Tapayeva and Others v. Russia (European Court of Human Rights)

Information Note on the Court’s case-law 256
November 2021

Tapayeva and Others v. Russia – 24757/18

Judgment 23.11.2021 [Section III]

Article 8
Article 8-1
Respect for family life

Failure of domestic authorities to take reasonable and timely measures to reunite mother and children after kidnapping by paternal grandfather: violation

Article 14
Discrimination

Failure to assist widow in being reunited with her children kidnapped by father-in-law against the background of regional gender stereotypes and patrilineal practices: violation

Facts – The applicants are a mother and her children from the Chechen Republic. In 2015, the husband of the first applicant and father to the children died. Subsequently, the paternal grandfather (B.A.) kidnapped the children and prevented the first applicant from communicating with them. The first applicant successfully brought two sets of proceedings which determined that the children’s residence should be with her, and instituted enforcement proceedings with the District Bailiffs’ Service after B.A. refused to comply. The decisions remain unenforced.

After a cassation appeal from B.A., the Supreme Court quashed the judgment granting the first applicant a residence order and the domestic courts determined that the children should reside instead with B.A.

Law – Article 8:

The Court had to determine whether, in the particular circumstances of the case, the national authorities had taken all the necessary measures which could reasonably have been expected of them to facilitate the applicants’ reunion and whether the measures taken had complied with the urgency requirement warranted by the nature of the relations at stake.

Unable to recover the children from their paternal grandfather, who had refused to comply with the 2016 judgment voluntarily, the first applicant had applied to the District Bailiffs’ Service for institution of the enforcement proceedings. The enforcement proceeding had been instituted almost a month later, following the first applicant’s complaint about the initial refusal to institute them on the ground of lack of indication in the writ of enforcement of actions which B.A. was required to perform. Without applying for the domestic court for clarification of the 2016 judgment, in the subsequent period of five months the District Bailiffs’ Service had discontinued the enforcement proceedings twice. No account of any enforcement measures undertaken by the District Bailiffs’ Service during that period had been provided by the Government.

Meanwhile, the first applicant had pursued another set of proceedings seeking to obtain her daughters’ removal from B.A. The Supreme Court of the Chechen Republic had taken note in its appeal decision that the bailiffs’ service had “practically withdrawn from the enforcement of the judgment…”. The following month, the District Bailiffs’ Service had instituted enforcement proceedings in respect of that appeal decision. The enforcement measures taken by the bailiffs in the ensuing four months’ period had been limited to B.A.’s summons to appear, which he had ignored, and three visits to his place of residence, at which he had been absent. No evidence had been provided by the Government to challenge the first applicant’s allegation that the parties had not been informed about those enforcement measures and no evidence of any coercive measures applied to B.A. within the enforcement period had been provided either.

The Court noted with serious concern that, following the quashing of the judgment of June 2017, as upheld on appeal, a new judgment had been taken by the domestic court and upheld on appeal, ordering that the children should reside with their paternal grandfather B.A. The judgment in question had been taken in disregard of the legal provision securing the parents’ right to take priority over any other person in raising and educating their children and their right to seek the return of their children from any person who retains them without any legal basis, without referring to any exceptional circumstances, in disregard of B.A.’s unlawful retention of the children, his obstruction of the first applicant’s contact with the children, and the domestic authorities’ manifest inaction and unwillingness to enforce the previous judgments in the first applicant’s favour.

The Russian authorities had therefore failed to take, without delay, all the measures that could reasonably have been expected of them to assist the applicants in being reunited.

Conclusion: violation (unanimously).

Article 14 in conjunction with Article 8:

The first applicant had complained that the domestic authorities’ failure to assist her in being reunited with her daughters had amounted to discrimination on grounds of sex.

The first applicant had argued that the alleged difference in treatment of women had been strongly supported by overtly discriminatory policies and practices in the region and the statements of high-ranking officials, as well as the facts of the present case. In particular, she had referred to concerns raised by the CEDAW, the Government’s statements made in the case of Elita Magomadova v. Russia, and on Human Rights Watch’s Reports. The third-party interveners had reported the existence of systemic gender discrimination of women in the North Caucasus Region, including in the sphere of custody of the children.

Turning to the circumstances of the present case, the judgments rendered in favour of the first applicant as the mother of the children and their only surviving parent in line with domestic law, which gives parents priority in custody disputes, had not been enforced. The protracted non-enforcement had ultimately led to a judgment which had retrospectively approved B.A.’s refusal to return the children to the mother based on his claim that, as the family elder, he had wanted his granddaughters to be raised and educated in his home. The authorities had thus, without any valid reason, contributed to and legalised a situation in which the mother of the children, as a result of gender stereotypes and prevalence of customary patrilineal practices in the region, had been deprived of her right to raise and educate her children.

The Court further noted that it had previously examined several cases lodged by women applicants from the Russian North Caucasus Region, in which violations of Article 8 had been found against the background of circumstances similar to the present case.

In the light of the foregoing, the manner in which the relevant legislation had been applied in practice in the present case had amounted to the first applicant’s discrimination on grounds of sex. No objective and reasonable justification had been provided by the respondent Government.

Conclusion: violation (unanimously).

Article 41: EUR 16,250 to the first applicant, in respect of non-pecuniary damage.

(See also Elita Magomadova v. Russia, 77546/14, 10 April 2018)

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