Last Updated on May 19, 2019 by LawEuro
Communicated on 9 October 2018
THIRD SECTION
Application no. 33071/17
Eldar Abdullovich KUSHMANBETOV
against Russia
lodged on 24 April 2017
STATEMENT OF FACTS
The applicant, Mr Eldar Abdullovich Kushmanbetov, is a Russian national, who was born in 1981 and lives in Orsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant has a mild mental disability.
In September 2008 the applicant married Ms S.G., in October 2012 the couple got divorced. They have a son, A., born in 2009. After his parents’ divorce, A. remained with his mother.
1. Proceedings for the applicant’s access to the child
As the relations between the applicant and Ms S.G. were hostile, the applicant brought a claim against her seeking to have his right of access to the child determined (иск об определении порядка общения с ребенком).
On 13 December 2013 the Novotroitsk Town Court granted the claim and ordered Ms S.G. not to obstruct contacts between the applicant and A. It held, in particular, that during the first six months (a period of adaptation) after the judgment had become final, the applicant should have access to the boy on the first and third Saturday of each month between 10 am and 1 pm, and on the second and fourth Wednesday of each month between 6 pm and 8 pm in Ms S.G.’s presence at the address of her and the child’s domicile at Novotroitsk. After the expiration of the adaptation period, the applicant should have right to take the child over from the address of Ms S.G.’s and the child’s domicile at Novotroitsk and bring him to the address of his domicile in Orsk on the first and third weekends of each month, from 12 noon on Saturday until 12 noon on Sunday, following which he should bring the child back to Ms S.G.’s address in Novotroitsk.
The judgment became final on 21 January 2014.
The enforcement proceedings were commenced on 30 September 2015, suspended on an unspecified date, and resumed on 27 February 2017. Despite the applicant’s complaints against bailiffs, the judgment remained unenforced.
2. Restriction of the applicant’s parental authority
Meanwhile, on 5 October 2016 the Oktyabrskiy District Court of Orsk granted Ms S.G.’s claim to restrict the applicant’s parental authority over A. The court considered that in view of the applicant’s psychiatric diagnosis, and his refusal to follow the prescribed medical treatment, he posed a danger to A., and that therefore his authority over the child should be restricted.
This judgment was upheld on appeal on 22 October 2016; the applicant’s cassation appeal was returned to him by the Orenburg Regional Court on 17 February 2017 for a failure to comply with certain formal requirements. It does not appear that the applicant pursued the cassation proceedings any further.
3. Termination of enforcement proceedings
On an unspecified date Ms S.G. brought a court claim seeking to have the enforcement proceedings in respect of the judgment of 13 December 2013 definitively closed. She insisted that that the enforcement was no longer possible, as she had moved with A. to another town, and as by the judgment of 5 October 2016 the applicant’s parental authority over A. had been restricted.
On 12 July 2017 the Novotroitsk Town Court granted Ms S.G.’s claim. It observed that the judgment of 13 December 2013 had referred to the address of A.’s domicile in Novotroitsk, and considered that therefore that judgment should have been enforced with regard to that address. The court further noted that Ms S.G. and A. had changed their domicile and, at the moment, lived in another town (Orenburg). It considered that fact to be an “insurmountable obstacle” for the execution of the judgment of 13 December 2013 and noted that therefore it was no longer possible to enforce the said judgment. It further noted that it was open to the applicant to lodge a new court claim to have his right of access to the child determined. The court went on to observe that by virtue of the judgment of 5 October 2016, as upheld on appeal on 22 October 2016, the applicant’s parental authority over A. had been restricted, and that therefore, under a relevant legal provision, he could only had access to his child with consent of the other parent, or that of a childcare authority. The court noted that there was no evidence in the case file that any such consent had ever been given, and stated that in the absence of such consent the enforcement of the judgment of 13 December 2013 was impossible. The court concluded that Ms S.G.’s claim was well-founded and ordered the definitive closure of the enforcement proceedings in respect of that judgment.
On 31 August 2017 the Orenburg Regional Court upheld the first-instance decision on appeal. The applicant’s cassation complaint was rejected by a decision of a judge of the Orenburg Regional Court dated 10 November 2017. According to the applicant, on 20 November 2017 he sent a cassation complaint to the Supreme Court of Russia but has received no reply until the present moment. He encloses a document, signed and stamped by the Russian Post Office, describing the contents of his letter to the Supreme Court, which included his cassation complaint and copies of the relevant court decisions.
