Communicated on 20 November 2017
THIRD SECTION
Application no. 57777/17
Carlo SPINELLI
against Russia
lodged on 3 August 2017
SUBJECT MATTER OF THE CASE
The applicant, Mr Carlo Spinelli, is an Italian national, who was born in 1973 and lives in Vimercate. He is represented before the Court by Mr A.N. Kotvitskiy, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 10 January 2009 the applicant married a Russian national, Ms A.Sh. The couple settled in Italy.
On 12 January 2012 in Russia A.Sh. gave birth to their son, A., who holds joint Italian and Russian nationality. Shortly afterwards the family returned to Italy.
On 28 December 2014 the family travelled to Moscow to visit A.Sh.’s parents.
On 1 January 2015 the applicant returned to Italy. It was agreed that A.Sh. and A. would join him on 4 January 2015.
However, on 2 January 2015 A.Sh. informed the applicant by telephone that she had decided to stay in Russia.
On 4 January 2015 the applicant returned to Moscow in an attempt to persuade A.Sh. to return to Italy, in vain.
He travelled to Moscow again on 9 and 19 January 2015, but again did not succeed in making A.Sh. change her mind.
The applicant has not seen his son since April 2015.
In May-July 2015 he repeatedly applied to the head of the Moscow Gagarinskiy district administration and childcare authority and the Odintsovo town childcare authority in Moscow Region for assistance in securing contact with the child.
1. Proceedings in Italy
(a) Judicial separation proceedings
On 29 January 2015 the applicant instituted judicial separation proceedings (ricorso per separazione giudiziale) asking the court to grant him a judicial separation in respect of his marriage with A.Sh., with attribution of responsibility to the latter (con addebito), to grant him sole care of A. and a residence order in respect of him, to assign the family home to him, and to secure his obligation to provide entirely for the needs of A.
On 21 January 2016 the Monza District Court allowed the applicant’s claims. It further held that the applicant was to take all decisions concerning the child, including care, upbringing, education and determination of the child’s place of residence. A.Sh. was granted contact rights, in the presence of the applicant or the applicant’s parents and in accordance with an agreement to be reached between them.
On 4 May 2016 the Milan Court of Appeal upheld the above judgment on appeal.
On 16 September 2016 the judgment of 21 January 2016, as upheld on appeal on 4 May 2016, became final.
(b) Criminal proceedings against A.Sh.
On 24 January 2017 the Monza District Court convicted A.Sh. in absentia of abducting the child. She was given a four-year prison sentence and her parental rights were terminated.
Appeal proceedings are currently pending.
2. Proceedings in Russia
(a) Divorce proceedings
On 26 February 2015 A.Sh. initiated divorce proceedings in Russia.
On 3 April 2015 she further asked the court to determine the child’s residence as being with her and to recover child maintenance from the applicant. The applicant objected to the examination of A.Sh.’s claims in Russia, relying on the proceedings pending in Italy on the same subject matter.
On 14 October 2015 the Gagarinskiy District Court of Moscow (“the District Court”) left A.Sh.’s claims without examination. It noted that identical proceedings were ongoing before the Monza District Court in Italy. Reference was made to the Convention of 25 January 1979 between the Union of Soviet Socialist Republics and the Italian Republic on Legal Assistance in Civil Matters (“the Bilateral Convention”) and Article 406 § 2 of the Code of Civil Procedure of the Russian Federation.
On 2 December 2015 the Moscow City Court (“the City Court”) quashed the above decision and remitted the case to the District Court for examination on the merits. The City Court noted that the child had Russian nationality, that he had been registered at his mother’s place of residence in Moscow and had been living with his mother in Moscow Region. Therefore, the Italian courts had had no competence to examine the applicant’s claims. The applicant’s objections to the effect that the child had been permanently resident in Italy until January 2015 had been considered to be unsupported by the case-file material; it showed that A.Sh. had chosen Russia as her and her son’s place of residence; and the fact that the child had been staying at his father’s place of residence in Italy before the couple’s separation had not indicated that that had been chosen as the child’s permanent place of residence.
On 15 February and 14 April 2016 the applicant’s cassation appeals were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation (“the Supreme Court”), respectively.
