The Chamber (Fifth Section)
The case originated in an application (no. 10383/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Yegorovich Mamchur (“the applicant”), on 7 February 2009.
The applicant was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostyanova, of the Ministry of Justice.
The applicant complained of interference with his parental rights, in particular the rights of custody and direct contact with his child and the right to bring up the child. He further complained under Article 14 of the Convention that he had suffered discrimination in the exercise of his right to respect for his family life due to his having a disability. The applicant also alleged, relying principally on Article 6 § 1 of the Convention, that the court proceedings in his case had been unfair.
On 4 March 2013 the application was communicated to the Government. It was given priority pursuant to Rule 41 of the Rules of Court.
I.THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1954 and lives in Chernigiv. Since childhood the applicant has suffered from the second-highest officially recognised degree of disability. In particular, the applicant’s walking ability is impaired – he can only walk with the aid of crutches. Since August 1977 the applicant has worked as a senior researcher at the Chernigiv Institute of Agricultural Microbiology.
A.The applicant’s family situation and the events leading to the child custody and care dispute
The applicant was married to O.M., with whom he had a daughter – A.M. – who was born on 5 May 2002. They lived together as a family in the applicant’s flat in Chernigiv. Y.L. – another daughter of O.M.’s – who was born on 30 April 1994, and M.M., the applicant’s mother, also lived in the same flat.
In October 2005 O.M. moved to live at her mother’s flat in Chernigiv, as O.M. was suffering from cancer and required external assistance, taking with her A.M., who was then three years old.
On 3 April 2006 a lawyer acting on behalf of O.M. lodged a claim with the Desnyanskyy District Court in Chernigiv against the applicant, seeking maintenance payments. In particular, in the claim it was stated that O.M. and the applicant “had not lived as a married couple” since August 2005, that the applicant “had left the family”, that he was not participating in the upbringing of A.M. and was not contributing to it financially.
The applicant submitted his observations on the claim, in which he stated that it had been O.M. who “had left the family” to live at her mother’s flat and that O.M. had taken A.M. with her. The applicant asserted that he was contributing money towards his daughter’s upbringing and that whenever his daughter had been unwell she had stayed at his home in order to protect O.M. against possible infection, most recently from 31 March to 5 April 2006. The applicant further contended that O.M. was in a poor state of health and taking opioids constantly, and that the claim had been instigated by her relatives, in particular by V.K., O.M.’s mother. The applicant asked the court to order A.M. to return to live at his flat as long as O.M. remained in a poor medical condition.
On 16 May 2006 the Desnyanskyy District Court allowed O.M.’s claim, finding that she and A.M. were living separately from the applicant and that he was not contributing money towards the child’s upbringing. The applicant did not appeal against that judgment, stating that he had only learnt of it after some delay.
On 16 June 2006 O.M. died. V.K. took A.M. away from Chernigiv without informing the applicant of the latter’s whereabouts.
The applicant stated that he had lodged a number of complaints and requests with the police, prosecutors, local child-care authorities and non-governmental organisations seeking assistance in his daughter’s return. In particular, he submitted a copy of his complaint of 19 September 2006 addressed to the police and to the Municipal Centre of Social Services for Family, Children and Youth (Міський центр соціальних служб для сім’ї, дітей та молоді, “the Municipal Family Welfare Centre”) in Chernigiv.
In a letter dated 16 October 2006, the Municipal Family Welfare Centre informed the applicant that his request of 19 September 2006 for his daughter’s return had been examined. The applicant was also informed by V.K.’s neighbours that she had left Chernigiv for Andriyivka, a village in the Chernigiv oblast (about 25 km away from Chernigiv), and had taken A.M. with her. The local authorities in Andriyivka were thus asked to assist the applicant in his request for the return of his daughter. The Chernigiv Municipal Family Welfare Centre also informed the applicant that he should raise the issue of establishing his daughter’s place of residence before the courts.
In October 2006 the police informed the applicant that there were no grounds for opening a criminal case on the basis of his complaint and that he should pursue it directly before the courts in the framework of a private action.
On 11 December 2006 V.K. lodged a request with the Desnyanskyy District Council in Chernigiv asking that she be appointed as A.M.’s tutor, stating that A.M. had been living with her since O.M.’s death, that the applicant suffered from the second-highest officially recognised degree of disability, and that she was not receiving any help from him.
The applicant was not informed about V.K.’s request.
On 22 December 2006, in response to V.K.’s request, the Desnyanskyy District Council adopted a decision appointing her as tutor of A.M. on the grounds that “the child’s mother had died [and] her father, who suffered from the second [highest officially recognised] degree of disability, could not take care of [the child’s] upbringing because of his state of health” (“the tutelage decision”). The decision noted that A.M. was living with V.K. at the latter’s place of residence.
