Communicated on 1 October 2020
Published on 19 October 2020
THIRD SECTION
Application no. 20065/20
Olga Vladimirovna ISLAMOVA and Amina Osmapashayevna ISLAMOVA
against Russia
lodged on 13 May 2020
STATEMENT OF FACTS
The applicants, Ms Olga Vladimirovna Islamova (“the first applicant”) and Ms Amina Osmapashayevna Islamova (“the second applicant”), are Russian nationals, who were born in 1974 and 2011 respectively and live in Tomanskiy, a village in the Samara Region, and Khasavyurt, a town in the Republic of Dagestan, respectively. They are represented before the Court by Ms V. Kogan and Mr E. Wesselink, lawyers practising in Moscow and Utrecht respectively.The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background of the case
In 1996 the first applicant married Mr O.I. They established their residence in Kogalym, a town in the Khanty-Mansiysk Region.
In 2004 the marriage between the first applicant and Mr O.I. was dissolved, but they continued to live together until 2014.
They have three children: daughter Ye., born in 1995, son E., born in 2006, and the second applicant.
In June 2014 due to a chronic illness the first applicant had to move to her mother in the Samara Region. The children moved with her. O.I. did not object. Starting from then O.I. neither supported the children financially nor participated in their upbringing.
On 14 July 2015 O.I. took the second applicant from the playground and went to Khasavyurt. He informed the first applicant that he would not return the child to the first applicant, that he intended to bring her up himself in Muslim traditions.
The first applicant went to Khasavyurt to take the second applicant back. However, on her way there she had a car accident and was taken to Kochubey hospital, where she was diagnosed with left shoulder fracture and underwent treatment from 22 to 25 July 2015. Subsequently she continued treatment in the Samara Region, which included several hospitalisations.
On 23 July 2016 the first applicant was assigned third degree disability. She continued treatment through 2017.
Meanwhile, in October 2015 the first applicant applied to the police in order to have determined the second applicant whereabouts.
On 2 November 2015 she was informed that the child’s whereabouts had been established. She immediately instituted court proceedings for a residence order in respect of the second applicant.
2. Proceedings for the determination of the second applicant’s place of residence
On 16 December 2015 the Privolzhskiy District Court of the Samara Region (“the District Court”) granted the first applicant’s claim and ruled that the second applicant should reside with her mother. The District Court obliged O.I. to return the child to the second applicant and to pay child maintenance. In taking this decision the District Court relied on the results of the second applicant’s psychological examination of 27 September 2015. The District Court further took into account that the second applicant had been living with the first applicant since she had been born, that the latter had put in place all the conditions necessary for the second applicant’s upbringing and development, that after the family had de facto broken up in 2014 O.I. had rarely visited the child and had founded a new family.
On 31 March 2016 the Samara Regional Court (“the Regional Court”) upheld the judgment on appeal. The judgment became final and the first applicant applied for institution of the enforcement proceedings.
On 28 April 2016 a writ of enforcement was issued.
3. Enforcement proceedings
On 9 June 2016 a bailiff from the Inter-District Bailiffs Service in Khasavyurt instituted proceedings for the enforcement of the judgment of 16 December 2015. A copy of this decision was sent to O.I., who was invited to comply with the judgment within five days’ time-limit.
Since O.I. failed to comply, bailiff T. visited his place of residence. However, neither O.I. nor the second applicant was at home. Execution fee amounting 5,000 Russian roubles (RUB) was recovered from him.
On 21 June, 22 June, 6 September and 9 September 2016 the bailiff again visited O.I.’s place of residence, in vain.
Meanwhile, on 5 July 2016 administrative proceedings were instituted against O.I. under Article 5.35 § 2 of the Code of Administrative Offences for failure to comply with the judgment of 16 December 2015.
On 19 July 2016 the Juvenile Inspectorate of the Administration of Khasavyurt found that the failure by O.I. to comply with the judgment of 16 December 2015 had been unintentional, discontinued the administrative proceedings and invited O.I. to settle the conflict with the first applicant amiably.