On 17 February 2016 the District Court dissolved the marriage between the applicant and A.Sh. Having taken into account the age of the child and his attachment to his mother, the District Court considered it reasonable and in accordance with the child’s best interests to determine his place of residence as being with A.Sh. The District Court also ordered the applicant to pay child maintenance. The judgment referred to Articles 21, 65, 80 and 81 of the Family Code of the Russian Federation and was based on the following considerations:
- the child had been registered at his mother’s place of residence in Moscow and had actually been living with her in Moscow Region, where suitable conditions had been created for his life and upbringing;
- A.Sh. submitted that since the applicant’s working schedule required frequent business trips all over the world, they had agreed that she and their child would be permanently resident in Russia. She further submitted that from time to time she and the child had stayed temporarily in Italy with the applicant or accompanied him on his business trips;
- A. and P. submitted as witnesses that A.Sh. had been permanently resident in Russia in her parents’ family house, because the applicant had often been away on long business trips, that occasionally A.Sh. had lived with the applicant in Italy and accompanied him on business trips, that the child had always remained with and been taken care of by A.Sh., who had created all the necessary conditions for his development and upbringing, that the boy was deeply attached to A.Sh., that he was attending a kindergarten, which he was taken to and picked up from by A.Sh.;
- the child had been born on 12 November 2012 in Moscow, he had Russian nationality, for two months following his birth he had been monitored by a paediatrician in the Moscow Perinatal Medical Centre, since April 2013 his health had been monitored at Lapino Clinical Hospital in Moscow, where the child was regularly seen by doctors and vaccinated, the child came for appointments accompanied by his mother, he was healthy and had met his development milestones, since 4 February 2015 he had attended a local pre-school educational centre;
- in 2014-15 the child had attended a kindergarten in Italy;
- the childcare authority considered that the child’s residence with his mother, A.Sh., did not run contrary to the child’s interests;
- pursuant to Principle 6 of the United Nations 1959 Declaration of the Rights of the Child a child of tender years should not, save in exceptional circumstances, be separated from his or her mother.
The applicant appealed, referring to the judgment of the Monza District Court on the same subject matter, as well as the unlawfulness of the child’s removal from Italy to Russia by A.Sh. He considered that the District Court’s judgment should have been based on the Bilateral Convention, the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Child (“the 1996 Jurisdiction and Applicable Law Convention”), and the International Convention of 20 November 1989 on the Rights of the Child. He demanded that the proceedings in Russia be terminated.
On 22 July 2016 the City Court upheld the judgment of 17 February 2016 on appeal. Relying on Article 24 § 1 of the Bilateral Convention, Articles 160 § 1 and 163 of the Family Code and Article 402 §§ 1-3 of the Code of Civil Procedure, the City Court held that when instituting the proceedings in Russia for divorce, residence and child maintenance A.Sh. had had her habitual residence in Moscow. At the same time, when the applicant had initiated judicial separation proceedings in Italy A.Sh. had not had her habitual place of residence or stay in Italy. A.Sh.’s statement to the effect that she and the child had had their habitual residence in Russia had been confirmed by their registration in Moscow and other evidence examined by the court. The District Court’s judgment had not contradicted Articles 8 and 9 of the 1989 Convention on the Rights of the Child as the questions of the applicant’s contact with the child and the former’s participation in the child’s upbringing, development and education had not been the subject matter of those proceedings. Referring further to Articles 5 and 7 of the 1996 Jurisdiction and Applicable Law Convention and Article 244.11 §§ 1-2 of the Code of Civil Procedure, the City Court noted that the applicant had not lodged an application for return of the child or for organising access rights. By the time the District Court had pronounced its judgment the child had been living in Russia for over a year since the applicant had considered his custody right to have been breached, which also proves that the District Court had had competence to examine the case. The District Court found it established that the child had been well settled in Russia, that the conditions created by A.Sh. for the child had been normal for the latter and had provided him with comfortable and secure accommodation and met his needs. The City Court admitted and examined additional evidence provided by the applicant, including statements by Z., a witness, receipts from San Raffaele Hospital in Milan proving the child and A.Sh. had had consultations and check-ups there, receipts for the child’s language classes, which were found to support the applicant’s argument to the effect that at his place of residence in Italy there had been all the necessary conditions for the child’s living, upbringing and development. Lastly, reiterating Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, and taking into account the fact that since birth the child had been living with A.Sh. and was therefore deeply attached to her, that A.Sh. had created favourable conditions for the child’s living, upbringing and development, the City Court agreed with the District Court that preserving the child’s habitual environment corresponded to his best interests.
