Communicated on 10 December 2015
FIFTH SECTION
Application no. 63551/13
M.R. and D.R.
against Ukraine
lodged on 2 October 2013
STATEMENT OF FACTS
The application was lodged by M.R., a Czech national, who was born in 1958 and lives in Prague (“the first applicant”), on his own behalf and on behalf of his son, D.R., who was born in 2004 (“the second applicant”). The second applicant has Czech nationality and, according to the first applicant, he also has Ukrainian nationality. The second applicant currently lives in Ukraine.
The applicants are represented before the Court by Mr D. Strupek, a lawyer practising in Prague.
A. The circumstances of the case
The facts of the case, as submitted by the first applicant, may be summarised as follows.
1. Background of the case
On 17 October 2003 the first applicant married B., a Ukrainian national, in Prague.
On 23 May 2004 their son, the second applicant, was born.
Between 2004 and 2007 the applicants and B. lived together as a family at the first applicant’s residence in Prague.
In 2007 the couple divorced. B., together with the second applicant, left the first applicant’s residence to live elsewhere in Prague.
On 27 June 2009 B. went to Ukraine and took the second applicant with her. She told the first applicant that they were going to visit her mother and that they would return by 5 July 2009.
As they had not come back to the Czech Republic by that date, the first applicant went to Ukraine in order to take the second applicant back to the Czech Republic. Since then, he has visited Ukraine on more than thirty occasions to try to find his child and return with him to the Czech Republic.
The first applicant also requested that the Ukrainian authorities initiate the procedure under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) for the return of the second applicant (see below).
By a decision of 21 January 2010, a local authority in Ukraine allowed the first applicant to meet the second applicant up to twice a week at specific times.
Further to that decision, on 26 January 2010 the first applicant met the second applicant.
The next day B. informed the authorities that she refused to comply with the decision of 21 January 2010 and that she would not let the first applicant meet the child.
In April 2010 the first applicant tried to leave Ukraine with the second applicant, but the Ukrainian border guards did not allow the latter to cross the Ukrainian border, explaining that he was a Ukrainian national.
According to the first applicant, since then he has not been able to meet the second applicant as B. has hindered his access to the child and communication with him. The first applicant is not aware of his child’s whereabouts.
2. Order for the second applicant’s return and its enforcement in Ukraine
(a) Judicial proceedings
In October 2009 the Ivano-Frankivsk Regional Department of Justice lodged a request with the Ivano-Frankivsk Town Court for the return of the second applicant to the Czech Republic, pursuant to the Hague Convention.
In the course of those proceedings the Ivano-Frankivsk Town Court issued an interim ruling on 11 February 2010 ordering B. not to hinder the first applicant’s communication with the second applicant, in accordance with the decision of 21 January 2010 (see above).
On 2 July 2010 the court granted the request, finding that the removal of the second applicant from the Czech Republic had been wrongful within the meaning of Article 3 of the Hague Convention. The court ordered B. to return the second applicant, being accompanied by the first applicant, to his residence in Prague (“the judgment to return the child”).
By a decision of 9 July 2010, the court refused a request from the applicant for the immediate enforcement of the judgment.
On 14 September 2010 the Ivano-Frankivsk Regional Court of Appeal upheld the judgment, which became enforceable on that date.
In October 2010 B. lodged a cassation appeal.
In February 2011 she lodged a request for the suspension of the enforcement of the judgment to return the child. No copy of the request has been provided.
By a ruling of 25 February 2011, a judge of the Ukrainian Supreme Court suspended the enforcement of the judgment to return the child pending the examination of the cassation appeal. No reasons have been given for that ruling.
On 15 March 2011, a panel of three judges of the Supreme Court rejected the cassation appeal, finding no proof that the lower courts had incorrectly applied the law or violated any procedural rules.
(b) Enforcement proceedings
On 27 September 2010 bailiffs in Ukraine started proceedings to enforce the judgment to return the child and contacted the parties to that effect. However, B. expressly refused to comply with the judgment. For that reason, on 6 October 2010 she was ordered to pay a fine of 170 Ukrainian hryvnias (UAH), at the material time equivalent to about 15 euros (EUR). Two days later, B. was ordered to pay another fine of UAH 340, at the material time equivalent to about EUR 30. She did not pay the fines.
As B. continued evading the enforcement of the judgment, on 26 November 2010 prosecutors instituted criminal proceedings against her on charges of deliberate non-compliance with a court decision (Article 382 § 1 of the Criminal Code of Ukraine, which provides for a maximum penalty of three years’ imprisonment). On 28 December 2010 the criminal case was referred to the Galych Town Court for trial. The applicant has not been informed of the outcome of the criminal proceedings, but claims that no criminal penalty was imposed on B.
