Communicated on 12 September 2019
THIRD SECTION
Application no. 11536/19
Aleksey Yuryevich CHIZHOV
against Russia
lodged on 20 February 2019
STATEMENT OF FACTS
The applicant, Mr Aleksey Yuryevich Chizhov, is a Russian national, who was born in 1968 and lives in St Petersburg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2004 the applicant started living with Ms E.Ch. in St Petersburg.
On 15 July 2008 E.Ch. gave birth to their son, Yu.
On 2 June 2009 the applicant married E.Ch.
On 25 September 2009 the marriage between the applicant and E.Ch. was dissolved, but they continued living and raising their son together.
In July 2015 E.Ch. left the applicant. Yu. remained living with his father, but had regular contact with his mother.
On 10 May 2016 E.Ch. picked Yu. up from school and without the applicant’s knowledge took him to live with her and his maternal grandparents in the town of Kirensk in the Irkutsk Region, 7000 km from St Petersburg.
On 31 May 2016 the Vyborgskiy District Court of St Petersburg determined Yu.’s residence as being with his mother, E.Ch.
Meanwhile, in April 2017 the applicant went to Kirensk to re-establish contact with his son. He rented a flat, found a job and stayed there until December 2017. During that time he saw Yu. only on a few occasions, E.Ch. preventing any regular contact. The applicant’s attempts to obtain assistance from the domestic authorities yielded no result.
In the meantime, in October 2017 E.Ch. brought proceedings for the determination of a contact arrangement between the applicant and the child. She insisted that the contact should take place once a month in her presence and not exceed two hours. The applicant counterclaimed, seeking to have a more extended contact with the child.
On 8 December 2017 the Kirenskiy District Court of the Irkutsk Region (“the District Court”) granted E.Ch.’s and the applicant’s claims partly and established the contact schedule between the applicant and his son as follows: twice a month on the second and the last Sunday up to two hours in the presence of E.Ch., and daily telephone communication between 7 p.m. and 8 p.m. Having taken into consideration the child’s age, his daily routine and attachment to his mother, the relationship between the parties and the applicant’s living conditions, the District Court considered that the above contact arrangement would secure the balance between the child’s and the parents’ interests and would not affect the former’s physical and psychological health, his moral development and settled way of life. The District Court relied on: (i) the parties’ statements; (ii) the child’s statements regarding his daily routine and occupations; (iii) positive references for both parents; (iv) report of Yu.’s psychological examination of 7 July 2017 stating that his parents’ inability to reach a compromise amounted to a high emotional pressure for him, that the restoration of the child’s emotional balance required presence of both parents, resolution of the conflict between the parties, display by the parents of mutual respect, reaching by them of an agreement regarding contact with the child, compliance with the rules by all the parties; (v) evidence regarding the existence of a conflict situation between the parties (statements by witnesses and the applicant’s numerous applications to the domestic authorities). The District Court further stated that the above contact arrangement could be altered by an agreement between the parties or in court as the child would grow or substantial circumstances change.
The applicant appealed, claiming that the District Court’s decision was taken without due consideration of the best interests of the child and upset the balance between the child’s and his parents’ interests.
On 29 January 2018 the Irkutsk Regional Court (“the Regional Court”) upheld the judgment on appeal.
The applicant pursued cassation appeal procedure. He claimed, in particular, that the judgment of 8 December 2017 was unenforceable since he could not fly to Kirensk from St Petersburg twice a month to see his son for two hours.
On 4 June 2018 a judge of the Regional Court refused to refer the case for consideration by the Presidium of that Court. It was noted, in particular, that when taking its decision on 8 December 2017 the District Court proceeded from the fact that the applicant lived in Kirensk, and that the change of the applicant’s residence to St Petersburg opened a possibility for him to have the contact arrangement reviewed with regard to the best interests of the child.
On 6 September 2018 a judge of the Supreme Court of Russia refused to refer the case for consideration by the Civil Chamber of that Court.
COMPLAINTS
Referring to Article 6 of the Convention and Article 5 of Protocol No. 7 to the Convention the applicant complains that the domestic courts’ decisions were taken in breach of his and his son’ right to mutual enjoyment of each other’s company, that the proceedings were unfair in that the domestic courts did not take due measures to ascertain the child’s opinion, the childcare authority did not provide its opinion, the domestic courts did not give due consideration to the child’s interests.
QUESTIONS TO THE PARTIES
1. Has the judgment of the Kirenskiy District Court of the Irkutsk Region of 8 December 2017 limiting the applicant’s contact with his son to four hours per month in the presence of the child’s mother and daily telephone communication amounted to an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention?
2. If so, was that interference “in accordance with the law” and “necessary” in terms of Article 8 § 2 of the Convention? In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?
3. Was the applicant involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests?
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