By a letter dated 24 February 2007, the Desnyanskyy District Council informed the applicant about the tutelage decision.
On 31 December 2006 A.M. broke her hip after falling from a cupboard in V.K.’s flat. According to the applicant, this had happened because V.K. had left his daughter without supervision for a long period of time.
B.First set of court proceedings
In February 2007 the applicant lodged a claim with the Desnyanskyy District Court seeking his daughter’s return. On 8 May 2007 the claim was left undecided as the applicant had failed to appear before the court. According to the applicant, it was his lawyer who had failed to attend the court hearing.
In September 2007 the applicant lodged a new claim with the Desnyanskyy District Court seeking his daughter’s immediate return pursuant to Article 162 of the Family Code. The applicant argued that after his wife’s death, V.K. had retained his daughter unlawfully and without his consent. He also stated that V.K. had hindered his contact with A.M. The applicant invoked Articles 151, 153, 154 and 163 of the Family Code and Article 23 of the Civil Code.
V.K. disputed the applicant’s claim, arguing that she was A.M.’s tutor and that her granddaughter was therefore living lawfully at her home. V.K. stated that in October 2005 O.M. and A.M. had come to live in her flat as O.M. had required assistance for health reasons. After the latter’s death, A.M. had remained with V.K.
V.K. also lodged a counterclaim seeking compensation for non-pecuniary damage in respect of allegedly false information the applicant had submitted to the courts. In her counterclaim, V.K. stated that after the death of O.M. the applicant had, “periodically”, made phone calls asking her to return A.M. to him. V.K. alleged that he had verbally abused her, but provided no further details.
The representatives of the tutelage service (орган опіки та піклування) within the Desnyanskyy District Council submitted that the tutelage decision had been taken because the applicant – due to his disability – had not been able to take care of the child’s upbringing, that the living conditions at the child’s place of residence had been inspected and that the interests of the child had been taken into account.
During a court hearing on 19 December 2007 the applicant stated that he wished his claim to be amended to include a request for cancellation of the tutelage decision. The judge invited the applicant to submit an amended claim in writing.
At a hearing on 8 February 2008 the applicant submitted to the court his amended claim challenging the lawfulness of the tutelage decision and asking the court to order the Desnyanskyy District Council to adopt immediate measures to bring about his daughter’s return. The applicant argued that the contested decision had been taken without his consent and that he had not been informed that the matter had been considered. Referring to the incident on 31 December 2006 as a result of which A.M. had been injured (see paragraph 19 above), the applicant argued that his daughter’s life and health were at risk while she was staying with V.K. The applicant relied inter alia on Articles 152, 153, 157, 160 and 163 of the Family Code, Articles 58, 79, 1167 and 1168 of the Civil Code, and Articles 3 and 9 of the Convention on the Rights of Children of 1989.
The judge sitting in the case refused to include the amended claim in the case file on the grounds that the “amended” claim was in fact a new claim. The judge noted that its inclusion in the case would require the participation of new parties and would complicate consideration of the original claim.
At the hearing on 8 February 2008 the court delivered a judgment rejecting the applicant’s original claim. The court found that the applicant had been informed of the tutelage decision before he had lodged his claim with the court and as he had not challenged that decision, A.M. was staying with V.K. lawfully.
By the same judgment, the court also rejected V.K.’s counterclaim as unsubstantiated.
The applicant appealed, stating that the first-instance court’s refusal to consider his amended claim was groundless and that the judgment was not in accordance with the relevant law. The applicant also stated that the court had not allowed him to question the witnesses who had appeared before the court, but provided no details in that regard.
On 10 April 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal. It noted that A.M. had been living “permanently” at V.K.’s place of residence since October 2005 and that, by the judgment of 16 May 2006, the Desnyanskyy District Court had ordered the applicant to pay maintenance to O.M. in respect of A.M.’s upbringing (see paragraph 10 above). The Court of Appeal held that there were no grounds for returning A.M. to the applicant pursuant to paragraph 2 of Article 163 of the Family Code, given that the tutelage decision was in force, that A.M. was staying lawfully with V.K., and that the latter was opposed to the child’s returning to living with the applicant because she believed that it would be contrary to the child’s interests.
Relying on Article 3 of the Convention on the Rights of the Child of 1989, the Court of Appeal found that the applicant had not produced evidence showing that it would be in A.M.’s best interests to live with the applicant or that it was contrary to her interests to live with her tutor.
