Last Updated on October 2, 2020 by LawEuro
FIFTH SECTION
DECISION
Application no. 19228/11
Zarifa Rzagulu gizi GULIYEVA
against Azerbaijan
The European Court of Human Rights (Fifth Section), sitting on 8 September 2020 as a Committee composed of:
Mārtiņš Mits, President,
Latif Hüseynov,
Mattias Guyomar, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 10 March 2011,
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
The applicant, Ms Zarifa Rzagulu gizi Guliyeva, is an Azerbaijani national, who was born in 1953 and lives in Baku. She was represented before the Court by Mr A. Layij, a lawyer based in Azerbaijan.
The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov.
A. The circumstances of the case
1. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background and proceedings for the enforcement of the applicant’s contact rights
2. The applicant had a son, E. It appears that her parents adopted E. as their son and, as a result, the applicant was formally recognised as E.’s sister, while in reality she was his biological mother.
3. In 1999 E. married D. On 30 August 2001 D. gave birth to a boy, A.
4. On 3 January 2002 E. and D. divorced. After the divorce, D. lived at her parents’ house together with A.
5. By a judgment of 13 September 2002 the Nasimi District Court set visiting times to allow E. to see his son every Saturday and Sunday between 10 a.m. and 7 p.m. According to the applicant, the child’s maternal grandfather, E.G., obstructed the execution of that judgment.
6. In 2004 E. died of heart failure.
7. The applicant lodged a civil claim before the domestic courts. She asked the courts to recognise and ensure her right to see and communicate with her grandson.
8. By a judgment of 7 October 2005 the Yasamal District Court set visiting times to allow the applicant to see her grandson every Saturday from 4 p.m. to 8 p.m. However, the visiting hours were reduced following an appeal by D. Since the applicant was officially considered as E.’s sister, due to the fact that her parents had adopted him as their son, by a judgment of 6 October 2006 delivered by the Baku Court of Appeal the applicant, as the child’s aunt, was given the right to visit him every Saturday from 4 p.m. to 5 p.m. in D.’s presence at the latter’s place of residence. This judgment became final.
9. In the meantime, E.G. adopted A., and the child’s surname and patronymic were changed. The applicant contested the child’s adoption and the change of his surname and name in separate proceedings (see paragraphs 31-37 below).
10. On 19 March 2008 the applicant applied to the Baku Court of Appeal submitting that the writ of execution had not been issued to date. The court issued the writ of execution on 9 April 2008.
11. According to the applicant, on 26 April 2008 she visited D.’s flat together with her representative, but no one was at home.
12. On 8 May 2008, after receiving the writ of execution, the bailiff started the enforcement proceedings.
13. On 21 May 2008 the bailiff received an application from D. that the child’s surname and patronymic had been changed and therefore, the judgment could no longer be enforced.
14. Following this, the bailiff requested the Baku Court of Appeal to comment on this development.
15. On 2 July 2008 the Baku Court of Appeal concluded that, despite the change of the surname and the patronymic, it was the same child and the judgment concerning the contact rights was still enforceable.
16. The bailiff informed D. that the visitation by the applicant would take place on 19 July 2008.
17. It appears from the report produced by the bailiff that the scheduled visitation took place not with D.’s, but with E.G.’s participation. The bailiff observed that the child was communicative and occasionally answered the applicant’s questions. After fifteen minutes, the child took E.G. by his hand and went inside the house.
18. During the subsequent visitations which were scheduled between August and October 2008, the bailiff accompanied the applicant to D.’s place of residence. On one occasion, the visitation could not take place due to an argument between the applicant and E.G., and witnessing this, the child went inside the house. According to the report of that visitation drawn up by the bailiff, E.G. brought the child back outside, but the argument started again and therefore, the meeting was unsuccessful. On some other occasions, the visitations did not take place due to the respondent party’s absence at home. Following this, the bailiff sent a notification to D. warning her that an administrative record would be drawn up and sent to the court in case she failed to ensure the execution of the judgment until 27 September 2008.
19. On 4 October 2008 the applicant, accompanied by the bailiff, visited the child in the presence of his maternal grandmother. During the meeting the applicant asked him various questions about his school and lessons, but he refused to answer, hiding behind his maternal grandmother and saying that he wanted them to leave.
