Last Updated on October 3, 2020 by LawEuro
Communicated on 7 March 2018
THIRD SECTION
Application no.1764/18
AleksandarPJEVIĆ
against Russia
lodged on 5 January 2018
STATEMENT OF FACTS
The applicant, Mr AleksandarPjević, is a Serbian national, who was born in 1971 and lives in Novi Beograd, Serbia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information
On 22 November 2003 the applicant married a Russian national, Ms L.P. The couple settled in Belgrade, Serbia.
In June 2005 they moved to Moscow, Russia.
On 28 December 2010 Ms L.P. gave birth to their son, N. The child holds both Serbian and Russian nationality.
2. Divorce proceedings in Russia
On 2 August 2011 Ms L.P. initiated divorce proceedings.
On 5 September 2011 the Justice of the Peace of the 384th Court Circuit of the Meshchanskiy District of Moscow, in the applicant’s absence, dissolved the marriage between L.P. and the applicant.
On 16 September 2011 the above judgment became final.
On 11 December 2011 the applicant found out about the divorce judgment of 5 September 2011 and initiated appeal proceedings.
On 15 December 2011 L.P. and the child moved to St Petersburg.
On 6 March 2012 the Meshchanskiy District Court of Moscow quashed the judgment of 5 September 2011. Having established the absence of a dispute between the parties as regards the child’s residence or maintenance after the divorce, the District Court took a decision to dissolve the marriage.
On 5 May 2012 a judge of the Moscow City Court rejected the applicant’s cassation appeal.
3. Child maintenance proceedings in Russia
On 19 December 2011 L.P. brought court proceedings seeking to recover child maintenance from the applicant.
On the same day the Justice of the Peace of the 39th Court Circuit of St Petersburg granted her claim and obliged the applicant to pay child maintenance in the amount of a quarter of his salary and (or) other income starting from 19 December 2011 and until the child’s coming of age.
In 2016 the applicant sought the alteration of the order of making child maintenance payments, in particular, by paying half of the sum on L.P.’s bank account and half – on the child’s saving bank account.
On 2 November 2016 the Justice of the Peace of the 39th Court Circuit of St Petersburg rejected the applicant’s request.
4. Child residence proceedings in Serbia
Meanwhile, on 8 March 2012 the applicant initiated court proceedings in Serbia seeking to have determined the child’s place of residence as being with him.
On 22 July 2013 the Municipal Court in Belgrade (“the Municipal Court”) considered that it had no competence to examine the applicant’s claims.
On 10 July 2014 the Supreme Court quashed the above decision and remitted the case to the Municipal Court for examination on the merits.
On 3 April 2015 the Municipal Court decided that, while the proceedings were ongoing, the child should reside with L.P., and determined a temporary contact arrangement for the applicant and the child.
On 19 June 2015 the Municipal Court again found that it had no competence to pursue the examination of the claim over the residence of a child holding Russian and Serbian nationality and residing in Russia lodged by a Serbian national residing in Russia against a Russian national residing in Russia.
On 18 November 2016 the Supreme Court quashed the above decision and remitted the case to the Municipal Court for examination on the merits.
On 3 November 2017 the childcare authority of the municipal district Grazhdanka in St Petersburg submitted to the Municipal Court its expert opinion. Based on comprehensive study of the child’s living conditions in St Petersburg, references from his school and extracurricular activities, L.P.’s background and references from work, emotional ties between her and the child, and the child’s opinion, the report concluded that it would be in the best interests of the child to determine his place of residence as being with L.P. and to establish a schedule for his contacts with the applicant as follows: from 10 a.m. on Saturdays to 4 p.m. on Sundays at the child’s place of residence, without disturbing the child’s school and after-school routine.
The proceedings are currently pending.
5. Proceedings in Russia relating to the applicant’s request for recognition and enforcement of the interim decision of 3 April 2015
On 8 July 2015 the applicant applied to the St Petersburg City Court (“the City Court”) seeking formal recognition and enforcement of the interim measure of the Belgrade Municipal Court of 3 April 2015 granting him temporary contact rights in respect of the child pending the proceedings in Serbia.