The Court of Appeal refused to deal with the arguments brought by the applicant on the basis of his amended claim, since it had not been examined by the court of first instance. In that context the Court of Appeal held that the first-instance court’s decision not to include the amended claim was in compliance with Article 126 of the Code of Civil Procedure.
The applicant lodged a cassation appeal. He argued that, in dealing with his case, the courts had not acted in accordance with the proper procedure. In particular, the applicant alleged that the courts had unlawfully refused to consider his amended claim, that they had refused to summon witnesses on his behalf without stating the reasons why, that they had not considered the applicant’s request for the inclusion of important documentary evidence, and that they had systematically restricted his procedural rights, in particular the right to study the case file and to put questions to those taking part in the proceedings.
The applicant also argued that the courts’ decisions had not been in accordance with the law.
In his cassation appeal the applicant further alleged that V.K. had systematically hindered his access to the child.
By a decision of 9 September 2008, the Supreme Court rejected the cassation appeal as unsubstantiated, finding that the arguments contained in it did not constitute a basis for concluding that the judgments of the lower courts were wrong or unlawful. No further reasons were given by the Supreme Court.
According to the applicant, some of the court hearings had been held in the absence of his representative, who was unable to attend for health reasons. He provided no further details in that regard.
C.Second set of court proceedings
On 1 April 2008 the applicant lodged a claim with the Desnyanskyy District Court seeking cancellation of the tutelage decision. The claim was based on the same arguments as those supporting the original and amended claims lodged by the applicant in the course of the first set of proceedings (see paragraphs 21 and 26 above).
On 18 August 2008 the Desnyanskyy District Court, relying on paragraph 1 of Article 3 of the Convention on the Rights of the Child of 1989, Articles 243-244 of the Family Code and Section 2.2 of the Regulations on Tutelage and Guardianship of 1999, found against the applicant.
The court noted that
the applicant had not produced any evidence showing that it would be in A.M.’s best interests to live with the applicant or that it would be contrary to her interests to live with her tutor;
the tutelage service within the Desnyanskyy District Council had not had any concerns about the fulfilment by V.K. of her duties as a tutor;
A.M. had lived at her grandmother’s home for three years before the decision in the case had been taken;
during that period the applicant had not enquired about his child’s situation, had not used any means to communicate with her, and had not visited the child either at her place of residence or at the nursery which she had been attending; and
the applicant had participated in his daughter’s upbringing only by making maintenance payments.
The court held that the contested decision had been adopted in accordance with the law and that A.M.’s interests had been duly taken into account.
The applicant appealed, stating that the first-instance court had not taken into consideration his submissions that
V.K. had unlawfully retained his daughter before the tutelage decision had been adopted;
V.K. had been hindering his communication with the child;
there were witnesses alleging that V.K. had been abusing alcohol and “misbehaving”;
V.K. had been responsible for the incident on 31 December 2006 (see paragraph 19 above); and
in addition to paying maintenance, the applicant had been sending money and parcels to A.M. by post, as he had not had the opportunity to deliver them in person.
Moreover, V.K. had allegedly refused to let him into her house when he had come to see his daughter and had not answered his phone calls.
The applicant also alleged that the first-instance court had refused to question witnesses on his behalf and that he had not been allowed to put questions to the witnesses who had been questioned by the court. The applicant did not provide further details in respect of those allegations.
On 4 November 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal, finding that
A.M. had been living with V.K. at her home since October 2005;
A.M. had been under the medical supervision of the clinic in that location since birth;
after O.M.’s death the applicant had not taken charge of the child’s upbringing;
the applicant had not challenged the lawfulness of his daughter’s living with the grandmother prior to the adoption of the tutelage decision;
the applicant suffered from the second-highest degree of disability; and
due to his “impaired moving capacity” the applicant had been sleeping in his office overnight on workdays (from Monday to Friday), returning home only for weekends.
Relying on those grounds, the Court of Appeal held that the tutelage decision safeguarded the interests of the child, was in accordance with the law, and did not violate the applicant’s rights to educate and support his child.
The Court of Appeal also held that the applicant’s allegations that the retention of his daughter by V.K. had been unlawful, that his communication with A.M. had been hindered and that V.K. had failed to fulfil her duties as a tutor were not supported by evidence and had been disproved by the information submitted by the Desnyanskyy District Council.
The applicant lodged a cassation appeal. He argued that, in violation of the proper procedure, the first-instance and appeal courts
had refused the applicant’s requests to have certain audio recordings examined in court and to check the reliability of the documents provided by the Desnyanskyy District Council;
had not included the documentary evidence on which the applicant had relied;
had not allowed the applicant to put questions to witnesses – in particular Y.L. – or to express his views regarding the way the hearings had been held; and
had not observed the relevant regulations when accepting medical information (which he did not further specify).
