Communicated on 26 October 2017
THIRD SECTION
Application no. 40639/17
Ilya Petrovich NECHAY
against Russia
lodged on 31 May 2017
STATEMENT OF FACTS
The applicant, Mr Ilya Petrovich Nechay, is a Russian national who was born in 1974 and lives in Zheleznodorozhniy, a town in the Moscow Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
From 2007 the applicant lived with E.A. and her son in Moscow.
On 24 July 2008 E.A. gave birth to a daughter, S.
In 2011 the relationship between the couple deteriorated and in March 2011 they separated. S. remained living with E.A.
From then E.A. started preventing the applicant’s communication with S. In July 2012 she moved from Moscow to Kazan with both children.
In 2013 E.A. married a Turkish national.
After failed attempts to come to an agreement with E.A. as regards his contact with S., the applicant brought proceedings to determine his contact arrangements with the child. In response, E.A. brought proceedings to determine the child’s residence as being with her in Turkey.
On 25 April 2013 the Vakhitovskiy District Court of Kazan (“the District Court”) held that S. should reside with her mother E.A. in Turkey. This conclusion was based on the following considerations: (i) from 2011 onwards the child had been living with her mother; (ii) according to an expert report, she had strong emotional ties with her mother and elder brother; and (iii) the mother provided her with adequate living and educational conditions. The District Court further held that the applicant was entitled to parental visits on Saturdays and Sundays of the odd months of each year. They were to take place at the child’s place of residence and in the presence of E.A. and were not to exceed four hours. E.A. was obliged not to obstruct the applicant’s contact with the child in the framework of the above arrangements. She was further obliged to inform the applicant of the child’s place of residence and school in Turkey, and to inform him in advance of any trips outside of Turkey.
In August 2013 E.A. and S. moved to Turkey.
On 28 November 2013 the Supreme Court of the Republic of Tatarstan upheld the above judgment on appeal, noting that it was in the best interests of the child.
On 19 April 2014 the applicant applied to the bailiffs’ service for enforcement of the judgment.
On 26 May 2014 enforcement proceedings were instituted.
They were terminated on 29 December 2014 and resumed on 27 March 2015.
Meanwhile, in April 2014 E.A. moved back to Russia. She brought proceedings before the District Court for a review of the contact arrangements between the applicant and S. that had been determined on 25 April 2013. She claimed, in particular, that the applicant had not seen S. for almost two years since September 2012 as he had not attempted to see her either when she had been living Turkey or visiting Russia for holidays, and therefore the contact arrangements as established on 25 April 2013 might have caused the child psychological problems. In response, the applicant brought proceedings to determine the child’s residence as being with him. He argued, in particular, that E.A. had made his contact with the child difficult and had subjected her to the stress of moving to Turkey and subsequently back to Russia, as well as completely excluding him from any decision making regarding the child.
On 26 May 2015 the District Court rejected the applicant’s application for residence and maintained the residence order in favour of E.A. In taking this decision the District Court took into account the child’s age, her close emotional ties with the mother and brother and her need for constant care by the mother for proper development, the inability to separate the child from the mother for an extended period, and the fact that the mother had created all the necessary conditions for the child’s development and upbringing and for her communication with close relatives. The District Court also noted that the child had had no contact with the applicant for an extended period of time. It held that a change of the child’s residence to being with her father was not in her best interests.
The District Court further determined that the applicant should be able to have contact with his daughter on Sundays (or Saturdays) of the odd months of each year (upon prior agreement with E.A.) for two hours at the child’s place of residence and in the presence of E.A.
Lastly, the District Court obliged E.A. to inform the applicant of the child’s state of health and school results, to involve him in the decision making process regarding choosing a school or extracurricular activities for the child, to inform him of the child’s movement within the Russian Federation and to obtain his written consent for the child’s trips abroad, as well as to enable him to spend additional time with the child in the event that E.A. ever needed someone to look after her.
In taking the decision the District Court had before it:
(i) results of an assessment of the applicant’s living conditions, which met the child’s need for sleep and rest;
(ii) an opinion of the childcare authority, which was in favour of increasing the applicant’s communication with the child and enabling such communication to take place without the mother present;
(iii) an expert report provided by E.A., observing the absence of close emotional ties between the applicant and the child, and, on the other hand, optimal psychological distance in the child-parent relationship with E.A. and concluding that the presence of the applicant in the child’s life would not be beneficial for her psychological development (the applicant was not informed of, or invited to be a part of this examination);
(iv) an expert report provided by the applicant to the effect that he was a good father, that there were no contraindications to the child’s upbringing by him, and that his personality would stimulate the child’s harmonious development even in the situation of a conflict between him and the child’s mother. The report also suggested that, taking into account the child’s age, the mother’s presence was not necessary during communication between the child and the applicant.
The District Court also questioned several witnesses:
(a) K., an expert who examined S. at the request of E.A. and concluded that there was a close emotional connection between her and the child and that her absence could represent a stressful situation for S., whereas the father’s absence would not amount to such a stress for S.;
(b) Ye., Director of Education at the school previously attended by S., who submitted that E.A. had never been against communication between the applicant and the child;
(c) Zh., who had been on the school’s parental committee with E.A., who also submitted that the latter had never prevented the child’s communication with the applicant; and
(d) Z., the applicant’s neighbour, who submitted that the applicant was actively involved in his daughter’s upbringing, that he was suffering as a result of the lack of access to the child and was making all efforts to restore communication.
The applicant appealed. He decided not to pursue his application for residence and insist on his written consent for trips outside Russia.
On 19 May 2016 the Supreme Court of the Republic of Tatarstan terminated the proceedings in so far as they concerned the parts which the applicant wished to no longer pursue and upheld the rest of the judgment on appeal. The Supreme Court dismissed an argument by the applicant that his rights had been violated by the established contact arrangements owing to the length of time he had had no contact with the child. It considered therefore that the contact schedule determined by the District Court, in the mother’s presence, had been in the best interests of the child, which was an issue of priority. The Supreme Court noted in this respect that the applicant had not provided evidence to the effect that E.A. had prevented the enforcement of the previous contact arrangements of 25 April 2013: he had never asked the bailiffs’ service to organise meetings with the child and had not appeared for enforcement actions when the bailiffs asked him to do so.
The applicant challenged the decision in cassation appeal proceedings.
On 14 September 2016 a judge of the Supreme Court of the Republic of Tatarstan decided not to refer the case to the Presidium of that court for consideration.
On 12 December 2016 a judge of the Supreme Court of Russia decided not to refer the case to the Civil Chamber of the Supreme Court for consideration.
On 21 February 2017 the President of the Supreme Court of Russia found that there were no grounds to disagree with the decision of 12 December 2016 taken by the single judge.
Since 2012 the applicant has seen his daughter twice, on 27 September 2012 and 31 May 2015.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the judgment of 26 May 2015 determining the contact arrangements between him and his daughter (two hours every other month at the child’s place of residence and in the presence of her mother) significantly reduced his ability to preserve and develop family ties with his daughter and amounted to a violation of his right to respect for his family life.
QUESTIONS TO THE PARTIES
1. Has the judgment of the Vakhitovskiy District Court of Kazan of 26 May 2015 limiting the applicant’s contact with his daughter to two hours every other month in the presence of the child’s mother amounted to an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention?
2. If so, was that interference “in accordance with the law” and “necessary” in terms of Article 8 § 2 of the Convention? In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?
3. Was the applicant involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests?
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