The case mainly concerns the alleged hindrance of the applicant\u2019s contact and communication with his son, born in March 2013, by his former spouse (the child\u2019s mother), with whom the child had lived since March 2015, and the absence of an effective remedy in this respect. The applicant relies on Articles 6, 8 and 13 of the Convention.<\/p>\n
FIFTH SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Tryetyak v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Having regard to:<\/p>\n the application (no.\u00a010919\/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 16\u00a0February\u00a02020 by a Ukrainian national, Mr\u00a0Svyatoslav\u00a0Valeriyovych\u00a0Tryetyak, born in 1976 (\u201cthe applicant\u201d) and living in Ukrayinka (Kyiv Region), who was represented by Mr B. Fokiy, a lawyer practising in Chernivtsi;<\/p>\n the decision to give notice of the application to the Ukrainian Government (\u201cthe Government\u201d), represented by their Agent, most recently Mr\u00a0I.\u00a0Lishchyna, of the Ministry of Justice;<\/p>\n the decision to give priority to the application (Rule 41 of the Rules of Court);<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 7 April 2022<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT MATTER OF THE CASE\u200b<\/strong><\/p>\n 1. The case mainly concerns the alleged hindrance of the applicant\u2019s contact and communication with his son, born in March 2013, by his former spouse (the child\u2019s mother), with whom the child had lived since March 2015, and the absence of an effective remedy in this respect. The applicant relies on Articles 6, 8 and 13 of the Convention.<\/p>\n 2. In September\u00a02015 the applicant initiated proceedings asking the domestic courts to set out a specific schedule for his regular meetings with the child and for taking part in his upbringing. Subsequently, the applicant requested to amend the contact arrangements on several occasions.<\/p>\n 3. On 27\u00a0January\u00a02016 the Darnytskyi District Court of Kyiv (\u201cthe first\u2011instance court\u201d) ordered an expert forensic psychological examination of the child and adjourned the proceedings. On 20 October 2017 the expert examination was completed with a report stating, inter alia, that the child had \u201ca close emotional connection with\u201d and \u201cleaned towards\u201d both parents. On 25\u00a0October 2017 the proceedings were resumed. Between November 2017 and October 2018 the case was reassigned twice to different judges following the suspension and expiry of term of office of two judges previously dealing with it. On 17\u00a0May 2019 the first-instance court delivered a judgment partly allowing the applicant\u2019s contact application and setting out a detailed schedule and conditions for meetings and contact between him and his child.<\/p>\n 4. On 17\u00a0February 2020 the Kyiv Court of Appeal quashed that judgment and adopted a new one, partly allowing the applicant\u2019s contact application and setting out somewhat different contact arrangements.<\/p>\n 5. By a final decision of 11 November 2020, the Supreme Court rejected an appeal by the applicant on points of law.<\/p>\n 6. In the meantime, on 12 November 2015 a local childcare authority issued a \u201cconclusion\u201d setting out a schedule and conditions for meetings and contact between the applicant and his child. According to the applicant, the child\u2019s mother failed to comply with that schedule and obstructed his communication with the child. The child enjoyed communicating with the applicant on the rare occasions they met in 2017 and 2018 without the mother present. From October 2019 the child allegedly began to react negatively to meeting the applicant.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n 7. Relying on Articles\u00a06 and 8 of the Convention, the applicant complained that the proceedings had been unreasonably long and that this had ultimately resulted in the child\u2019s \u201ctotal alienation\u201d from him. Relying on Article\u00a013, he complained of the lack of an effective remedy in that regard in Ukraine.<\/p>\n 8. The Government argued, in the main, that the length of the domestic proceedings was not unreasonable and that there was no violation of Article\u00a06 or Article\u00a08 on that account. They further argued that Article\u00a013 did not apply in this case.<\/p>\n I. SCOPE OF THE CASE<\/strong><\/p>\n 9. The Court finds that the applicant\u2019s new complaints, raised essentially under Article\u00a08 of the Convention in his submissions of 23\u00a0March 2021, regarding the allegedly unfair contact arrangements set out in the judgment of the Kyiv Court of Appeal of 17\u00a0February 2020 and enforcement of that judgment, are not an elaboration of his original complaints to the Court on which the parties have commented, and that therefore it is not appropriate to take those matters up in the context of the present case (see Piryanik v.\u00a0Ukraine, no. 75788\/01, \u00a7\u00a020, 19 April 2005).<\/p>\n II. ALLEGED VIOLATION OF THE CONVENTION REGARDING THE CONDUCT OF THE PROCEEDINGS AND THE ABSENCE OF AN EFFECTIVE DOMESTIC REMEDY<\/strong><\/p>\n 10. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the applicant\u2019s present complaints are to be examined solely under Article 6 \u00a7 1 and Article 13 of the Convention.<\/p>\n 11. The Court finds that the complaints are not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n 12. The relevant general principles regarding the State\u2019s obligations under Article 6\u00a0\u00a7\u00a01 and Article\u00a013 to ensure that cases concerning a person\u2019s relationship with his or her child are treated with special or exceptional diligence and that there is an effective remedy for an alleged breach of the requirement of the guarantee of \u201creasonable time\u201d are summarised in several cases (see, among other authorities, Laino v. Italy [GC], no. 33158\/96, \u00a7 18, ECHR 1999\u2011I; Kud\u0142a v. Poland [GC], no.