The applicant also stated that the courts had not taken into account his arguments that he had been unable to take care of A.M. because V.K. had hindered his communication with the child. In particular, she had allegedly “hidden” A.M. from the applicant, had not opened the door of her house when the applicant had tried to visit, and had otherwise blocked any opportunity for the applicant to see A.M. The applicant also argued that the courts had not applied the law pertinent to the case.
On 27 January 2009 the Supreme Court rejected the cassation appeal, finding that it contained no arguments requiring examination of the case material or demonstrating that the lower courts had violated procedural or substantive law.
D.The situation after completion of the court proceedings
According to the applicant, V.K. had continued to hinder his communication with A.M. and he had not been able to participate in his daughter’s upbringing. In particular, on occasions when the applicant had come to visit his daughter, V.K. had not opened the door of her house. She had also refused to allow the applicant to take A.M. for medical examination.
The applicant alleged that, despite his repeated requests for assistance in obtaining access to his daughter to enforce his parental rights, the authorities had been reluctant to help him. The applicant submitted copies of letters from the Desnyanskyy District Council and the Andriyivka Council stating inter alia that the living conditions of A.M. were satisfactory and that she was doing well at school. However, the applicant had not contacted the school administration to learn about the child’s everyday life and progress. In a letter dated 6 July 2009, the Desnyanskyy District Council stated that it would no longer deal with further similar requests from the applicant.
The applicant also argued that he could provide adequate living conditions for his daughter, being a physiologist with a teaching qualification; he had sufficient income and owned a flat. The applicant also stated that he had been a tutor to Y. L.
According to the applicant, his daughter’s living conditions at V.K.’s place of residence were worse than the conditions at his home, V.K.’s house in Andriyivka having no sanitary facilities or no natural gas supply. The applicant explained that the school which his daughter attended was about to be closed on the grounds of having too few pupils. The school was two kilometres away from V.K.’s house, whereas the applicant’s house was only about two hundred metres from a school.
II.RELEVANT DOMESTIC LAW
A.Children’s upbringing and contact with their parents
Under Article 51 of the Constitution and Article 5 of the Family Code of 2002, the family, childhood, motherhood and fatherhood all fall under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up in a family (paragraphs 2 and 3 of Article 5 of the Family Code). Where the State puts in place regulations concerning family matters, it must take into account the interests of the child to the greatest extent possible.
Articles 151 and 163 of the Family Code provide that children who are minors should, as a priority, be “brought up personally” by their parents and live with them. The rights of parents – including those living separately from the child – to bring up a child who is a minor and to communicate with him or her can only be restricted by law (Articles 153 and 157). A parent living separately from a child may seek the assistance of the State Tutelage Service or of the courts to enforce his or her parental rights in cases where no agreement has been reached on that matter with the parent who has custody of the child (Articles 157-161). Where the child is being retained by a person without lawful basis, the courts may, at the parents’ request, order the return of the child if this does not run contrary to the child’s interests (Articles 162 and 163). Parents determine jointly where a child who is a minor should live (Article 160). Article 155 generally prohibits the exercise of parental rights where it is contrary to the interests of the child.
Similar provisions concerning the upbringing of children and contact with their parents are contained in Sections 11, 12, 14, 15 and 15-1 of the Act on the Protection of Childhood of 26 April 2001.
B.Tutelage and guardianship
Article 243 of the Family Code and Article 58 of the Civil Code of 2003 provide that orphans and “children deprived of parental care” should be placed under tutelage or guardianship. A tutor should be appointed for children aged up to fourteen years and a guardian should be appointed for children who are between fourteen and eighteen years old. Under Article 63 of the Civil Code such an appointment may be made only upon a written request from the person wishing to become that tutor or guardian. Article 60 of the Civil Code sets out specific situations in which such an appointment should be made by the courts; in other situations it is for the tutelage authorities to decide on the matter. In its overview of court practice in 2007 (issued in December 2008), the Supreme Court noted inter alia that there had been no unified practice regarding the allocation between the courts and the tutelage and guardianship bodies of powers relating to the tutelage and guardianship of children. In particular, there had been instances where courts had refused to appoint a guardian or a tutor when deciding to deprive parents of parental rights, although they had power to do so under Article 60 of the Civil Code.
