Last Updated on August 2, 2019 by LawEuro
FOURTH SECTION
CASE OF M.R. AND D.R. v. UKRAINE
(Application no. 63551/13)
JUDGMENT
STRASBOURG
22 May 2018
FINAL
22/08/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of M.R. and D.R. v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,
Ganna Yudkivska,
Paulo Pinto de Albuquerque,
Iulia Motoc,
Carlo Ranzoni,
Marko Bošnjak,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 10 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 63551/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by aCzech national, M. R. (“the first applicant”) and his son, D.R. (“the second applicant”), on 2 October 2013. The Vice-President of the Section decided that the applicants’ names should not be disclosed (Rule 47 § 4 of the Rules of Court).
2. The applicants were represented by Mr D. Strupek, a lawyer practising in Prague.The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.
3. The applicants complained under Article 8 of the Convention that the Ukrainian authorities had failed to ensure the return of the second applicant to the first applicant, who is residentin the Czech Republic.
4. On 10 December 2015 the application was communicated to the Government.
5. The Czech Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The first applicant was born in 1958 and lives in Prague.
7. On 17 October 2003 he married B., a Ukrainian national, in Prague. On 23 May 2004 their son, the second applicant, was born.
8. Between 2004 and 2007 the applicants and B. lived together as a family at the first applicant’s residence in Prague.
9. In 2007 the couple divorced. B. continued to live with the child at a different address in Prague.
10. By the decision of the Prague 10 District Court adopted on 6 November 2008, which was upheld on appeal on 19 May 2009, the first applicant and B. were granted alternating custody of the second applicant (with a change of parent each week).
11. On 27 June 2009 B. took the second applicant at her residence pursuant to the above alternating custody scheme. Without the consent of the first applicant, shemoved to Ukraine with the second applicant and settled in Demeshkivtsi, Ivano-Frankivsk Region.
12. The first applicant initiateda procedure under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) for the return of the second applicant to the Czech Republic.
A. The Hague Convention proceedings in Ukraine
13. In October 2009 the Ivano-Frankivsk Regional Department of Justice, acting in the interests of the first applicant, lodged a claim with the Ivano-Frankivsk Town Court for the return of the second applicant to the Czech Republic, pursuant to the Hague Convention.
14. On 2 July 2010 the court granted the claim, finding that the removal of the second applicant from the Czech Republic and his retention in Ukraine had been wrongful within the meaning of Article 3 of the Hague Convention. The court ordered B. to return the child to the first applicant’s residence in the Czech Republic. The child was to be returned by B.whilst accompaniedby the first applicant.
15. On 14 September 2010, the Ivano-Frankivsk Regional Court of Appeal upheld the judgment on appeal, and it became enforceable on that date.
16. On October 2010 B. lodged an appeal on points of law.
17. On 25 February 2011 the Supreme Court of Ukraine suspended enforcement of the returnorder, pending the examination of the appeal on points of law.
18. On 15 March 2011 the Supreme Court of Ukraine dismissedB.’s appeal on points of law, finding no proof that the lower courts had incorrectly applied the law or violated any procedural rules.
B. Proceedings in the Czech Republic regarding the custody and care of the second applicant
19. Further to its earlier decision granting the parentsalternating custody of the second applicant, the Prague 10 District Court reconsidered the matter in the light of new developments in the case, especially the child’s abduction by B., his retention in Ukraine, and the first applicant’s lack of access to the child. On 10 November 2010 that court found that it was in the child’s best interests to live with the first applicant,who was therefore granted the sole custody of the child.
20. On 28 June 2011 that decision was upheld on appeal.
C. Proceedings in Ukraine regarding the determination of the child’s place of residence
21. On 9 December 2013 the Halych District Court of Ivano-Frankivsk Region decided B.’s claim concerning determination of the second applicant’s place of residence. The court noted that the judgment of 2 July 2010 ordering the return of the child had not been enforced,and found that the child had in the meantime settled in a new environment in Ukraine. In that regard the court referred to the psychological and pedagogical report which concluded that the child was attached to his mother and that discussion about his father caused him feelings of fear. It also examined reports by the local childcare authorities suggesting that the child should live with his mother. The court found that the child was being given appropriate care by his mother and that it would be in his best interests to stay with his mother. Ittherefore ruled that the child should live with B.at her place of residence in Ukraine.
