MALYSHEV v. RUSSIA + 2 other applications

Communicated on 3 November 2015

THIRD SECTION

Application no. 54571/10
Yuriy Appolonovich MALYSHEV against Russia
and 2 other applications
(see list appended)

The applicants are three Russian nationals. The third applicant is represented before the Court by Mr F. Tishayev, a legal director of “Astreya”, a non-governmental organisation registered in Moscow, and Mr E. Vesselink, the chairman of the executive board of Stichting Russian Justice Initiative.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 54571/10

The applicant, Yuriy Appolonovich Malyshev, was born in 1966 and lived in Sokol.

He is married to Ms N. M. and have three sons with her, O., born in 2003, M., born in 2006, and Ye., born in 2008. The family lives in the town of Sokol in the Vologda Region of Russia.

At the time of the events described below, the applicant was serving a sentence of imprisonment in a correctional colony located in the vicinity of his domicile.

(a) Background events

In letters of 3 and 7 December 2009 a local hospital informed local child care agencies and law-enforcement authorities that M., aged 2 years and 11 months, and O., aged 6 years, had been delivered to that hospital by a police officer on 3 and 4 December 2009 respectively, as they had been found to be in a socially dangerous situation, as M. had been left alone in a flat and O. had not been taken from a boarding kindergarten for a week-end. The letters also stated that M. had a severe delay in psychomotor development, and O. had an influenza and delayed physical development. The hospital urged the competent agencies to take up that case and to ensure adequate upbringing of the children.

In a letter of 11 December 2009 the Centre for Social Assistance to Family and Children (“the Centre”), a municipal agency, requested the Commission for Juvenile Affaires and Protection of Minors’ Rights of the Sokol municipal district (“the Juveniles Commission”) to institute a procedure for deprivation of the first applicant and Ms N. M. of their parental authority over O., M. and Ye. The letter stated, in particular, that the family in question had been taken up in social care on 24 August 2007, when the first applicant had been serving a sentence of imprisonment, and Ms N. M. had been unemployed, had abused alcohol and had neglected her parental duties. The letter went on to state that, at the Centre’s request, between 9 December 2008 and 25 May 2005 O. had stayed in a social shelter, whereas M. and Ye. had been placed by their mother in a foster home. Despite all measures of assistance taken by the Centre in respect of Ms N. M., she had not corrected her behaviour, with the result that in April and December 2008 the Centre had sent two requests to institute a procedure for her deprivation of parental authority. The letter went on to note that in February 2009, when the first applicant had been released and had returned home, the situation in the family had improved, and that the Centre had continued its work with the family, rendering social assistance and some financial aid. The first applicant had started relief works, and in April 2009 O. and M. had returned to the family. The first applicant and Ms N. M. had not attempted to return Ye., with reference to their family’s poor financial situation.

According to the letter, in August 2009 the first applicant had again been placed in detention and then convicted of theft and sentenced to 4.5 years in prison. The letter stressed that at present the situation in the first applicant’s family was critical, as Ms N. M. remained unemployed, continued abusing alcohol, left the children unattended and had taken no care of them. The letter then referred to the incidents described in the hospital’s letters of 3 and 7 December 2009, and stated that, when being interviewed by a competent official about those incidents and the reasons for her absence, Ms N. M. had stated that she had been with her acquaintance in a neighbouring town. The letter concluded that the first applicant and Ms N. M. had neglected their parental duties and put the lives of their children in danger, and therefore should be deprived of their parental authority.

By a decision of 22 December 2009 the Juveniles Commission, with reference to the facts described in the Centre’s request of 11 December 2009, held Ms N. M. liable to an administrative fine of 100 Russian roubles (“RUB”, approximately EUR 2.5) for serious breach of her parental duties.

By another decision taken on the same date, the Juveniles Commission decided that court proceedings should be brought against Ms N. M. for her deprivation of her parental authority over O., M. and Ye.

(b) Proceedings before the first-instance court

On 19 February 2010 the Department of Education of the Sokol municipal district (“the Education Department”) issued proceedings before the Sokol District Court (“the District Court”), seeking to deprive the applicant and his wife of the parental authority of their three children to have child support payments recovered from them, and to place the children in State care.

In their claim, the Education Department stated, in particular, that the defendants repeatedly and grossly neglected their parental obligations. In particular, the applicant had several criminal records and was serving a new sentence of imprisonment since August 2009. When at liberty, the applicant had never had any permanent employment, had abused alcohol and had never taken care of the children. Ms N. M. had been unemployed for a prolonged period of time, abused alcohol, had no means of living or housing and had immoral lifestyle. The children were often left unattended. The Education Department further pointed out that from December 2008 until May 2009 O. had stayed in a social shelter, and that M. and Ye. had been placed by their mother in a foster home. The two elder children had been taken back to the family after their father’s return from prison, whereas Ye. remained living in the foster home; his parents had never paid him visits or expressed interest in his life and faith. Moreover, in December 2009 O. and M. had again been placed in State custody, following the incident when they had been abandoned by their mother, who since then had never visited them or expressed interest in their life or fate. The Educational Department stressed that the social welfare authorities had on numerous occasions had explanatory interviews with the defendants, the latter had been warned about administrative responsibility for neglecting their parental duties, and measures of administrative punishment were imposed on them, but nevertheless the defendants had not changed their behaviour.