According to Section 1 of the Act on the Protection of Childhood of 26 April 2001 and Section 1 of the Act on the Social Protection of Orphan Children and Children Deprived of Parental Care of 13 January 2005, the notion of “children deprived of parental care” covers situations where such care is not being provided because
the parents have been deprived of their parental rights;
the children have been removed from their parents without depriving them of parental rights;
the parents are found to be missing or legally incapable or declared dead;
the parents are serving a prison sentence or are being detained during pre-trial investigations;
the parents are wanted by the law-enforcement authorities for failure to pay maintenance and their whereabouts are unknown;
the parents have been suffering from a long-term illness which prevents them from fulfilling their parental obligations;
the parents have abandoned the child.
Children deprived of parental care also include foundlings whose parents are unknown and homeless (abandoned) children.
The Regulations on Tutelage and Guardianship, enacted by the Cabinet of Ministers on 26 May 1999 (no. 34/166/131/88), provide that a child may be placed under tutelage where parents “have not been able (because of their state of health (people suffering from the first or the second officially recognised degree of disability) ...) to take care of the child’s upbringing for over six months” or “have not lived with the child and, for no justifiable reason, have not taken part in the child’s upbringing and sustenance, have not taken care of the child for over six months, or have abandoned the child, which is demonstrated by the corresponding police reports”.
Under Article 247 of the Family Code and Article 62 of the Civil Code, a child under tutelage should live with the tutor, either at the tutor’s home or at the child’s place of residence. The tutor determines the child’s upbringing and may seek the child’s return from any person who retains the child without legal grounds. The tutor should not hinder the child’s communication with his or her parents where such communication does not run contrary to the child’s interests (Article 249 of the Family Code). The tutor’s actions may be challenged before the authorities, including the courts (Article 79 of the Civil Code).
Tutelage should be terminated when a child who is a minor is transferred to the parents’ care or when the child becomes fourteen years old (paragraph 1 of Article 76 of the Civil Code). In the latter case the child’s tutor becomes his or her guardian, for which no separate decision is needed.
Paragraph 27 of the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children’s Rights, enacted by the Cabinet of Ministers on 24 September 2008 (no. 866), provides inter alia that “a child [previously given the status of] ‘deprived of parental care’ should lose that status when one or both parents resume taking care [of him or her] on the basis of ... a report by the tutelage service that the child may be transferred to his or her parent or parents.” District administrations are empowered to take decisions concerning issues of status. Paragraph 5.4 of the Regulations on Tutelage and Guardianship (see paragraph 57 above), empowers the tutelage service to take a decision terminating tutelage if the child is returned to his parents’ care.
Pursuant to Article 79 of the Civil Code, the actions of a tutor can be challenged before tutelage authorities or courts.
III.The United Nations Convention on the Rights of the Child of 1989
The relevant provisions of the United Nations Convention on the Rights of the Child of 1989, which entered into force in respect of Ukraine on 27 September 1991, read:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
I.ALLEGED VIOLATION OF THE CONVENTION
The applicant complained that his communication with A.M. had been hindered and that he had not been able to participate in the child’s upbringing. In his view, the authorities had failed to protect his parental rights.
The applicant complained under Article 14 of the Convention that he had been discriminated against by the authorities, including the courts, which had given preference to V.K. in his child-care case because of his gender and disability. After the termination of the court proceedings he had allegedly continued to suffer discrimination in the exercise of his parental rights as regards A.M.
The applicant further complained under Articles 6 § 1 and 13 of the Convention that the courts which had dealt with his case had been biased, that they had not applied the relevant law, that they had restricted his procedural rights in an unfair manner, and that their decisions had been wrong, discriminatory and ill-founded.
The Court notes that the applicant’s complaints touch on several distinct issues.
Firstly, they are about the alleged interference with the applicant’s family life in so far as it concerns his child, A.M., which falls to be examined under Article 8 of the Convention taken alone and also in conjunction with Article 14, as the applicant complained that he had been, and continued to be, discriminated against by the authorities. These provisions read:
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Secondly, the applicant’s complaints concern the allegations of unfair court proceedings which fall to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant to the applicant’s submissions:
Article 6 § 1
In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...
The Court notes that at the heart of the present case are the applicant’s grievances concerning the violation of his parental rights. Accordingly, the Court will deal first with the applicant’s complaints under Article 8 of the Convention taken alone and in conjunction with Article 14, and then with his complaints under Article 6 § 1 of the Convention.
A.Alleged violation of Article 8 of the Convention
The Court notes that the applicant’s complaints falling to be examined under Article 8 of the Convention are twofold. They concern, firstly, the alleged hindrance of the applicant’s access to his child and his inability to participate in her upbringing after his wife’s death in June 2006 and, secondly, the allegedly deficient decisions of the authorities, including the courts, concerning the placement of A.M. The Court will examine these two aspects of the applicant’s complaints in turn.
