Communicated on 19 June 2017
THIRD SECTION
Application no. 17665/17
Y.S. and O.S.
against Russia
lodged on 7 March 2017
STATEMENT OF FACTS
The applicants, who are mother and daughter (“the first applicant” and “the second applicant” respectively), are Russian and Ukrainian nationals.
A. The circumstances of the case
In 2001 the first applicant married a Ukrainian national, Mr A.S. The couple settled in Donetsk, Ukraine.
In 2006 their daughter, the second applicant, was born.
After the birth of the second applicant the relations between the first applicant and Mr A.S. deteriorated, and in 2011 the first applicant moved to Russia. Mr A.S. refused to give his consent for the second applicant to move to Russia with her mother, so she remained living with her father. The applicants maintained contact with each other by telephone and VoIP calls.
1. Proceedings in Ukraine
On 27 June 2012 the Budyonovskiy District Court of Donetsk dissolved the marriage between the first applicant and Mr A.S. Both parents retained their parental authority over the second applicant. The second applicant remained in Donetsk, living in turn either with her father or with her maternal grandparents. The first applicant regularly sent money to her parents in Donetsk and maintained contact with the second applicant by occasional visits to Ukraine, as well as by means of telephone and VoIP calls.
Following the outbreak of hostilities in the Donetsk region and the proclamation of the so-called “Donetsk People’s Republic” (“the DPR”)[1] in April 2014, the first applicant attempted to move the second applicant to a safe place in Russia, but the child’s father blocked her attempts.
The first applicant lodged an application with the District Court, asking for an order that the second applicant should reside with her.
On 2 June 2014 the District Court, at that time under the control of “the DPR”, ordered that the second applicant should continue to reside with her father, Mr A.S.
The applicant did not appeal against the above judgment, because the “Constitution of the DPR” had abolished Ukrainian judicial bodies on the territory of “the DPR”, including the Donetsk Regional Court of Appeal, which was replaced by “the Supreme Court of the DPR”.
In January 2016, without obtaining Mr A.S.’s consent or informing him of her actions, the first applicant brought the second applicant to Russia, where in June 2016 they both obtained Russian nationality.
2. Proceedings in Russia
In the summer 2016 Mr A.S. lodged an application in Russia seeking the second applicant’s return to Donetsk on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), to which both Russia and Ukraine are parties.
On 16 August 2016 the District Court granted Mr A.S.’s request and ordered the second applicant’s return to Donetsk. Despite the arguments put forward by the first applicant, the court did not find that the second applicant’s situation fell within any of the exceptions listed in Articles 13 and 20 of the Hague Convention that could prevent her return to her father. It noted, in particular, that “... occasional military action within ... the territory of Ukraine [was not] in itself an exception relating to a very serious risk of damage to the child. That risk [was not] an individualised one for the child but rather a general consequence of living within a conflict zone”. The court also observed that the military conflict had been ongoing in Ukraine since April 2014, whereas it had been only in 2016 that the first applicant had taken the second applicant to Russia.
On 12 October 2016 the Regional Court upheld the above judgment on appeal, following which it became enforceable.
The first applicant was furnished with a copy of the above decision on 23 March 2017.
Cassation review proceedings are currently pending.
B. Relevant domestic and international law
1. 1980 Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Ukraine on 1 June 2012. For the relevant provisions of the Hague Convention see X v. Latvia ([GC], no. 27853/09, § 34, ECHR 2013).
In the present context reference is made to the following provisions of the Hague Convention:
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 –
...
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.”
Article 20
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
...”
2. Code of Civil Procedure of the Russian Federation
The procedure for the examination of requests for return of children unlawfully removed to, or retained in, the Russian Federation and for securing protection for rights of access in respect of such children in accordance with international treaties of the Russian Federation is governed by Chapter 22.2 of the Code.
The Code provides that a return application must be submitted to a court by a parent or other person considering that his or her custody or access rights have been violated, or by a prosecutor. The return application must be submitted to the Tsentralniy District Court of Khabarovsk if the child is within the territory of the Far-East Federal Circuit (Article 244.11).
