FIFTH SECTION
DECISION
Application no. 36525/19
Oleg Vladyslavovych NERIVNYA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 18 February 2021 as a Committee composed of:
Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 30 June 2019,
Having regard to the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 8 and 13 of the Convention and to declare inadmissible the remainder of the application,
Having regard to the observations submitted by the Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Oleg Vladyslavovych Nerivnya, is a Ukrainian national who was born in 1988 and lives in Kharkiv. He was represented before the Court by Mr S. Bezpalyy, a lawyer practising in Kharkiv.
2. The Government were represented by their Agent, Mr I. Lishchyna.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 22 June 2016 the applicant married Ms B., a Russian national. On 14 October 2016 their daughter, M., was born. They lived in Kharkiv, Ukraine. On 11 September 2017, following an altercation with the applicant, B. left with the child for Russia and did not return. B. and M. currently live in Russia.Request for criminal investigations in Ukraine
5. At the applicant’s request, criminal investigations were initiated in Ukraine into the alleged child abduction and illegal crossing of a border by B., and forgery of documents at the State border. On 20 December 2017 the police established by means of international police cooperation that B. and M. were living together in Russia. B. had explained to the Russian police that she had suffered domestic violence and had left the applicant for that reason. The criminal proceedings instigated by the applicant are currently under way.Proceedings before the Russian courts for the return of the child
6. On 4 June 2018 the Ministry of Justice of Ukraine submitted to the Russian authorities a request from the applicant to have M. returned to Ukraine, in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”).
7. On 20 August 2018 the Kanaviniskiy District Court of Nizhniy Novgorod in Russia, having examined the child’s situation, refused to return the child to Ukraine. On 20 November 2018 the Nizhny Novgorod Regional Court upheld the decision of the first-instance court.Proceedings in the Ukrainian courts as to the child’s residence
8. The applicant lodged a claim against B. with the Moskovskyy District Court of Kharkiv in Ukraine, seeking to have the place of the child’s residence determined as being with him on the grounds that B. had not taken care of the child and that B. later took the child away from him.
9. The court made a request to the Russian authorities to inform B. of the proceedings and to obtain her observations on the subject matter of the dispute. The Russian courts, having received the request, repeatedly summoned B., who, however, failed to appear. The Ukrainian authorities were informed accordingly.
10. On 3 August 2018 the Moskovskyy District Court of Kharkiv dismissed the applicant’s claim. The court noted that according to the information provided by the Russian police authorities, B. and M. had been living in Russia; B. had been questioned by police and she had explained to the police that she had suffered domestic violence while living with the applicant and that she had no wish to maintain any relations with him. The court then stated that the applicant had not provided any evidence or argument to show why the child, who had been living with her mother for a long time, had to change her place of residence to the applicant’s address. The court concluded that the claim was unsubstantiated.
11. The applicant lodged an appeal, arguing that the first-instance court had made mistakes of fact and law and that the child’s interests had not been examined properly. On 19 September 2018 the Kharkiv Regional Court of Appeal, in the absence of the parties, upheld the judgment of the first‑instance court. The applicant lodged an appeal on points of law. On 12 December 2018 the Supreme Court upheld the decisions of the lower courts.Relevant international law
12. Relevant international law can be found in Iglesias Gil and A.U.I. v. Spain (no. 56673/00, § 29, ECHR 2003‑V) and Vilenchik v. Ukraine (no. 21267/14, § 37, 3 October 2017).
COMPLAINTS
13. The applicant complained under Articles 8 and 13 of the Convention that the Ukrainian authorities had failed to provide effective remedies concerning his complaint about the unlawful removal of his minor daughter. He further complained that the Ukrainian courts had failed to provide adequate reasons for dismissing his claim in a child-residence dispute.
THE LAWComplaint concerning unlawful removal of the child
14. The applicant complained that B. had unlawfully removed their daughter from Ukraine to Russia, and that there was no effective remedy in that regard. He relied on Articles 8 and 13 of the Convention.
15. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018, and Vilenchik, cited above, §§ 38-39), will examine the complaint from the standpoint of Article 8 of the Convention alone. Article 8 reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
16. The Government submitted that the Ukrainian authorities had assisted the applicant in the Hague Convention proceedings for the return of his child from Russia. However, the Russian courts had dismissed the request and the Ukrainian Government could not be held responsible for that decision. The Government further contended that, in response to his allegations concerning the unlawful removal of the child, the Ukrainian authorities had conducted criminal investigations which were under way and there was no reason to question their effectiveness.
