CASE OF TRYETYAK v. UKRAINE (European Court of Human Rights) 10919/20

The case mainly concerns the alleged hindrance of the applicant’s contact and communication with his son, born in March 2013, by his former spouse (the child’s mother), with whom the child had lived since March 2015, and the absence of an effective remedy in this respect. The applicant relies on Articles 6, 8 and 13 of the Convention.


FIFTH SECTION
CASE OF TRYETYAK v. UKRAINE
(Application no. 10919/20)
JUDGMENT
STRASBOURG
22 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Tryetyak v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ivana Jelić, President,
Ganna Yudkivska,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 10919/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 February 2020 by a Ukrainian national, Mr Svyatoslav Valeriyovych Tryetyak, born in 1976 (“the applicant”) and living in Ukrayinka (Kyiv Region), who was represented by Mr B. Fokiy, a lawyer practising in Chernivtsi;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated in private on 7 April 2022

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE​

1. The case mainly concerns the alleged hindrance of the applicant’s contact and communication with his son, born in March 2013, by his former spouse (the child’s mother), with whom the child had lived since March 2015, and the absence of an effective remedy in this respect. The applicant relies on Articles 6, 8 and 13 of the Convention.

2. In September 2015 the applicant initiated proceedings asking the domestic courts to set out a specific schedule for his regular meetings with the child and for taking part in his upbringing. Subsequently, the applicant requested to amend the contact arrangements on several occasions.

3. On 27 January 2016 the Darnytskyi District Court of Kyiv (“the first‑instance court”) ordered an expert forensic psychological examination of the child and adjourned the proceedings. On 20 October 2017 the expert examination was completed with a report stating, inter alia, that the child had “a close emotional connection with” and “leaned towards” both parents. On 25 October 2017 the proceedings were resumed. Between November 2017 and October 2018 the case was reassigned twice to different judges following the suspension and expiry of term of office of two judges previously dealing with it. On 17 May 2019 the first-instance court delivered a judgment partly allowing the applicant’s contact application and setting out a detailed schedule and conditions for meetings and contact between him and his child.

4. On 17 February 2020 the Kyiv Court of Appeal quashed that judgment and adopted a new one, partly allowing the applicant’s contact application and setting out somewhat different contact arrangements.

5. By a final decision of 11 November 2020, the Supreme Court rejected an appeal by the applicant on points of law.

6. In the meantime, on 12 November 2015 a local childcare authority issued a “conclusion” setting out a schedule and conditions for meetings and contact between the applicant and his child. According to the applicant, the child’s mother failed to comply with that schedule and obstructed his communication with the child. The child enjoyed communicating with the applicant on the rare occasions they met in 2017 and 2018 without the mother present. From October 2019 the child allegedly began to react negatively to meeting the applicant.

THE COURT’S ASSESSMENT

7. Relying on Articles 6 and 8 of the Convention, the applicant complained that the proceedings had been unreasonably long and that this had ultimately resulted in the child’s “total alienation” from him. Relying on Article 13, he complained of the lack of an effective remedy in that regard in Ukraine.

8. The Government argued, in the main, that the length of the domestic proceedings was not unreasonable and that there was no violation of Article 6 or Article 8 on that account. They further argued that Article 13 did not apply in this case.

I. SCOPE OF THE CASE

9. The Court finds that the applicant’s new complaints, raised essentially under Article 8 of the Convention in his submissions of 23 March 2021, regarding the allegedly unfair contact arrangements set out in the judgment of the Kyiv Court of Appeal of 17 February 2020 and enforcement of that judgment, are not an elaboration of his original complaints to the Court on which the parties have commented, and that therefore it is not appropriate to take those matters up in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. ALLEGED VIOLATION OF THE CONVENTION REGARDING THE CONDUCT OF THE PROCEEDINGS AND THE ABSENCE OF AN EFFECTIVE DOMESTIC REMEDY

10. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the applicant’s present complaints are to be examined solely under Article 6 § 1 and Article 13 of the Convention.

