Last Updated on October 3, 2020 by LawEuro
THIRD SECTION
CASE OF FATKHUTDINOV v. RUSSIA
(Application no. 36335/18)
JUDGMENT
STRASBOURG
29 September 2020
This judgment is final but it may be subject to editorial revision.
In the case of Fatkhutdinov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 36335/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vener Munirovich Fatkhutdinov (“the applicant”), on 23 July 2018;
the decision to apply Rule 41 of the Rules of Court and grant priority treatment to the application;
the decision to give notice of the application to the Russian Government (“the Government”) ;
the parties’ observations;
Having deliberated in private on 8 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The present case concerns the impossibility of maintaining family ties between the applicant and his son after the termination of the applicant’s parental status.
THE FACTS
2. The applicant was born in 1976 and lives in Sterlitamak, in the Bashkortostan Republic. The applicant was represented by Ms A. Chechulina, a lawyer practising in Ufa.
3. The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Background information
5. In 2012 the applicant’s wife, N., gave birth to a son, V.
6. The applicant and his wife quarrelled about how to raise V. In particular, the applicant objected to physical punishments inflicted on V. by N., her father and her brother.
7. In September 2015 N. left the applicant and took V. with her. They went to live with her family.
8. In October 2015 N. instituted divorce proceedings before the Leninskiy District Court of Ufa and asked for a residence order in her favour in respect of V. The applicant counterclaimed, asking for a residence order in his favour in respect of his son.
9. On 18 January 2016 the applicant, V. and N. were examined by expert psychologists, who found that V. was equally attached to both parents.
10. On 31 March 2016 the Leninskiy District Court granted the divorce and N.’s application for a residence order in her favour in respect of V.
11. The applicant then applied for contact rights.
12. On 13 June 2016 the police opened criminal proceedings at the applicant’s request against an unknown person or persons who had inflicted bodily injuries (multiple bruises) on V. at his place of residence. It appears that the proceedings are still pending.
13. On 25 August 2016 expert psychologists found that V. was strongly attached to his father. They recommended that contact between V. and his father should continue as it was necessary for V.’s development.
14. On 31 October 2016 the Leninskiy District Court granted the applicant contact rights.
II. proceedings FOR THE Termination of parental status
15. On an unspecified date N. lodged an application with the Sterlitamak Town Court, contesting the applicant’s paternity of V.
16. The Town Court ordered the applicant to undergo a DNA paternity test, which he refused to do. He asserted, in particular, that he had no doubts about his paternity of V. He further stated that V. was very attached to him and that the supposed biological father did not intend to take part in V.’s upbringing, while the applicant wished to raise him and loved him irrespective of whether he was the biological father.
17. During the hearing, S., a friend of N.’s father, stated to the Town Court that the applicant had said to N.’s brother that he doubted his paternity of V. A gardener, while drunk, had once told S. that the applicant was not V.’s father.
18. On 13 March 2017 the Sterlitamak Town Court allowed N.’s claims. It found that N.’s allegations that the applicant was not V.’s biological father had been confirmed by S.’s statements. Moreover, the court drew inferences against the applicant from his refusal to undergo a DNA paternity test. The court therefore considered it established that the applicant was not V.’s biological father and terminated his parental status in respect of him. It ordered that the applicant’s name be deleted from V.’s birth certificate.
19. During the subsequent appeal hearing, the applicant asked that N.’s application be rejected by reference to paragraph 29 of the Supreme Court’s recent Plenary Ruling no. 16 of 16 May 2017 (see paragraph 33 below).
20. On 5 July 2017 the Supreme Court of the Bashkortostan Republic upheld the judgment of 13 March 2017 on appeal. It held, in particular, that the applicant’s reference to paragraph 29 of Plenary Ruling no. 16 was “unfounded” (несостоятельный).