On 8 December 2016 and 3 February 2017 the applicant’s cassation appeals were rejected by a judge of the City Court and a judge of the Supreme Court, respectively.
(b) Proceedings relating to the applicant’s request for recognition and enforcement of the divorce judgment by the Monza District Court
On 22 June 2016 the applicant applied to the City Court seeking formal recognition of the judgment of the Monza District Court of 21 January 2016.
On 6 August 2016 the City Court rejected the applicant’s application in so far as the judgment of 21 January 2016 concerned the judicial separation of the spouses with attribution of the responsibility to A.Sh., the attribution of the family home to the applicant and the obligation imposed on the latter to fully provide for the child.
On 10 October 2016 the City Court examined on the merits the applicant’s application in so far as the judgment of 21 January 2016 concerned the remaining claims and dismissed it, relying on the existence of a final judgment of 17 February 2016 in a dispute between the same parties, on the same subject matter and the same grounds, by which the child’s residence was determined as being with his mother A.Sh. The City Court made reference to Articles 13 and 25 § 1 (b) of the Bilateral Convention, and Articles 13 § 2 and 412 § 1 of the Code of Civil Procedure.
The applicant appealed, claiming that the judgment of the Monza District Court of 21 January 2016 had entered into force earlier than the judgment of the Gagarinskiy District Court of 17 February 2016 which concerned the same subject matter.
On 14 December 2016 the City Court upheld the judgment of 10 October 2016 on appeal.
On 26 June 2017 the applicant’s cassation appeal was rejected by a judge of the City Court.
B. Relevant international law
1. Convention of 25 January 1979 between the Union of Soviet Socialist Republics and the Italian Republic on Legal Assistance in Civil Matters
The 1979 Bilateral Convention on Legal Assistance in Civil Matters between Italy and the Soviet Union (still in force) provides that each Contracting Party recognises final judicial decisions in civil and family matters rendered in the territory of the other Contracting Party by a court considered to have jurisdiction within the meaning of this Convention. Each Contracting Party also recognises decisions rendered by the competent authorities of the other Contracting Party concerning paternity, adoption and who has care of a child (Article 19).
The procedure for the recognition and enforcement of judicial decisions is governed by the law of the Contracting Party addressed, in so far as this Convention does not provide otherwise (Article 23).
Courts of the Contracting Party from which a decision originates shall be considered to have jurisdiction for the purposes of this Convention if the defendant had his or her habitual residence in that State when proceedings were instituted, or, where the object of an action was the determination of financial maintenance payments, the plaintiff had his or her habitual residence in the Contracting Party from which the decision originates when the proceedings were instituted (Article 24 § 1).
Recognition of a judicial decision may nevertheless be refused in any of the following circumstances: (a) if the defendant did not participate in the proceedings because she or he had not been duly notified of the institution of the proceedings and the date of the hearing; (b) if there has been a final decision by the courts of the Contracting Party addressed in the proceedings between the same parties which is based on the same facts and has the same purpose; (c) if proceedings between the same parties, based on the same facts and having the same purpose, are ongoing before the courts of the Contracting Party addressed, provided that those proceedings were the first to be instituted; or (d) if, in accordance with international treaties ratified by both Contracting Parties, the courts of the Contracting Party addressed have exclusive jurisdiction over the case (Article 25 § 1). Recognition of a judicial decision may also be refused if enforcement of that decision may be detrimental to the sovereignty or national security of the Contracting Party addressed, or if it is manifestly incompatible with the basic principles of law of the Contracting Party addressed (Article 13).
2. 1959 Declaration of the Rights of the Child
Principle 6
“The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.
...”
3. International Convention of 20 November 1989 on the Rights of the Child
Article 8
“1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.”
Article 9
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
...
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
...”
4. The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Child
Article 5
“1. The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.
2. Subject to Article 7, in case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.”
Article 7
“1. In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
(b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
...”