The return request is examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of its receipt, including the time for the preparation of the hearing and the drawing-up of the judgment (Article 244.15).
The judgment taken in the case on return of the child unlawfully removed to, or retained in, Russia must contain the reasons for the need to return the child to the State of his/her habitual residence in accordance with international treaties of the Russian Federation, or the reasons for the refusal of the request for return in accordance with international treaties of the Russian Federation (Article 244.16).
The judgment may be appealed against within ten days. The appeal is examined within one month of its receipt by the appellate court (Article 244.17).
COMPLAINTS
1. The applicants complain under Articles 2 and 3 of the Convention that the second applicant’s return to Donetsk would traumatise her psychologically and put her life and health at risk because of large-scale military action in the region. They further complain that the return of the second applicant to Donetsk would cause the first applicant profound psychological distress and amount to a violation of Article 3 of the Convention. The applicants rely on information regularly submitted by a monitoring mission of the OSCE in Ukraine and statements made by various international officials, citing humanitarian crises and civilian casualties within the sphere of the military conflict; they also point to the recent intensification of the military action in the region. In particular, the monitoring mission of the OSCE in Ukraine has recently reported in detail a high number of ceasefire violations in Donetsk for the first several days of March 2017 ().
2. The applicants further complain, under Article 8 of the Convention, that the judgment of 16 August 2016 ordering the second applicant’s return to Donetsk amounted to an interference with their right to respect for their family life; that this interference had no legal basis since the Ukrainian authorities had declared in October 2015 that the application of the Hague Convention on the territory of “the DPR” had been “limited and not guaranteed”; and that it was devoid of a legitimate aim and not necessary in a democratic society.
3. Lastly, the applicants complain, under Article 6 of the Convention, that the proceedings leading to the decision of the Russian courts to return the second applicant to her father were not fair in so far as the courts:
(a) had failed to ascertain the second applicant’s opinion and determine the issue of whether she had attained an age and degree of maturity at which it would have been appropriate to take account of her views;
(b) had refused to question the first applicant’s parents on the key facts of the case such as the circumstances of the second applicant’s living with her father and the situation in the conflict zone;
(c) had ignored the evidence provided by the first applicant;
(d) had applied the Hague Convention in a situation where it had not been applicable;
(e) had taken the decision to return the child to the conflict zone, where no fair administration of justice by legitimate judicial authorities could be expected.
The applicants considered that the alleged violations of Article 6 of the Convention had also breached the procedural guarantees of Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. In the light of the applicants’ claims and the documents which have been submitted, would the second applicant face a risk of being subjected to treatment in breach of Article 2 and/or 3 of the Convention if the judgment of the Tsentralniy District Court of Khabarovsk of 16 August 2016 ordering the second applicant’s return to Donetsk, Ukraine, was enforced?
2. Would the enforcement of the judgment of the Tsentralniy District Court of Khabarovsk of 16 August 2016 ordering the second applicant’s return to Donetsk, Ukraine, amount to a violation of the first applicant’s right not to be subjected to treatment proscribed by Article 3 of the Convention?
3. Did the judgment of the Tsentralniy District Court of Khabarovsk of 16 August 2016 ordering the second applicant’s return to Donetsk, Ukraine, amount to an interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1 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?
4. Were the applicants granted a fair decision-making process with due respect to the interests safeguarded by Article 8 of the Convention?
5. Were the factors capable of constituting an exception to the second applicant’s immediate return in application of Articles 13 and 20 of the Hague Convention, raised by the applicants, genuinely taken into account by the Russian courts (see X v. Latvia [GC], no. 27853/09, § 106, ECHR 2013)?
The parties are invited to furnish the Court with a copy of the appeal judgment of 12 October 2016 by the Khabarovsk Regional Court and any subsequent court decisions taken in the case, if any.
[1]. An entity created by the rebels on the territory of the Donetsk Region under their control.
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