Communicated on 22 October 2018
THIRD SECTION
Application no. 24757/18
Luisa Abuyevna TAPAYEVA and Others
against Russia
lodged on 23 May 2018
STATEMENT OF FACTS
The applicants, mother and four daughters, are Russian nationals, whose names and dates of birth are listed in the Appendix below.
A. 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 2008 the first applicant married Ch.A. The couple settled with Ch.A.’s parents in the village of Goyty in the Urus-Martan District of the Chechen Republic.
In 2008, 2009, 2011 and 2013 the first applicant gave birth to their four daughters, the second, third, fourth and fifth applicants.
On 8 June 2015 Ch.A. died.
On 28 June 2015 the applicants moved in with the first applicant’s parents in the same village of Goyty.
The girls maintained contact with their paternal grandparents by spending weekends with them. Starting from 2016 the paternal grandparents did not seek any contact with the children.
On 10 April 2016 the first applicant’s father-in-law B.A., assisted by unknown persons, kidnapped the children. The first applicant was prevented from communicating with her daughters. She has hardly seen them since then.
2. First judgment determining the children’s residence as being with the first applicant and its enforcement
On 29 June 2016 the first applicant applied to the Urus-Martan Town Court (“the Town Court”) for a residence order in respect of the children, having indicated that the children had been kidnapped by their paternal grandfather. In response, B.A. instituted proceedings to determine the children’s residence as being with him.
On the same day the Town Court decided that the children should reside with their mother and their paternal grandfather, at the latter’s place of residence.
The first applicant appealed, submitting that the above judgment had been unenforceable in practice since she had not been residing at her father‑in‑law’s place of residence.
On 15 September 2016 the Supreme Court of the Chechen Republic (“the Supreme Court”) quashed the judgment of 29 June 2016 on appeal and determined the children’s place of residence as being with the first applicant.
On 28 October 2016 the first applicant applied to the Urus-Martan District Bailiffs’ Service (“the District Bailiffs’ Service) for the enforcement of the judgment of 15 September 2016.
On 3 November 2016 a bailiff from the District Bailiffs’ Service declined to institute such enforcement proceedings, because the operative part of the judgment did not oblige B.A. to carry out or to abstain from certain actions.
Following the first applicant’s complaint, on 14 November 2016 the chief bailiff of the Chechen Republic set aside the decision of 3 November 2016 as unlawful.
On 24 November 2016 the enforcement proceedings were instituted. They were subsequently discontinued on 27 February 2017 and instituted again on 2 March 2017.
On 6 March 2017 the first applicant further challenged the decision of 3 November 2016 in administrative proceedings.
On 30 March 2017 the Town Court found unlawful the bailiff’s failure to act in the enforcement proceedings against B.A.
On 23 May 2017 the Supreme Court quashed the above judgment and dismissed the first applicant’s claim.
3. Second judgment determining the children’s residence as being with the first applicant and its enforcement
Meanwhile, the first applicant brought proceedings against B.A. seeking that the children be taken away from him and handed over to her. She explained that the bailiffs could not enforce the judgment of 15 September 2016 in the absence of a specific indication that the children had to be taken away from B.A.
On 5 June 2017 the Town Court granted her claim. In taking this decision the Town Court took into account that the first applicant was not deprived of parental authority, that she wished to raise and educate her children and did not evade from doing so, that she lived in her parents’ house suitable for raising children and had a stable income (salary and state pension for loss of breadwinner).
On 26 September 2017 the Supreme Court upheld the judgment of 5 June 2017 following an appeal by B.A.
Meanwhile, on 17 July 2017 a bailiff of the District Bailiffs’ Service instituted enforcement proceedings in respect of the judgment of 5 June 2017.
On 19 July 2017 the bailiff summonsed B.A. to appear at the District Bailiffs’ Service at 10 a.m. on 24 July 2017. B.A., however, did not appear before the bailiff.
It follows from the case file that on 9 August, 16 October and 10 November 2017 the bailiff visited B.A.’s place of residence, but the enforcement could not take place since the latter had not been at home on the first occasion, and on the following occasions the children and their paternal grandparents had been visiting their relatives outside the Urus‑Martan District. The first applicant submitted, however, that none of the parties was informed of the above enforcement measures. Besides, she submitted documents proving that on the above dates the children had attended school in the village as per usual.
On 6 November 2017 the first applicant instituted administrative proceeding before the Town Court challenging the inactivity of the District Bailiffs’ Service.
On 23 November 2017 a judge of the Supreme Court ordered the suspension of the enforcement proceedings pending the outcome of the cassation procedure (see below).
On the same day, following the first applicant’s request, the enforcement proceedings were transferred from the District Bailiffs’ Service to the Grozny Inter-district Department of Bailiffs (“the Inter-district Department of Bailiffs”).
On 24 November 2017 a bailiff of the Inter-district Department of Bailiffs suspended the enforcement proceedings.
In view of the above decision, on 1 December 2017 the Town Court suspended the administrative proceedings initiated by the first applicant.
On 5 April 2018 the Town Court resumed the administrative proceedings instituted by the first applicant and dismissed her claim on the ground of the quashing of the judgment of 5 June 2017 and the appeal decision of 26 September 2017 by the Presidium of the Supreme Court (see below).
4. Quashing of the second judgment determining the children’s place of residence as being with the first applicant in cassation procedure and subsequent proceedings
On 23 October 2017 B.A. applied to the Presidium of the Supreme Court for review of the final judgment of 5 June 2017, as upheld on appeal on 26 September 2017, under the cassation procedure.
