Last Updated on November 5, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 78320/12
Oleksiy Borysovych KOLODYAZHNYY
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 16 January 2018 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 23 November 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Oleksiy Borysovych Kolodyazhnyy, is a Ukrainian national who was born in 1966 and lives in the village of Budylka, Sumy Region, Ukraine.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Between March 2000 and May 2008 the applicant lived with Z. They had two sons, born in 2001 and 2002. After the couple broke up, the children remained with Z.
4. According to the applicant, he was able to have contact with his sons until March 2009, when Z. asked him for permission to travel abroad with the children as she allegedly intended to move to the United States. After he refused to give such permission, Z. allegedly prevented him from having contact with the children.
1. First set of proceedings
5. On 27 May 2009 the applicant brought an action in the Kovpakivskyy District Court of Sumy to oblige Z. not to hinder him in having contact with his sons, in particular, to allow him to have unlimited telephone conversations and meet the children periodically, in particular, at his place of residence.
6. Z. filed a counterclaim, requesting that the court allow the applicant to meet his sons at the children’s place of residence every Sunday from 10 a.m. to 8 p.m.
7. On 5 May 2010 the court ordered Z. “not to impede contact between [the applicant] and his children” and ruled that he should be able to meet his sons both at his and their place of residence at weekends, during the school holidays and on public holidays. No appeal was made and the judgment became final.
2. Enforcement proceedings
8. According to the applicant, Z. refused to comply with the decision of 5 May 2010.
9. In January 2011 the director of school where the applicant’s sons were studying informed him by a letter that Z. had had a conversation with a children’s teacher about the applicant’s contact with the children. The applicant also was informed that it was not the school’s competence to solve such conflicts and that he should have addressed a court or a custody and guardianship authority.
10. According to a conclusion of 26 January 2011, prepared by the Children’s Affairs Service of the Sumy City Council (Служба у справах дітей Сумської міської ради), one of the applicant’s son was seeing his father once or twice per month.
11. In April 2011 the applicant requested to institute enforcement proceedings in order to enforce the court decision of 5 May 2010. On 14 April 2011 the enforcement proceedings were instituted.
12. On 30 May 2011 Z. gave a written undertaking not to prevent the applicant from having contact with his children and the enforcement proceedings were terminated on the same day.
13. On 26 March 2012 the enforcement proceedings were re-opened at the request of a prosecutor. The applicant did not provide a copy of this request.
14. On 4 May 2012 a bailiff, having visited Z. together with the applicant, prepared a written statement that “Z. had not impeded [the applicant’s] communication with the children. The children cried and explained that they did not want to go [with the applicant] to a village and to communicate with him”. The applicant refused to sign this statement.
15. On 12 June 2012 the applicant met his sons at school in the presence of a bailiff and Z. According to a statement drafted by a bailiff, in the beginning the children refused to talk to the applicant but then a conversation took place. However, “[the applicant] started to pressure the children, to swear and to read out loud court decisions”. The applicant equally refused to sign such statement.
16. On 14 June 2012 the enforcement proceedings were terminated since “the court decision had been enforced”.
17. By a letter to the Court of 13 May 2014 the applicant submitted that he had not challenged the decision on termination of enforcement proceedings. The applicant did not inform the Court whether he had undertaken any other/further steps to see his children in compliance with the court decision of 5 May 2010.
3. Second set of proceedings
18. On 26 July 2011 the applicant brought another action before the Kovpakivskyy District Court of Sumy against Z. in respect of pecuniary and non-pecuniary damages caused by her impeding him having contact with the children. According to the applicant, Z. did not answer the telephone when he tried to arrange a meeting with the children and did not allow him to enter the apartment when he visited. When the applicant met his sons in the street, they refused to speak with him. The applicant later supplemented his claim with a demand to order Z. to hire a professional psychologist to help him restore his relationship with the children.
19. By a decision of 14 November 2011 the court dismissed the applicant’s claims as unsubstantiated. It found that the court decision of 5 May2010 had established arrangements for the applicant to meet his children. The applicant had submitted that decision for enforcement almost a year later. That decision required the mother to give her consent for the applicant to have contact with his children, however, he had failed to substantiate his claim that Z. had not given such consent. In a court hearing witnesses K. and L. testified that on two occasions Z. had refused to talk to the applicant, however, those incidents, in the court’s view, did not substantiate the applicant’s allegations. Moreover, according to the applicant’s own submissions, on one occasion in 2011 his children had refused to talk to him. The court further concluded that “the issue of bringing back children’s love for their parents [was] not regulated by statutory provisions”.
20. The applicant appealed arguing that Z. had been hindering his communication with his sons and enforcement of the court decision of 5 May 2010. In particular, he contested the court’s conclusion that his sons did not want to communicate with him. In the applicant’s view they “had been threatened by Z.”.