By a decision of 19 February 2010 the District Court accepted the claim for examination and ordered that a court hearing be prepared and that the defendants be informed of the claim and submit their observations by 22 March 2010. A copy of that decision was sent to the applicant on the same date. According to the applicant, he received it on 12 March 2010.

The applicant adduced his written submission in which he disagreed with the claim and requested the court to examine the case in his presence.

The District Court, composed of judge A., examined the claim on 12 May 2010. It heard Ms N. M. and a number of witnesses. As regards the applicant, the District Court stated that he had been informed of the date and place of the hearing in due course, had submitted his objection to the claim and had not sent any representative to act on his behalf, therefore the court found it possible to examine the case in his absence. The court did not mention in the judgment the applicant’s request that the case be examined in his presence.

At the hearing, Ms N. M. objected to the claim and stated that at the moment she was unable to take the children home in the absence of appropriate housing. She refused to indicate her home address.

A number of witnesses, including a doctor of the local hospital, officers of the Centre, of the social shelter and from the foster home stated that, when the children had been kept in those institutions, the applicant and Ms N. M. had never come to see them or expressed their interests in the children’s fate. Several witnesses, including those mentioned above and a neighbour of the applicant’s family, said that the applicant and Ms N. M. had persistently abused alcohol, had often had violent quarrels and had flagrantly neglected their children. Whilst the applicant had been away for a prolonged period of time, being imprisoned, Ms N. M. had often abandoned her children in life-threatening circumstances. In particular, in May 2007, a fire took place in the premises where there had been the children and Ms N. M., who had been in a state of alcohol intoxication. On another occasion, she had left the children alone near a river, and they had been brought back home by third persons. The witnesses also stated that the sanitary conditions in which the children lived had been extremely poor, and that the children showed serious delays in their physical, mental and intellectual development.

The court also examined various pieces of documentary evidence. It then established, with reference to the witness statements and documentary evidence, that for a prolonged period of time the defendants avoided their parental obligations for upbringing and support of their children. The court then held, with reference to Article 69 of the Russian Family Code, that it was in the best interests of O., M. and Ye. that the applicant and Ms N. M. were divested of their parental authority in respect of their three children. The court further ordered that the boys be transferred to the State care, and that alimony payments be recovered from the applicant and Ms N. M. for their support.

The judgment of 12 May 2010 was sent to the applicant on 19 May 2010.

(c) Proceedings before the appellate court

On 26 May 2010 the applicant filed a notice of appeal. He complained, in particular, that the District Court had not forwarded him all the materials of the case, and, more specifically, had not sent him transcripts of witness interviews. He also complained that the District Court had ignored his request to examine the case in his presence. The applicant therefore requested an appellate court to forward him all the materials of the case to enable him to lodge a full appeal complaint. He also requested the appellate court to quash the judgment of 12 May 2010 and to send the case for a fresh examination by the first-instance court in a new composition.

In a letter of 15 June 2010 the District Court informed the applicant that an appeal examination of his case had been scheduled for 23 June 2010, and that “the parties’ appearance before the appellate court was not obligatory”. According to the applicant, he only received that letter on 25 June 2010.

On 23 June 2010 the Vologda Regional Court (“the Regional Court”) upheld the judgment of 12 May 2005 on appeal. The court referred to the applicant’s notice of appeal as “an appeal complaint”, and observed that the applicant had disagreed with the first-instance court’s findings of facts and application of domestic law. The Regional Court also noted that the applicant complained that “his request to examine the case in his presence [had been] disregarded”.

The Regional Court then relied on the reasoning of the District Court and upheld its judgment as well-founded. It concluded that “there were no reasons to quash the judgment on the grounds advanced in [the applicant’s] appeal complaint”, as “no violation of substantive or procedural law, as pointed out in [the applicant’s] appeal complaint” could be established.

On 30 June 2010 the applicant filed a complaint to the President of the Regional Court in an attempt to have disciplinary proceedings against judge A. instituted for “gross violations of his rights”. He complained, in particular, that judge A. had ignored his request to examine the case in his presence and to ensure his attendance of the hearing before the first-instance court; that he had not been allowed to study all the materials of the case, which had deprived him of an opportunity to put forward all arguments in his objection to the claim, and that the letter informing him of the examination of the case by the appellate court had reached him too late with the result that he had been unable to take part in that examination either.