On 22 August 2016 the first applicant requested the bailiff to institute a search for O.I. and the child. However, since the second applicant’s whereabouts became known, on 9 September 2016 the first applicant’s request was dismissed.
On 2 September 2016 the bailiff imposed a temporary limitation on O.I.’s travel outside the Russian Federation.
Enforcement actions were scheduled on 13 September 2016. However, the applicant could not take part in them as she received the notification already after they had taken place. In the course of the enforcement actions the second applicant refused to go to the first applicant. The record of those actions indicated that the second applicant was afraid of her mother. According to the report of the Khasavyurt psychological service, the second applicant said that she wanted to live with her father, that the first applicant was mean and often scolded and beat her and her brother.
On 5 October 2016 another attempt was made by the bailiff to enforce the judgment in the presence of a psychologist and child care authorities. According to the first applicant, when she sat in a taxi with the second applicant, O.I. grabbed the latter from the first applicant’s hands and disappeared with her in an unknown direction. The first applicant signed the record of this failed attempt to enforce the judgment as follows: “I, Islamova Olga Vladimirovna, have no objections to the actions of bailiff T. in the enforcement of the judgment”.
At the request of childcare authorities from 29 October to 6 November 2016 the Khasavyurt psychological service carried out the second applicant’s psychological examination. The report of this examination stated that during the attempt to enforce the judgment on 5 October 2016, the child had started huddling to O.I. and having a tantrum even before the first applicant had approached her.
On 9 November 2016 the bailiff took a decision to discontinue the enforcement proceedings. However, following the applicant’s request, on 1 November 2016 the above decision was set aside by the chief bailiff and the enforcement resumed.
Another attempt to enforce the judgment failed on 25 November 2016. On the same day the search for O.I. was launched.
On 13 December 2016 the bailiff visited O.I.’s place of residence. The first applicant was not notified and could not take part in the attempt of enforcement. The enforcement report stated that the child had firmly refused to go to the first applicant.
On 13 January 2017 the bailiff applied to the Khasavyurt Town Court (“the Town Court”) for termination of the enforcement proceedings in view of the fact that the possibility for enforcement had been lost.
On 27 January 2017 the Town Court granted the bailiff’s request.
On 14 February 2017 the bailiff took a decision to discontinue the enforcement proceedings.
However, following the first applicant’s appeal, on 17 April 2017 the Supreme Court of the Republic of Dagestan (“the Supreme Court”) found the decision of 14 February 2017 unlawful.
On 16 May 2017 the bailiff took a decision to resume the enforcement proceedings.
After another failed attempt to enforce the judgment of 16 December 2015 on 17 May 2017, on 18 May 2017 administrative proceedings were instituted against O.I. under Article 5.35 § 2 of the Code of Administrative Offences. Later those proceedings were discontinued and O.I. was invited to settle the conflict with the first applicant.
Following the first applicant’s request, on 22 May 2017 another search for the second applicant was launched.
On 29 June 2017 another attempt to enforce the judgment was made, without success. The first applicant could not take part in the enforcement measure, because she had not been notified about it in a timely manner.
In July 2017 O.I. proposed a friendly settlement to the first applicant.
On 20 July 2017 the first applicant expressed her willingness to reach a friendly settlement with O.I. and applied for termination of the enforcement proceedings.
On 1 August 2017 the enforcement proceedings were discontinued.
The friendly settlement negotiations, however, failed, and the enforcement proceedings resumed.
On 23 October 2017 another attempt to enforce the judgment was made, again without success, although both O.I. and the child were at home. The record of this enforcement measure, however, indicated, that O.I. had not been at home.
On 8 November 2017 administrative proceedings were again instituted against O.I. and yet again discontinued in the absence of any guilty conduct on behalf of O.I.
