Communicated on 17 June 2015
FIRST SECTION
Application no. 76598/12
Rafael KHUSNUTDINOV and X
against Russia
lodged on 16 November 2012
STATEMENT OF FACTS
The first applicant, Mr Rafael Kaymanovich Khusnutdinov, is a Russian national, who was born in 1978 and lives in Washington DC, the United States of America. The second applicant, X, is a Russian national, who was born in 1998 and lives in Tashkent, Uzbekistan.
The applicants are father and daughter. The first applicant lodged the application on his own behalf and on behalf of his daughter.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
Until 2008 the first applicant lived in Moscow together with his wife E and their daughter, X.
In June 2008 the family moved to the United States of America.
On 2 December 2008 X moved to Tashkent, Uzbekistan, to temporarily live with her maternal grandparents.
On 26 December 2008 E died of cancer in the United States.
On 4 January 2009 the first applicant arrived in Tashkent for E’s funeral. He then returned to the United States to accomplish the necessary formalities, temporarily leaving X in Tashkent with her maternal grandparents, B and S. There was an agreement between the first applicant and his parents-in-law that they would bring X to Moscow as soon as he returned there from the United States.
The first applicant returned to Moscow in March 2009. However, B and S refused to bring X to Moscow.
During the following months the first applicant applied to the Russian Consulate in Uzbekistan, to the Russian Embassy in Uzbekistan and to the Russian Ministry of International Relations for assistance in returning his daughter. The officials refused to help.
However, by letter of 29 September 2009, the Ministry of International Relations informed the first applicant that on 18 September 2009 officials from the Russian Consulate in Uzbekistan visited B, S, and X in their home in Tashkent. They found that X’s living conditions were excellent. She had a separate room with all necessary facilities, including a personal computer having access to Internet. She attended a local school and numerous extracurricular activities and was an exemplary pupil. B had told the officials that the first applicant had not visited his daughter. He was worried that if X returned to the first applicant, she would not be taken good care of. He also considered that it would not be in X’s best interest to move to the United States. She would be better off living in Tashkent where her mother was buried and where most of her family and her friends lived. X had told the officials that she missed her father and could not understand why he had not visited her for so long. The officials concluded that there were no obstacles for the first applicant’s coming to Tashkent to visit his daughter and to eventually take her away with him.
On 9 October 2009 the Uzbek childcare authority visited B, S, and X. The officials found that X’s living conditions were good. X told them that she missed her father but preferred to live with her grandparents.
On 9 January 2010 the first applicant arrived in Tashkent. He came to X’s school where he was able to talk to her. B and S however prevented him from visiting X again or taking her away with him.
In July 2010 the first applicant complained to the prosecutor’s office of the Khamzinskiy District of Tashkent that B and S unlawfully retained his daughter. By letter of 20 July 2010, the prosecutor’s office replied that he was free to take his daughter away any time. If B and S prevented him, he should apply to an Uzbek court.
On 1 September 2010 the first applicant applied to the Cheremushinskiy District Court of Moscow, requiring X’s return to him. He submitted that his parents-in-law unlawfully retained his daughter against his will. They prevented him from seeing X and from contacting her by telephone or through Internet. He also submitted that there was a strong attachment between him and X and that X suffered as a result of being separated from her father.
On 27 September 2010 the Cheremushinskiy District Court asked the childcare authority to prepare an opinion on the case and scheduled the first hearing on 19 October 2010.
The hearing of 19 October 2010 was adjourned at the first applicant’s request.
Hearings were held on 19 November and 15 December 2010. The first applicant reiterated the arguments set out in his complaint of 1 September 2010. He also stated that he permanently lived and worked in the United States, had a stable income and could provide his daughter with everything she needed. He complained that S and B not only prevented him from contacting X, but also exercised influence on her in order to set her up against him.
B and S stated that they were worried that the first applicant would not have sufficient time to take care of X because he had to travel a lot for his work. They took good care of their granddaughter and supported her financially because her father did not pay any child maintenance. X had been born in Tashkent, attended school there and had many friends. Neither her father, nor her parental grandparents, who also lived in Tashkent, visited X or showed any interest in her life. X’s return to her father against her will would traumatise her.
The next hearing was scheduled on 24 January 2011. The court ordered that B and S should bring X to testify at that hearing.
On 20 January 2011 the childcare authority issued its opinion on the case. It found that, given that parents had a right to priority over any person in raising their children, X should be returned to her father.
On 24 January 2011 the Cheremushinskiy District Court discontinued the civil proceedings, finding that civil proceedings between the same parties and concerning the same facts was pending before Uzbek courts.
On 8 April 2011 the Moscow City Court quashed the decision of 24 January 2011 on appeal as unlawful.
On 19 April 2011 the mayor of the Ulugbekskiy District of Tashkent appointed S as X’s guardian.