22. The first applicant appealed against that decision, arguing that the Ukrainian court did not have competence to determine the child’s place of residence because the custody rights had to be determined by the Czech authorities.
23. On 6 March 2014 the Ivano-Frankivsk Regional Court of Appeal upheld the decision of the first-instance court, finding that the child had settled in a new environment since his arrival in 2009 and that B. was entitled to bring that action in order to ensure the best interests of the child.
24. The first applicant did not appeal on points of law against that decision.
D. Enforcement of the return order issued by the Ukrainian court
25. On 27 September 2010 the bailiffs of the Halych District Department of Justice started proceedings to enforce the judgment ordering the return of the child and contacted the parties to that effect. During the short period allowed for the voluntary execution of the return order, B. refused to comply with it. For that reason, on 6 October 2010 she was ordered to pay a fine of 170 Ukrainian hryvnias (UAH)[1]. Two days later, she was ordered to pay a further fine of UAH 340[2].
26. On 3 November 2010 the Halych District Court of Ivano-Frankivsk Region dismissed the bailiffs’ request to put the child on the search list. The court found that there was no evidence that the bailiffs had made attempts to identify the whereabouts of B. and the child. The hearing was attended by B., who submitted that the child was living with her and that she had not received any notices from the bailiffs concerning the enforcement of the return order.
27. As B. continued to avoid the enforcement of the judgment, in November 2010 the bailiffs requested that criminal proceedings be initiated against her on charges of deliberate non-compliance with a court decision under Article 382 § 1 of the Criminal Code of Ukraine, which provided for a maximum penalty of three years’ imprisonment.
28. On 25 January 2011 the bailiffs, accompanied by the police, a vice‑consul of the Czech Republic and the first applicant’s lawyer, visited state school no. 7 in Kalush after receiving information that the second applicant was a pupil there. There they met the second applicant, B. and B.’s lawyer. B. initially agreed to move to the Czech Republic and settlethere and to bring the second applicant to live with her. Several days later B. informed the other parties that she had changed her mind.
29. As B. and the child could not be found at their residence and the child’s whereabouts were unknown, the bailiffs requested that the court put the child on the search list and place him temporarily in care. On 23 August 2011 the Halych District Court granted the requests. However, on 29 September 2011 the Ivano-Frankivsk Regional Court of Appeal examined an appeal lodged by B. and partly quashed that decision as regards the temporary placement of the child in care, considering – in view of the submissions by the local childcare authority – that such a measure would be excessive and detrimental to the child.
30. On 21 November 2011 B. informed the bailiffs that she and the child were living at theirhome in Demeshkivtsi. However, when the bailiffs attempted to enter the house on 28 November 2011, B. refused to open the door.
31. As B. and the child were not present at their address when the bailiffs made further visits, the bailiffs applied to the court to have them put on the search list and to have the child placed in temporary care. On 5 March 2012 the Ivano-Frankivsk Town Court refused to grant the requests,holding that the bailiffs had not taken sufficient steps to identify the whereabouts of B. and that the child was living in suitable conditions which made it unnecessary to place him in temporary care. The court heard B., who was present for the hearing and who informed the court that she and the child were livingin Kalush in a flat of suitable quality and that the child was stillattending schoolno. 7 in that town. The court also examined submissions from the local childcare authoritiesto that effect.
32. On 26 March 2012 the bailiffs discovered that the child– who by now was almost eight years old− had stopped attending school and was being instructed at home by a teacher from the Kalush school.
33. On 5 July 2012 the Ivano-Frankivsk Town Court refused to grant the bailiffs’ requeststo put B. and the child on the search list and to place the child in temporary care. That decision was appealed against and on 4 October 2012 the Ivano-Frankivsk Regional Court of Appeal granted their requests. However, B. lodged an appeal on points of law and on 26 December 2012 the Higher Specialised Court on Civil and Criminal Matters upheld the first-instance court’s ruling and dismissed the bailiffs’ requests. It found that the judgment of 2 July 2010 to return the child to Czech Republic did not include the requirement to remove the child from B., who was “the debtor” in the enforcement proceedings.The court held that the bailiffs had the power to impose fines on B. and to request other measures of legal liability. However, if the judgment could not be executed without the “debtor”, the bailiffs would have to terminate the enforcement proceedings.
