Last Updated on May 24, 2019 by LawEuro
Communicated on 7 September 2018
THIRD SECTION
Application no. 28475/18
Aleksandra Nikolayevna LOBANOVA
against Russia
lodged on 15 May 2018
STATEMENT OF FACTS
The applicant, Ms Aleksandra Nikolayevna Lobanova, is a Russian national, who was born in 1969 and lives in Perm.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the mother of S., born in 2000.
1. Background events
By a default judgment of 15 June 2015 the Sverdlovskiy District Court of Perm, at the request of the Perm Custody and Guardianship Agency (орган опеки и попечительства над несовершеннолетними г. Перми, “the Perm childcare agency”), restricted the applicant’s parental authority over S. and ordered the boy’s removal into public care. It furthermore ordered, with reference to Article 74 § 4 of the Russian family Code, that, until the moment when the situation with the applicant’s parental authority would have changed, the applicant should pay monthly one fourth of her salary or any other income as child maintenance for S. in favour of a foster home in which he would be placed.
On 28 September 2015 the Perm Regional Court upheld the first-instance judgment on appeal. It specified that the recovery of the child maintenance from the applicant should start on the date of S.’s transfer to public care.
On 7 April 2016 the Perm Regional Court, acting as a cassation instance, upheld the above-mentioned court decisions.
2. Enforcement proceedings
On 18 December 2015 bailiffs opened enforcement proceedings on S.’s transfer to public care. As appears, they unsuccessfully attempted to enforce the relevant judgment on 15 and 21 September 2016.
Although the applicant’s request to postpone the enforcement was rejected on 28 June 2016, the boy has never been actually removed from the applicant and taken to public care and has continued living with her.
On 22 May 2017, pursuant to the bailiffs’ order of the same date, the amount of 113,364.30 Russian roubles (“RUB”, approximately 1,830 euros, “EUR”) was blocked on the applicant’s bank account in arrears for child maintenance due on that date.
A document from the applicant’s bank dated 14 May 2018 shows that on that date the same amount remained blocked.
3. The applicant’s attempts to have the restrictions lifted
(a) Parental authority
The applicant eventually sued the Perm childcare agency in an attempt to have her parental authority restored.
In a judgment of 15 December 2016 the Leninskiy District Court of Perm noted that the circumstances which had previously been the reason for the restriction of the applicant’s parental authority had not changed, and, in particular, the applicant had not changed her conduct with regard to her son, and rejected the applicant’s claim.
On 20 March 2017 the Perm Regional Court upheld the first-instance judgment on appeal.
It is unclear whether the applicant pursued cassation proceedings.
(b) Alimony payment
The applicant also sued the Perm childcare agency, seeking to have her obligation to pay the child maintenance for S. in favour of a foster home lifted, given the fact that he had never been transferred to any such home.
The Leninskiy District Court of Perm summoned the applicant, but she failed to appear with no explanation.
By a default judgment of 16 May 2017 the court rejected the applicant claim, noting that “there [were] no legal grounds for lifting [the applicant’s] obligation to pay the child maintenance for S., as the restriction of her parental authority remained in place”.
On 16 August 2017 the Perm Regional Court upheld that judgment on appeal. It rejected the applicant’s arguments that S.’s was actually living with her and she was bearing all expenses for his support; it stated that the judgment of 15 June 2015, as clarified by the appellate court on 28 September 2015, which had ordered the applicant to pay child maintenance for S. starting from the date of S.’s transfer in public care, remained in force, and that therefore there were no reasons to absolve her from that obligation.
On 21 November 2017 and 16 January 2018 respectively, the Perm Regional Court and the Supreme Court of Russia, upheld the above‑mentioned court decisions in cassation proceedings. The courts rejected the applicant’s arguments that S.’s actual transfer in public care had never taken place, and that therefore blocking monetary funds at her bank account as an amount due for child maintenance in arrears was unlawful. The courts reiterated that the judgment of 15 June 2015, as upheld on 28 September 2015, remained in force, and that the applicant’s arguments did not reveal any ground for absolving her the obligation to pay.
B. Relevant domestic law
The Russian Family Code, in its relevant parts, provides as follows:
Article 74. Consequences of restriction of parental authority.
“…
2. Restriction of parental authority does not absolve parents from their obligation to provide maintenance to their minor children …”
Article 80. Parental obligation to provide child maintenance
“1. Parents have an obligation to provide maintenance to their minor children …”
Article 114. Exemption from alimony payment in arrears
“…
2. At the request of a claimant liable to pay alimony, a court may absolve him or her, in full or in part, from payment alimony in arrears, if it founds it established that a failure to pay was due to that claimant’s illness or to other reasonable excuses, and that his or her financial and family situation makes it impossible to pay off the debt.”
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 of the Convention that blocking of a certain amount on her bank account as an amount due for child maintenance in arrears in favour of the State is disproportionate, given the fact that her son has never been transferred to public care and continues living with her.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to the peaceful enjoyment of her possessions secured by Article 1 of Protocol No. 1 to the Convention?
2. If so,
(a) was that interference lawful? In particular, what was the legal basis for that interference? Was the domestic courts’ interpretation and application of the relevant legal provisions in the applicant’s case “foreseeable”?
(b) Was that interference in the public interest?
(c) Was a fair balance struck between the demands of the general interest of the community and the applicant’s property rights?
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