On 17 July 2010 a Deputy President of the Regional Court informed the applicant that there were no grounds to institute disciplinary proceedings against judge A., and that he could avail himself of a supervisory review procedure to challenge the judgment of 12 May 2010, as upheld on appeal on 23 June 2010.

On 25 October 2010 the District Court forwarded the applicant a copy of the transcript of the hearing of 12 May 2010.

2. Application no. 70879/11

The applicant, Ilya Viktorovich Lyapin, was born in 1980 and lives in Arkhangelsk.

In April 2000 the applicant married Ms A. K., who gave birth to their son V. on 3 January 2001. The couple got divorced on 15 April 2003 upon mutual consent.

In 2004 Ms A. K. entered into a relationship with Mr M. K. They got married in 2005. Ms A. K. and Mr M. K. have a son, Ye.

On 23 March 2011 Ms A. K. instituted civil proceedings against the applicant, seeking to have him divested of his parental authority over V. In her court claim, Ms A. K. argued that since V.’s birth the applicant had never participated in his upbringing and support and had, in fact, lived separately from her and the child. After the divorce neither she nor V. had ever seen the applicant even once. According to Ms A. K., the applicant had never expressed any interest in V.’s faith, any wish or intention to see his son, nor had he rendered any assistance or financial support for V., with the result that V. could hardly remember the applicant. She further pointed out that since 2004 she and V. had been living as a family with Mr M. K. whom V. regarded as his father, even though he knew that it was the applicant who was his biological father. V. was very attached to Mr M. K. and his half‑brother Ye., regarded himself as a member of that family and was distressed by the fact that his family name and patronymic were different from those of Ye. Ms A. K. also pointed out in her claim that Mr M. K. intended to adopt V.

On 8 April 2011 the applicant filed a counter-claim. He objected to Ms A. K.’s claim, stating that he loved his son and wished to participate in his upbringing. The applicant stated that he had accepted the fact that after his divorce with Ms A. K. the boy had remained with her, as he had been persuaded that such arrangement had been in V.’s best interests. The applicant further alleged that after Ms A. K. had married Mr M. K., she and the applicant had orally agreed that the latter “would not intervene in V.’s upbringing and would not disturb [Ms N. M.] with his presence” in order not to traumatise V. and to give him time to adapt himself in a new family. The applicant further alleged that his relations with Ms A. K. were complicated and it was impossible for him to resolve a question of his access to V. Therefore he requested the court to grant him access to his son and to establish his right to see V. once a fortnight, on Saturday or Sunday from 11 a.m. until 7 p. m., and to spend his annual leave with him.

In an interlocutory decision of 19 April 2011 the Oktyabrskiy District Court of Arkhangelsk (“the District Court”) ordered that examination of child-parent relationship be carried out, which should assess a degree of V.’s attachment to each of his parents, with due regard to his age; assess the nature of relations between V. and each of his parents, and establish whether, in view of the personal characteristics of V. and those of each of his parents, the nature of relations of V. with his parents, it was possible to grant the applicant access to V., and, in particular, to enable him to spend his annual leave with the boy, without any damage to the latter’s psychological well-being. The court ordered that the applicant, Ms A. K. and V. appeared before a competent body for the examination.

On 3 May 2011 the applicant requested that the examination be postponed due to his illness. As appears, this request was rejected, and the diagnostics was carried out in the applicant’s absence.

On 6 May 2011, at a hearing, the District Court examined the parties, who insisted on their claims, V. and a number of witnesses.

V. stated that he lived with his mum, Ms A. K., his dad, Mr M.K., and his brother, Ye. He knew of the existence of his “other dad”, the applicant, but he did not remember him and did not want to have contacts with him. V. also explained that he had met the applicant once in April 2011, and that he had a negative impression of that meeting, as he had feared that the applicant might kidnap him.

Witness B., V.’s kindergarten teacher, stated that it had always been Ms A. K. and Mr M. K., who had brought V. to the kindergarten. The boy had been attached to Mr M. K., whom he considered as his father. Ms B. stated that she did not know the applicant, as she had never seen him in the kindergarten.

Witness P., the school teacher in charge of the class in which V. was going, stated that she had never seen the applicant at school, he had never come there or expressed any interests in V.’s school life, whereas Ms A. K. and Mr M. K. actively participated in V.’s life and development, followed his progress in school, and took him to various after-school activities. She also stated that, if asked about his family, V. talked about his mother, brother and Mr M. K. as his father, and that he wanted to change his surname to K.

Witness D., a paediatrician at a hospital in the vicinity of V.’s domicile, stated that the applicant had never brought V. to a hospital for check-ups, and had not expressed any interest in V.’s health. She also stated that on several occasions she had visited V. at home and had only seen the applicant there once.

