Communicated on 29 June 2015
FIRST SECTION
Application no. 69732/14
Yekaterina Vladimirovna SMYSHNIKOVA
against Russia
lodged on 14 October 2014
STATEMENT OF FACTS
The applicant, Ms Yekaterina Vladimirovna Smyshnikova, is a Russian national, who was born in 1980 and lives in Moscow.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lived with D.N. in extramarital relationship.
On 8 August 2006 the applicant gave birth to their daughter, S.
On unspecified date the couple settled in Moscow.
On an unspecified date the applicant and D.N. separated.
Between 1 September 2009 and 31 May 2012 S. lived with the applicant in Moscow and attended a kindergarten there.
It appears that subsequently D.N. took S. to his parents in Kovdor, Murmansk Region, for summer vacations, and did not return her back to Moscow.
The applicant applied to the police, the prosecutor’s office, the Kovdorskiy District childcare authority and the Ombudsman for Children in the Murmansk Region seeking the child’s return, without success. The child continues to reside with her paternal grandparents.
In November 2013 the applicant and D.N. both applied to the Khoroshevskiy District Court of Moscow (the District Court) for a residence order in respect of A.
On 17 March 2014 the District Court established that the child was registered at the applicant’s address in Moscow. The said flat belonged to the applicant and, according to relevant report, was neat and cosy and suitable for living with a minor child. The applicant worked in Moscow, had positive references both from work and from her place of residence. D.N. also worked in Moscow and had positive references from work. According to the report on S.’s living conditions of 1 November 2013, S. lived with her paternal grandparents in Kovdor, Murmansk Region, and attended a school there. D.N. visited the child in Kovdor once a month. The Kovdorskiy District childcare authority considered that the child’s established lifestyle should not be disrupted and that she should continue to reside with her paternal grandparents, to whom she was very attached. The Moscow Khoroshevo-Mnemniki childcare authority opined that the child should reside with her mother, the applicant. Having taken into account the above circumstances, as well as the age of the child, the District Court granted the residence order in respect of the child to the applicant.
On 10 June 2014 the applicant went to Kovdor to take her daughter home, without success.
On 24 June 2014 the Moscow City Court upheld the judgment of 17 March 2014 on appeal. It found that having granted the mother of the child the residence order in respect of the child, the District Court had taken into account the best interests of the child, the child’s age and the provisions of Article 63 of the Family Code determining the parent’s right to priority over any other persons in raising their children.
On 16 July 2014 a writ of execution of the judgment of 17 March 2014 was issued.
On 31 July 2014 the enforcement proceedings were instituted. The enforcement of the judgment of 17 March 2014 was scheduled for 20 August 2014.
On 20 August 2014 the bailiff accompanied by several armed policemen, and the applicant with her lawyer (the child’s maternal grandfather) paid the visit to the home of the child’s paternal grandparents. The bailiff announced the order of the enforcement: “The child is not to be touched, approached closely or pulled”. The girl was taken outside by her paternal grandmother who was looping her arm around the girl’s neck in a tight grip. Although it was cold and rainy outside, the child was wearing no coat and had home shoes on. She was seriously stressed and scared, could not adequately assess the situation and answer the bailiff’s questions. The child was not handed over to the applicant.
The judgment of 17 March 2014 remains unenforced to the present date. The child continues to live with her paternal grandparents.
COMPLAINT
Relying on Article 6 § 1 of the Convention, the applicant complains about the authorities’ failure to enforce the judgment of 17 March 2014 granting her the residence order in respect of the child.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her 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 applicant’s right to respect for her family life guaranteed by Article 8 of the Convention? In particular:
(a) Has the judgment of the Moscow Koroshevskiy District Court of 17 March 2014 granting the residence order in respect of the child to the applicant been enforced?
(b) Have the domestic authorities taken, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment of 17 March 2014?
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