4. Proceedings for restriction of O.I.’s parental authority and O.I.’s counterclaim for a residence order in respect of the second applicant
Meanwhile, on 24 April 2017 the first applicant applied to the Town Court for limitation of O.I.’s parental authority in respect of the second applicant. O.I. brought a counterclaim for a residence order in respect of the second applicant.
On 16 August 2017 the Town Court dismissed the first applicant’s claim and determined the second applicant’s residence as being with O.I. The Town Court relied on the reports of the second applicant’s psychological examinations of 29 September 2015 and 16 December 2016 and took note that the second applicant had been attached to O.I. with whom she had warm trusting relationship. The Town Court further relied on the record of the enforcement measures of 5 October 2016.
On 27 November 2017 the Supreme Court upheld the above judgment on appeal. The judgment became final.
The first applicant did not challenge the judgment in question in the cassation-review procedure.
5. The first applicant’s challenge of the bailiff’s failure to enforce the judgment of 16 December 2015 and subsequent enforcement measures
On 26 February 2018 the first applicant challenged the bailiff’s inactivity before the Federal Bailiffs’ Service for the Republic of Dagestan.
On 19 May 2018 she received a reply referring her to the judgment of 16 August 2017.
On 14 May 2018 the bailiff applied to the Town Court to clarify the provisions of the writ of enforcement in view of the fact that it contradicted the judgment of 16 August 2017, as upheld on appeal on 27 November 2017.
On 27 June 2018 the first applicant applied to the Khasavyurt Inter‑District Bailiffs Service to take all measures necessary for the second applicant’s transfer to her with the involvement, if necessary, of a psychologist, a paediatrician and the childcare authority.
On 16 July 2018 she enquired about the examination of her application. However, no reply has been received.
On 4 August and 15 August 2018 another unsuccessful attempts to enforce the judgment of 16 December 2015 were made. On the first occasion O.I. refused to hand the child to the first applicant relying on the judgment of 16 August 2017. On the second occasion O.I. was not at home.
On 16 July 2019 the first applicant challenged the bailiff’s inactivity before the Town Court under the Code of Administrative Procedure.
On 20 August 2019 the Town Court held that the bailiff’s inaction in the enforcement proceedings had been unlawful and obliged the latter to remedy the violations of the first applicant’s rights.
On 28 November 2019 the judgment in question became final.Relevant domestic law
For the relevant provisions of domestic law see Pakhomova v. Russia (no. 22935/11, §§ 91-112, 24 October 2013).
COMPLAINTS
1. The first applicant complains, on behalf of herself and the second applicant, under Article 8 of the Convention of the failure of the domestic authorities to comply with their positive obligations by failing to ensure the prompt and effective enforcement of the judgment of the Privolzhskiy District Court of the Samara Region of 16 December 2015, upheld on appeal by the Samara Regional Court on 31 March 2016, which had determined that the second applicant’s place of residence should be with the first applicant. She further complains of the absence of an effective regulatory framework of enforcement machinery which would determine a method for the enforcement of judgments obliging one of the parents to hand the child over to the other parent; the lack of cooperation between the bailiffs’ services of different regions; the absence of real sanctions (aside from small administrative fines and a prohibition on leaving the territory of the Russian Federation) for a failure to comply with a judgment.
2. The first applicant further complains under Article 13 of the Convention about the absence of an effective domestic remedy against the alleged violation of Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?
2. More specifically, has there been a failure by the State to comply with its positive obligation to secure the applicants’ right to respect for their family life as guaranteed by Article 8 of the Convention? In particular:
(a) Was the judgment of the Privolzhskiy District Court of the Samara Region of 16 December 2015, upheld on appeal on 31 March 2016, granting the first applicant a residence order in respect of the second applicant enforced in due time?
(b) Did the domestic authorities take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the above judgment? Reference is made to the findings made by the Khasavyurt Town Court in its judgment of 20 August 2019.
(c) Was there a regulatory framework securing the effective and prompt enforcement of the above judgment? Reference is made to the specific aspects of enforcement proceedings raised by the applicants in the complaint.
3. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
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