20. The next visitation took place on 18 October 2008 and was again unsuccessful due to the child’s reluctance to communicate.
21. On 25 October 2008 the visitation did not take place due to D.’s and the child’s absence from home.
22. There is no information in the case file as to possible events between October 2008 and October 2011.
23. On 20 October 2011 the bailiff notified D. of the administrative and criminal liability for obstructing the enforcement of the judgment of 6 October 2006.
24. Between 22 October 2011 and 18 February 2012, the applicant was able to meet the child on most occasions even though those visits lasted less than an hour. During the visitations, D. submitted that the child had basketball trainings on Saturdays at 5 p.m. and asked the bailiff to change the visitation hours. However, the bailiff sent a request to the relevant sports centre and got a reply that the child did not attend any training there.
25. The bailiff again accompanied the applicant during her visits and some of the visitations were video recorded. According to the reports produced by the bailiff, the applicant and the child had conversations on different topics and their relationship seemed to have improved.
26. In February 2012 the applicant informed the bailiff’s office that she would be unable to visit the child due to her health condition and submitted that she would contact the bailiff’s office several days in advance in order to resume her visits with him.
27. It appears from the case file that between February 2012 and August 2017 the applicant made no request for visiting the child.
28. In August 2017 the applicant requested again the bailiff’s assistance for enforcing her contact rights.
29. On 31 August 2017 the bailiff sent a notification to D. warning her of the administrative and criminal liability for the failure to comply with the judgment establishing the applicant’s contact rights with the child.
30. On 5 September 2017 and on 2 October 2017, the bailiff sent notifications to the applicant asking her to come to the bailiff’s office in connection with the enforcement of her contact rights with the child. The notifications contained a warning that if she failed to come, the writ of execution could be returned to the court according to the relevant provisions of domestic law.
2. Adoption proceedings
31. As mentioned above, by a judgment of 11 December 2006 of the Sabunchu District Court the child was adopted by E.G. The child’s surname and patronymic were changed following the adoption.
32. According to the applicant, she found out about this only during the above‑mentioned proceedings before the Baku Court of Appeal on 2 July 2008 (see paragraphs 14-15 above).
33. After obtaining a copy of the judgment of 11 December 2006 the applicant lodged an appeal against it. The domestic courts first declared her appeal inadmissible holding that she could not be considered an interested party to the proceedings.
34. However, by a decision of 15 September 2009 the Supreme Court recognised the applicant’s right to appeal against the judgment of 11 December 2006.
35. The applicant mainly argued that the adoption judgment had been in breach of her right to see and communicate with her grandson. She submitted that the judgment did not contain an indication regarding the child’s contact with the deceased parent’s relatives as required by domestic law (see paragraph 45 below). She also objected to the change of the child’s surname and patronymic arguing that there was no need for such a change and that the real purpose behind this was to conceal the information about the child’s biological father from him.
36. It appears that during the court hearing the applicant’s representative submitted that the applicant accepted the adoption, but argued that the change of the child’s name and patronymic was unnecessary.
37. On 25 May 2010 the Baku Court of Appeal dismissed the applicant’s appeal. The court held that the adoption had been carried out in accordance with the provisions of the domestic law. It further held that the judgment of 6 October 2006 was still in force and thus, the adoption did not in any way affect the applicant’s contact rights with the child. As to the change of the child’s surname and patronymic, the court noted that under domestic law the change could be effected at the request of the adopting parent (see paragraph 42 below) and that it was important for the legal consequences of the adoption. It also noted that this change did not in any way serve to deprive A. of his right to know his biological father.
38. By a decision of 30 September 2010 the Supreme Court upheld the appellate court’s judgment reiterating the same reasoning.
B. Relevant domestic law
1. The 2000 Family Code
39. The Family Code provides that grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, the childcare authorities may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authorities’ order, the relative concerned or the childcare authorities may apply to a court for a contact order. The court makes a decision based on the child’s interests and taking his or her opinion into account. The parent not complying with the contact order issued by a court may be held liable under the civil procedure law (Article 62).
