FIFTH SECTION
DECISION
Application no. 50572/20
Yana Igorivna CHYSTYAKOVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 2 March 2023 as a Committee composed of:
Carlo Ranzoni, President,
Lado Chanturia,
María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 50572/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 October 2020 by a Ukrainian national, Ms Yana Igorivna Chystyakova, who was born in 1988 and lives in Barcelona (“the applicant”);
the decision to give priority to the application (Rule 41 of the Rules of Court);
the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns a dispute between the applicant and her former husband, S., a resident of Mexico, regarding the custody of their minor daughter, who was born in Mexico in January 2018 and lived there until she was taken by the applicant to Ukraine in June 2018.
2. On 14 July 2020 the Zaporizhzhya Court of Appeal ordered the return of the child to her father in Mexico, pursuant to the Hague Convention on Civil Aspects of International Child Abduction. On 2 October 2020 the Supreme Court refused an application lodged by the applicant for the suspension of the enforcement of that order.
3. On 19 November 2020 the Court decided to indicate under Rule 39 of the Rules of Court that the Ukrainian Government should not take any steps to forcefully return the child to Mexico. On 8 January 2021 the said interim measure, initially applied until 15 January 2021, was prolonged “until further notice”.
4. On 29 April 2021 the Zaporizhzhya Court of Appeal reconsidered the case and decided that the child should remain with the applicant and could not be returned to her father in Mexico. By a final decision of 6 October 2021, the Supreme Court upheld that judgement.
5. According to the applicant, in November 2021 she and the child moved to Spain, where they requested special protection status citing “gender-based persecution in Ukraine and by S.” In April 2022 the latter instituted proceedings before the Court of Sant Boi de Llobregat in Spain seeking to be granted custody of the child. The outcome of those proceedings is unknown.
6. In May 2022 the applicant unsuccessfully requested the Court to “extend” the above-mentioned interim measure to Spain, stating that there was no protection against the child’s possible abduction by S. in that country. She has not lodged a formal application with the Court in respect of the proceedings in Spain.
7. The applicant complained that the Ukrainian courts’ decisions of 14 July and 2 October 2020 ordering the return of her child to Mexico (see paragraph 2 above) had violated her and the child’s rights under Articles 1, 3, 6, 8 and 14 of the Convention, Articles 2 and 3 of Protocol No. 4, Article 5 of Protocol No. 7, and Article 1 of Protocol No. 12.
THE COURT’S ASSESSMENT
8. The Court notes that the applicant can no longer claim that she or her child are victims of the alleged violations of the Convention, since the contested decisions adopted by the Zaporizhzhya Court of Appeal and the Supreme Court in 2020 (see paragraphs 2 and 4 above) are no longer valid and those courts have issued final decisions ordering that the child should stay with the applicant. The application is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.
9. Accordingly, it is appropriate to discontinue the application of Rule 39.
10. Any question regarding the proceedings in Spain (see paragraphs 5 and 6 above) falls outside the scope of the present case.
For these reasons, the Court, unanimously,
Declares the application inadmissible;
Decides to discontinue the application of the interim measure indicated in this case pursuant to Rule 39 of the Rules of Court.
Done in English and notified in writing on 23 March 2023.
Martina Keller Carlo Ranzoni
Deputy Registrar President