Communicated on 3 September 2014
FIRST SECTION
Application no. 71160/13
Sergey Stanislavovich UZBYAKOV
against Russia
lodged on 9 October 2013
STATEMENT OF FACTS
The applicant, Mr Sergey Stanislavovich Uzbyakov, is a Russian national, who was born in 1976 and lives in Kurganovka, a village in Penza Region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Since 1994 the applicant lived in a common-law marriage with Ms O. M.
They’ve had five children: S.M., born in 1997; R.M., born in 2002; Ser.M., born in 2003; V.M., born in 2007; and D.M., born in 2009. The applicant was not registered as the children’s father, since at the material time he was residing in Russia illegally and had no Russian identification documents.
On 21 January 2011 the applicant was arrested on suspicion of having committed a theft and detained in custody.
On 20 April 2011 the criminal proceedings against the applicant were discontinued and he was released.
1. Demise of the applicant’s common-law wife and placement of his children in foster care. Adoption of D.M.
While the applicant remained in custody, on 4 February 2011 Ms O.M. died. The four elder children were placed in Tambov Regional boarding school for orphans (Тамбовское областное государственное образовательное учреждение для детей-сирот и детей, оставшихся без попечения родителей, “Сосновская школа-интернат”) and the youngest D.M. – in Tambov Regional children’s home (Государственное учреждение здравоохранения “Тамбовский областной специализированный дом ребенка”).
On 18 March 2011 the administration of Sosnovskiy District of Tambov Region (“the local custody and guardianship authority”) appointed Ms N.S. as the guardian of D.M. On an unspecified date N.S. and her husband S.S. applied for adoption of D.M.
On 16 May 2011 the local custody and guardianship authority appointed applicant’s sister-in-law, Ms O.E., as the guardian of S.M., R.M., Ser.M. and V.M.
On 8 September 2011 Morshanskiy District Court approved the adoption of D.M. by N.S. and S.S. The applicant knew about this decision on 22 March 2012.
2. Establishment of the applicant’s paternity in respect of S.M., R.M., Ser.M. and V.M. The applicant’s attempt to have his paternity established in respect of D.M. and to have her adoption annulled
On an unspecified date while still in custody the applicant applied to the Justice of the Peace of the 4th Court Circuit of Morshanskiy District of Tambov Region seeking to have his paternity established in respect of his five children.
On 9 March 2011 the Justice of the Peace returned the applicant’s claim as it had no jurisdiction to examine it.
The applicant submitted his claim to Morshanskiy District Court.
On 11 April 2011 Morshanskiy District Court returned the applicant’s claim as it had no territorial jurisdiction over it and as the claim did not comply with the formal requirements set out in domestic law.
On 16 April 2012 Kamenka Town Court of Penza Region established the applicant’s paternity in respect of S.M., R.M., Ser.M. and V.M. A copy of this decision was not made available to the Court.
On 9 June 2012 S.M., R.M., Ser.M. and V.M. were returned from the care of Ms O.E. to the applicant.
On an unspecified date the applicant brought proceedings against the local custody and guardianship authority, N.S. and S.S. in order to have his paternity established in respect of D.M. and to annul her adoption. He submitted that the adoption was carried out in violation of law and was contrary to the interests of the child.
On 1 October 2012 Kamenka Town Court held that the evidence in its possession allowed to conclude that D.M. was born from the union of O.M. and the applicant. The Town Court considered, however, that the establishment of the applicant’s paternity – formally – would not make sense as it would not lead to restoration of the applicant’s rights in the absence of any legal grounds for the annulment of the adoption. It therefore refused to establish the applicant’s paternity in respect of D.M. and to annul her adoption. The Court held as follows:
“The annulment of adoption [is] a jurisdictional measure of protection of the rights and interests of the child and is allowed by Article 141 of the Family Code only when the adoption ceases to comply with the interests of the child.
...
No such grounds for the annulment of the adoption are detected by the court.
The court established that the adoptive parents are financially secure, have permanents jobs and proper living conditions [and are] capable of providing the child with harmonious development.
...
Taking into consideration the fact that the child has been living in the family of N.S. and S.S. for a year and a half now ..., [that] close relationships were built between them ..., proceeding from the best interests of the child, the court considers that [the applicant’s] claims cannot be granted.
...”
On 13 November 2012 Penza Regional Court upheld the above judgment on appeal.
On 25 June 2013 the Supreme Court of Russia dismissed the applicant’s “cassation appeal” against the judgments of 1 October and 13 November 2012.
3. The applicant’s attempts to challenge the adoption judgment
On 11 December 2012 the applicant asked the court to restore the time‑limit for him to lodge an appeal against the decision of 8 September 2011.
On 17 January 2013 Morshanskiy District Court refused to restore the time-limit for appeal. The court held as follows:
“As a reason for missing the time-limit for appeal against the judgment of [8 September 2011] [the applicant] indicated [the fact that it was not until 13 November 2012 that the judgment of Kamenka Town Court of 1 October 2012 establishing his fatherhood of D.M. entered into force].
The court established beyond doubt that [the applicant] knew about [the judgment of 8 September 2011] since spring 2012.
Furthermore, it follows from the [judgment of 1 October 2012 as upheld on appeal on 13 November 2012] that [the applicant’s] claim [for establishment of his paternity in respect of D.M. and annulment of the latter’s adoption] was dismissed in full ..., therefore [the applicant’s] status in respect of D.M. did not change and his paternity in respect of D.M. was not established.
Besides, as it follows from [the judgment of 1 October 2012], “on 20 April 2011 [the applicant] was released from remand prison due to termination of the criminal proceedings against him ...”, [and] from that moment he could take and should have taken an interest in the fate of his underage daughter. [The applicant] did not indicate any objective reasons which stopped him from doing so, and any good reasons which prevented him from filing an appeal against the [judgment of 8 September 2011]”.