21. On 13 December 2011 the Sumy Regional Court of Appeal rejected his appeal. The court reiterated the lower court’s conclusion that the applicant had failed to provide evidence in support of his statements.
22. On 23 May 2012 the Higher Specialised Civil and Criminal Court of Ukraine upheld the decisions of the lower courts.
4. Third set of proceedings
23. In February 2012 the applicant brought a claim against Z. with the Kovpakivskyi District Court of Sumy for various expenses related to court proceedings.
24. On 24 May 2012 the court allowed the applicant’s claim in part and dismissed the remainder as the applicant had not raised those demands in the main proceedings. On 27 June 2012 the Sumy Regional Court of Appeal upheld that decision and on 13 August 2012 the Higher Specialised Civil and Criminal Court of Ukraine refused leave to appeal on points of law against it.
B. Relevant domestic law
1. Family Code, 2002
25. The relevant provisions of the Family Code, 2002, read as follows:
Article 158. Resolving a dispute concerning participation of a parent with whom a child does not live in that child’s upbringing by the tutorship and guardianship authority
“1. At the request of the mother or the father of a child, the tutorship and guardianship authority shall determine the ways in which the parent with whom the child does not live can communicate with and participate in the upbringing of that child.
The tutorship and guardianship authority shall make the decision after examining the parents’ living conditions, their attitude toward the child and other pertinent circumstances.
2. The decision of the tutorship and guardianship authority shall be binding. The person evading execution of the tutorship and guardianship authority’s decision shall reimburse the pecuniary and non-pecuniary damages inflicted to the parent with whom the child does not live.”
Article 159. Resolving a dispute concerning participation of the parent with whom the child does not live in that child’s upbringing by the court
“1. If the parent with whom the child lives impedes the parent with whom the child does not live to communicate with the child and to participate in the latter’s upbringing, in particular if that parent evades executing the tutorship and guardianship authority’s decision, the other parent shall be entitled to bring proceedings to remove those obstacles.
2. The court shall determine the ways in which one of the parents can participate in the child’s upbringing (periodic or systematic meetings, their joint recreation, child’s visits to the parent’s home, etc.) and place and time for their communication.
In some cases, when it is in the child’s interest, the court can make the meetings with the child conditional on the presence of another person.
When resolving a dispute concerning participation of one of the parents in the child’s upbringing it shall take into account the parents’ attitude toward performance of their obligations, the child’s personal attitude to each of them, the age and health of the child as well as other pertinent circumstances, including the mental condition of one of the parents and his/her alcohol or drug abuse.
3. At a request of an interested person the court may suspend the execution of the tutorship and guardianship authority’s decision until the resolution of the dispute.
4. If the person with whom the child lives evades executing the court decision, the court at the request of the parent with whom the child does not live may transfer the child’s residence to him/her.
5. The person that evades executing the court decision shall reimburse the pecuniary and non-pecuniary damages inflicted to the parent with whom the child does not live.”
2. The 1998 Bailiffs Act
26. The Bailiffs Act in force at the material time, in so far as relevant, provided as follows:
Article 13. Challenging the actions or omissions of state bailiffs
“The actions or omissions of a state bailiff can be challenged … in court in accordance with the procedure established by the law.”
3. The Enforcement Proceedings Act, 1999
27. The Enforcement Proceedings Act in force at the material time, in so far as relevant, provided as follows:
Article 7. Participants to the enforcement proceedings and persons involved into the enforcement proceedings
“…2. Whenever necessary when performing the enforcement proceedings a state bailiff shall involve witnesses, law enforcement agents, representatives of the tutorship and guardianship authority, other authorities and institutions in line with the procedure established by this Act…”
Article 12. Rights and obligations of the parties and other participants to the enforcement proceedings
“The parties to the enforcement proceedings shall be entitled to … contest the actions or omissions of a state bailiff with regard to the matters of the enforcement proceedings… file petitions…”
COMPLAINTS
28. The applicant complained under Article 6 of the Convention that the national courts had been biased against him and had failed to ensure that he have access to his sons or to award him compensation in respect of the pecuniary and non-pecuniary damage he had allegedly suffered as a result of Z.’s unlawful actions.
29. Referring to Article 8 of the Convention, he also complained that the domestic courts had not assisted him in restoring his relationship with his children.
30. In addition, the applicant complained that the national courts had breached Article 6 of the Convention by failing in the third set of proceedings to award him court expenses in full.
31. Lastly, he complained under Article 9 of the UN Convention on the Rights of the Child that the domestic courts had failed to protect his children’s right to have contact with their father.
THE LAW
32. The applicant complained under Articles 6 and 8 of the Convention that the national courts had failed to ensure that he have access to his sons and to assist in restoring his relationship with them. The Court, being master of the characterisation to be given in law to the facts of a case (see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I), finds that the application should be examined under Article 8 of the Convention. That provision, in so far as relevant, reads 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.”
