FOURTH SECTION
\nCASE OF VYSHNYAKOV v. UKRAINE
\n(Application no. 25612\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n24 July 2018<\/p>\n
FINAL
\n24\/10\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Vyshnyakov v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 3 July 20018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 25612\/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Sergiy Oleksiyovych Vyshnyakov (\u201cthe applicant\u201d), on 17 April 2012.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Mr\u00a0M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr I. Lishchyna.<\/p>\n 3.\u00a0\u00a0The applicant alleged that the domestic authorities had failed to enforce the court judgment granting him rights of access to his minor daughter. He further complained that in another set of proceedings the domestic courts had failed to properly determine his daughter\u2019s place of residence and had thereby discriminated against him on grounds of sex.<\/p>\n 4.\u00a0\u00a0On 12 December 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1973 and lives in Mykolayiv.<\/p>\n 6.\u00a0\u00a0The applicant married O. in 2006. The spouses lived in Mykolayiv. On 21 March 2007 their daughter S. was born. In August 2007 the couple separated. O. continued to live with the child at a different address in Mykolayiv and that place of the child\u2019s residence was not, at that time, a matter of dispute between the parents.<\/p>\n 7.\u00a0\u00a0On 15 April 2009 the Leninsky District Court of Mykolayiv, in response to an application from O., pronounced the couple\u2019s divorce.<\/p>\n A.\u00a0\u00a0Access rights judgment, its enforcement and related issues<\/strong><\/p>\n 8.\u00a0\u00a0On 4 June 2009, in response to a claim brought by the applicant against O. concerning hindrance of access to the child, the Leninsky District Court of Mykolayiv granted the applicant rights of access to his daughter. It ordered that the applicant should be granted an opportunity to see his daughter no less than three times a week, including overnight stays with the applicant, the dates and times thereof to be fixed by mutual agreement in advance.<\/p>\n 9.\u00a0\u00a0On 13 July 2009 the local police examined the applicant\u2019s complaint concerning threats which O. regularly made when the applicant went to see the child, as well as O.\u2019s refusal to let the child stay overnight with him and her restriction on the amount of time which the applicant could spend with the child. The police refused to open criminal proceedings because of the absence of the constituent elements of a criminal offence.<\/p>\n 10.\u00a0\u00a0In the autumn of 2009 O. and S. moved to Selydove in the Donetsk Region. The distance between Mykolayiv and Selydove is about 600\u00a0kilometres by road. In view of that, the applicant initiated civil proceedings asking the court to determine that the child should live with him in Mykolayiv. That claim was dismissed as unfounded by the courts with the final decision being taken by the Higher Specialised Court on Civil and Criminal Matters (\u201cthe HSCU\u201d) on 1 August 2011.<\/p>\n 11.\u00a0\u00a0On 20 October 2009, at the applicant\u2019s request, the Mykolayiv State Bailiffs\u2019 Service opened proceedings for the enforcement of the judgment of 4 June 2009. However, on 22 October 2009 the bailiffs\u2019 decision was quashed since the procedure for enforcement of a court judgment of that kind was not specified by law.<\/p>\n 12.\u00a0\u00a0On 19 November 2009 the applicant arrived in Selydove, where O. allowed him to see the child for about one hour. On 27 January 2010, when O. and S. arrived for a short stay in Mykolayiv, the applicant attempted to see his daughter, but O. refused to let him take the child overnight. On 20\u00a0October 2011 when the applicant arrived in Selydove and attempted to collect the child from the childcare centre, O. arrived and took back the child. The applicant\u2019s complaints to the police on account of those incidents were dismissed because of the absence of the constituent elements of a criminal offence.<\/p>\n 13.\u00a0\u00a0On 28 March 2012 the applicant submitted to the Selydove State Bailiff\u2019s Service a writ of execution of judgment dated 4 June 2009. On 29\u00a0March 2012 the State bailiff opened the enforcement proceedings. On 9\u00a0April 2012 in the presence of the applicant, O. and two witnesses, the State bailiff read out the operative part of the judgment of 4 June 2009 and issued a resolution on termination of the enforcement proceedings, considering that the judgment had been fully enforced by so doing.<\/p>\n 14.\u00a0\u00a0The applicant brought a challenge in the courts against the termination of the enforcement proceedings. The courts upheld the bailiffs\u2019 decision, finding that it had been taken in accordance with the law. The final decision was taken by the HSCU, which on 3 August 2012 dismissed the applicant\u2019s appeal on points of law.<\/p>\n 15.\u00a0\u00a0On 20 November 2012 in proceedings concerning child support allowances, the applicant admitted that he took the child to Mykolayiv to live with him for about one or two months per year.<\/p>\n 16.\u00a0\u00a0In January 2013 the applicant brought a claim for damages against O. for obstructing enforcement of the judgment of 4 June 2009 granting him access rights. The courts dismissed the claim for lack of proof. The final decision in those proceedings, rejecting the applicant\u2019s appeal on points of law, was delivered by the HSCU on 14\u00a0June 2013.<\/p>\n 17.\u00a0\u00a0On 21 June 2013 the Leninskyy Dstrict Police Department in Mykolayiv opened criminal proceedings following the applicant\u2019s complaint that O. had refused to comply with the judgment of 4 June 2009. On 10 December 2014 the police terminated the criminal proceedings because of the absence of the constituent elements of a criminal offence. The applicant challenged that decision in the court. On 1 April 2015 the Leninskyy District Court of Mykolayiv quashed the decision of 10\u00a0December 2014 after finding that the investigator had failed to substantiate his conclusion. The criminal investigation was resumed.