On 27 March 2013 Tambov Regional Court upheld the decision of 17 January 2013 on appeal.
On 10 October 2013 Tambov Regional Court rejected the applicant’s “cassation appeal” lodged against the decisions of 17 January and 27 March 2013.
In the meantime, the applicant lodged a “cassation appeal” against the judgment of 8 September 2011.
On 28 May 2013 Tambov Regional Court rejected the applicant’s “cassation appeal”. The Regional Court held that, pursuant to Articles 376 § 2 and 377 § 2 (1) of the Code of Civil Procedure, cassation review proceedings (обжалование в суд кассационной инстанции) may be taken by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions only if other available avenues of appeal have been exhausted before the decision becomes legally binding. In the applicant’s case, however, no appeal (обжалование в суд апелляционной инстанции) against the judgment of 8 September 2011 was pursued by the applicant and the latter’s request for restoration of the procedural time-limit for lodging an appeal was rejected.
The applicant further attempted, without success to have the judgment of 8 September 2011 reviewed in view of newly discovered circumstances.
B. Relevant domestic law and practice
1. The Constitution
Article 23
1. Everyone shall have the right to the inviolability of private life ...
Article 38
1. Maternity and childhood, and the family shall be protected by the State.
2. Care for children, their upbringing shall be equally the right and obligation of parents ...
2. The Code of Civil Procedure
On 9 December 2010 the relevant parts of the Code of Civil Procedure concerning the review of judgments delivered by the courts of first instance were amended by Federal Law no. 353-FZ, with effect from 1 January 2012.
In Part III of the Code (“Procedure for review at second instance”) a new Chapter 39 was inserted, introducing a new appeal procedure in respect of judgments by the courts of first instance that had not become binding (“had not acquired binding force” - не вступившие в законную силу). The newly enacted appeal procedure (процедура апелляционного обжалования) in respect of such judgments replaced the former cassation appeal procedure (процедура кассационного обжалования) which was governed by Chapter 40 of the Code until 1 January 2012. While modifying various features of the review at second instance, including its scope and consequences, the new appeal procedure maintained the principle whereby decisions taken by the second-instance courts on appeal acquired binding force immediately (new Articles 329 § 5), as did formerly the decisions taken by the same courts on cassation appeals (former Article 367).
Part IV of the Code governs the procedure for review of judgments that have become binding. The former Chapter 41 (“Supervisory review procedure”) has been split into two new chapters, Chapter 41 (“Cassation review procedure”) and Chapter 41.1 (“Supervisory review procedure”).
Judgments delivered by courts of general jurisdiction may be challenged in cassation appeal proceedings within six months of the date on which they become legally binding. Cassation review proceedings may be taken by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions, but only if other available avenues of appeal have been exhausted before the decision becomes legally binding (Article 376).
The presidia of the regional courts conduct a review in cassation of judgments and decisions delivered by the lower courts and by the regional courts themselves acting as appeal instances (Article 377 § 2(1)). In addition, the Civil Chamber of the Supreme Court of the Russian Federation conducts a review in cassation of judgments and decisions including those taken by the presidia of the regional courts (Article 377 § 2(3)).
Cassation appeals to the regional courts are considered by the President or Deputy President of the court or by a judge delegated for this purpose (Article 380.1 § 1). Cassation appeals to the Supreme Court of the Russian Federation are considered by a judge of that court (Article 380.1 § 2). A decision by a judge of the Supreme Court of the Russian Federation dismissing a cassation appeal may be overruled by its President or Deputy President (Article 381 § 3).
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 instances, 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).
3. The Family Code
Every child has the right to live and to be brought up in a family insofar as it is possible, the right to know his parents, the right to enjoy their care and the right to live with them, with the exception of cases when this is contrary to his/her interests (Article 54 § 2).
The child has the right to communicate with both of his parents, his brothers and sisters, and other relatives (Article 55 § 1).
The parents have a priority right in bringing up their children before all other people (Article 63 § 1).
The protection of the rights and interests of children in the case of, inter alia, the death of their parents, of the parents’ long absence, of the parents’ avoidance of bringing up their children or of protecting their rights and interests, is entrusted to the guardianship and trusteeship bodies. The guardianship and trusteeship bodies identify children left without parental care and, proceeding from the specific circumstances of the loss of parental care, select the suitable accommodation for such children and also exert control over the conditions of their maintenance, upbringing an education (Article 121 § 1).
The parents have the right to claim that the child be returned to them from the custody of any person who keeps him on a different ground than that of the law or of a court decision. In case a dispute arises, the parents have the right to turn to a court for the defense of their rights. When considering these claims, the court has the right, taking into account the child’s opinion, to reject the parents’ claim, if it comes to the conclusion that the child’s return to his parents is contrary to his/her interests (Article 68 § 1).
The child’s adoption may be cancelled if the adopters shirk the discharge of parental duties imposed upon them, abuse parental rights, treat the adopted child cruelly or suffer from chronic alcoholism or drug addiction. The child’s adoption may also be cancelled by the court on the other grounds, proceeding from the child’s interests and taking into account his opinion (Article 141).
COMPLAINTS
The applicant complains that the adoption of his daughter D.M. and subsequent refusal by the domestic courts to establish his paternity in respect of D.M. and to annul her adoption violated his right to respect for his family life under Article 8 of the Convention and his right to a fair trial under Article 6 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the applicant comply with the Convention requirement to lodge his application within six months after a final domestic decision? Which judicial decision(s) in the applicants’ case should be considered as final domestic decision(s)?
2. Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? Have the courts reached a fair balance of the interests involved?
Full & Egal Universal Law Academy