On the same date, the District Court gave its judgment. It noted that by virtue of Article 69 of the Russian Family Code and paragraph 11 of Ruling no. 10 of the Supreme Court of Russia of 27 May 1998 parents can be deprived of their parental authority if they avoided performing their parental obligations through deliberate and guilty conduct. The court added that deprivation of parents of their parental authority was a measure of last resort applicable only in a situation where it was impossible to protect a child’s rights and interests in another way.

The District Court further observed that the applicant had not been living together with his son V. since April 2003, when he got divorced. It then noted that, as could be established from the materials of the case, after the divorce the applicant had transferred to Ms A. K. for V.’s support RUB 1,000 (approximately EUR 25) in 2005 and then RUB 1,500 (approximately EUR 37) in 2011; he had once had transferred gifts to V. through a delivery service and once had wished him a happy birthday. Also, in 2011 the applicant had opened a bank account in V.’s name, where he had transferred RUB 1,000 (approximately EUR 25). The court further rejected the applicant’s arguments as untenable on the materials of the case that he had financially supported V., and, namely, had transferred money to him on many occasions. The court also noted that the photographs adduced by the applicant only confirmed that he had seen his son before 2004, and that Ms A. K. had not, in fact, prevented V. from seeing his father.

The court therefore found it established that, in the absence of any objective obstacles, the applicant had not participated in his son’s upbringing since 2004, that he had only sporadically rendered financial support to V. and that he had voluntarily abandoned his parental duties in V.’s respect. It further referred to a report on the results of the diagnostics of child-parent relationship, stating that the family ties between the applicant and V. had been lost, and that the boy perceived a third person, Mr M. K., as his father. Those facts, in the District Court’s view, showed that the applicant’s wilfully neglected his parental duties with respect to his son. It thus considered that in such circumstances it was in V.’s best interests to deprive the applicant of his parental authority over his son and leave the boy under the full custody of his mother, Ms A. K. Such a measure, according to the court, was necessary for the protection of V.’s interests, restoration of his right to protection of his health, personality, his right to education and proper moral and mental development. It thus granted Ms A. K.’s claim against the applicant in full, and rejected the applicant’s counter-claim. It also ordered that the applicant pay a monthly alimony payment for his son’s support starting from the date of the judgment until his son’s age of majority.

The applicant appealed against the judgment of 6 May 2011. He argued that a deprivation of parental authority was a measure of last resort and should be applied only if relevant and sufficient reasons existed. The District Court, in the applicant’s view, had not found any such reason. He disputed the findings of the first-instance court and insisted that he wished to maintain his ties with his son and to take part in his upbringing.

On 27 June 2011 the Arkhangelsk Regional Court upheld the judgment of 6 May 2011 on appeal, endorsing the District Court’s reasoning.

The applicant’s attempts to have the court decisions of 6 May and 27 June 2011 reviewed in a supervisory review procedure were unsuccessful.

3. Application no. 58724/14

The applicant, Ms Zelikha Kalitovna Magomadova, was born in 1980 and lives in the village of Ishcherskaya in the Chechen Republic.

The applicant was married to Mr M. B., a police officer, who died on duty in June 2006. They had five daughters, E., born in 1997; I., born in 1999; El., born in 2002, and Ir., born in 2003, and a son, R., who was born in 2006, three months after Mr M. B.’s death.

(a) Background events

After Mr M. B.’s death, the applicant continued living with her children in his private house in the village of Betty-Mokh in the Chechen Republic, in the close proximity of her late husband’s relatives. According to her, the latter put pressure on her in an attempt to take possession of Mr M.B.’s house and monetary allocations to which she was entitled as a result of the loss of breadwinner. In particular, Mr M. B.’s father, in the applicant’s submission, forced her to issue him with a power of attorney to enable him to receive those allocations on her behalf, with the result that the applicant had to ask him for the money to support her children.

On 15 February 2010 the applicant had a conflict with Mr E. B., Mr M. B.’s brother, who hit her on the head several times, inflicting a craniocerebral injury. On the same day, the applicant was taken to her mother’s place of residence in the village of Ishcherskaya and thus separated from her children. According to her, her late husband’s relatives took away her identity documents, including her passport, her mobile telephone and personal belongings. They stated that she would get her passport back only if she denounced her parental authority over her children, who remained living with Mr M. B.’s relatives – each of Mr M. B.’s brothers kept one of the applicant’s children.

In the applicant’s submission, such a situation became possible because she had no male relatives of her own.

It appears that since 15 February 2010 the applicant has had no access to her children.

On 20 March 2010 the applicant complained in writing to a district prosecutor’s office about the aforementioned events. She also sought the law-enforcement agencies’ protection stating that Mr M. B.’s relatives threatened her with physical violence. On 16 June 2010 she sent a similar complaint to the Representative for Human Rights in the Chechen Republic. It is unclear whether the applicant received a reply to any of those complaints.