On 8 February 2018 the Presidium of the Supreme Court quashed the judgment of 5 June 2017 and the appeal decision of 26 September 2017 in cassation procedure, on the ground of substantial violations of substantive and procedural legal provisions, and referred the case for fresh examination by a different bench of the Town Court. The Presidium of the Supreme Court held, in particular, that in taking their decisions the first and second‑instance courts had failed to consider the following circumstances in order to determine what would be in the children’s best interests: who provided better care to the children, social behaviour of the parties, psychological climate at the parties’ places of residence, availability of timely medical assistance at their places of residence, the children’s habitual circle of contacts (friends, teachers, affection not only to parents and siblings, but also to grandparents living with the children), convenience of location of schools, sports clubs and other extracurricular activities attended by the children, the possibility of each party to make the children benefit from such extracurricular activities, as well as the purpose of the institution of the proceedings in question by the plaintiff. The Presidium of the Supreme Court further noted that the childcare authority had given contradictory opinions regarding the issue of the children’s residence with the parties (favourable to the first applicant in the proceedings before the first-instance court and favourable to the defendants in the proceedings before the appeal court).
On 6 April 2018 the Town Court decided that the children should reside with B.A. and determined the terms of the first applicant’s contact with the children.[1]
The first applicant filed an appeal against the above judgment.
The appeal proceedings are currently pending before the Supreme Court.
B. Relevant domestic law
1. Family Code of the Russian Federation
Under the Code, a child has the right to live and to be brought up in a family in so far as it is possible; the right to know his parents; the right to enjoy their care and the right to live with them, except where it is contrary to the child’s interests (Article 54 § 2).
Parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of their children’s health and their physical, psychological and moral development. Parents have a right to take priority over any other person in raising and educating their children (Article 63 § 1).
Parents are entitled to seek the return of their child from any person who retains him or her without any legal basis. In the event of a dispute, parents are entitled to apply to a court. A court may reject the application after taking into account the child’s opinion if it establishes that returning the child to the parents is contrary to his or her interests (Article 68 § 1).
A child is entitled to express her or his opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57).
2. Code of Civil Procedure of the Russian Federation
The grounds for the quashing or varying of binding judgments by the presidia of the regional courts and the Civil Chamber of the Supreme Court, acting as cassation courts, are “significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect rights, freedoms and lawful interests and to safeguard public interests protected by law” (Article 387).
COMPLAINTS
1. The first applicant complains on behalf of herself and her four daughters under Article 8 of the Convention:
(a) about the failure by the State to comply with its positive obligation to secure the applicants’ right to respect for their family life guaranteed by Article 8 of the Convention by failing to enforce the decisions of the domestic courts determining the residence of the children as being with her in the period between 15 September 2016 and 23 November 2017, and by suspending the enforcement proceedings on 23 November 2017 without any consideration of the best interests of the children;
(b) about the violation of their right to respect for their family life by the cassation decision of 8 February 2018 taken in disregard of the domestic law, which provided that parents should have priority over any other person in raising and educating their children, and the children’s best interests.
2. The first applicant further complains under Article 13 of the Convention about the absence of an effective domestic remedy to protect their right to respect for their family life.
3. Lastly, the first applicant complains under Article 14 of the Convention, read in conjunction with Article 8 of the Convention, that the reluctance of the domestic authorities to enforce the judgments determining the children’s residence as being with her and subsequent quashing in cassation procedure of the judgments in her favour amounted to discrimination on the ground of gender.
She argues that the domestic authorities were guided by discriminatory traditions prevailing in the northern Caucasus towards women. The first applicant relies, in particular, on November 2015 Concluding observations on the eighth periodic report of the Russian Federation of the United Nations Committee on the Elimination of Discrimination Against Women, in which the Committee expressed its deep concern at the regulation of family relations in the northern Caucasus, “where the concept of "ownership" of the father over his children continues to reign, leading in practice to situations in which women lose any contact with their children after divorce”.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their family life, contrary to Article 8 of the Convention? If so, was that interference “in accordance with the law” and “necessary” within the meaning of Article 8 § 2 of the Convention?
2. Have the domestic authorities taken any steps that could be expected from them to discharge their positive obligation under Article 8 of the Convention to ensure that the family ties between applicants are maintained?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8, as required by Article 13 of the Convention?
4. Did the first applicant suffer discrimination on the ground of sex, contrary to Article 14 of the Convention, read in conjunction with Article 8? Reference is made to allegedly overtly discriminatory policies prevailing in the northern Caucasus region of the Russian Federation towards women in the sphere of, in particular, child rearing.
The parties are invited to inform the Court on the outcome of the residence dispute.
The Government are further requested to inform the Court on the status of the judgment of the Supreme Court of the Chechen Republic of 15 September 2016 and relevant enforcement proceedings.
APPENDIX Ms Luisa Abuyevna TAPAYEVA, born in 1988, “the first applicant”; Ms Makka Chingiskhanovna AKHMADOVA, born in 2008, “the second applicant”; Ms Markha Chingiskhanovna AKHMADOVA, born in 2009, “the third applicant”; Ms Amina Chingiskhanovna AKHMADOVA, born in 2011, “the fourth applicant”; Ms Zulikhan Chingiskhanovna AKHMADOVA, born in 2013, “the fifth applicant”.
[1]. No copy of the relevant decision is contained in the case file.
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