40. Adoption is carried out by a court following an application of an individual (individuals) wishing to adopt the child. Cases concerning the adoption of the child shall be examined by the court with the participation of the childcare authorities (Article 118.1).
41. A child who has parents can be adopted only with the parents’ consent. Their consent to adoption must be given in writing and confirmed by a notary (Article 122.1).
42. A child may be given the adoptive parent’s surname and a new name on the adoptive parent’s request. If the adoptive parent is a male, the child is given his patronymic (Article 125.1).
43. Issuance of a new surname and patronymic to the adopted child, as well as the change of his name should be noted in the adoption judgment (Article 125.4).
44. The right of the relatives of the deceased parent to have contact with the adopted child should be exercised in conformity with Article 62 of the present Code (Article 134.4).
45. The adoption judgment should indicate whether the adopted child is to maintain relations with one of the parents or relatives of the deceased parent (Article 134.5).
2. The 2000 Code of Civil Procedure
46. The court examines the application for adoption in private with the participation of adopting parent(s), the child care authorities, and in necessary cases, other interested parties and the child himself or herself, if the child has reached the age of ten (Article 349).
3. Law on Execution of Court Judgments of 27 December 2001
47. The claimant in the enforcement proceeding has a right to challenge before the domestic courts the bailiffs and complain about their actions or omission to act within ten days after the action or omission to act (Article 87).
COMPLAINTS
48. Relying on Articles 6 and 8 of the Convention, the applicant complained that the non-enforcement of the judgment of 6 October 2006, confirming her right to see and communicate with her grandson, had been in breach of her right to a fair trial and her right to respect for her family life.
49. The applicant also complained under Article 8 of the Convention that the adoption proceedings had been in breach of her right to respect for her family life as the child’s grandmother.
THE LAW
A. Complaints concerning the enforcement of contact rights
50. The applicant complained under Articles 6 and 8 of the Convention that the domestic authorities had failed to enforce the domestic courts’ decisions regarding her right to have contact with her grandson. Being the master of the characterisation to be given in law to the facts of a case (see Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013 and Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April 2010), the Court finds it appropriate to examine these complaints under Article 8 of the Convention in view of the State’s positive obligation in the sphere of family life. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for her private and family life, her home and her 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.”
51. The Government raised a preliminary objection of non-exhaustion of domestic remedies, arguing that the applicant had not initiated any court proceedings contesting the enforcement measures taken by the bailiff.
52. The Government further argued that the domestic authorities had taken all the necessary steps to facilitate the enforcement that could have been expected in the specific circumstances of the case.
53. The applicant argued that the steps taken by the bailiffs had been formalistic and that they had failed to initiate administrative or criminal proceedings against the respondent party for obstruction of the enforcement of her contact rights.
54. Turning to the facts of the present case, the Court finds it unnecessary to examine the Government’s objection concerning non‑exhaustion of domestic remedies, because it considers that the application is in any event inadmissible for the following reasons.
55. The applicable general principles under Article 8 of the Convention have been stated, inter alia, in cases of Manuello and Nevi v. Italy (no. 107/10, §§ 47-49, 20 January 2015), and Mitovi v. the former Yugoslav Republic of Macedonia (no. 53565/13, §§ 54-56, 16 April 2015).
56. The Court notes that the applicant was firstly awarded contact rights with A. as his grandmother. However, following an appeal by D., her visitation hours were reduced and her status was changed to A.’s aunt (see paragraph 8 above). In any case, the Court is satisfied that the above entitlement, the aim of which was to create and maintain a tie between the applicant and the child, may fall under the scope of “family life” within the meaning of Article 8 of the Convention (see Mitovi, cited above, § 59).
57. The Court further notes that, in the present case, the applicant complains only about the enforcement of the judgment awarding her visitation rights and does not challenge the determination of her relationship with A. as her aunt and the subsequent reduction of her visitation hours with him. However, the Court cannot overlook the fact that despite being referred to as the child’s aunt in official documents, the applicant was his biological grandmother. Having in mind that the protection offered by the Convention is stronger in a grandparent-grandchild relationship compared to that of an aunt and a nephew, the Court will carry out its examination of the case by referring to the applicant as A.’s grandmother.