1.Alleged hindrance of the applicant’s access to his child and his inability to participate in her upbringing
The Government submitted that the applicant’s communication with the child had not been hindered prior to the adoption of the tutelage decision; at no time between October 2005 and June 2006 had the applicant asked the Desnyanskyy District Council to determine the manner of his participation in the child’s upbringing and communication with her; that he had not lodged a claim with the courts for the child’s return within six months of his wife’s death; that the applicant had requested the assistance of the police in that matter only once, namely on 19 September 2006; and that, having been informed in October 2006 by the police that no criminal investigation could be initiated in his case and that he should raise the matter before the courts, the applicant had waited until February 2007 to lodge a claim which had eventually been left undecided because the applicant had failed to appear before the court. According to the Government, the latter demonstrated that the applicant had no interest in the child’s return and did not wish to participate in her upbringing. Relying on those arguments, the Government stated that the applicant’s allegations of hindrance to his contact with the child, in so far as they concerned the period before the adoption of the tutelage decision, were unsubstantiated and that, moreover, he had not exhausted the domestic remedies available for those grievances.
As to the applicant’s complaints of hindrance to his communication with the child and his participation in her upbringing after the adoption of the tutelage decision, the Government claimed that they were inadmissible for non-exhaustion of domestic remedies. In particular, they argued that the applicant had not sought termination of the tutelage and the return of his child, which he could have done pursuant to Article 76 of the Civil Code, paragraph 5.4 of the Regulations on Tutelage and Guardianship, and paragraph 27 of the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children’s Rights (see paragraphs 59-60 above). Under those provisions the return of a child was possible in cases where the child could no longer be considered as “deprived of parental care”.
The applicant disagreed, claiming that he had pursued all remedies available under Ukrainian law, but that they had proved to be ineffective. In particular, he had raised his complaints before the domestic courts. He had also made complaints to the police and the municipal authorities.
The applicant also referred to an overview of court practice issued by the Supreme Court in December 2008, in which it was noted that there was no unified practice regarding the allocation between the courts and the tutelage and guardianship bodies of powers relating to the tutelage and guardianship of children (see paragraph 55 above). The applicant claimed that the above-mentioned legal inconsistency and the lack of cooperation between the different bodies involved in his case had meant that he had been deprived of any assistance in having his daughter returned to him.
The Court reiterates that it is only remedies which are effective that have to be exhausted. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available both in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement. The application of the rule of exhaustion of domestic remedies should be applied with some degree of flexibility and without excessive formalism (see, as a recent example, Manic v. Lithuania, no. 46600/11, § 80, 13 January 2015).
The Court notes that in the present case the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaints under Article 8 of the Convention in so far as they concern the allegedly inadequate response of the authorities to the applicant’s complaints of hindrance to his access to the child and his inability to participate in her upbringing (see paragraph 63 above). This question should therefore be joined to the merits.
The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
The Court reiterates that, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for private and family life.In relation to the fundamental guarantee of mutual enjoyment by parent and child of each other’s company, the Court has repeatedly held that Article 8 includes both a parent’s right to take measures for the purpose of being reunited with his or her child and an obligation on the part of the national authorities to take such action (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I). This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299, and Fuşcă v. Romania, no. 34630/07, § 34, 13 July 2010).
The obligation on the part of the national authorities to take measures to facilitate contact between a non-custodial parent and a child is not, however, absolute (see Hokkanen, cited above, § 58). It may not be possible for the establishment of contact to take place immediately and preparatory or phased measures may be required. Moreover, any such contact, as well as its nature and extent will depend on the circumstances of each case and will ultimately be subject to the best interests of the child. Although national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, with paramount importance being attached to the best interests of the child and his or her rights under Article 8 of the Convention (see, among others, Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996-III, and Hokkanen, cited above, § 58).
What is decisive is the question of whether or not the national authorities have taken all such appropriate steps to facilitate contact as can reasonably be demanded in the specific circumstances of each case (see Hokkanen, cited above, § 58, and Ignaccolo-Zenide, cited above, § 96). In this context, the adequacy of the steps or of the measures is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for relations between the child and a parent who does not live with the child (see Ignaccolo-Zenide, cited above, § 102).
(ii)Application of these principles in the present case
The Court notes that the applicant was not formally deprived either of the right of access to his child or of the right to participate in the child’s upbringing. However, according to the applicant, he could not effectively exercise those rights because after his wife’s death V.K. had hindered the applicant’s access to and communication with A.M. In particular, V.K. moved with A.M. to another location, did not answer the applicant’s phone calls and did not let him visit his daughter at her home (see paragraphs 11, 42 and 48 above).