On 28 April 2011 the Cheremushinskiy District Court resumed the proceedings and scheduled the next hearing on 27 May 2011.
The hearing of 27 May 2011 was adjourned until 21 June 2011 because the first applicant and his counsel did not appear.
At the end of the hearing of 21 June 2011 the Cheremushinskiy District Court decided to send a request to Uzbek courts to question X about the following matters:
– whether her grandparents prevented her from seeing or contacting her father;
– when she saw her father for the last time;
– whether she missed her father;
– whether she wanted to live with her father;
whether she talked to her father over the telephone and, if yes, on whose initiative the telephone calls were made.
On 20 July 2011 the Russian Ministry of Justice forwarded the request to their Uzbek colleagues.
On 24 October 2011 the Ulugbekskiy District Court of Tashkent questioned X who stated that her grandparents did not prevent her from contacting her father. She had access to Internet and was present on social networks. She would like to contact her father, but she did not know his telephone number, email address or any social network account. She had seen her father for the last time about two years before. She would like to see him more often, but she would prefer to live with her grandparents.
On an unspecified date the the Cheremushinskiy District Court received the questioning record and scheduled the next hearing on 15 November 2011.
The hearings of 15 November and 22 December 2011 were adjourned because the first applicant and his counsel did not appear. The next hearing was scheduled on 1 February 2012.
On 31 January 2012 the first applicant asked to hold the hearing of 1 February 2012 in his absence. He submitted that he was prevented from coming to Moscow and his counsel was on maternity leave. They could not therefore attend the hearing.
The hearing of 1 February 2012 was adjourned until 27 February 2012 because the first applicant and his counsel did not appear and because the childcare authority needed additional time to prepare a new opinion on the case, taking into account the child’s wishes.
On 27 February 2012 the childcare authority issued a new opinion on the case. It found that X should remain with her grandparents.
On 27 February 2012 the Cheremushinskiy District Court rejected the first applicant’s request for X’s return to him. Taking into account X’s opinion and the opinion of the childcare authority, the court held that it would be in X’s best interest to remain with her grandparents.
The first applicant appealed. He complained, in particular, that the excessive length of the judicial proceedings had resulted in X’s getting used to living with her grandparents. He also complained that X had not been questioned by the court. The questioning by an Uzbek court could not be taken into account because X had been under the influence of her grandparents who were present during the questioning. Lastly, the first applicant argued that under the Russian law he had a right to priority over any other person in raising his daughter. The District Court’s judgment had legitimated X’s unlawful retention by her grandparents who hindered any contacts between him and his daughter. All telephone numbers had been changed and, despite his repeated requests, he had not been given his daughter’s new telephone number. Her social services profile had been inactive since January 2009. His relatives’ numerous attempts to visit X had been unsuccessful as B and S had refused to let them into the house. By contrast, he had the same telephone number and e-mail address since at least ten years and X knew them. If she had unlimited access to telephone and Internet, as B and S claimed, she could have contacted him without any difficulty. The first applicant claimed that those facts could be easily verified but the District Court had failed to do it.
On 18 May 2012 the Moscow City Court upheld the judgment of 27 February 2012 on appeal, finding that it had been lawful, well-reasoned and justified.
B. Relevant domestic law
The Family Code provides that parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of the children’s health and their physical, psychological and moral development. Parents have a right to priority over any other person in raising and educating their children (Article 63).
The parents act on the child’s behalf and defend the child’s rights and interests in any relations with persons or legal entities. They act ex officio as the child’s legal representative in court proceedings (Article 64 § 1).
Parents are entitled to require return of their child from any person who retains him/her without any legal basis. In case of a dispute, parents are entitled to apply to a court. A court may reject the application, taking into account the child’s opinion, if it is established that the return of the child to the parent is contrary to his/her interests (Article 68 § 1).
A child is entitled to express his opinion on all family matters concerning him, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his/her interests (Article 57).
COMPLAINTS
The applicants complain under Article 8 and 13 of the Convention that Russian courts rejected the first applicant’s request to return X to him, thereby separating him from his daughter and depriving him of any opportunity to participate in her upbringing. They allege that the excessive length of the proceedings predetermined the outcome of the case. They also complain that X was never questioned by the Russian courts.
QUESTIONS TO THE PARTIES
1. The Government are requested to submit a copy of the opinion the Teplyy Stan District guardianship and childcare authority produced at the hearing of 27 February 2012.
2. Did the refusal to return his daughter (the second applicant) to the first applicant violate the applicants’ right to respect for their family life, guaranteed by Article 8 of the Convention (see Görgülü v. Germany, no. 74969/01, 26 February 2004)? In particular, did the domestic courts exercised exceptional diligence when examining the first applicant’s application for return of his daughter, in view of the risk that the passage of time might result in a de facto determination of the matter (see Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015, with further references)?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8, as required by Article 13 of the Convention?
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