58. The Court’s task in the present case is therefore to consider whether, in the light of the relevant principles in its case-law, the measures taken by the national authorities were as adequate and effective as could reasonably have been expected in the circumstances of the case for the facilitation of a reunion between the applicant and her grandson, so as to comply with the provisions of the final judgment granting her visiting rights (see Manuello and Nevi, cited above, § 49, and Dariciuc v Romania, (dec.), no. 47873/13, § 89, 7 July 2015).
59. The Court observes that after receiving the writ of execution, the bailiff made a decision to start enforcement proceedings, notified D. providing her with several days’ notice for the voluntary execution of the judgment and warned her about the compulsory enforcement if she failed to do so.
60. The Court reiterates that the right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contacts between them. However, contacts between grandparents and grandchildren normally take place with the agreement of the person who has parental responsibility which means that access of a grandparent to his or her grandchild is normally at the discretion of the child’s parents (see Kruškić v. Croatia (dec.), no. 10140/13, §§ 111-12, 25 November 2014).
61. The Court observes that the bailiff contacted D. many times by phone beforehand, reminding her of the visitations and her duty to ensure the execution of the judgment, and accompanied the applicant to the child’s home on most of the dates set for her visits. It appears from the numerous reports of the visitations in 2008 that on some occasions the visitations did not take place due to the respondent party’s absence from home or an argument between the applicant and E.G. The applicant was able to meet the child several times, but he communicated very little or refused to communicate at all.
62. The next step for enforcement of the contact rights was taken on 20 October 2011, when the bailiff notified D. of the administrative and criminal liability for obstructing the enforcement of the applicant’s contact rights.
63. In 2011 the applicant, accompanied by the bailiff, was able to meet her grandson on most occasions even though those meetings were shorter than one hour.
64. Therefore, the Court notes that the attempts to execute the judgment were mostly unsuccessful in 2008 largely due to D.’s and E.G.’s attitude and their strained relations with the applicant, and sometimes, the child’s unwillingness to communicate with the applicant. In this connection, the Court reiterates that re-establishing contact with a child in delicate circumstances, which involve unresolved issues between parents and relatives, requires long-term efforts on the part of all those concerned notwithstanding the public authorities’ positive obligations to ensure the enforcement of contact rights (see Dariciuc, cited above, § 103).
65. While it is true that the enforcement attempts did not result in full enforcement of the applicant’s contact rights, the bailiff did not remain passive and took action to execute the Baku Court of Appeal’s judgment of 6 October 2006. In particular, following the bailiff’s warning to D., the applicant was able to meet the child on most of the scheduled meetings in 2011 and their relationship improved in a way that the child did not object to seeing her and was keen to communicate with her. The visits continued until the applicant informed the bailiff’s office that she would not be able to meet her grandson due to health reasons.
66. The Court reiterates that active participation in proceedings concerning children is required under Article 8 of the Convention in order to ensure the protection of their interests, and that when an applicant applies for enforcement of a court order, his or her conduct as well as that of the courts is a relevant factor to be considered (see Glaser v. the United Kingdom, no. 32346/96, § 70, 19 September 2000, and Pascal v. Romania, no. 805/09, § 71, 17 April 2012).
67. In this connection, the Court observes firstly that the applicant herself did not request the bailiff’s assistance immediately after the judgment concerning her contact rights had become enforceable. According to the applicant, the writ of execution had not been issued by the domestic courts after the delivery of the judgment concerning her contact rights. Even if this can be seen as an omission on the domestic authorities’ part, it is not clear why the applicant waited for such a long time before filing her request with the courts for issuing the writ of execution only on 19 March 2008, one year and four months after the judgment was delivered. This was even more important considering the strained relations between the applicant, E.G. and D., and their reluctance to ensure the meetings between the applicant and the child.
68. In addition, the applicant failed to actively seek her rights to be enforced during long periods of time. In particular, the applicant did not argue or present any documents showing that she sought the enforcement of her contact rights between 25 October 2008 and 20 October 2011. Moreover, in 2012 the applicant informed the bailiffs that she would not be able to meet her grandson due to her health issues and did not ask for the bailiffs’ assistance for resuming her contact rights until August 2017 (see paragraph 27 above).
