Communicated on 18 December 2013
THIRD SECTION
Application no. 2361/13
Ganna Volodimirovna SMIRNOVA
against Georgia
lodged on 28 December 2012
STATEMENT OF FACTS
1. The applicant, Ms Ganna Volodimirovna Smirnova, is a Ukrainian national who was born in 1981 and lives in Kharkov.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant lived with her partner, a dual Georgian-Ukrainian national, Mr G. Ch., in the city of Kharkov, Ukraine. On 29 July 2004 their first child, L., was born; he was registered in Ukraine at the applicant’s address and acquired Ukrainian citizenship.
4. Some time in mid-2005 G. Ch. left Ukraine for Russia. L. continued to live with his mother and attended a pre-school educational institution in Kharkov.
5. In 2005 and 2006 G. Ch. visited the applicant and L. twice. In September 2006 the applicant gave birth to another child of the couple, T. On 22 July 2010 T. died in an accident.
6. On 30 July 2010 the applicant allowed G. Ch. to take their son for the first time to Georgia for the summer holidays. She signed a document authorising G. Ch. to travel with L. to Georgia and Russia within the period between 30 July 2010 and 28 February 2011. L. was expected to return to Kharkov by the end of August in order to go in September to a primary school in which he had been pre-enrolled.
7. On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Kharkov and would be staying in Georgia. For two months the applicant tried to persuade her former partner to allow their child to return to Ukraine, to no avail however. It appears that soon after this G. Ch. left for Russia, while L. stayed in Georgia with his uncle, G. Ch.’s brother.
8. On 22 March 2011 Kievski District Court ordered L.’s return to Ukraine. The court ruled that L.’s place of permanent residence should be that of the applicant.
2. Court proceedings in Georgia
9. In October 2010 the applicant initiated child return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) via the Ministry of Justice of Ukraine. On 18 November 2010 the latter contacted the Ministry of Justice of Georgia and requested legal cooperation on the matter. On 2 December 2010 the Ministry of Justice of Georgia, acting as the central authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Tbilisi City Court.
10. On 16 May 2011 the Tbilisi City Court refused the applicant’s request. That decision was overturned on 27 October 2011 by the Tbilisi Court of Appeal, which ordered L’s return to Ukraine. The appeal court observed that according to psychological reports on L. he was suffering from adaptation problems and lacked sufficient communication with his parents.
11. G. Ch. appealed against this decision on points of law, alleging that the court of appeal had incorrectly interpreted the Hague Convention and the facts of the case. By a final judgment rendered on 22 August 2012 the Supreme Court allowed the appeal on points of law, thus reversing the judgment of 27 October 2011. It concluded, referring mainly to the death of the child’s sister, that L. would be exposed to physical and psychological harm if returned to Ukraine.
12. The case file, indicates that G. Ch. did not take part in the relevant court proceedings, as he was not in Georgia at the material time. L., according to the applicant, is currently residing with his uncle.
B. Relevant international law
13. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“The Hague Convention”) reads in its relevant part as follows:
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Article 3
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
COMPLAINTS
14. The applicant complains under Article 8 of the Convention about the refusal of the domestic courts to order the return of her son to Ukraine. She also complains about the length of the relevant proceedings.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention, with regard to the proceedings lodged on her behalf under the Hague Convention on the Civil Aspects of International Child Abduction, concerning notably the length of those proceedings and the refusal of the domestic courts to order the return of the child?
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