Article 50
“This Convention shall not affect the application of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, as between Parties to both Conventions. Nothing, however, precludes provisions of this Convention from being invoked for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights.”
C. Relevant Russian law
1. Family Code of the Russian Federation
The Family Code provides that if the spouses have common minor children a marriage shall be dissolved by a court (Article 21 § 1).
In the event of the parents’ separation, a child’s residence arrangements are to be determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are determined by a court, having regard to the child’s best interests and his or her opinion on the matter. In particular, the court must take into account the child’s attachment to each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (Article 65).
Parents must provide for their minor children. If the parents don’t provide for their minor children, child maintenance is recovered from them by a court on a monthly basis in the amount of a quarter of their income for one child, a third of their income for two children, and a half of their income for three or more children (Articles 80 and 81).
Dissolution of a marriage between Russian nationals and foreign nationals or stateless persons, or of a marriage between foreign nationals on the territory of Russia, is carried out in accordance with the legislation of the Russian Federation (Article 160 § 1).
The rights and obligations of parents and children, including parents’ obligation to provide for their children, are determined by the legislation of a State where they have their common place of residence. In the absence of a common place of residence of the parents and their children, the rights and obligations are determined by the legislation of a State whose national the child is. The legislation of the State where the child permanently resides may be applied to claims concerning child maintenance and other relations between the parents and the children (Article 163).
2. Code of Civil Procedure of the Russian Federation
Judicial decisions which entered into legal force are obligatory without exception to all State bodies, local-authority bodies, public associations, officials, persons, organisations, and are to be enforced unfailingly across the whole territory of Russia (Article 13 § 2).
The procedure for the examination of requests for the return of children who have been unlawfully removed to or retained in Russia and for securing protection for rights of access in respect of such children in accordance with international treaties of Russia is governed by Chapter 22.2 of the Code.
An application for return of a child unlawfully removed to or retained in Russia or an application for exercise of access rights in respect of such a child on the basis of an international treaty of Russia must be lodged with a court by a parent or other person who considers that his or her custody or access rights have been violated, or by a prosecutor. The return application must be lodged with the Tverskoy District Court of Moscow if the child is within the territory of the Central Federal Circuit (Article 244.11 §§ 1 and 2).
Courts in Russia have competence to examine cases with the participation of foreign nationals if, inter alia, in a case concerning alimony payments a plaintiff has his or her residence in Russia and if in a divorce case a plaintiff has his or her residence in Russia or if either one of the spouses is a Russian national (Article 402).
A Court in Russia returns a claim or leaves it without examination if a foreign court, the decisions of which are subject to recognition and enforcement on the territory of Russia, has already opened a case in a dispute between the same parties on the same subject and on the same grounds (Article 406 § 2).
Enforcement of a foreign court judgment may be refused in any of the following circumstances: (1) if the judgment is not final or enforceable in accordance with the domestic law of the State in which it was issued; (2) if the defendant was deprived of an opportunity to participate in the proceedings because he or she was not duly notified of the time and place of the hearing; (3) if Russian courts have exclusive jurisdiction over the case; (4) if there is a final judgment by a Russian court in the proceedings between the same parties based on the same facts and having the same purpose, or if the proceedings between the same parties based on the same facts and having the same purpose are ongoing before the Russian courts, provided that the proceedings before the Russian courts were the first to be instituted; (5) if enforcement of the judgment may be detrimental to Russian sovereignty or national security, or if it is manifestly incompatible with Russian public order; (6) the time-limit for applying for enforcement has expired and has not been extended by a Russian court at the plaintiff’s request (Article 412).
COMPLAINTS
The applicant complains under Article 8 of the Convention of a violation of his right to respect for his family life in that the Russian authorities failed to assist him in being reunited with his child after the latter had been wrongfully retained in Russia by his mother A.Sh.
He further complains, under Article 13 of the Convention, of the absence of an effective remedy in Russia against the alleged violation.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? Did the Russian authorities comply with their positive obligation under Article 8 of the Convention to assist the applicant in being reunited with his son after he had been taken from Italy to Russia by his mother and retained there?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?
3. Was it open to the applicant to seek the child’s return or assistance in securing his access rights in Russia pursuant to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Child?
Full & Egal Universal Law Academy