<\/p>\n 18.\u00a0\u00a0In 2014 the applicant instituted civil proceedings in Selydove Town Court seeking to determine anew his access rights in view of the impediments caused by O. On 12 January 2014 his claim was dismissed as unfounded. However, on 8 December 2015 the Donetsk Regional Court of Appeal partly allowed the applicant\u2019s claim. It found that O. had prevented the applicant from properly exercising his access rights and ruled that the applicant should be given the opportunity of spending one month with his daughter during the summer and one week during the winter school holidays every year until she attained the age of majority.<\/p>\n 19.\u00a0\u00a0On 26 May 2016 the Selydove department of State bailiffs\u2019 service opened enforcement proceedings in relation to the judgment of 8 December 2015. On 10 June 2016 the bailiffs notified O. about the judgment of 8\u00a0December 2015.<\/p>\n B.\u00a0\u00a0Civil dispute regarding the child\u2019s place of residence<\/strong><\/p>\n 20.\u00a0\u00a0In spring 2014 illegal armed groups associated with two self\u2011proclaimed entities known as the \u201cDonetsk People\u2019s Republic\u201d and the \u201cLuhansk People\u2019s Republic\u201d started operating in the Donetsk and Luhansk Regions, seizing control of certain parts of those regions by force. Ukrainian Government forces launched a military anti-terrorist operation against them. A ceasefire line was later put in place. Selydove is in the territory controlled by the Ukrainian Government, about twenty-five kilometres from the ceasefire line, and was included in the list of locations where the military anti\u2011terrorist operation was being conducted. According to information provided by the Government, in April 2014 certain movements of illegal armed groups had been registered in Selydovo, but no active military operations had ever taken place in that area.<\/p>\n 21.\u00a0\u00a0In August 2014 the applicant lodged a claim with the Selydove Court seeking a declaration that O. was unlawfully failing to cooperate in executing the judgment of 4 June 2009 granting the applicant access rights. He also asked the court to determine that the child\u2019s place of residence should be his home in Mykolayiv. He argued that O. was unemployed and had no source of independent income, and that the child was fully dependent on the child support payments which the applicant was duly making. He also argued that it was dangerous for the child to continue to reside in the proximity of a theatre of armed conflict. Moreover, there was a risk that the conflict might spread to Selydove. In support of the latter assertion the applicant cited media reports according to which representatives of the so-called \u201cDonetsk People\u2019s Republic\u201d were threatening to capture all the territory of the Donetsk Region.<\/p>\n 22.\u00a0\u00a0On 5 May 2015 the Selydove Court rejected the applicant\u2019s claim. The court established that the applicant was employed and had good references from his employer, and had no recorded mental health or addiction problems. The court quoted a report compiled by the child protection authority in Mykolayiv, according to which the applicant could provide secure, well\u2011equipped accommodation suitable for a child, and had stable employment and income. However, the applicant had failed to prove that O. had no independent income or had failed to perform her parental duties or was engaged in unlawful or immoral conduct. The court also stated that the applicant had not substantiated the allegation that the child\u2019s life was in danger and the mere fact of anti-terrorist military operations taking place in the region did not prove that risk.<\/p>\n 23.\u00a0\u00a0On 4 August 2015 the Donetsk Regional Court of Appeal upheld the Selydove Court\u2019s judgment, finding that the applicant had failed to substantiate the allegations that the child\u2019s place of residence should be changed.<\/p>\n 24.\u00a0\u00a0On 23 December 2015 the HSCU upheld the lower courts\u2019 decisions. It stated that the Selydove Town Court had correctly established the relevant facts and had properly applied the law. The HSCU agreed with the lower courts\u2019 conclusion that separating the child from the mother had not been justified.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0Constitution of 28 June 1996<\/strong><\/p>\n 25.\u00a0\u00a0According to Article 51 of the Constitution, each spouse has equal rights and duties in the marriage and family.<\/p>\n B.\u00a0\u00a0Family Code of 10 January 2002<\/strong><\/p>\n 26.\u00a0\u00a0The Code provides that a woman and a man have equal rights and obligations in family relations, marriage and family (Article 7 \u00a7\u00a06). The place of residence of a child under ten years of age is to be determined jointly by the parents (Article 160 \u00a7 1). If parents who live separately cannot agree on the place of residence of a child under the age of fourteen years, the dispute may be determined by a guardianship authority or by a court. When deciding such a dispute, the guardianship authority or the court should take into account the parents\u2019 respective attitudes to their parental duties, the personal disposition of the child to each parent, the age of the child, the child\u2019s state of health, and other relevant circumstances (Article\u00a0161 \u00a7 1). The guardianship authority or court may not order that the place of a child\u2019s residence is to be with a parent who has no independent income, or abuses alcohol or drugs, or may cause damage to the child\u2019s development by dishonourable conduct (Article 161 \u00a7 2).<\/p>\n
\nGanna Yudkivska,
\nEgidijus K\u016bris,
\nIulia Motoc,
\nCarlo Ranzoni,
\nGeorges Ravarani,
\nP\u00e9ter Paczolay, judges,
\nand Marialena Tsirli, Section Registrar,<\/p>\n