 56065/10, §§ 106-36, 8 October 2019; and, as a more recent example, Tóth v. Hungary [Committee], no. 8324/18, §§ 8‑19, 19 October 2023).

19.  In cases concerning Ukraine, the Court has repeatedly found that the inappropriate manner in which domestic court decisions regarding children were implemented was the result of structural and systemic deficiencies of its legal framework (see Vyshnyakov v. Ukraine, no. 25612/12, § 46, 24 July 2018, and, more recently, Dubas v. Ukraine [Committee], no. 51222/20, §§ 7‑12, 9 March 2023).

20.  Those findings are equally pertinent to the present case. The interim order of 1 July 2019 setting out specific contact arrangements between the applicant and his then one-year-old child, which came into immediate effect on 1 July 2019 and were upheld by the appellate court’s decision of 19 November 2019, remained unenforced for approximately a year and ten months. Contrary to the Government’s argument, the appellate court’s decision of 15 February 2021 specifically pointed to the fact that the contact arrangements in question were still valid on that date (see paragraphs 3 and 16 above). Further, pursuant to Article 158 § 10 of the Code of Civil Procedure interim measures remain effective until the entry into force of a judgment on the merits, which in this case happened following the appellate court’s decision of 29 April 2021 (see paragraph 2 above).

21.  It is true that during the period when the interim contact arrangements were in place the child’s mother obstructed the applicant’s contact with the child and apparently changed her whereabouts to that end in July 2020 (see paragraphs 4 and 5 above).

22.  However, the authorities provided no assistance to the applicant in his attempts to enforce the contact arrangements in question. His applications for the compulsory enforcement of the interim order were dismissed by the Bailiffs Service on purely formalistic grounds, ultimately because of a shortcoming in the text of the interim order for which the applicant could not be held responsible and which does not appear to have been capable of creating an objective obstacle to the order’s enforcement (see paragraph 4 above).

23.  The authorities’ attempts to find the mother and child after they changed their whereabouts in July 2020 were limited to questioning the mother’s relatives and reviewing her social media posts. Those attempts appear to have been perfunctory and completely ineffective, given that at the time the mother was living in Ukraine quite openly, communicated with the authorities and the courts, and took part in a television programme. The Khortytskyi District Court’s decision of 20 November 2020 corroborates that conclusion (see paragraph 5 above).

24.  Overall, the authorities’ reluctant attitude towards the applicant’s requests for assistance in enforcing the interim order on contact arrangements in the period of 5 December 2019 – the date of his first application to the Bailiffs Service – until 29 April 2021 (see paragraphs 4 and 20 above), which is significant given that the order concerned the applicant’s access to his very young child, breached the applicant’s right to have measures taken with a view to his being reunited with his child and was contrary to the authorities’ obligation to facilitate such a reunion (see Vyshnyakov, cited above, §§ 36 and 45-47).

25.  There has accordingly been a violation of Article 8 of the Convention on account of the non-enforcement of the Ordzhonikidzevskyi District Court’s interim order of 1 July 2019.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicant claimed 1,409,613 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 79,021 in respect of various expenses he had allegedly incurred in the course of the domestic proceedings and those before the Court.

27.  The Government contended that the claims were unsubstantiated.

28.  The Court awards the applicant EUR 6,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claim.

29.  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,

(a)  that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

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

Done in English, and notified in writing on 11 April 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President