As demonstrated by the evidential material submitted by the parties, the applicant complained about this issue initially to the Municipal Family Welfare Centre in Chernigiv and to the local police. The Municipal Family Welfare Centre informed the applicant that the authorities in the locality where his daughter lived at the time had been asked to assist him in his request for her return, though no further action was taken in that regard. The police, for their part, had refused to intervene. The applicant was advised to raise this matter before the courts, which he did. The courts rejected his complaints, finding that they were not supported by any evidence. They also found that the applicant had not visited his daughter either at her place of residence or at the nursery she had been attending for a long time (see paragraphs 41 and 44 above).
After the court proceedings in question were terminated, the applicant continued complaining to the authorities about the lack of access to his child, though to no avail. Eventually, the authorities refused to communicate with the applicant on this issue (see paragraph 49 above).
Given the above circumstances, the Court finds that, firstly, the applicant did try to get access to his daughter after his wife’s death, which was confirmed by V.K. (see paragraph 23 above). Secondly, given that V.K. had taken his daughter to another location and the applicant’s requests to various authorities seeking their assistance in obtaining access to his daughter had been unsuccessful, he arguably encountered difficulties in communicating with her. Thirdly, in the light of the replies from the authorities and the findings of the courts, the issue of access was not thoroughly examined. No effort was made to check whether the applicant could have had effective access to his daughter. It appears that it was presumed that the blame for his failure to visit his daughter lay with him, even though there was no comprehensive and thorough analysis that demonstrated this. In the circumstances, the Court cannot accept domestic findings that were based on such a restricted approach on the part of the authorities when dealing with the applicant’s complaints regarding access. Given the situation at the time, they were arguably obliged to make an effort to regulate the applicant’s access to his child and to help him attain the effective enforcement of his parental rights.
The failure of the authorities to do this had the effect of depriving the applicant of the corresponding legal safeguards as regards his parental rights (see paragraphs 52-54, 58 and 62 above).
In these circumstances, the Court does not consider that the applicant can be reproached for failing to take action under the procedure provided for in Article 162 of the Family Code (see paragraph 53 above) before the tutelage decision was taken. The Court further notes that in the second set of proceedings the domestic courts upheld the tutelage decision and dismissed the applicant’s complaints concerning access. Thus, it cannot reasonably be argued that there would have been any prospect of a different decision being reached with regard to these matters had the applicant lodged a claim for the termination of tutelage, as suggested by the Government (see paragraph 72 above). In any event, the Government had not demonstrated that such a procedure could have remedied the authorities’ failure to address adequately and thoroughly the issue of the applicant’s lack of access to his child and his inability to participate in the child’s upbringing.
Accordingly, the Court rejects the Government’s objection of non-exhaustion of domestic remedies and finds that there has been a violation of Article 8 of the Convention as regards the authorities’ failure to take any meaningful action in order to safeguard the applicant’s access to his child and his ability to participate in her upbringing.
2.Allegedly unjustified placement of the applicant’s child
The Court notes that the applicant’s complaints under Article 8 of the Convention about the allegedly deficient decisions of the authorities, including the courts, concerning the placement of A.M. are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
(i) The parties’ submissions
The applicant stated that the tutelage decision had been based on law of poor quality that was incompatible with the principle of the rule of law, and the application of which was not foreseeable. In particular, the applicant argued that at the material time there had been inconsistency in terms of how different legal instruments had determined the bodies responsible for tutelage and guardianship (see paragraph 74 above). The applicant argued that the domestic law did not provide for any safeguards against arbitrary decisions by the tutelage authorities. In particular, there was no obligation to inform the parties concerned, no obligation to examine living conditions at the parents’ place(s) of residence or possible reasons why they might be unable to take care of a child, and no obligation to seek the parents’ opinion concerning the appointment of a tutor.
The applicant further argued that the domestic authorities had not pursued a “legitimate aim” within the meaning of Article 8 § 2 of the Convention, because he had not been involved in the decision-making process regarding the tutelage.
The applicant also argued that there had been insufficient grounds justifying the interference with his family life and that the authorities and the courts had failed to duly examine whether he had in actual fact been prevented from taking care of his daughter. The mere fact that he suffered from a disability was not sufficient to demonstrate that he was unable to take care of her. No medical evidence had been examined in that regard.
The applicant claimed that, while the law gave precedence to parents’ rights to look after of their children and determine their place of residence, this principle had been wholly disregarded in his case.