33. The Court notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and Tsikakis v. Germany, no. 1521/06, § 74, 10 February 2011).
34. Furthermore, even though the primary object of Article 8 is to protect the individual against arbitrary action by the public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In relation to the State’s obligation to implement positive measures, the Court has held that for parents Article 8 includes a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain,no. 56673/00, § 49, ECHR 2003-V).
35. In particular, in cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly found that what is decisive is whether the national authorities have taken all the necessary steps to facilitate execution that can reasonably be demanded in the special circumstances of each case (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299‑A; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester v. Austria,nos. 36812/97 and 40104/98, § 59, 24 April 2003). The adequacy of the measures taken is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for the relationship between the child and the parent who does not live with him or her; at the same time the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live, even though coercive measures against the children are not desirable in this sensitive area (see Ignaccolo-Zenide, cited above, §§ 102 and 106).
36. The Court further reiterates that active parental participation in the proceedings concerning children is required under Article 8 of the Convention in order to ensure the protection of their interests, and that when an applicant applies for enforcement of a court order, his conduct as well as that of the courts is a relevant factor to be considered (see Glaser v. the United Kingdom, no. 32346/96, § 70, 19 September 2000).
37. Finally, as the Court has repeatedly held, in matters relating to their custody, the interests of children are of paramount importance. The decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters. The child’s best interests must be the primary consideration (see, to that effect, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, ECHR 2010) and may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC],no. 30943/96, § 66, ECHR 2003‑VIII). The parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (see Neulinger and Shuruk, cited above, § 134).
38. Turning to the present case, the Court notes that the national courts granted the applicant’s claim within the first set of proceedings and ruled that Z. should not hinder access to the applicant’s children. The court also established arrangements for his meetings with his sons.
39. The applicant, however, alleges that despite this decision he was unable to meet his sons. According to available case-file materials, the applicant’s communication with his children was at least encumbered by complications (see paragraphs 14-15 above).
40. The Court notes that, according to the applicant, his inability to communicate freely and normally with his children was caused exclusively by his former partner, Z., who had failed to comply with the court decision, had prevented him seeing his sons and had set his sons against him.
41. The Court observes that these allegations are not confirmed by the case file materials and, in particular, by findings of the national courts (see paragraphs 18-22 above). Moreover, in the course of enforcement proceedings on at least two occasions the bailiffs organised the applicant’s meetings with his sons and it was concluded that Z. had complied with the court decision the bailiffs were to enforce. The applicant, however, disagreed with the bailiffs’ conclusions (he refused to sign them). He did not comment in his application how those two meetings had developed but stated that children did not want to see him since Z. had set them against him.
42. According to domestic law, in case Z. indeed prevented the applicant from seeing his sons or hindered their communication, it was open to the applicant to request a national court to change his sons’ place of residence (see paragraph 25 above). Although the applicant insists that the court decision of 5 May 2010 remained unenforced because of Z.’s failure to comply with it, he did not challenge the baillifs’ conclusions in this respect, the manner the enforcement proceedings were conducted and the subsequent termination of the enforcement proceedings.
43. The Court has already found on numerous occasions that when a court decision is taken in respect of a private person, the termination of the enforcement proceedings or the alleged inactivity of the bailiffs in the enforcement proceedings can be challenged before the court (see Kukta v. Ukraine(dec.),no. 19443/03, 22 November 2005).
44. Although the present case concerns a different type of enforcement proceedings aimed not at debt recovery but at ensuring that the applicant has access to his sons, the Court notes that in the circumstances of the present case the bailiffs had a possibility to establish whether or not Z. complied with the court decision which would later enable the applicant to undertake further steps such as requesting the court to change his sons’ place of residence (see and compare, Chabrowski v. Ukraine, no. 61680/10, 17 January 2013).
45. Finally, it is noted that the applicant had instituted enforcement proceedings only a year after the relevant court decision. They were terminated a month and a half later and re-instituted again in March 2012, nearly two years after the court decision establishing the modalities of the applicant’s contact with his sons. The Court reiterates that re-establishing contact with a child in delicate circumstances, requires long term efforts for all concerned persons, including the applicant. In particular, there is no evidence that the applicant had ever tried to improve the relationship with his children by requesting assistance of the social services (see and compare, Fuşcă v. Romania, no. 34630/07, § 44, 13 July 2010).
46. In such circumstances the Court considers that this part of the application must be rejected as manifestly ill-founded.
47. The Court finally finds that the remainder of the applicant’s complaints, in the light of all the material in its possession and in so far as the matters complained of are within its competence, also do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention, or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
48. It follows that the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 February 2018.
Anne-Marie Dougin André Potocki
Acting Deputy Registrar President
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