On 31 December 2010 the police, acting upon a request from the bailiffs, found B. and took her to the bailiffs. B. refused to inform them of the second applicant’s whereabouts. The bailiffs drew up a report and B. was released shortly afterwards.
On 25 January 2011 the bailiffs, accompanied by the police, a vice-consul of the Czech Republic and the first applicant’s lawyer, visited a state school in Kalush after receiving information that the second applicant attended that school. There they met the second applicant, B. and B.’s lawyer. B. initially agreed to go to the Czech Republic in order to settle in that country and then bring the second applicant there. Several days later B. informed the other parties that she refused to keep to the agreement. The second applicant eventually stopped attending the school in Kalush.
Between October 2010 and September 2012 the bailiffs lodged several applications with the courts for orders to search for the second applicant and place him in care to enable the first applicant to collect him. On 23 August 2011 the Galych Town Court ordered a search for the second applicant. B. appealed. Thereafter, the matter was reconsidered on several occasions. Eventually, on 4 October 2012 the Ivano-Frankivsk Regional Court of Appeal allowed the bailiffs’ applications, ordering a search for the second applicant and his temporary placement in care. There is no information as to any specific measures taken by the authorities pursuant to that order.
The bailiffs also lodged several applications with the courts for orders to search for B., which were refused for unknown reasons.
In the meantime, the bailiffs made several attempts to find B. and the second applicant by sending requests for information to various authorities and by visiting the places where they might be found, on the basis of information obtained from a range of sources. B. and the second applicant were not present at their registered place of residence in Demishkivtsi or at any other known address when the bailiffs made their visits. Similar visits by the police were also unsuccessful. The first applicant claims that the local authorities have helped B. to hinder the enforcement of the judgment to return the child by informing her in advance of such visits.
In January 2011, and then again in April 2011, the bailiffs requested that the courts change the manner in which the judgment was to be enforced. On 8 June 2011 the Ivano-Frankivsk Town Court allowed the request in part. Upon appeal by the bailiffs, the matter was reconsidered by the Ivano‑Frankivsk Regional Court of Appeal on 27 September 2011. The appellate court ordered that, for the purposes of enforcing the judgment, B. should transfer the second applicant to the first applicant so that he could take the child to the Czech Republic.
The judgment to return the child has remained unenforced.
3. Proceedings in the Czech Republic regarding the custody and care of the second applicant
The question of the custody and care of the second applicant was examined by the Czech courts on several occasions.
On 6 November 2008 the Prague 10 District Court granted the first applicant and B. joint custody of the second applicant. On 9 July 2009 that decision became enforceable.
On 10 November 2010 the same court reconsidered the matter in the light of new developments in the case, notably the second applicant’s abduction by B., his retention in Ukraine and the first applicant’s lack of access to the child. The court, having examined the submissions of the first applicant and those of B. regarding the conditions of the upbringing they could provide to the second applicant and information from various authorities in that regard, found that it was in the second applicant’s interest to live with the first applicant. Accordingly, he was granted sole custody of the child.
On 28 June 2011 that decision was upheld on appeal.
On an unspecified date the decision was formally recognised by the Ukrainian courts and, accordingly, became enforceable in Ukraine.
B. Relevant international and domestic law
The relevant provisions of international and domestic law are set out in Chabrowski v. Ukraine (no. 61680/10, §§ 79-83, 17 January 2013).
COMPLAINTS
The first applicant complains on his own behalf and on behalf of the second applicant under Article 8 of the Convention of the lengthy non‑enforcement of the judgment of the Ivano-Frankivsk Town Court of 2 July 2010 ordering the second applicant’s return to the Czech Republic. He claims, in essence, that Ukraine has failed to fulfil its positive obligation under that provision to ensure his reunification with his son, the second applicant.
According to the first applicant, the actions taken by the Ukrainian authorities as regards the enforcement of the judgment to return the child were formalistic and uncoordinated; the bailiffs only made attempts to enforce the judgment when the first applicant was in Ukraine; the administrative penalties imposed on B. had no effect and no criminal penalty was imposed on her; although B. had not gone missing completely and occasionally communicated with the authorities and the courts, no adequate measures to find the second applicant were taken; and the courts were for a long time reluctant to issue a placement order for the second applicant.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention? More specifically, have the Ukrainian authorities taken all the necessary steps that can reasonably be demanded in the circumstances of the present case to facilitate the enforcement of the judgment of 2 July 2010 on the return of the child?
The Government are invited to submit a detailed account of all the measures taken by the Ukrainian authorities with a view to securing the return of the second applicant to the first applicant in compliance with the judgment of 2 July 2010 on the return of the child.
The Government are further invited to submit a comprehensive account of all the measures available to the Ukrainian authorities - including bailiffs, the police, welfare authorities and so on - to secure the enforcement of judgments in circumstances of the kind as those in the present case.
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