On 20 April 2010 the applicant was issued with a medical certificate confirming that she had had a cranioncerebral injury in 2010.

(b) First set of proceedings for deprivation of the applicant’s parental authority and determination of the children’s place of residence

By an administrative decision of 14 April 2010, Mr E. B. was appointed a legal guardian for the applicant’s children. According to the applicant, she had never given her consent to that decision and had been unaware thereof.

On 27 April 2007 Mr E. B. filed a court claim to deprive the applicant of her parental authority over her children, stating that she had grossly neglected her parental duties in their respect, and in particular, had failed to bring them up, to provide food and adequate living conditions for them, and had ill-treated them. He also stated that the applicant had abandoned the children in February 2010, having moved to the village of Ishcherskaya where she had been living since then.

The applicant filed a counter-claim, complaining that her late husband’s relatives had prevented any contacts between her and her children. She challenged the administrative decision of 14 April 2010 and sought to have her children’s residence established at her current address in the village of Ishcherskaya.

On 10 August 2010 the Naurskiy District Court examined the case.

At the hearing the applicant maintained her claim, arguing that her late husband’s relatives wished to have her stripped off her parental authority with the only purpose to take possession of monetary allowances to which she and her children were entitled as a result of the loss of Mr M. B., their only breadwinner. She contended that they only started the proceedings for deprivation of her parental authority after she had annulled the power of attorney enabling them to get the money on her behalf. The applicant claimed that Mr M. B.’s relatives had separated her from her children in February 2010 and would not allow any contacts between them, that they were trying to turn the children against her, stating that she was a bad mother and that she was immoral, as she had liaisons with strange men. The applicant mentioned that she had to swear on the Koran before her late husband’s relatives that she had no liaisons. She further insisted that she loved her children, wanted them to live with her and would not cease her attempt to get them back.

Representatives of two district custody and guardianship agencies stated that they had no evidence that the applicant had neglected her parental duties or had been unable for any reason to bring her children up, and therefore there were no grounds for depriving the applicant of her parental authority and that such a measure would not be in the children’s interest.

The court further examined a report on psychological examination of the applicant’s children, which stated that their continued separation from their mother was a deeply traumatising event for them, causing them anxiety and stress. The report went on to note that, unconsciously, the children kept positive emotions with respect to their mother and needed her love and care. The examination had also revealed the absence of emotional attachment of the children to their late father’s relatives; they did not perceive those as their family.

The court then rejected Mr E. B.’s arguments that the applicant had failed to perform her parental duties, noting the absence of any evidence proving those allegations. It then found that there were no grounds to deprive the applicant of her parental authority in respect of her six children and dismissed Mr E. B.’s claim. The court further granted the applicant’s counter-claim, annulled the administrative decision of 14 April 2010 by which Mr E. B. had been appointed the children’s legal guardian, and ordered that the children’s place of residence be established at the applicant’s address in Ishcherskaya.

On 14 September 2010 the Supreme Court of the Chechen Republic upheld the judgment of 10 August 2010 on appeal.

(c) Enforcement proceedings

Two writs of execution were issued on 10 August 2010; it appears that the first one ordered that the children’s place of residence be defined at the applicant’s home address, and the second one ordered that Mr E. B.’s authority for legal guardianship over the applicant’s children be annulled.

The applicant’s attempt to get access to her children proved futile as Mr M. B.’s relatives refused to comply with the aforementioned court decisions.

On 10 March 2011 the applicant wrote to the Bailiffs’ Service of the Chechen Republic, complaining about her inability to get access to her children and seeking the enforcement of the judgment of 10 August 2010.

By a decision of 22 March 2011 the Bailiffs’ Service of the Nozhay-Yurt District of the Chechen Republic refused to institute enforcement proceedings and returned the first writ of execution to the applicant. It stated that the writ of execution adduced by the applicant did not meet the relevant requirements of the domestic legislation on enforcement of court decisions, and, more specifically, that the operative part of the judgment of 10 August 2010 “[did not] contain any requirements on imposition on the defendant of an obligation to transfer to the plaintiff of property or monetary sums, or to perform certain actions or abstain from performing them”.

On 26 May 2011 the Bailiffs’ Service of the Nozhay-Yurt District of the Chechen Republic took a similar decision with regard to the second writ of execution, citing the same reasons.

On 15 June 2011 the applicant sent a written request to the Naurskiy District Court. She pointed out to the bailiffs’ arbitrary refusals to enforce the said judgment in so far as it concerned the determination of her children’s place of residence at her address and annulment of Mr E. B.’s authority for legal guardianship over her children and requested the court to clarify its judgment of 10 August 2010 accordingly.