21. In his subsequent cassation appeal the applicant complained, in particular, that the appellate court had not taken into account paragraph 29 of Plenary Ruling no. 16. He had submitted evidence showing that the termination of his parental status would not be in V.’s best interests, in particular evidence of his active participation in V.’s life, of his wish to continue raising V. as his own child and of V.’s attachment to him, such as photographs, videos, copies of instant messages, documents showing that he had bought clothes, medicine, sports equipment, books and toys for V. and had taken him to the theatre, the cinema, the pool and the amusement park. The appellate court had not taken that evidence into account, limiting its assessment to a finding that he was not V.’s biological father. The applicant claimed that he had never refused to undergo a DNA paternity test but had simply been unable to appear on the appointed dates, the first time because his car had broken down on the way to the laboratory, and then because he had been sick. In any event, he did not care whether he was V.’s biological father or not. He considered that the relevant facts were that he loved V. and that V. loved and needed him. He submitted that the termination of his parental status would result in his complete exclusion from V.’s life. Given that V. was very attached to him, as confirmed by the expert report of 25 August 2016 (see paragraph 13 above), such exclusion would be psychologically traumatic for V. There was also no evidence that the supposed biological father wished to participate in V.’s upbringing. The termination of his parental status would therefore leave V. fatherless. The applicant further complained that the judges had rejected his request to question V. and that the opinion of the childcare authorities had not been obtained. Lastly, the applicant submitted new evidence showing that even after the appellate judgment terminating his parental status he had still continued to see V. and to support him financially.
22. The applicant’s cassation appeal was dismissed on 22 November 2017 by a judge of the Supreme Court of the Bashkortostan Republic. She held, in particular:
“The arguments that the [lower] courts did not take into account the requirements of paragraph 29 of Plenary Ruling no. 16 of 16 May 2017 by the Supreme Court … may not serve as a ground for quashing their judgments: no exceptional circumstances have been established for allowing the plaintiff’s claims and showing that in this way the best interests of the child – which must be a primary consideration – will be ensured.”
23. A further cassation appeal by the applicant was rejected on 19 February 2018 by the Supreme Court of the Russian Federation.
III. proceedings for Contact rights
24. Meanwhile, on 12 October 2017 the Leninskiy District Court of Ufa annulled the contact order of 31 October 2016 on account of a newly discovered circumstance, namely the Sterlitamak Town Court’s judgment establishing that the applicant was not V.’s biological father and terminating his parental status.
25. On 11 December 2017 the local childcare authority stated that the application for contact rights was to be refused because the applicant was not V.’s father or other relative. It did not provide any other findings or reasoning, in particular any finding concerning the relationship between the applicant and V.
26. On 22 December 2017 the Leninskiy District Court of Ufa rejected the applicant’s application for contact rights, finding that he was not entitled to maintain contact with V. as he was not his father.
27. The applicant appealed. He complained that his request to have V. questioned about his wishes had been rejected by the District Court. He had submitted evidence that he continued to actively participate in his son’s life and that V. was very attached to him. Expert psychologists had recommended on 25 August 2016 that contact between them should be maintained. The Town Court had therefore failed to take into account the best interests of the child. He again relied on paragraph 29 of Plenary Ruling no. 16 and argued that, logically, it should be applied to contact proceedings.
28. On 22 March 2018 the Supreme Court of the Bashkortostan Republic quashed the judgment of 22 December 2017 on appeal and discontinued the proceedings. Given that the applicant was not V.’s father or relative, he had no standing to apply for contact rights. The appellate judgment also stated, without any further details, that the childcare authorities had found no evidence of a close emotional tie between the applicant and V.
29. In a subsequent cassation appeal the applicant submitted, in particular, that he had not been shown the childcare authorities’ opinion about the absence of a close emotional tie between him and V, and that no such opinion had been examined by the District Court. On the contrary, it was evident from the minutes of the hearing that the childcare authorities had expressly acknowledged that V. was very attached to the applicant.
30. The applicant’s cassation appeal was rejected on 15 May 2018 by a judge of the Supreme Court of the Bashkortostan Republic, who stressed, in particular, that the applicant’s application for contact rights had not been examined on the merits and had been rejected on the ground that he had no standing to lodge such an application.
31. A second cassation appeal by the applicant was rejected on 2 July 2018 by the Supreme Court of the Russian Federation.
