THIRD SECTION
DECISION
Application no. 3101/18
Jamil ZOUAOUI and Miriam Elizabeth ZOUAOUI
against Russia
The European Court of Human Rights (Third Section), sitting on 30 November 2021 as a Committee composed of:
Georgios A. Serghides, President,
Anja Seibert-Fohr,
Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 12 December 2017,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Jamil Zouaoui (“the first applicant”) and Ms Miriam Elizabeth Zouaoui (“the second applicant”), are father and daughter, who were born in 1964 and 2016, respectively. The first applicant is an American national residing in Washington, D.C. The second applicant is an American and Russian national residing in Moscow.
2. The Russian Government (“the Government”) were represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov.
The circumstances of the case3. The facts of the case, as submitted by the parties, may be summarised as follows.
Background information4. In 2015 the first applicant had a relationship with a Russian national, Ms O.M. In May 2016 in Washington, D.C., their daughter M., the second applicant, was born.
5. In October 2016 O.M. told the first applicant that she needed to go to Russia because her mother was seriously ill. She said that she wanted to take M. with her.
6. On 13 October 2016 the first applicant and O.M. signed a parental agreement establishing that they had joint custody in respect of M., affirming the latter’s citizenship and her place of residence in Washington, D.C., and limiting M.’s trip to Russia to thirty days starting from 17 October 2016.
7. On 17 October 2016 O.M. and the second applicant left for Russia. They did not return to the United States on the agreed date. O.M. informed the first applicant that she had decided to stay in Russia and cut off all communication with him.
Custody proceedings in the United States of America8. On 22 November 2016 the Superior Court of the District of Columbia (“the Superior Court”) issued an emergency temporary custody order (“the emergency order”) granting the first applicant temporary custody of M. The emergency order incorporated the terms of the parental agreement between the first applicant and O.M. of 13 October 2016 and ordered that O.M. comply with its terms within forty-eight hours of receiving the emergency order. It further noted that the first applicant was unable to invoke the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) to pursue the child’s return or to seek access to her, since the United States had not recognised Russia as a treaty partner.
9. On 20 March 2017 the Superior Court held that O.M.’s decision to remove M. from the District of Columbia and prevent her having contact with the first applicant was harmful to the child and sufficient to declare the presumption of joint custody rebutted. Having weighed O.M.’s conduct against all other factors, it decided that it was in M.’s best interests for the first applicant to be awarded sole legal custody and sole physical custody. The Superior Court recognised that the first applicant could seek enforcement of the custody order in Russia.
Proceedings in Russia10. On 19 December 2016 the first applicant applied to the Timiryazevskiy District Court of Moscow, seeking enforcement of the parental agreement of 13 October 2016 between himself and O.M., and the return of his daughter to the District of Columbia. He made reference to the emergency order of 22 November 2016 made by the Superior Court.
11. On 27 March 2017 the Timiryazevskiy District Court returned the first applicant’s claim without examination on the basis that it had not been filed in accordance with the rules of territorial jurisdiction. The court held in particular that claims for the return of children unlawfully removed to or retained in the Russian Federation, or to exercise access rights in respect of such children on the basis of an international treaty of the Russian Federation, were to be submitted to the Tverskoy District Court of Moscow if the child was located in the territory of the Central Federal Circuit (as in the applicant’s case).
12. The first applicant appealed against the above decision, explaining that his request for the return of the child was not based on an international treaty of the Russian Federation, but on the provisions of the Russian Family Code (Article 163 of the Family Code in particular), and therefore, in accordance with the general rules on jurisdiction, his claim had been correctly lodged with the Timiryazevskiy District Court of Moscow.
13. On 2 November 2017 the Moscow City Court upheld the decision of 27 March 2017 on appeal. The City Court dismissed the first applicant’s arguments, relying on the emergency order of 22 November 2016 which obliged O.M. to comply with the terms of the parental agreement of 13 October 2016 and return the child to the United States of America, and the fact that both Russia and the United States of America had acceded to the Hague Convention, which should be applicable in the case.
14. On 9 December 2017 the first applicant lodged an application with the Tverskoy District Court, seeking the second applicant’s return to the United States of America on the basis of the Hague Convention.
15. On 16 January 2018 the Tverskoy District Court dismissed the first applicant’s claim. The court found that the Hague Convention was not applicable between the Russian Federation and the United States, and neither was the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Having taken into account that M. was a Russian national, that the necessary conditions for her life and development were created by O.M., and that the unlawfulness of her removal and retention on the territory of the Russian Federation had not been established, the Tverskoy District Court dismissed the first applicant’s claim. The court further noted that the first applicant was not prevented from exercising his parental rights in respect of the second applicant by other means.
16. The first applicant did not appeal against the above judgment.
Relevant domestic law17. For the relevant provisions of domestic law on reviews of judgments delivered by courts of first instance, see Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, §§ 29-45, 12 May 2015).
COMPLAINTS
18. The first applicant complained under Article 8 of the Convention about the failure of the Russian authorities to assist him and his daughter in being reunited. He further complained under Article 6 of the Convention that his “right to a court” had been violated by his being denied access to a competent court in the Timiryazevskiy District of Moscow, where the second applicant was being unlawfully retained, and by his being directed to Tverskoy District Court, which had no competence to examine the case in view of the inapplicability of the 1980 Hague Convention between Russia and the United States of America. The first applicant further complained under Article 13 of the Convention of the absence of an effective remedy in Russia against the alleged violations.
THE LAW
19. The Government argued that, by failing to lodge cassation appeals against the decision of the Timiryazevskiy District Court of 27 March 2017, upheld on appeal by the Moscow City Court on 2 November 2017, and to appeal against the judgment of the Tverskoy District Court of 16 January 2018, the first applicant had failed to exhaust the effective domestic remedies available to him.
20. The first applicant maintained his complaint, arguing that cassation appeal was not available against the decision of the Timiryazevskiy District Court of 27 March 2017, upheld on appeal by the Moscow City Court on 2 November 2017, the decision in question being of a procedural nature not involving the examination of the merits of his claim. He lodged no appeal against the judgment of the Tverskoy District Court of 16 January 2018 before the City Court, because the Tverskoy District Court’s finding as regards the applicability of the Hague Convention to the applicant’s case differed from the position expressed by the Moscow City Court in its decision of 2 November 2017 (see paragraphs 13 and 15 above). The first applicant believed that this circumstance dispensed him from returning to the City Court in order to re-appeal the same issue, and that this remedy was therefore futile and had no reasonable prospects of success.
21. The Court notes that the meris of the first applicant’s claims were examined by the Tverskoy District Court acting as the court of first instance. Under domestic law, it was open to the first applicant to appeal against the judgment of the Tverskoy District Court before the City Court and subsequently to pursue the two-tier cassation appeal procedure (see paragraph 17 above). The Court finds unconvincing the reason put forward by the first applicant for his failure to follow the above procedure and sees no grounds for absolving him from the requirement of the exhaustion of domestic remedies.
22. In these circumstances, the Court cannot but find that the first applicant failed to exhaust domestic remedies in respect of his complaints. The application must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 January 2022.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President