On 13 July 2011 the applicant sent a similar request to the Naurskiy District Court complaining that her previous request had been left without reply and that the judgment of 10 August 2010 remained unenforced. It does not appear that the applicant received any reply in respect of any of her requests.

(d) Reopening due to newly discovered circumstances

On 17 June 2011 the Naurskiy District Court, on Mr E. B.’s request, quashed its judgment of 10 August 2010 with reference to “newly discovered circumstances”, stating as follows:

“When the court took its judgment [of 10 August 2010], it was unaware of the fact that [the applicant] cohabited with an unemployed man with no specific place of residence and that she spent on him all the money allocated to her by the State to support her children because of the loss of their breadwinner. [Mr E. B.] was also unaware of that fact at the moment when the judgment [of 10 August 2010] was taken. In order to corroborate his request, [Mr E. B.] has adduced statements of persons who can confirm that [the applicant] leads incorrect (immoral) life.

In such circumstances, the court considers that [Mr E. B.’s] request is well-founded and should be granted.”

The court thus ordered that the proceedings should be reopened.

On 30 June 2011 the applicant appealed against the decision of 17 June 2011 before a higher court. She stated that the information that she cohabited with a man was false, and that, in any event, such information could not be regarded as a ‘newly discovered circumstance” within the meaning of the relevant provisions of domestic law on civil procedure.

By decision of 26 August 2011 the Supreme Court of the Chechen Republic upheld the decision of 17 June 2011 on appeal, endorsing the reasoning of the Naurskiy District Court.

(e) Second set of proceedings for deprivation of the applicant of her parental authority and determination of the children’s place of residence

In the context of the new round of proceedings, the Naurskiy District Court ordered a psychological examination of the applicant’s three elder daughters.

In a report of 24 January 2012 the experts stated that at the moment the children had a clearly negative attitude towards their mother. It went on to say that the girls felt comfortable and safe living with their uncle, Mr E. B., and that extracting them from their habitual environment could traumatise them, as a process of their adaptation to new living conditions and environment could be quite painful. The report further stated that at the same time attempts of forcible rupture of natural links between the children and the applicant, their mother, could provoke detrimental effects that would negatively influence the children’s future life, and that the applicant, as their mother, should have an unimpeded access to them.

On 31 January 2012 the Naurskiy District Court examined the case. It heard a number of witnesses on the applicant’s behalf and those who made statements against her, as well as representatives of district custody and guardianship agencies and a public prosecutor. It also heard the applicant’s three elder daughters who explained their highly negative attitude towards their mother by the fact that she had not taken due care of them and had abandoned them two years before. They also expressed their wish to stay with their uncle, Mr E. B.

The court found an allegation of the applicant’s immoral life unconvincing. The fact that on several occasion she had been seen by certain witnesses in a car with strangers who had given her a lift could not be considered as evidence of the applicant’s immorality. The court further noted that, in any event, Article 69 of the Russian Family Code contained an exhaustive list of grounds for deprivation of parental authority, and that list did not include immorality. The Naurskiy District Court further found it unproven, in the absence of any reliable evidence to that effect, that the applicant had ever neglected her parental duties in respect of her children. As to the statements of the applicant’s three elder daughters, the court noted that for the last two years they had been constantly living with Mr E. B. and had had no contact with their mother. The court therefore rejected Mr E. B.’s claim to have the applicant divested of her parental authority in respect of her children.

The court further observed, with reference to the report of 24 January 2012, that it would be in the children’s best interest to continue living with their uncle. The applicant shared that view, stating that because of her children’s extremely hostile attitude towards her, she had currently difficulties in communicating with them, and therefore she did not object if they stayed with Mr E. B. At the same time she requested the court to establish her contact rights with her children, and more specifically to enable her to take the children to her home address twice a month as well as on public holidays.

The court thus ordered that the applicant’s children continue living at Mr E. B.’s place of residence and that his legal guardianship over them be maintained. It further ordered that the applicant had a right to take her children at her place of residence on the first and last week-end of the month, for a period from 10 a. m. on Saturday and 4 p.m. on Sunday, and during public holidays, for a period from 10 a. m. of that day until 10 a.m. on the next day. The court also ordered Mr E. B. not to obstruct the applicant’s contacts with her children.

On 1 March 2012 the judgment of 31 January 2012 was upheld on appeal.

(f) Enforcement proceedings

Between 31 January and 30 July 2012 the applicant unsuccessfully attempted to get a writ of execution, of which she complained in writing on 6 June 2012.

On 20 June 2012 the Naurskiy District Court issued the writ, but it was not given to the applicant until 30 July 2012. She then immediately sent it to the competent bailiffs’ service for enforcement.

On 13 September 2012 the applicant sent a complaint about the bailiffs’ inactivity and failure to enforce the judgment of 31 January 2012 to the Bailiffs’ Service of the Chechen Republic.

