Communicated on 5 March 2015
FIRST SECTION
Application no. 45142/14
Andrey Stanislavovich KRAPIVIN against Russia
lodged on 3 June 2014
STATEMENT OF FACTS
The applicant, Mr Andrey Stanislavovich Krapivin, is a Russian national, who was born in 1964 and lives in Perm.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s son N. was born on 23 August 2005.
On 15 February 2009 the applicant stabbed his wife with a knife. She died on the same day. The applicant’s son, three years old at the time, witnessed the murder.
On 3 April 2009 N.’s maternal grandmother V. was appointed N.’s guardian.
On 25 May 2010 the Dzerzhinskiy District Court of Perm found that the applicant could not be held responsible for the murder of his wife by reason of irresistible impulse insanity. It ordered the applicant’s compulsory psychiatric treatment in a psychiatric hospital.
On 25 February 2011 the Ordzhonikidzevskiy District Court of Perm found that psychiatric treatment was no longer necessary and ordered the applicant’s release from the psychiatric hospital.
On 16 August 2012 the Dzerzhinskiy District Court rejected V.’s claim to deprive the applicant of his parental responsibility over N. It also rejected the applicant’s counterclaim to cease V.’s guardianship over N. and to return N. to him.
Shortly before that, on 28 May 2012, the applicant applied to the Motovilikhinskiy District Court of Perm for contact and visiting rights. He submitted that V. prevented him from seeing N. and asked to be granted visiting rights every Saturday or Sunday for three hours in V.’s presence.
During the hearing the applicant stated that it was very important for him to resume contact with his son. He was aware that his son, who had not seen him for a long time, needed time to get used to him again. He was ready to change his place of work to be able to adapt better to his son’s schedule. He also stressed that he paid child maintenance and supported him financially. He was under a psychiatrist’s supervision and his mental health had improved.
V. stated that the applicant had intentionally and cruelly killed N.’s mother after she had announced her intention to leave him for another man. He had committed the murder before N.’s eyes and had thereby caused him a profound psychological trauma. The applicant should not be therefore allowed to see N. as it would undermine his health and psychological development. It would be therefore against N.’s interests to resume contact with his father.
On 5 September 2012 the Motovilikhinskiy District Court ordered N.’s expert psychological examination. The experts were asked to establish whether it was possible to resume contact between N. and his father, and if yes, what was to be the form, the frequency and the duration of contacts. The experts were also asked to establish whether the contact between N. and his father could be damaging to N.’s health or psychological development.
The expert examination was never performed because V. refused to show N. to the experts.
The court studied the report of 2 May 2009 by a municipal centre of psychological, medical and social adaptation for children, produced by V. According to that report, during the examination N. was stressed and strained. He needed psychological assistance to help him overcome the consequences of a psychological trauma.
The court also studied the references of November 2008 from N.’s previous nursery school and the references from his current school.
On 11 April 2013 the applicant informed the court that he would be on a business trip from 4 May to 6 June 2013 and asked not to schedule any hearings during that period.
On 14 May 2013 the Motovilikhinskiy District Court held a hearing. The applicant and his counsel were absent. V. did not attend either. On the same day the court rejected the applicant’s application. It noted that N. currently lived with his grandparents and that his housing conditions were adequate. The applicant also had adequate housing conditions. The court further found that it followed from the school references and the report of 2 May 2009 that N.’s behaviour had changed from friendly to occasionally aggressive, which showed that he suffered from the consequences of a psychological trauma. It also noted that V.’s refusal to show N. to the court-appointed experts had made it impossible to perform a psychological examination. The applicant had not submitted any information about the current state of his mental health. He had not shown that his mental health had improved and that he did not present any danger for N. Furthermore, the court took into account the fact that N. had been brought up by his grandparents since he had been three years old, that he had an established way of life and that he had not seen his father for a long period of time. The applicant often left on long business trips, which would prevent weekly meetings. Lastly, both grandparents had refused to see the applicant because of their hostility towards him, which made it impossible to organise meeting between N. and the applicant. The court concluded from the above that it was not in N.’s interest to resume contact with his father.
In his appeal submissions the applicant complained, in particular, that a psychological expert examination of N. had never been performed. The finding that it was not in N.’s interest to resume contact with his father had not been therefore based on expert assessment. He also complained that neither he nor his counsel had been informed of the date of the hearing of 14 May 2013. Lastly, he enclosed an expert opinion of 17 May 2013 that it was possible to arrange short meetings between N. and the applicant.
On 26 June 2013 the applicant complained to the Perm Regional Judicial Department that the judge had included in the case file a false statement that he had been informed of the date of the hearing by a mobile telephone call. He enclosed a list of his telephone connections provided by his mobile operator showing that he had received no calls from the court. He also complained that a letter notifying his counsel of the date of the hearing of 14 May 2013 had been dispatched on 20 May 2013.
On 23 July 2013 the Perm Regional Judicial Department replied that the fact of the belated notification of the applicant’s counsel had been confirmed. Given that an appeal against the judgment of 14 May 2013 was pending, that issue would be examined during the appeal proceedings.
On 18 September 2013 the Perm Regional Court upheld the judgment of 14 May 2013 on appeal, finding that it had been lawful, sufficiently reasoned and justified. It noted that an expert opinion could not be obtained because V. had avoided the experts. It was impossible to take into account the expert opinion of 17 May 2013 because it had been made after the first-instance judgment. The court also found that a notification about the hearing of 14 May 2013 had been sent at the applicant’s address but had been returned to the court as unclaimed. The failure to pick up the notification letter from the post office amounted to a waiver of the right to attend the hearing.
On 24 December 2013 a judge of the Perm Regional Court refused to refer the applicant’s cassation appeal to the Presidium of the Perm Regional Court for an examination, finding that the judgment of 14 May 2013 had been lawful, sufficiently reasoned and justified. She noted, in particular, that the expert opinion of 17 May 2013 could not change the court’s findings because the experts had not been able to examine N.
On 13 February 2014 a judge of the Supreme Court of the Russian Federation also refused to refer the applicant’s cassation appeal to the Civil Chamber of the Supreme Court for an examination, finding no significant violations of substantive or procedural law which influenced the outcome of the proceedings.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that neither he nor his counsel were notified of the date of the hearing of 14 May 2013. They were therefore unable to attend.
2. The applicant complains under Article 14 of the Convention that he was denied the right to visit his child because of his mental illness and his profession requiring him to make long business trips.
QUESTIONS TO THE PARTIES
1. The parties are requested to submit copies of the following documents:
– the decision of 25 February 2011 by the Ordzhonikidzevskiy District Court of Perm;
– the judgment of 16 August 2012 by the Dzerzhinskiy District Court of Perm;
– the minutes of the hearings before the Motovilikhinskiy District Court of Perm;
– the expert opinion of 17 May 2013.
2. Did the refusal to grant the applicant contact and visiting rights in respect of his minor son violate his right to respect for his family life, guaranteed by Article 8 of the Convention? In particular, having regard to the fact that the applicant’s son was not heard by the court or examined by experts, that the expert examination of the applicant was not taken into account by the courts, and that the applicant was not informed about the date of the hearing of 14 May 2013, was the decision-making process compatible with the requirements of Article 8?
3. Having regard to the fact that the applicant was not informed about the date of the hearing of 14 May 2013, do the circumstances of the case disclose an infringement of his right to a fair hearing as guaranteed by Article 6 § 1 of the Convention?
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