RELEVANT LEGAL FRAMEWORK
32. For a summary of the relevant domestic law, see Nazarenko v. Russia, no. 39438/13, §§ 33-40, ECHR 2015 (extracts).
33. The applicable domestic provisions have since been interpreted as follows by the Supreme Court in its Plenary Ruling no. 16 of 16 May 2017 (paragraph 29):
“[I]f the mother’s or the guardian’s judicial application contesting paternity is not accompanied by a request to establish the biological father’s paternity or by a request by the biological father to establish his paternity, and if the person registered as the child’s legal father objects to allowing the application, a court may in exceptional circumstances reject the application contesting paternity with the aim of ensuring the child’s best interests, which shall be the primary consideration (Article 3 of the Convention on the Rights of the Child and Article 1 § 3 [of the Family Code]), and taking into account the particular circumstances of the case (for example, a long family relationship established between the child and the person registered as his legal father, the child’s stable emotional attachment to that person, or that person’s intention to continue taking care of the child and raising him as his own).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
34. The applicant complained that the termination of his parental status had deprived him of the right to maintain contact with his son. He relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
35. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
36. The Government submitted that the decision to terminate the applicant’s parental status had not amounted to an interference with the applicant’s right to respect for his family life. Given that he was not V.’s biological father, he was not entitled to maintain contact with him. Indeed, the list of persons entitled to have contact with a child was exhaustive and could not be interpreted extensively. By contrast, the recent Plenary Ruling no. 16 of the Supreme Court provided for the possibility for a person who was not the biological father to maintain parental status in certain circumstances (see paragraph 33 above). The applicant had, however, been insufficiently diligent in defending his rights and had himself contributed to the decision to terminate his parental status by refusing to undergo a DNA paternity test. The childcare authorities had, moreover, found no evidence of a close emotional connection between the applicant and V. The applicant had also not had contact with V. for about a year.
37. The applicant submitted that his complete and automatic exclusion from V.’s life after his parental status had been terminated had breached his right to respect for his family life. As in the case of Nazarenko (cited above), that exclusion had been the result of the inflexibility of the domestic legal provisions. Indeed, neither the domestic courts nor the childcare authorities had assessed the closeness of the family ties between the applicant and V. They had both relied on the fact that the applicant was not V.’s biological father and had not made any assessment of V.’s relationship with the applicant or of his best interests, although the applicant had submitted ample evidence of their mutual attachment.
2. The Court’s assessment
38. The Court notes that the present case is similar to the case of Nazarenko (cited above), which also concerned a situation where the applicant had lost all his parental rights, including contact rights, in respect of a child whom he had brought up as his own for several years, before it had been established that he was not her biological father.
39. In Nazarenko (cited above) the Court found, firstly, that a relationship between a registered father and a child whom he had raised and taken care of for several years amounted to family life within the meaning of Article 8 § 1 (ibid., § 58). In the present case the applicant raised and provided care for V. for more than five years. As established by expert psychologists, there was a close emotional bond between the applicant and V. (see paragraphs 9 and 13 above). Given that the applicant and V. had believed themselves to be father and son for many years until it was eventually established that the applicant was not V.’s biological father, and taking into account the close personal ties between them, the Court finds that their relationship amounts to family life within the meaning of Article 8 § 1.
40. In Nazarenko (cited above) the Court further expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who were entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result, a person who was not related to the child but who had taken care of him or her for a long period of time and had formed a close personal bond with him or her was entirely and automatically excluded from the child’s life and could not obtain contact rights in any circumstances, irrespective of the child’s best interests (ibid., §§ 65 and 67). The Court found that the complete and automatic exclusion of the applicant from the child’s life after his parental status in respect of her had been terminated as a result of the inflexibility of the domestic legal provisions – in particular the denial of contact rights without giving proper consideration to the child’s best interests – amounted to a failure to respect the applicant’s family life (ibid., § 68).
41. The Court discerns nothing in the reasoning of the domestic courts which would enable it to reach a different conclusion in the present case. It notes that after the adoption of the judgment in Nazarenko, the Supreme Court issued Plenary Ruling no. 16, in which it held that in certain circumstances the parental status of a person who was not the biological father could be maintained if this was in the best interests of the child (see paragraph 33 above). That Ruling was published shortly before the appeal hearing in the present case and the applicant immediately relied on it. The appeal and cassation courts, however, summarily rejected that argument, finding no exceptional circumstances for the application of the Ruling, despite the fact that the applicant had submitted ample evidence of the circumstances mentioned in it as grounds for maintaining parental status, in particular, the long family relationship between him and V., V.’s stable emotional attachment to him and his intention to continue taking care of V. and raising him as his own, as well as the lack of desire on the part of the biological father to participate in V.’s life (see paragraphs 19 and 21 above).