34. On 7 February 2013 the bailiffs discontinued the enforcement proceedings, noting that B. had been subjected to fines in those proceedings and that on 18 May 2011 she had been convicted of the crime of non‑compliance with a court decision and had been punished with a fine of UAH 1,000[3]. On 5 September 2013 the Ivano-Frankivsk Regional Court of Appeal reversed the bailiffs’ decision,finding that the enforcement measures had been insufficient.
35. On 20 June 2014 the bailiffs once again discontinued the enforcement proceedings. On 22 August 2014 the Ivano-Frankivsk Town Court reversed the bailiff’s decision as unfounded. However, in response to an appeal lodged by B., on 16December 2014 the Ivano-Frankivsk Regional Court of Appeal quashed the decision of 22 August 2014 and ordered a fresh hearing in the first-instance court. On 23 February 2015 the first-instance court upheld the bailiffs’ decision to discontinue the enforcement proceedings. On 9 April 2015 the Court of Appeal quashed the bailiffs’ decision and ordered further enforcement proceedings.
II. RELEVANT DOMESTIC LAW
A. The Criminal Code
36. Article 382 § 1 of the Code provides:
“1. Wilful failure to comply with a court sentence, judgment, ruling or resolution which has entered into force, or hindrance of the enforcement thereof, shall be punishable by a fine of between 500 and 1,000 times the statutory tax-free monthly income, or by deprivation of liberty for a term of up to three years.”
B. The legislation on enforcement proceedings
37. The relevant legislation on enforcement proceedings is cited in the judgment of Chabrowski v. Ukraine (no. 61680/10, § 82, 17 January 2013).
III. RELEVANT INTERNATIONAL LAW
38. The relevant provisions of the Hague Convention (which entered into force in respect of Ukraine on 1 September 2006), state as follows:
Article 5
“For the purposes of this Convention –
a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
Article 11
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay….”
Article 16
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”
Article 17
“The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”
THE LAW
I. STANDING OF THE FIRST APPLICANT TO ACT ON BEHALF OF HIS SON
39. The first applicant lodged the present application on his own behalf and on behalf of his son, designating him as the second applicant.
40. The Court reiterates that in cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests (see Moogv. Germany, nos. 23280/08 and 2334/10, § 41, 6 October 2016). The first applicant was granted sole custody of the child (see paragraphs 19 and 20 above).Accordingly, even though the first applicant has been separated from his minor son since 2009, this circumstance alone does not deprive him of his right to act on behalf of his minor son. The Court finds that the first applicant had standing to institute the present proceedings on behalf of his son and this is not disputed by the parties.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
41. The applicants complained under Article 8 of the Convention that the Ukrainian authorities had failed to ensure their reunion, arguing in particular that the authorities had failed to enforce the Ukrainian court judgment of 2 July 2010 ordering the return of the second applicant to the Czech Republic in accordance with the Hague Convention.
42. Article 8 of the Conventionreads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
43. The Government submitted that after the return order of 2 July 2010issued by the Ukrainian court, B. had initiated proceedings in Ukraine to obtain determination of the second applicant’s place of residence. In its judgment of 9 December 2013,the Ukrainian court had ruled that the child should live with B. at her residence in Ukraine. That decision had been upheld by the Court of Appeal on 6 March 2014. However, no appeal on points of law against that judgment had been lodged. Considering that such an appeal was an effective remedy that should have been used in relation to the applicants’ complaint, the Government submitted that the requirement of exhaustion of domestic remedies had not been complied with. Accordingly, the application had to be dismissed under Article 35 § 1 of the Convention.