On 8 May 2013 she sent a similar complaint to the Bailiffs’ Service of Russia.

By a decision of 18 June 2013 the chief bailiff of the Bailiffs’ Service of the Nozhay-Yurt District of the Chechen Republic rejected the applicant’s complaint of the same date about the bailiffs’ inactivity as unfounded. In his decision the chief bailiff stated, with reference to the relevant legislation, that on week-ends and public holidays, enforcement actions could only be taken in exigent circumstances.

(g) Deprivation of the applicant of her parental authority

On an unspecified date in July 2013 Mr E. B. filed a new claim with the Naurskiy District Court on deprivation of the applicant of her parental authority over her children, stating that for more than three years she had not contacted her children, and that she did not participate in their upbringing nor supported them financially.

In written submissions of 5 September 2013 the applicant’s representative objected to the claim and requested the court to postpone a hearing for ten days because she was ill, and the applicant did not wish to participate in the hearing unrepresented.

By a default judgment of 5 September 2013 the Naurskiy District Court granted the claim against the applicant, divested her of her parental authority over her children and ordered that she pay monthly alimony in their favour.

On an unspecified date, upon the request of 16 September 2013 of the applicant’s representative, the default judgment of 5 September 2013 was set aside as taken in the applicant’s and her representative’s absence, and the case was sent for a new consideration by the first-instance court.

On 3 October 2013 the Naurskiy District Court reexamined the case.

At the hearing, Mr E. B., two representatives of the custody and guardianship agencies concerned and a public prosecutor insisted that the applicant be deprived of her parental authority. They argued that during the period that had elapsed since the judgment of 31 January 2012, the applicant had not made any attempts to contact her children, including her two elder daughters who no longer lived with Mr E. B. as they had moved to Grozny to do their studies. The applicant had not attempted to meet the children at school, or to seek assistance of the competent custody and guardianship agencies in order to get access to her children.

The applicant contended that after the judgment of 31 January 2012 had become enforceable, she had sought the bailiffs’ assistance asking him to organise her meeting with the children, but the bailiff in charge had refused to accompany her to the village where her children lived, whereas she, herself, had been afraid to go there on her own because of the threats of her husband’s relatives of physical violence. She further stated that since Mr M. B.’s relatives had set her children against her, her attempts to contact her two elder daughters in a medical college in Grozny, where they were studying, had proved unsuccessful, as the girls had simply refused to talk to her. She further firmly insisted on her intention to maintain a link to her children.

Bailiff P. stated that he had duly instituted enforcement proceedings in respect of the judgment of 31 January 2012, and that he had met the applicant once and had explained to her the manner in which that judgment should be executed. He had also taken from Mr E. B. a written undertaking in which the latter promised not to obstruct the applicant’s contacts with her children. The bailiff added that the applicant should have appeared in Nozha-Yurt to enable him to enforce the judgment, but she had only appeared once and had stayed for five minutes thus depriving him of an ample opportunity of enforcement.

The court was not convinced by the applicant’s argument that the bailiff had failed to assist her in contacting her children. It stated that the applicant could have attempted to meet them at school or medical college, as far as her two elder daughters were concerned, that she could have sought assistance of the local custody and guardianship agencies, and that she could have supported the children financially as she received financial allocations from the State to that end. The court went on to note that for the period that had elapsed since the judgment of 31 January 2012, the applicant had failed to take any of those actions, which indicated that she had neglected her parental duties and did not wish to participate in her children’s upbringing.

The court also referred to the opinion of the applicant’s two elder children, who had stated at the hearing that they did not wish to see the applicant as she “[had] brought shame on them by having relations with strange men”. The court noted in that respect that even though it had given the applicant time to improve the situation, a year and a half later her children’s hostile attitude towards her had not evolved.

The court therefore found that the applicant had neglected her parental duties, and therefore, should be deprived of her parental authority, in accordance with Article 69 of the Russian Family Code. It also ordered that she pay alimony to support her children, and that it be paid to Mr E. B., the children’s legal guardian.

On 25 February 2004 the Supreme Court of the Chechen Republic upheld the first-instance judgment on appeal, endorsing the reasoning of the first-instance court.

B. Relevant domestic law and practice

Article 69 of the Russian Family Code establishes that a parent may be deprived of parental authority if he or she avoids the parental obligations, such as the obligation to pay child maintenance; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses the parental authority; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse.

In its ruling no. 10 “On application by the courts of legislation when resolving disputes concerning upbringing of children” dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular :

“...

11. Parents may be deprived by a court of their parental authority on the grounds established in Article 69 of the [Russian Family Code] only in case of their guilty conduct.

...

12. ... Persons, who do not fulfill their parental obligations as a result of a combination of adverse circumstances or on other grounds beyond their control, cannot be deprived of their parental authority (for instance, a psychiatric or other chronic disease ...