42. In any event, the thrust of the judgment in Nazarenko was that it was impossible to obtain contact rights after the termination of parental status. No changes to the relevant domestic law were made following delivery of that judgment and, as confirmed by the present case, it still remains impossible for a person in the applicant’s situation to obtain contact rights, irrespective of the best interests of the child. Indeed, after his parental status had been terminated, the applicant’s application for contact rights was rejected on the ground that he was not V.’s father or related to him in any other way and therefore had no standing to apply for contact rights (see paragraph 28 above). It is true that the appellate court also briefly referred to the absence of a close emotional tie between the applicant and V. in its judgment. There is, however, no evidence in the case file that the strength of the emotional tie between the applicant and V. was ever assessed in the course of the contact proceedings, either by the childcare authorities or the courts. Indeed, the childcare authorities’ assessment was limited to the finding that the applicant was not entitled to contact rights because he was not V.’s father (see paragraph 25 above), whereas the domestic courts, as stressed by the Supreme Court of the Bashkortostan Republic, did not examine the application for contact rights on the merits (see paragraph 30 above).
43. The Court concludes that in the present case the domestic authorities advanced no relevant reasons relating to the child’s best interests for completely excluding the applicant from V.’s life. It has never been suggested that contact with the applicant would be detrimental to V.’s development. Accordingly, by denying the applicant the right to maintain contact with V. on the basis of an inflexible domestic legal provision setting out an exhaustive list of persons who are entitled to maintain contact with a child, without any examination of the question whether such contact would be in V.’s best interests, Russia has failed to comply with its obligation to examine on a case-by-case basis whether it is in the child’s best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (compare Nazarenko, cited above, §§ 65-68).
44. In view of the foregoing, the Court finds that the complete and automatic exclusion of the applicant from V.’s life after his parental status in respect of him was terminated has amounted to a failure to respect the applicant’s family life. There has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
46. The applicant claimed 6,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 122.34 for medical expenses incurred by him after he had been attacked by his former wife’s brother. Lastly, the applicant also asked for an order to have the domestic decision on contact rights re-examined by the domestic courts.
47. The Government submitted that the claim for non-pecuniary damage was excessive, and that there was no causal link between the pecuniary damage claimed and the applicant’s complaint to the Court.
48. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
49. It further notes that it has found a violation of the applicant’s right to respect for his family life on account of his complete and automatic exclusion from his son’s life after his parental status in respect of him was terminated. It considers that the applicant has suffered non-pecuniary damage in that connection, which cannot be compensated for by the mere finding of a violation. Having regard to the nature of the violation found and to the principle of ne ultra petitum, the Court considers it appropriate to award the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
50. Lastly, as regards the applicant’s request to have the domestic decisions on contact rights re-examined, the Court notes that any decision on the general or individual measures to be applied in the present case must remain the responsibility of the Committee of Ministers, discharging its supervisory functions under Article 46 of the Convention.
B. Costs and expenses
51. The applicant claimed 162,374 Russian roubles (RUB) in respect of legal fees incurred in the domestic proceedings, and RUB 62,200 in respect of legal fees and postal expenses incurred in the Court proceedings.
52. The Government submitted that the costs and expenses incurred in the domestic proceedings were not relevant to the present case. Also, the applicant had not submitted a legal-fee agreement with his representative before the Court.
53. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court has found a violation of the Convention on account of the complete and automatic exclusion of the applicant from his son’s life after his parental status in respect of him was terminated. There is no causal link between that violation and the costs claimed for the legal fees in the domestic proceedings, which would have been incurred in any event (compare P., C. and S. v. the United Kingdom, no. 56547/00, § 148, ECHR 2002‑VI, and Petrov and X v. Russia, no. 23608/16, § 137, 23 October 2018). The Court therefore rejects the claim for costs and expenses in the domestic proceedings.
54. As regards costs and expenses for the proceedings before the Court, regard being had to the documents in its possession and to the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 585, plus any tax that may be chargeable to him.
C. Default interest
55. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 585 (five hundred and eighty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 29 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
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