\u00a030210\/96, \u00a7\u00a0156, ECHR 2000-XI; and Milovanovi\u0107 v. Serbia, no. 56065\/10, \u00a7\u00a088, 8 October 2019).<\/p>\n 13. The Court notes that the domestic proceedings concerned the applicant\u2019s contact with his young child, who was two and a half years old when the proceedings were initiated, and thus, by their nature, clearly required to be treated with exceptional diligence.<\/p>\n 14. The proceedings lasted around five years and two months before courts at three levels of jurisdiction. For most of that period, the case was pending before the first-instance court. It took that court over three and a half years to decide it, which must be considered too long given what was at stake for the applicant.<\/p>\n 15. The Court can agree with the Government that the proceedings were of a certain complexity because of the tense relations between the applicant and his former spouse and the particularly sensitive issue of the child\u2019s best interests in these circumstances, regarding which an expert opinion was sought. However, the first-instance court made no effort to expedite the conducting of the expert examination it had ordered, which caused a delay of over one year and eight months. Also, it appears that delays of two to three months were caused by the case being repeatedly reassigned to different judges (see paragraph 3 above).<\/p>\n 16. The applicant partly contributed to the overall length of the proceedings by amending his contact application on several occasions and lodging various procedural requests and appeals, but there is no evidence that he abused his procedural rights instead of engaging in legitimate procedural activity and, moreover, it did not cause significant delays.<\/p>\n 17. The Government stated that the opposing party to the proceedings had repeatedly asked for the adjournment of a number of hearings, which may point to delaying tactics. However, this does not absolve the authorities of their duty to ensure that proceedings are conducted within a reasonable time (see, among other authorities, Karcheva and Shtarbova v.\u00a0Bulgaria, no.\u00a060939\/00, \u00a7\u00a047, 28\u00a0September\u00a02006, and Mincheva v.\u00a0Bulgaria, no.\u00a021558\/03, \u00a7 68, 2\u00a0September 2010). All the more so in the applicant\u2019s case, in which the courts were required to take special precautions in order to avoid any unnecessary delays, notably by ensuring that the parties adhered to a very close time schedule, which was not done.<\/p>\n 18. In the light of the foregoing, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement (see, for a comparable situation, Zabara v.\u00a0Ukraine [Committee], no. 26007\/17, \u00a7\u00a7\u00a019-22, 7\u00a0November 2019). There has accordingly been a breach of Article 6 \u00a7 1 of the Convention.<\/p>\n 19. The Court has frequently found violations of Article 13 in cases raising issues similar to the one in the present case, stating that the current Ukrainian legislation does not provide a remedy for complaints concerning the length of proceedings (see, for instance, Efimenko v.\u00a0Ukraine, no.\u00a055870\/00, \u00a7\u00a7 48-50 and \u00a7 64, 18 July 2006; Vashchenko v.\u00a0Ukraine, no.\u00a026864\/03, \u00a7 59, 26\u00a0June 2008; and Zabara, cited above, \u00a7\u00a7\u00a023-24). There is nothing to suggest that such a remedy was available to the applicant in the present case. Accordingly, there has been a violation of Article\u00a013 of the Convention.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 20. The applicant claimed 12,000\u00a0euros (EUR) in respect of non\u2011pecuniary damage; EUR 142 in respect of court fees and postal costs and expenses incurred in the domestic proceedings; 5,250 Ukrainian hryvnias (UAH \u2013 the equivalent of around EUR\u00a0200) for the cost of translating the applicant\u2019s submissions to the Court; and EUR\u00a03,180 for his representative\u2019s work (about twenty-seven hours at an hourly rate of EUR\u00a0120) in the proceedings before the Court, which the applicant was required to pay him. The applicant submitted copies of the relevant contracts, invoices and a detailed account of the work performed by his representative and asked that all the amounts claimed be paid directly into the latter\u2019s bank account. Under the terms of the relevant agreement, the applicant\u2019s representative undertook to transfer to the applicant any sum awarded in respect of non-pecuniary damage, postal and translation costs and expenses after they were credited to his bank account.<\/p>\n 21. The Government contended that the claims were unsubstantiated and\/or excessive.<\/p>\n 22. The Court awards the applicant EUR\u00a07,500 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable, and EUR\u00a01,000 for the legal costs of the proceedings before it, plus any tax that may be chargeable to the applicant. Having regard to the relevant agreement, those amounts are to be paid directly into\u00a0the bank account of the applicant\u2019s representative (see Hajnal v. Serbia, no. 36937\/06, \u00a7\u00a7\u00a0148, 149, 153 and 154, 19 June 2012).<\/p>\n 23. The Court further 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 6\u00a0\u00a7\u00a01 of the Convention;<\/p>\n 3. Holds that there has been a violation of Article 13 of the Convention;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay into the bank account indicated by Mr\u00a0B.\u00a0Fokiy, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (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;<\/p>\n 5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n \u200bDone in English, and notified in writing on 22 September 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Martina Keller \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Ivana Jeli\u0107
\nCASE OF TRYETYAK v. UKRAINE<\/strong>
\n(Application no. 10919\/20)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n22 September 2022<\/p>\n
\nIvana Jeli\u0107, President,
\nGanna Yudkivska,
\nArnfinn B\u00e5rdsen, judges,
\nand Martina Keller, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n