Information Note on the Court’s case-law 252
June 2021
Y.S. and O.S. v. Russia - 17665/17
Judgment 15.6.2021 [Section III]
Article 8
Article 8-1
Respect for family life
Insufficient assessment as to existence of “grave risk” in returning abducted child under the Hague Convention to a conflict zone in eastern Ukraine: violation
Facts – The first applicant, a Russian national, married a Ukrainian national (A.S.) and settled in Donetsk, Ukraine. After the birth of their daughter (the second applicant), the first applicant left her husband and the second applicant, maintaining contact with the latter. Several years later, in 2014, armed groups started to take control of State facilities in the Donetsk Region and announced the creation of the “Donetsk People’s Republic” (the “DPR”). In 2016, the applicant took the second applicant to Russia without obtaining A.S.’s consent or informing him of her intentions. A.S. submitted a successful application for the second applicant’s return to Ukraine under the Hague Convention: the decision was given by a Russian District Court. The first applicant appealed unsuccessfully.
Law – Article 8:
The District Court’s judgment ordering the return of the second applicant to Ukraine – Donetsk – had constituted an interference with the applicants’ right to respect for family life, which had been “in accordance with the law” and pursued the legitimate aim of protecting the rights and freedoms of the child (the second applicant) and her father (A.S.).
The Court therefore had to determine whether the interference had been “necessary in a democratic society”, within the meaning of 8 § 2, interpreted in the light of the relevant international instruments, and whether when striking a balance between competing interests at stake, appropriate weight had been given to the child’s best interests, within the margin of appreciation afforded to the State in such matters.
The first applicant had opposed the second applicant’s return to the place of her habitual residence arguing that it would constitute a “a grave risk” for the child within the meaning of Article 13 (b) of the Hague Convention. In particular, she had claimed that the child’s return to Ukraine would put her physical and emotional well-being at risk in view of the ongoing military conflict on the territory of the “DPR”, of which Donetsk was a part. It had therefore been for the domestic courts to carry out meaningful checks, enabling them to either confirm or exclude the existence of a “grave risk”.
While the provision was not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it could not be read, in the light of Article 8, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13 (b) concerned only the situations which went beyond what a child might reasonably bear. Further, it was not the task of the Court to take the place of the competent authorities in examining whether there would be a grave risk that the second applicant would be exposed to psychological or physical harm, within the meaning of Article 13 of the Hague Convention, if she returned to Donetsk. However, it was competent to ascertain whether the Russian courts, in applying and interpreting the provisions of that Convention, had secured the guarantees set forth in Article 8, particularly taking into account the child’s best interests (see Vladimir Ushakov v. Russia, 15122/17, 18 June 2019).
As regards the alleged existence of a “grave risk”, the District Court had taken the view that the occasional military actions there had not as such constituted an exception relating to a very serious risk of harm to the child. The District Court had considered that the alleged risk had been a general consequence of living in a conflict zone and not individual to the child. It had noted that, although the military conflict had been ongoing in Ukraine since 2014, it had not been until 2016 that the first applicant had taken the second applicant to Russia. It further considered that she had not provided any evidence that the alleged risk could not be addressed by the competent Ukrainian authorities and that the second applicant’s removal from her habitual place of residence had been the only possible way of protecting her from the alleged risk. The Regional Court had endorsed the District Court’s reasoning.
The reasoning of the District Court related to the assessment of the gravity of the security situation in the place of the second applicant’s habitual residence had been rather scarce. So had its assessment of the impact of that general security situation on the second applicant and of whether the level of such impact had been sufficient to engage the “grave risk” exception under Article 13 (b) of the Hague Convention. In reaching its conclusion, it had not taken into account or relied on any Government reports, official documents from international organisations closely following the situation in Donetsk and/or travel advice detailing the security situation there at the material time. At the same time, the situation could have easily been ascertained by a wide number of sources, which had unanimously attested to serious human rights violations and abuses in eastern Ukraine of which Donetsk was part, including thousands of conflict related civilian casualties and deaths counting both adults and children, the vast majority of which had been caused by shelling, including from artillery and large-caliber mortars. Nor had the District Court assessed whether the circumstances pertaining in Donetsk at that time had been more than isolated incidents in an unsettled political environment to reach the threshold for “grave risk”. It had failed to consider the views of the second applicant expressed in a report by the chief inspector of the local childcare authority, which had mentioned, in particular, that she had been afraid to return because she had feared gunfire and exploding bombs. Further, the District Court’s judgment had remained silent on the availability of adequate and effective measures in the State of the second applicant’s habitual residence – Ukraine – to prevent or mitigate the alleged “grave risk” upon the child’s return, whether A.S. could have provided safety measures and whether the first applicant would have had timely access to justice and court proceedings following the second applicant’s return.
In the light of the foregoing, the “grave risk” allegation had not been genuinely taken into account by the Russian courts and their decisions dismissing the first applicant’s objections had not been sufficiently reasoned in order to enable the Court to ascertain that those questions had been effectively examined and evaluated in the light of Article 8. For those reasons, the applicants had suffered a disproportionate interference with their right to respect for their family life in that the decision-making process under domestic law had not satisfied the procedural requirements inherent in Article 8.
Conclusion: violation (four votes to three).
The Court also held, by four votes to three, that there was no need to examine the complaints under Articles 2 and 3 in respect of the second applicant; and, unanimously, that there was no need to examine the complaint under Article 3 in respect of the first applicant. It decided, by six votes to one, to continue to indicate to the Government under Rule 39 of the Rules of Court that it was desirable not to enforce the second applicant’s return to Donetsk, Ukraine, until such time as the present judgment became final or until further notice.
Article 41: finding of violation sufficient.
(See also Andersena v. Latvia, 79441/17, 19 September 2019)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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