44. The applicants submitted that there was no obligation to exhaust the remedy indicated by the Government. They contended that the first applicant had taken all the necessary steps for the purpose of exhaustion of domestic remedies by filing an application for return of the child under the Hague Convention and by requesting the enforcement of the return order. The matter had been resolved by the judgment of 2 July 2010 and the Ukrainian authorities had an obligation to enforce it. The proceedings initiated by B. did not affect the validity of the return order and it had not been necessary to lodge an appeal on points of law in the proceedings initiated by B. to exhaust remedies in relation to the present complaint. Moreover, in deciding B.’s claim concerning the child’s place of residence,the Ukrainian courts had grossly flouted the Hague Convention,the aim of which is to ensure the return of an abducted child to the country of his habitual residence where the custody rights shouldbe examined.
45. The Czech Government submitted that the present case was concerned with the enforcement of the judgment to return the child to the Czech Republic and the proceedings mentioned by the Ukrainian Government did not affect that return order or its enforcement. They considered that the applicants had complied with the rule requiring exhaustion of domestic remedies.
46. The Court reiterates that the object of the rule requiring exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004‑III).
47. The present complaint concerns the alleged failure by the Ukrainian authorities to take prompt and adequate measures to ensure the return to the Czech Republicof a child removed from that country in 2009. The civil action instituted by B. in 2013 did not address the substance of this allegation and could not provide any relief in respect of the alleged failure on the part of domestic authorities.
48. In those circumstances the applicant had not been obliged to pursue the remedy indicated by the Government. The preliminary objection is therefore dismissed.
49. The Court further notes that the applicationis not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
50. The applicants insisted that the Ukrainian authorities had failed to act promptly and carry out the measures necessary for their reunion. They contended that during the enforcement proceedings, the authorities had had full knowledge of the child’s whereabouts but had failed to take adequate steps to enforce the return order of 2 July 2010. They argued that the return orderremained valid and binding and should have been enforced in accordance with the international obligations of the Government, regardless of the subsequent decisions taken by the Ukrainian courts on the issue of the child’s place of residence.
51. The Government submitted that the authorities had taken all the necessary measures to ensure the applicants’reunion and that the return order of 2 July 2010 had not been enforced owing to the conduct of B., who had evaded the enforcement measures. They further emphasised that according to the Ukrainian court decision of 9 December 2013,which was upheld on appeal on 6 March 2014, it was in the child’s best interests to continue to live with the mother. Given that finding, it was no longer appropriate to return the child to the Czech Republic.
52. The Czech Government submitted that the Ukrainian authorities had failed to take adequate, sufficient and prompt measures aimed at returning the child to the Czech Republic. They considered that the fines imposed on the abducting parent were far too low,and the search measures had not been neededas the authorities had been aware of the child’s whereabouts, of his place of residence and of the school which he attended. The obstructions caused by B. had not in themselvesbeen sufficient to exempt the authorities from their positive obligations under Article 8 of the Convention.
2. The Court’s assessment
(a) Principles established by the Court’s case-law
53. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective “respect” for family life. As to the State’s obligation to take positive measures, Article 8 includes the right of a parent to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I, § 94 and Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007;Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 140, ECHR 2010).
54. However, this obligation is not absolute, since the reunion of a parent with his or her child may not be able to take place immediately and may require preparation. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. In addition, when difficulties appear, mainly as a result of a refusal by the parent with whom the child lives to comply with the decision ordering the child’s prompt return, the appropriate authorities should then impose adequate sanctions in respect of this lack of cooperation. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives (see Maire v. Portugal,no. 48206/99, §§ 71 and 76, ECHR 2003‑VII). What is decisive is whether the national authorities have taken all the necessary steps to facilitate execution which can reasonably be demanded in the special circumstances of each case (see Chabrowski v. Ukraine, no. 61680/10, § 106, 17 January 2013).
55. In this kind of case, where time is of the essence, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent with whom the child does not live (seeMaire, cited above, § 74and Ferrari v. Romania, no. 1714/10, § 49, 28 April 2015).