On 10 November 2015 the City Court rejected the applicant’s request. It held, in particular, that the Treaty of 24 February 1962 between the Union of Soviet Socialist Republics and the Federal People’s Republic of Yugoslavia on Legal Assistance in Civil, Family and Criminal Matters did not apply to interim measures. It further held that the decision of 3 April 2015 contradicted the basic principles of Russian law as it had been taken without prior determination of the child’s opinion and his interests, without L.P. having been informed of the relevant hearing and given an opportunity to participate in it, and could not be appealed against by the latter. Besides, since L.P. was a Russian national residing together with the child in Russia the applicant’s claim should have been examined by a Russian court. The City Court noted in this connection that on 19 June 2015 the Serbian court found that it had no jurisdiction to examine the case and annulled all the decisions taken in the framework of those proceedings, including the interim decision of 3 April 2015. Although the decision of 19 June 2015 was in the process of being appealed against by the applicant, the parties did not challenge the Serbian law cited in it as regards the issues of jurisdiction.
On 26 January 2016 the Appellate Panel of the City Court upheld the above decision on appeal. The City Court noted that it was open to the applicant to apply to a competent Russian court for resolution of a dispute regarding his contact with his son.
6. Proceedings in Russia relating to the applicant’s contact rights
On 30 January 2017 the applicant applied to the Kalininskiy District Court of St Petersburg (“the District Court”) in order to have determined the terms of his contact with the child.
On 31 March 2017 the District Court left the applicant’s claim without examination in view of the ongoing proceedings on the same subject matter between the same parties in the courts of Serbia.
On 10 July 2017 the City Court upheld the above decision on appeal. The City Court noted that the applicant was not precluded from concluding an agreement with L.P. as to the contact arrangement between him and the child pending the proceedings before the Serbian courts.
On 15 September 2017 a judge of the City Court rejected the applicant’s cassation appeal.
B. Relevant international and domestic law
1. Relevant international law
The Treaty of 24 February 1962 between the Union of Soviet Socialist Republics and the Federal People’s Republic of Yugoslavia on Legal Assistance in Civil, Family and Criminal Matters (still in force) provides that each Contracting Party recognises, in particular, final and enforceable judicial decisions in civil and family matters rendered in the territory of the other Contracting Party (Article 48 § 1 (a)).
Judicial decisions listed in Article 48 of the Treaty shall be recognised and enforced in the following circumstances: (a) if a decision’s entering into force was confirmed and it is subject to enforcement; (b) if in accordance with the law of the Contracting party addressed the Contracting party from which a decision originates had jurisdiction to examine the case; (c) if recognition or enforcement of a decision does not contradict the basic principles of law of a Contracting party addressed; (d) if a party against which the decision is taken was afforded an opportunity to protect his or her rights; (e) if there is no final decision by the courts of the Contracting Party addressed in the proceedings between the same parties on the same subject matter, or if there is no ongoing proceedings in the courts of the Contracting party addressed on the same case provided that those proceedings were the first to be instituted; (f) if, in the case where it was necessary to apply the law of the Contracting party addressed, such law, or other law essentially similar to law of the Contracting party addressed, was applied (Article 49).
A court of a Contracting party addressed shall recognise and allow enforcement of a decision rendered by requesting Contracting party if all the conditions provided for by the Treaty are met (Article 51 § 1).
The procedure for the recognition and enforcement of judicial decisions is governed by the law of the Contracting party addressed (Article 53 § 1).
2. Relevant domestic law
The Code of Civil Procedure provides that courts in the Russian Federation have jurisdiction to examine cases with participation of foreign citizens if a defendant is residing in the Russian Federation (Article 402 § 2).
For the relevant provisions of the Code of Civil Procedure on recognition and enforcement on foreign court judgments, see McIlwrath v. Russia, no. 60393/13, §§ 69-75, 18 July 2017.
For the relevant provision of the Family Code see Hromadkaand Hromadkovav. Russia, no. 22909/10, §§ 105-11, 11 December 2014.
COMPLAINTS
The applicant complains under Articles 8 and 13 of the Convention about the violation of his right to respect for his family life caused by the failure of the Russian authorities to assist him in securing contact with his son and the absence of an effective domestic remedy in this respect. As a result of the refusal by the Russian courts to recognise and enforce the decision of 3 April 2015 by the Belgrade Municipal Court granting the applicant temporary contact with his son pending court proceedings in Serbia, on the one hand, and to examine his claim for contact rights in domestic proceedings, on the other, the applicant has been deprived of an opportunity to maintain any meaningful contact with his son.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? More precisely, having regard to the refusal by the St Petersburg City Court to recognise and enforce the interim contact order of 3 April 2015 by the Belgrade Municipal Court granting the applicant temporary contact with his son pending court proceedings in Serbia, on the one hand, and the refusal by the Kalininskiy District Court of St Petersburg to examine the applicant’s claim for contact rights in respect of his son, on the other hand, has there been a failure by the State to comply with its positive obligations to assist the applicant in securing his right to be in contact with his son under Article 8 of the Convention?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?
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