Communicated on 22 October 2018
THIRD SECTION
Application no. 36335/18
Vener Munirovich FATKHUTDINOV
against Russia
lodged on 23 July 2018
STATEMENT OF FACTS
The applicant, Mr Vener Munirovich Fatkhutdinov, is a Russian national, who was born in 1976 and lives in Sterlitamak, the Bashkortostan Republic.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information
In 2012 the applicant’s wife N. gave birth to a son, V.
The applicant and his wife quarrelled about how to raise V. In particular, the applicant objected to physical punishments inflicted on V. by N., her father and her brother.
In September 2015 N. left the applicant and took V. with her. They went to live with her family.
In October 2015 N. instituted divorce proceedings before the Leninskiy District Court of Ufa, and asked for a residence order in her favour in respect of V. The applicant counterclaimed, asking for a residence order in his favour in respect of his son.
On 18 January 2018 the applicant, V. and N. were examined by expert psychologists who found that V. was equally attached to both parents.
On 31 March 2016 the Leninskiy District Court granted the divorce and N.’s application for a residence order in her favour in respect of V.
The applicant then applied for contact rights.
On 13 June 2016 the police opened criminal proceedings at the applicant’s request against an unknown person or persons who had inflicted bodily injuries (repeated bruises) on V. at his place of residence. It appears that the proceedings are still pending.
On 25 August 2016 the experts found that V. was strongly attached to his father. They recommended that contact between V. and his father should continue as it was necessary for V.’s development.
On 31 October 2016 the Leninskiy District Court granted the applicant contact rights.
2. Termination of parental status proceedings
On an unspecified date N. lodged an application with the Sterlitamak Town Court, contesting the applicant’s paternity of V.
The Town Court ordered a DNA paternity test which the applicant refused to undergo.
During the hearing, S., a friend of N.’s father, stated to the Town Court that the applicant had said to N.’s brother that he doubted his paternity of V. A gardener, being drunk, had once told S. that the applicant was not V.’s father.
On 13 March 2017 the Sterlitamak Town Court allowed N.’s claims. It found that N.’s allegations that the applicant was not V.’s biological father had been confirmed by S.’s statements. Moreover, the court drew inferences against the applicant from his refusal to undergo a DNA paternity test. The court therefore considered it established the applicant was not V.’s biological father and terminated his parental status in respect of him. It ordered that the applicant’s name be deleted from V.’s birth certificate.
During the appeal hearing the applicant asked that N.’s application be rejected by reference to paragraph 29 of recent Plenary Ruling no. 16 by the Supreme Court of 16 May 2017 (cited below).
On 5 July 2017 the Supreme Court of the Bashkortostan Republic upheld the judgment of 13 March 2017 on appeal. It held, in particular, that the applicant’s reference to paragraph 29 of Plenary Ruling no. 16 was “unfounded” (несостоятельный).
The applicant’s cassation appeal was rejected on 22 November 2017 by a judge of the Supreme Court of the Bashkortostan Republic. She held, in particular:
“The arguments that the [lower] courts had not taken into account the requirements of paragraph 29 of Plenary Ruling no. 16 by the Supreme Court of 16 May 2017 ... may not serve as a ground for quashing their judgments: no exceptional circumstances have been established for allowing the plaintiff’s claims and showing that in this way the best interests of the child – which shall be a primary consideration – will be ensured.”
The applicant’s second cassation appeal was rejected on 19 February 2018 by the Supreme Court of the Russian Federation.
3. Contact rights proceedings
Meanwhile, on 12 October 2017 the Leninskiy District Court of Ufa annulled the contact order of 31 October 2016 on account of a newly discovered circumstance: the Sterlitamak Town Court’s judgment establishing that the applicant was not V.’s biological father and terminating his parental status.
The applicant again applied for contact rights.
On 22 December 2017 the Leninskiy District Court of Ufa rejected his application, finding that he was not entitled to maintain contact with V. as he was not his father.
The applicant appealed. He complained that his request to have V. questioned about his wishes had been rejected by the District Court. He submitted that he had continued to actively participate in his son’s life after the divorce and that V. was very attached to him. Expert psychologists had therefore recommended on 25 August 2016 that contact between them should be maintained. The Town Court had therefore failed to take into account the best interests of the child.
On 22 March 2018 the Supreme Court of the Bashkortostan Republic quashed the judgment of 22 December 2017 on appeal and discontinued the proceedings. Given that the applicant was not V.’s father or relative, he had no standing to apply for contact rights.
The applicant’s cassation appeals were rejected on 15 May 2018 by a judge of the Supreme Court of the Bashkortostan Republic and on 2 July 2018 by the Supreme Court of the Russian Federation.
B. Relevant domestic law
For a summary of the relevant domestic law see Nazarenko v. Russia (no. 39438/13, §§ 33-40, ECHR 2015 (extracts)).
The applicable domestic provisions have been since interpreted by the Supreme Court as follows.
Plenary Ruling no. 16 of the Supreme Court of 16 May 2017 provides, in its paragraph 29:
“... if the mother’s or the guardian’s judicial application contesting paternity is not accompanied by a request to establish paternity of the biological father or by the biological father’s request to establish his paternity and if the person registered as the child’s legal father objects to allowing the application a court may in exceptional circumstances reject the application contesting paternity with the aim of ensuring the child’s interests which shall be a primary consideration (Article 3 of the Convention on the Rights of the Child and Article 1 § 3 [of the Family Code]) and taking into account particular circumstances of the case (for example, a long family relationship established between the child and the person registered as his legal father, the child’s stable emotional attachment to that person, that person’s intention to continue taking care of the child and raising him as his own).”
COMPLAINT
The applicant complains under Article 8 of the Convention that the termination of his parental status had automatically – and without taking into account the child’s best interests - deprived him of the right to maintain contact with V.
QUESTION TO THE PARTIES
Has the complete and automatic exclusion of the applicant from V.’s life after his parental status in respect of him was terminated – in particular the denial of contact rights without giving proper consideration to V.’s best interests – amounted to a failure to respect the applicant’s family life, guaranteed by Article 8 of the Convention (see Nazarenko v. Russia, no. 39438/13, ECHR 2015 (extracts))?
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