69. The applicant did not elaborate on her health situation and the way it made communication between her and the child impossible, but even assuming that she was precluded from seeing him for some serious health issues for several years, the domestic authorities cannot be held responsible for the non-enforcement of contact rights during that period.
70. In addition, the Court notes that although the applicant complained before it that the domestic enforcement authorities had failed to take certain action, she had failed to apply to the domestic courts against the Department of Enforcement Officers to challenge their alleged omissions or inactivity.
71. The Court considers that the domestic authorities took necessary action in order to facilitate the contact between the applicant and her grandson. It is true that the proceedings did not end in full enforcement of the judgment, but several factors, including the applicant’s own behaviour, as well as the strained relations between the applicant, D. and E.G. and their reluctance to ensure the meetings, made it difficult for the bailiffs to fully enforce the judgment. The Court reiterates in this connection that the obligation to take measures to facilitate contact is not absolute; moreover, it is an obligation of means and not one of result (see Dariciuc, cited above, § 103).
72. In the light of the foregoing, it cannot be said that the domestic authorities failed in their positive obligations under Article 8 of the Convention.
73. It follows that this complaint must be dismissed as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Complaint concerning the adoption proceedings
74. The applicant also complained under Article 8 of the Convention that the adoption proceedings had been conducted in breach of her right to respect for her family life mainly because she had not been involved in those proceedings from the beginning. She further argued that A.’s adoption by E.G. had been unlawful and unnecessary.
75. The Government submitted that the adoption proceedings did not interfere with the applicant’s rights since she retained her visiting rights after the adoption.
76. The Government further submitted that, in the domestic proceedings, the applicant did not object to the child’s adoption by E.G. but challenged the change of his name and patronymic. However, under domestic law, only parents’ consent was required in such cases and grandparents did not have a right to contest it. The Government therefore argued that the applicant’s complaint under this head was manifestly ill-founded.
77. The applicant argued that the domestic authorities failed to involve her in the adoption process and that the judgment concerning the adoption had been in breach of domestic law since it did not contain an indication concerning contact between the child and his relatives on the deceased parent’s side.
78. She further argued that there was no need to change the child’s surname and patronymic and that the real purpose behind that was to conceal his biological father’s identity from him. She submitted that she would find “comfort in seeing her grandson as carrying her son’s name as his father in his birth certificate”.
79. The Court firstly notes that the applicant was not notified about the adoption proceedings since the domestic law did not provide for her mandatory participation in those proceedings. However, when the applicant found out about the adoption, she appealed against the adoption judgment and was later granted leave to contest it as an interested party.
80. The Court observes that the domestic courts examined her complaint and concluded that the absence of the relevant indication concerning the child’s contact with deceased parent’s relatives could not render the adoption unlawful. In doing so, the courts relied on the fact that the applicant’s contact rights had already been established on 6 October 2006 before the judgment on adoption was delivered on 11 December 2006 and that she retained her visiting rights in full after the adoption.
81. In such circumstances, it cannot be said that the applicant was excluded from her grandson’s life after his adoption by E.G. (contrast Bogonosovy v. Russia, no. 38201/16, § 94, 5 March 2019) contrary to her rights under Article 8 of the Convention.
82. Moreover, as it appears from the minutes of the hearings before the appeal and cassation courts, the applicant submitted that she did not object to A.’s adoption itself but only to the change of his surname and patronymic. In this respect, the domestic courts noted that the change of the child’s name and surname had been in accordance with the provisions of domestic law and that it was important for the legal consequences of the adoption. They also noted that this change did not in any way serve to deprive A. of his right to know his biological father.
83. In the light of the documents before it the Court finds no indication that the change of the child’s name and patronymic had amounted to a breach of the applicant’s right to respect for her family life (compare, a contrario, Znamenskaya v. Russia, no. 77785/01, § 23-27, 2 June 2005).
84. It follows that this part of the application must also be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 October 2020.
Anne-Marie Dougin Mārtiņš Mits
Acting Deputy Registrar President
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