56. Lastly, the Court’s case-law under Article 8 has given consideration to the obligation to have regard to the best interests of the child in various contexts (see Maslov v. Austria [GC], no. 1638/03, § 82, ECHR 2008, with further references). In the area of international child abduction, the obligations that Article 8 of the Convention imposes on the Contracting State must be interpreted, in particular, in the light of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 which also attaches paramount importance to the best interests of the child (see Neulinger and Shuruk, cited above, §§ 132 and 135 and X v. Latvia, [GC], no. 27853/09, §§ 93 and 96, ECHR-2013).
(b) Application of these principles to the present case
57. The Court considers that the relationship between the applicants amounts to family life within the meaning of Article 8 of the Convention and this is not disputed by the parties.
58. The Hague Convention proceedings brought before the Ukrainian courts resulted in a judgment ordering the return of the child to the Czech Republic. Accordingly, the key point to be assessed in the present case is whether the Ukrainian authorities complied with their positive obligation under Article 8 of the Convention to act with sufficient swiftness and diligencein dealing with both the return request under the Hague Convention and the enforcement of the return order.
59. In this regard it has to be reiterated that the Hague Convention proceedings imply a particular requirement of promptness. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see paragraph 38 above).
(i) As regards the judicial proceedings
60. The Court notes that the Hague Convention proceedings were initiated in October 2009 and that the first-instance court decision was adopted in July 2010. The appeal proceedings were concluded in September 2010, following which the return order became final and enforceable, except for the subsequent period of less than one month between February and March 2011 when the Supreme Court suspended the enforcement of the judgmentin order to ensure effective review of the case on the points of law requested by B. (see paragraphs 17 and 18 above). Accordingly, the judicial proceedings leading to the final judgment in the case lasted for about one year. In previous cases similar periods have given rise to violations of the Convention (see, for example, Monory v. Romania and Hungary, no. 71099/01, § 82, 5 April 2005, Karrer v. Romania, no. 16965/10, § 54, 21 February 2012 and Ferrari, cited above, § 54). Indeed, this period exceeded by far the six-week time-limit recommended in Article 11 of the Hague Convention and it does not appear that such length of the proceedings was objectively justified. In any event, this period has to be taken into account when assessing globally the overall length of the proceedings, including both judicial and enforcement proceedings in Ukraine.
(ii) As regards the enforcement proceedings
61. Even though the return order became final on 14 September 2010, the enforcement proceedings were not opened until 27 September 2010 and no particular reason has been advanced by the Government for this initial delay. The bailiffs started the enforcement procedure by allowing B. a short period for the voluntary execution of the return order. However, nothing suggests that either at that early stage or later during the enforcement proceedings the authorities ever considered arrangements for voluntary compliance with the return order, for example, by developing a comprehensive compliance strategy. Moreover, the childcare and family services were not involved in that regard. This significantly diminished the possibilities for cooperation with the abducting parent. Indeed, the only instance of constructive negotiation between the parties took place on 25 January 2011,but in the event turned out to be unsuccessful (see paragraph 28 above).Although, admittedly, the voluntary execution is always preferable (see, mutatis mutandis,Cengiz Kılıç v. Turkey, no. 16192/06, § 132 in fine, 6 December 2011 and Kacper Nowakowski v. Poland, no. 32407/13, § 87, 10 January 2017), the Court observes that the entrenched positions often taken by the parents in such cases can render such voluntary execution difficult making it necessary, in appropriate cases, to have recourse to proportionate coercive measures.
62. The authoritiesattemptedcoercive measures by imposingfines on the mother in the initial stages of the proceedings (see paragraph 25 above). It appears that another fine was subsequently imposed in the context of thecriminal case (see paragraph 34 above). However, it is doubtful whether these penalties, in view of the small sums involved, could ever have had any coercive effect in terms of securing compliance with the return order.
63. Apart from those measures, the bailiffs applied to the courts on a number of occasions requesting that the mother and the child be placed on the search list and that the child be placed in temporary care. However, the domestic courts considered that those requests were ill-founded or disproportionate (see paragraphs 26, 29 and 31 above). It is noted that the relevant court hearings were attended by the mother, who resided quite openly at two places of residence, both of which were known to the authorities. For a considerable period of time the second applicant was attending a state school and nothing suggests that there had been any real difficulty in identifying his whereabouts. At a certain point, the domestic courts concluded that placing the child in temporary care was not an available option under the domestic law in the applicants’ case (see paragraph 33). Accordingly, the requests made by the bailiffs demonstrated not only their inactivity, but also their lack of co-ordination with the other authorities in order to secure effective enforcement of the return order.It appears that those requests onlydelayed the execution process.
