Last Updated on April 27, 2019 by LawEuro
Communicated on 19 March 2019
THIRD SECTION
Application no. 43229/18
Yuliya Sergeyevna YATSEVICH and Yaroslav Artemovich YATSEVICH
against Russia
lodged on 3 September 2018
STATEMENT OF FACTS
The applicants, Ms Yuliya Sergeyevna Yatsevich (“the first applicant”) and Yaroslav Artemovich Yatsevich (“the second applicant”), who are mother and son, are Russian nationals, who were born in 1983 and 2011 respectively, and live in St Petersburg. They are represented before the Court by Ms V. Kogan and Mr E. Wesselink, lawyers practising in Moscow and Utrecht respectively.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background of the case
On 11 November 2005 the first applicant married A.Y. They established their residence in St Petersburg.
On 16 March 2011 the first applicant gave birth to their son, the second applicant.
On 1 December 2014 the marriage between the first applicant and A.Y. was officially dissolved. According to an agreement between the first applicant and A.Y., the second applicant was to continue residing with his mother.
2. Proceedings for the determination of the second applicant’s place of residence
In the summer of 2015 the first applicant lodged a claim with the Kuybyshevskiy District Court of St Petersburg (“the District Court”) for a residence order in respect of the second applicant and a determination of the terms of A.Y.’s contact arrangements with him.
On 22 October 2015 A.Y. took the second applicant from his kindergarten and refused to return him to the first applicant. He lodged a counterclaim seeking a residence order in his favour.
(a) Interim residence order and ensuing enforcement proceedings
On 14 January 2016 the District Court took a decision that, pending the outcome of the residence proceedings, the child should reside with his mother, the first applicant, and maintain contact with his father, A.Y.
On 19 January 2016 the Inter-District Bailiffs Service in St Petersburg opened proceedings for the enforcement of the above interim decision.
On 2 February 2016 a search for the second applicant was launched within the enforcement proceedings.
On 26 February and 26 April 2016 administrative fines in the amount of 2,000 Russian roubles (RUB) each were imposed on A.Y. for depriving the second applicant of contact with his mother.
On 31 May 2016 A.Y. was warned that he had to hand the second applicant over to the first applicant.
(b) Final residence order and ensuing enforcement proceedings
On 22 September 2016 the District Court granted the first applicant’s claim and ruled that the second applicant should reside with her. The District Court further determined the terms of A.Y.’s contact arrangements with the second applicant. A.Y.’s claim for a residence order in respect of the second applicant was dismissed.
On 13 February 2017 the St Petersburg City Court upheld the above judgment on appeal.
Shortly after the appeal decision A.Y. changed his registered place of residence from St Petersburg to the Chechen Republic.
On 28 March 2017 the second applicant’s whereabouts were established at his father’s residence in the town of Shali, in the Chechen Republic.
On 11 July 2017 a bailiff from the Inter-District Bailiffs Service in St Petersburg instituted proceedings for the enforcement of the judgment of 22 September 2016.
On 21 July 2017 the bailiff from the Inter-District Bailiffs Service in St Petersburg assigned a bailiff from the Shali Inter-District Bailiffs Service to undertake the measures necessary for the enforcement of the judgment of 22 September 2016.
On 26 July 2017 bailiffs from the Shali Inter-District Bailiffs Service made an attempt to enforce the judgment of 22 September 2016. However, enforcement could not take place owing to the absence of the first applicant, who had informed the bailiffs of her inability to attend by telegram the day before (due to an untimely notification of the enforcement measure).
On 27 October 2017 the bailiff from the Inter-District Bailiffs Service in St Petersburg transferred the enforcement proceedings to the Shali Inter‑District Bailiffs Service.
On 22 November 2017 the deputy chief bailiff of the Shali Inter-District Bailiffs Service accepted the enforcement proceedings.
In the meantime, A.Y. applied to the Shali Town Court for a residence order in respect of the second applicant. However, by a final decision of 23 January 2018, the Supreme Court of the Chechen Republic discontinued those proceedings.
On 23 January 2018 another attempt was made by the bailiffs to hand the second applicant over to the first applicant, without success. The records of the enforcement attempt indicated that “the child refused to have close communication with the mother and to remain alone with her”. The records also contained a handwritten note by the first applicant’s lawyer to the effect that the bailiff had asked the second applicant, in the presence of his father, whether he wished to leave with the first applicant. It further contained a handwritten note by the first applicant to the effect that the enforcement attempt had been carried out without the participation of the childcare authorities and that the second applicant had informed her that he was not residing at the place chosen for the attempt at enforcement to be carried out.
On 7 May 2018 the enforcement proceedings were transferred to the Moscow Regional Bailiffs Service, in view of the fact that A.Y. had moved from the Chechen Republic to the Moscow Region with the second applicant.
On 14 May 2018 bailiffs from the Moscow Regional Bailiffs Service made two further attempts to hand the second applicant over to the first applicant. The first attempt was made at the second applicant’s kindergarten and the second at the bailiffs’ office. The records of the enforcement attempts indicate that enforcement could not take place owing to the emotional state of the second applicant.
On 9 August 2018 the applicants were reunited.
3. Proceedings for compensation
On 13 June 2017 the first applicant brought proceedings against the Federal Bailiffs Service seeking to recover non-pecuniary damage caused to her by the bailiffs’ failure to secure the second applicant’s return.
On 6 September 2017 the Meshchanskiy District Court of Moscow granted the first applicant’s claim and awarded her RUB 50,000[1] in compensation for non-pecuniary damage.
On 4 May 2018 the Moscow City Court upheld the above judgment on appeal.
B. Relevant domestic law and practice
For the relevant provisions of domestic law see Pakhomova v. Russia (no. 22935/11, §§ 91-112, 24 October 2013).
COMPLAINTS
The first applicant complains, on behalf of herself and the second applicant, of the failure of the domestic authorities to comply with their positive obligations under Article 8 of the Convention by failing to ensure the prompt and effective enforcement of the domestic courts’ judgments which had determined that the second applicant’s place of residence should be with the first applicant. The applicants complain, in particular, of the absence of an effective regulatory framework of enforcement machinery which would determine a method for the enforcement of judgments obliging one of the parents to hand the child over to the other parent; the lack of cooperation between the bailiffs’ services of different regions; the absence of real sanctions (aside from small administrative fines and a prohibition on leaving the territory of the Russian Federation) for a failure to comply with a judgment; the inability to apply criminal-law remedies (for kidnapping, taking the law into one’s own hands, or non-compliance with a court’s judgment) to a parent whose parental rights have not been terminated; and at the same time the inability to terminate the parental rights of a person unwilling to comply with a judgment ordering a child’s return.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?
2. More specifically, has there been a failure by the State to comply with its positive obligation to secure the applicants’ right to respect for their family life as guaranteed by Article 8 of the Convention? In particular:
(a) Was the interim decision of the Kuybyshevskiy District Court of St Petersburg of 14 January 2016 and the judgment of the same court of 22 September 2016, upheld on appeal on 13 February 2017, granting the first applicant a residence order in respect of the second applicant enforced in due time?
(b) Did the domestic authorities take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the above judgments?
(c) Was there a regulatory framework securing the effective and prompt enforcement of the above judgments? Reference is made to the specific aspects of enforcement proceedings raised by the applicants in the complaint.
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