In the meantime, in a letter of 20 September 2017 the childcare authority of Orenburg replied to the applicant that their consent to the applicant’s access to his child was not required. The letter stated that A. lived with his mother and that, therefore, only she was competent to give her consent to the applicant’s contact with the child.
4. The applicant’s attempt to have his parental authority restored
On un unspecified date the applicant lodged a claim seeking to have the restriction of his parental authority lifted. He argued that he posed no danger to A. as he had no mental illness. Ms S.G. also filed a court claim requesting the court to deprive the applicant of his parental authority over A. On 27 July 2017 the Oktyabrskiy District Court of Orenburg (“the District Court”) joined the proceedings in both cases.
By a judgment of 16 November 2017 the District Court rejected both claims. In particular, as regards Ms S.G.’s claim, the court observed that there was no evidence in the case file which would enable it to establish any breach by the applicant of his parental duties and obligations, and that thus there were no legal grounds to deprive him of his parental authority.
As regards the applicant’s claim, the court referred to the judgment of 5 October 2016 which had established that, in view of his psychiatric diagnosis and a refusal to undergo medical treatment, the applicant had posed a danger to his child, and had restricted his parental authority. It went on to note that, in the current set of proceedings, it had ordered the applicant’s outpatient psychological and psychiatric medical examination, and that on three occasions the applicant, who had been made aware of the consequences of his refusal to undergo that examination, had failed to appear for the examination. At a hearing the applicant conceded that he had been informed of the court order and explained that he had refused to appear because he disagreed with the questions raised before the experts in that order. The District Court then referred to relevant legal provision by virtue of which, in a situation where a person evaded an expert examination ordered by a court for establishment of a certain fact, a court had competence to find that fact established, and found it established that the applicant’s mental illness still obtained and thus he still posed danger to A. It thus refused to lift the restriction on the applicant’s parental authority over A.
On 20 February 2018 the Orenburg Regional Court upheld the first-instance judgment on appeal.
On 3 April 2018 a judge of the Orenburg Regional Court returned without examination the applicant’s cassation complaint, as the applicant had failed to enclose certified copies of the first two instances’ decisions.
In a letter of 3 May 2018 the Supreme Court of Russia informed the applicant that it had returned without examination the applicant’s cassation complaint in view of his failure to comply with procedural formal requirements, given the fact that his complaint had not been examined by a cassation court at the first level of jurisdiction. The letter also stated that it was open to the applicant to apply to the Supreme Court of Russia, after he had remedied that shortcoming.
According to the applicant, he requested, on several occasions, the District Court and the Orenburg Regional Court to provide him with copies of the judgment of 16 November 2017 and the appellate decision of 20 February 2018 respectively, but the courts failed to do so.
B. Relevant domestic law
Article 439 § 1 of the Russian Code of Civil Procedure enables a court to terminate the enforcement proceedings in situations envisaged in Federal Law no. 229-FZ “On Enforcement Procedure” of 2 October 2007 (“the Enforcement Act”).
Section 43(1-2) of the Enforcement Act enables a court to terminate the enforcement proceedings in a situation where it is no longer possible to enforce a writ of execution obliging a debtor to perform or abstain from performing certain actions.
Section 44(5) of the Enforcement Procedure Act stipulates that a writ of execution in respect of which the enforcement proceedings have been discontinued is kept in the case file and cannot be re-submitted for execution.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the definitive termination of the enforcement proceedings in respect of the judgment of 13 December 2013, which determined his access to his child A., breached his right to respect for his private and family life.
QUESTIONS TO THE PARTIES
1. Regard being had to the applicant’s argument that the Supreme Court of Russia has not until now replied to his cassation submissions in which he challenged the judgment of the Novotroitsk Town Court dated 12 July 2017, as upheld on appeal by the Orenburg Regional Court on 31 August 2017, and on cassation by the Orenburg Regional Court on 10 November 2017, can that avenue be regarded as a “practical and effective” remedy that needs to be exhausted? If so, has the applicant exhausted that remedy, and what has the outcome of those proceedings been?
2. Has there been an interference with the applicant’s right to respect for his private and/or family life, within the meaning of Article 8 § 1 of the Convention, as a result of the definitive termination of the enforcement of the judgment of the Novotroitsk Town Court dated 13 December 2013, which granted the applicant access to, and determined his contacts with, his child?
If so, was that interference “in accordance with the law” and “necessary” in terms of Article 8 § 2?
In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?
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