Communicated on 13 December 2019
FIFTH SECTION
Applications nos. 41596/19 and 42767/19
Naum Samuilovich GEN and Tetyana Yakivna KALUZHSKA against Ukraine
and Semen Naumovych GEN and Polina Semenivna GEN against Ukraine
lodged on 27 July 2019 and 21 July 2019 respectively
STATEMENT OF FACTS
The applicants in the first case, Mr Naum Gen and Ms Tetyana Kaluzhska, are Ukrainian nationals, who were born in 1937 and 1938 respectively and live in Kharkiv.
The applicants in the second case, Mr Semen Gen and Ms Polina Gen, are Ukrainian nationals, who were born in 1969 and 2013 respectively and live in Kharkiv.
All the applicants are represented before the Court by Mr B. Fokiy, a lawyer practising in Chernivtsi.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2004 Mr Semen Gen started to live with V. in the city of Kharkiv. On 29 March 2013 their daughter Ms Polina Gen was born. In April 2014 the parents separated. The child stayed to live with her mother.Court proceedings on contact arrangements and the enforcement of the contact schedule as regards the child’s father
In July 2015 the child’s mother instituted civil proceedings, seeking to establish a schedule for the father’s meetings with the child, arguing that the father had been seeing the child excessively. The father of the child (Mr Semen Gen) and the paternal grandparents (Mr Naum Gen and Ms Tetyana Kaluzhska) lodged their counterclaims, arguing that the child’s mother had been preventing them from seeing the child.
On 15 August 2016 the Dzerzhynskyy District Court of Kharkiv established a schedule for the father’s meetings with the child and another schedule for the meetings of the paternal grandparents with the child. On 12 April 2018 the Kharkiv Regional Court of Appeal amended the father’s schedule.
On 3 May 2018 at the request of the child’s father, the bailiffs opened enforcement proceedings in respect of his contact arrangements.
The child’s mother lodged an appeal on points of law against the decisions of the lower courts and requested the suspension of the enforcement proceedings.
On 14 May 2018 the Supreme Court suspended the enforcement of the contact arrangements, pending the consideration of the child’s mother’s appeal.
On 16 January 2019 the Supreme Court dismissed the child’s mother’s appeal on points of law as unfounded.
On 28 January 2019 the enforcement proceedings were resumed.
On 25 February and 1 March 2019 the bailiffs decided to impose a fine on the child’s mother of UAH 3,400 on each occasion on account of her failure to comply with the contact schedule.
The child’s mother applied to a court seeking to find that the writ of execution issued in respect of the father’s contact schedule had been defective and could not be enforced. On 5 March 2019 the Dzerzhynskyy District Court of Kharkiv suspended the enforcement proceedings, pending consideration of the child’s mother’s application. On 18 July 2019 the court dismissed the child’s mother’s application as unfounded. The bailiffs resumed the enforcement proceedings.
On 30 July, 1, 5, 6, August, 10 September, 7 and 8 October 2019 the bailiffs found that the child refused to see her father during the meetings.Enforcement of the contact schedule as regards the child’s paternal grandfather (Mr Naum Gen)
On 7 March Mr Naum Gen requested the bailiffs to enforce his contact schedule.
On 12 and 14 March 2019 the bailiffs returned the execution writ to Mr Naum Gen without enforcing it.
Mr Naum Gen challenged the bailiffs’ actions before the supervising bailiffs who found on 11 April 2019 that the execution writ was returned groundlessly.
On 16 April 2019 the bailiffs initiated the enforcement proceedings.
On 28 May 2019 the bailiffs issued a report that the court decision in respect of the grandfather’s contact schedule had been fully enforced. They therefore closed the enforcement proceedings.
On 26 June 2019 the enforcement proceedings were reopened, but, according to the applicants, the contact schedule is not being enforced.Enforcement of the contact schedule as regards the child’s paternal grandmother (Ms Tetyana Kaluzhska)
On 9 April 2019 Ms T. Kaluzhska requested the bailiffs to enforce her contact schedule.
On 5 June 2019 the bailiffs initiated the enforcement proceedings.
According to the applicants, the contact schedule is not being enforced.
COMPLAINTS
The applicants complain under Articles 6 and 8 of the Convention that the domestic authorities failed to enforce the court decisions of 15 August 2016 and 12 April 2018 granting regular meetings of the child with her father and paternal grandparents.
QUESTIONS TO THE PARTIES
With regard to the applicants’ allegations regarding the non-enforcement of the court decisions of 15 August 2016 and 12 April 2018, has there been a violation of the applicants’ right to respect for family life, contrary to Article 8 of the Convention? What were the grounds and the reasons for the domestic courts to suspend the enforcement proceedings (notably, on 14 May 2018 and 5 March 2019)? Did the bailiffs take all necessary steps to enforce the contact arrangements?
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