17. The applicant maintained his complaint.
18. The Court has repeatedly held that Article 8 of the Convention includes a parent’s right to the taking of measures with a view to being reunited with his or her child and an obligation on the national authorities to take such measures (see Maire v. Portugal, no. 48206/99, § 70, ECHR 2003‑VII, with further references). However, the national authorities’ obligation to take measures to facilitate reunion is not absolute. The nature and extent of such measures will depend on the circumstances of each case (ibid., § 71).
19. In the area of international child abduction, the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention (see X v. Latvia [GC], no. 27853/09, § 93, ECHR 2013). This approach in interpreting the scope of positive obligations under Article 8 of the Convention is applicable to both the requesting and the requested States.
20. The Court must accordingly examine whether, in the light of their international obligations arising in particular under the Hague Convention, the Ukrainian authorities made adequate and effective efforts to secure compliance with the applicant’s right to the return of his child (see Iglesias Gil and A.U.I., cited above, § 56). In this context the Court has emphasised that the domestic authorities must take all appropriate measures to discover the whereabouts of a child who has been wrongfully removed or retained and secure the return of the child (ibid., § 57).
21. Following the applicant’s complaints of child abduction, the Ukrainian authorities quickly established where the child was living (see paragraph 5 above). They also assisted the applicant in making a request for the return of the child under the Hague Convention (see paragraph 6 above). There is nothing to suggest that the measures taken by the Ukrainian authorities were inadequate or insufficient (contrast Iglesias Gil and A.U.I., cited above, § 59). Subsequently, the applicant’s request for the return of the child was refused by the Russian courts (see paragraph 7 above), but this fact falls outside the scope of the present application, which is directed against Ukraine. The Court considers that after the Russian courts had refused the return of the child to Ukraine, any further measures by the Ukrainian authorities, including criminal investigations instigated at the request of the applicant, did not have any significant bearing on the State’s compliance with its positive obligations under Article 8 of the Convention.
22. Accordingly, having regard to the manner in which the Ukrainian authorities acted in order to ensure the applicant’s reunion with the child, there is no appearance of any serious failing which could raise an issue under Article 8.
23. The complaint should therefore be dismissed as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaint concerning proceedings in Ukrainian courts regarding the child’s place of residence
24. The applicant further complained that his civil claim for determining the child’s place of residence had been dismissed without appropriate reasons being given.
25. The Court will examine this complaint under Article 8 of the Convention.
26. The Government submitted that the civil courts had provided relevant and sufficient reasons for their decisions, which had had to be taken in the absence of B. and the child who were living abroad. They contended that, given the Russian court’s refusal to return the child, any further issues regarding the child’s custody had to be determined in Russia, where the child resided.
27. The applicant insisted that the civil courts had failed in their obligations to provide adequate reasoning for their decisions.
28. The Court reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001‑V). The Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII, with further references).
29. In the present case the applicant asked the domestic courts to determine the child’s place of residence as being his home in Ukraine. The Ukrainian courts refused the claim in the circumstances when the child and her mother had been living abroad for a long time. The courts were put in a difficult position in determining that claim, given that neither B. nor the child were available for direct examination. This objectively complicated the task of establishing the best interests of the child in the context of the subject matter of the dispute. It is noteworthy that the courts made an attempt to question the mother, but to no avail (see paragraph 9 above). Nevertheless, the courts had an opportunity to analyse statements by B. obtained by way of police cooperation. Having regard to all the available information, the Ukrainian courts eventually concluded that the applicant’s allegations were not supported by any reliable evidence justifying the claim.
30. Having regard to the wide margin of appreciation enjoyed by the domestic authorities on custody rights and in view of the absence of any serious point raised by the applicant in the domestic proceedings, the Court, for its part, finds no indication of any arbitrariness or any failure to respect the applicant’s procedural rights. It follows that the decisions of the domestic courts and the way in which those decisions were adopted do not disclose any issue under Article 8 of the Convention.
31. Accordingly, this complaint should be dismissed as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 March 2021.
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Martina KellerArnfinn Bårdsen
Deputy RegistrarPresident
Full & Egal Universal Law Academy