11. The Court finds that the complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

12. The relevant general principles regarding the State’s obligations under Article 6 § 1 and Article 13 to ensure that cases concerning a person’s relationship with his or her child are treated with special or exceptional diligence and that there is an effective remedy for an alleged breach of the requirement of the guarantee of “reasonable time” are summarised in several cases (see, among other authorities, Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999‑I; Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI; and Milovanović v. Serbia, no. 56065/10, § 88, 8 October 2019).

13. The Court notes that the domestic proceedings concerned the applicant’s contact with his young child, who was two and a half years old when the proceedings were initiated, and thus, by their nature, clearly required to be treated with exceptional diligence.

14. The proceedings lasted around five years and two months before courts at three levels of jurisdiction. For most of that period, the case was pending before the first-instance court. It took that court over three and a half years to decide it, which must be considered too long given what was at stake for the applicant.

15. The Court can agree with the Government that the proceedings were of a certain complexity because of the tense relations between the applicant and his former spouse and the particularly sensitive issue of the child’s best interests in these circumstances, regarding which an expert opinion was sought. However, the first-instance court made no effort to expedite the conducting of the expert examination it had ordered, which caused a delay of over one year and eight months. Also, it appears that delays of two to three months were caused by the case being repeatedly reassigned to different judges (see paragraph 3 above).

16. The applicant partly contributed to the overall length of the proceedings by amending his contact application on several occasions and lodging various procedural requests and appeals, but there is no evidence that he abused his procedural rights instead of engaging in legitimate procedural activity and, moreover, it did not cause significant delays.

17. The Government stated that the opposing party to the proceedings had repeatedly asked for the adjournment of a number of hearings, which may point to delaying tactics. However, this does not absolve the authorities of their duty to ensure that proceedings are conducted within a reasonable time (see, among other authorities, Karcheva and Shtarbova v. Bulgaria, no. 60939/00, § 47, 28 September 2006, and Mincheva v. Bulgaria, no. 21558/03, § 68, 2 September 2010). All the more so in the applicant’s case, in which the courts were required to take special precautions in order to avoid any unnecessary delays, notably by ensuring that the parties adhered to a very close time schedule, which was not done.

18. In the light of the foregoing, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see, for a comparable situation, Zabara v. Ukraine [Committee], no. 26007/17, §§ 19-22, 7 November 2019). There has accordingly been a breach of Article 6 § 1 of the Convention.

19. The Court has frequently found violations of Article 13 in cases raising issues similar to the one in the present case, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see, for instance, Efimenko v. Ukraine, no. 55870/00, §§ 48-50 and § 64, 18 July 2006; Vashchenko v. Ukraine, no. 26864/03, § 59, 26 June 2008; and Zabara, cited above, §§ 23-24). There is nothing to suggest that such a remedy was available to the applicant in the present case. Accordingly, there has been a violation of Article 13 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. The applicant claimed 12,000 euros (EUR) in respect of non‑pecuniary damage; EUR 142 in respect of court fees and postal costs and expenses incurred in the domestic proceedings; 5,250 Ukrainian hryvnias (UAH – the equivalent of around EUR 200) for the cost of translating the applicant’s submissions to the Court; and EUR 3,180 for his representative’s work (about twenty-seven hours at an hourly rate of EUR 120) in the proceedings before the Court, which the applicant was required to pay him. The applicant submitted copies of the relevant contracts, invoices and a detailed account of the work performed by his representative and asked that all the amounts claimed be paid directly into the latter’s bank account. Under the terms of the relevant agreement, the applicant’s representative undertook to transfer to the applicant any sum awarded in respect of non-pecuniary damage, postal and translation costs and expenses after they were credited to his bank account.

21. The Government contended that the claims were unsubstantiated and/or excessive.

22. The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and EUR 1,000 for the legal costs of the proceedings before it, plus any tax that may be chargeable to the applicant. Having regard to the relevant agreement, those amounts are to be paid directly into the bank account of the applicant’s representative (see Hajnal v. Serbia, no. 36937/06, §§ 148, 149, 153 and 154, 19 June 2012).

23. The Court further 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 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay into the bank account indicated by Mr B. Fokiy, 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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

​Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                        Ivana Jelić
Deputy Registrar                     President

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