...

13. Courts should keep in mind that deprivation of parental authority is a measure of last resort. Exceptionally, where a parent’s guilty conduct has been proved, a court, with due regard to [such a parent’s] conduct, personality and other specific circumstances, may reject an action for deprivation of [that parent] of the parental authority and urge [him or her] to alter [his or her] attitude towards upbringing of [his or her] children, entrusting [a competent] custody and guardianship agency with monitoring whether [such a parent] duly performs [his or her] parental duties.”

COMPLAINTS

1. Application no. 54571/10

The applicant complains under Articles 6 and 8 of the Convention about a violation of his right to respect for family life as a result of his deprivation of his parental authority in respect of his sons O., M. and Ye. in the proceedings in which he was unable to participate effectively. He complains, in particular, that he was unable to object meaningfully to the claim for deprivation of his parental authority in respect of his sons, as he was not provided with the full file of that case; that the first-instance court disregarded his request to secure his attendance of the hearing, omitted to address that request and took its judgment in his absence; that the appellate court disregarded his complaint to that effect, and that he was notified of the examination of his case belatedly with the result that he was unable to submit a full appeal complaint and a request that the examination take place in his presence.

2. Application no. 70879/11

The applicant complains under Article 8 of the Convention about a deprivation of parental authority in respect of his son.

3. Application no. 58724/14

The applicant complains under Article 8 that the domestic authorities failed in their obligation to ensure her contacts with her children, despite the relevant court decisions to that end, and that they further referred to the absence of her contacts with the children as a ground for depriving her of parental authority in respect of her children, which breached her right to respect for her family life.

COMMON QUESTIONS

1. Has there been an interference with the applicants’ right to respect for their family and/or private life under Article 8 § 1 of the Convention as a result of stripping off their parental authority in respect of their children?

If so, was that interference “in accordance with the law” and “necessary” in terms of Article 8 § 2?

In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?

CASE SPECIFIC QUESTIONS

Application no. 54571/10

1. Was the applicant sufficiently involved in the decision-making process in the proceedings concerning stripping off his parental authority over his children (see, e.g., Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004, and A.K. and L. v. Croatia, no. 37956/11, §§ 62-64, 8 January 2013)?

In particular, did the applicant have access to all relevant information relied on by the domestic courts in his case? Was he put in a position enabling him effectively to put forward all the arguments for his objection to stripping off his parental authority over his three children?

2. Regard being had to the fact that the applicant was neither present nor represented during the examination of his claim at two levels of jurisdiction, did the applicant have a fair trial in the determination of his civil rights and obligations, as required by Article 6 § 1 of the Convention?

In particular, did the applicant have an ample opportunity to be present or represented before the Sokol District Court?

Was the applicant notified in time about the examination of his case by the Vologda Regional Court? If so, did the applicant have an ample opportunity to be present or represented before that court?

3. Regard being had to the applicant’s complaints that:

(a) the Sokol District Court disregarded his request that the case be examined in his presence, and failed to address it in its judgment,

(b) the Vologda Regional Court failed to address his complaint regarding the facts described in question 3 (a) above,

did the applicant have a fair trial in the determination of his civil rights and obligations, as required by Article 6 § 1 of the Convention?

4. Was the applicant given an ample opportunity to submit a full appeal complaint? If not, has there been a violation of Article 6 § 1 of the Convention (see Dunayev v. Russia, no. 70142/01, §§ 34-38, 24 May 2007)?

Application no. 58724/14

1. In view of the domestic authorities’ obligation under Article 8 of the Convention to ensure the applicant’s contacts with her children, which were necessary to maintain family ties between them (see, among other authorities, Cengiz Kılıç v. Turkey, no. 16192/06, 6 December 2011, and Gluhaković v. Croatia, no. 21188/09, 12 April 2011), did they at any moment take all necessary steps that could be expected from them in the circumstances in order to discharge that obligation? If not, has there been a breach of the State’s positive obligation to respect for the applicant’s family and/or private life, as required by Article 8 § 1 of the Convention?

2. Is the fact that an opinion of four of the applicant’s six children was not sought, nor any relevant psychological or psychiatric expert examination was ever carried out in their respect, in the proceedings in which the applicant was deprived of her parental authority over her children, compatible with the requirements of Article 8 of the Convention?

APPENDIX

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Represented by 

54571/10

01/09/2010

Yuriy Appolonovich MALYSHEV

19/07/1966

Sokol

70879/11

07/11/2011

Ilya Viktorovich LYAPIN

16/09/1980

Arkhangelsk

58724/14

26/08/2014

Zelikha Kalitovna MAGOMADOVA

18/04/1980

Ishcherskaya

Furkat TISHAYEV

Egbert VESSELINK

 

Full & Egal Universal Law Academy