64. The Court further notes that the enforcement of the return orderwas repeatedly discontinued by the bailiffs and that those decisions were quashed as unfounded (see paragraphs 34 and 35 above). These deficiencies point to the lack of a coherent, comprehensive and coordinated approachin the enforcement proceedings which,by the time of the judicial review of the bailiffs’ last decision to terminate the enforcement, had exceeded four years in duration. That period of enforcement, in combination with the preceding period of the judicialexaminations resulting in the return order, was manifestly unreasonable and was not compatible with the requirements of Article 8.
65. The Government contended that after 6 March 2014 it had been inappropriate to pursue the enforcement of the return order in view of the Ukrainian courts’decision that the child should continue to live with his mother (see paragraph 51 above). Taking into account the principles outlined above, according to which the best interests of the child must be the primary consideration, the Court accepts that a change in the relevant circumstances may exceptionally justify the non‑enforcement of a final return order (see Sylvester v. Austria,nos. 36812/97 and 40104/98, § 63, 24 April 2003). However, having regard to the State’s positive obligations under Article 8 and the general requirement of respect for the rule of law, the Court must be satisfied that “the change of the relevant facts” was not brought about by the State’s failure to take all measures that could reasonably be expected to facilitate the enforcement of the return order (see Sylvester, cited above,§ 63 and Sévère v. Austria, no. 53661/15, § 105, 21 September 2017).The Courtnotes that since his removal from the Czech Republic in 2009, the second applicant had been constantly living with his mother in Ukraine, separately from the first applicant. Therefore, thefinding of the Ukrainian courts in 2014 that the child had adapted well to living in Ukrainewas not surprising, having regard to the considerable period of time which had passed by that time.However, the Court considers that the passage of timeleading to such a finding had been mainly imputable to the Ukrainian authorities who had not dealt swiftly with the return request and who had failed to take appropriate measures to enforce the return order. Accordingly, by the time of the court decisions referred to by the Government, the domestic authorities had already failed to ensure the effective protection of the applicants’ right to respect for their family life.
66. The Court furthermore considers that the failings by the domestic authorities described above were to a great extent the consequence of the lack of an appropriate legislative and administrative framework. This is particularly evident from the reasoning by the Higher Specialised Court on Civil and Criminal Matters (see paragraph 33 above) which disclosed limited capacities available to the bailiffs in the enforcement of the return order. It appears that the available legislative and administrative framework was insufficientto facilitate the voluntary compliance arrangements involving family and childcare professionals.Nor did itenvisageanappropriate range ofspecific measures which might have been applied, subject to the proportionality principle, to ensure coercive compliance with the return order.
67. In the light of the above considerations, the Court finds that there has been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
68. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
69. The first applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
70. The Government considered that the claim was unsubstantiated.
71. The Court considers that the first applicant must have suffered anguish and distress on account of the violation of Article 8 of the Convention in the present case. Ruling on an equitable basis, the Court awards the first applicant 8,000 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
72. The first applicant also claimed EUR 1,526, plus VAT, for the costs and expenses incurred before the Court.
73. The Government contended that the claim was unfounded.
74. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the claim should be allowed in full.
C. Default interest
75. The Court 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. Declaresthe application admissible;
2. Holdsthat there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the first applicant, within threemonthsfrom the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Czech korunas at the rate applicable at the date of settlement:
(i) EUR 8,000(eight thousand euros), plus any tax that may be chargeable,in respect of non-pecuniary damage;
(ii) EUR 1,526 (one thousand five hundred and twenty-six euros), plus any tax that may be chargeable to the first 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;
4. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Vincent A. De Gaetano
Registrar President
_______________
[1]. About 15 euros (EUR) at the relevant time.
[2]. About EUR 30 at the relevant time.
[3]. About EUR 88 at the relevant time.
Leave a Reply