The Government contended that the tutelage decision had been based on clear, accessible and foreseeable legal provisions and had been taken after the appropriate examinations and checks had been completed. The decision pursued the legitimate aim of protecting the child’s interests and preventing harm to her health and mental state. It was not disproportionate. In particular, the authorities had taken into account the relevant aspects of the case, such as the length of the child’s stay with her grandmother and the applicant’s failure to participate in the child’s upbringing. According to the Government, the tutelage decision in the present case had not set in motion a process of bonding between the child and the tutor but, on the contrary, had consolidated and formalised the existing ties between the child and her grandmother. The Government further argued that the tutelage decision had not deprived the applicant of his parental rights and he had remained entitled to communicate with the child and to participate actively in her upbringing.
(ii) The Court’s assessment
This part of the case concerns a measure, namely the placement of the applicant’s child with her grandmother, as a result of which the applicant’s access to the child and participation in her upbringing were substantially limited. In particular, under Ukrainian law, the tutelage decision entitled the tutor to have sole custody of the child and to determine the child’s upbringing. It may remain valid until the child becomes fourteen years old, beyond which the tutor may automatically become his or her guardian and continue exercising the power of custody and care until the child reaches full legal age (majority) (see paragraphs 58 and 59 above). Thus, there is no doubt that the tutelage decision constituted an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention, and it must be determined whether such interference was justified under Article 8 § 2 – namely whether it was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society (see, among many other authorities, McMichael v. the United Kingdom, 24 February 1995, §§ 86-87, Series A no. 307-B).
The Court observes that the measure at issue was based on legal provisions empowering the authorities to appoint a tutor for a child who “was deprived of parental care”. The notion “deprivation of parental care” covers a range of situations set out in the law, including the situation where “long-term illness” prevents parents from fulfilling their parental duties (see a summary of the relevant domestic law in paragraphs 55-57 above). The administrative authority which issued the tutelage decision found that the applicant was not able to take care of the child because of his disability. The courts which later reviewed that decision also found that the child had not lived with the applicant and the applicant had failed to take care of the child for a long time prior to the adoption of the tutelage decision. The courts further found that the tutor had fulfilled her obligations and that the applicant had not demonstrated that it had been in the best interests of the child to live with him rather than the tutor.
In the light of the foregoing, the Court is satisfied that the interference with the applicant’s parental rights had a sufficient legal basis and pursued the legitimate aim of protecting the rights of others, namely those of A.M. to be raised in a safe, secure and stable environment.
The applicant’s argument regarding inconsistency in how the domestic regulations allocated powers between the tutelage and guardianship authorities was not raised in the domestic proceedings and there is nothing to suggest that the authorities involved in the present case overstepped their powers in that regard or that an incorrect procedure was followed. Although the applicant’s allegation that the domestic law lacked safeguards against arbitrary decisions by the tutelage authorities may have a bearing on the question of whether the measure meets the requirement of lawfulness, the Court considers that, in the circumstances, it is more appropriate to examine that allegation from the perspective of the necessity and proportionality of the measure, thereby taking due account of the entirety of the decision-making process, including the courts’ proceedings.
(α) Relevant principles
In determining whether a particular interference was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify it were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention and whether the requisite decision-making process was fair and of a kind affording due respect to the interests safeguarded by Article 8 (see, for example, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002-I, and Sommerfeld v. Germany [GC], no. 31871/96, § 66, ECHR 2003-VIII).
In reaching decisions on child-care measures, national authorities and courts are often faced with a task that is extremely difficult. They normally have the benefit of direct contact with all the persons concerned, often at the stage when care measures are first being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them, provided it is clear that the relevant assessments are being made properly and by professionals. It is not the Court’s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII, and R. and H. v. The United Kingdom, no. 35348/06, § 81, 31 May 2011). The scope of the review may vary depending on the nature and seriousness of the interference. Whereas, in dealing with disputes between parents regarding the custody of children, domestic authorities normally enjoy a wide margin of appreciation, a stricter scrutiny by the Court may be required where limitations on parental rights might entail the curtailment of family relations between parent and child (see, for instance, Y.C. v. The United Kingdom, no. 4547/10, § 137, 13 March 2012, and M.D. v. Malta, no. 64791/10, § 71, 17 July 2012).
The assessment of the overall proportionality of any given measure that risks the severance of family ties will require courts to weigh carefully a number of factors in the balance, and these may vary depending on the circumstances of the case in question. However, it must be borne in mind that paramount importance should be attached to the best interests of the child (see Johansen, cited above, § 78; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be taken into account: first, it is in the child’s best interests that his or her ties with the family be maintained, except in cases where the family has proved particularly unfit or is clearly dysfunctional; and second, it is in the child’s best interests to ensure his or her development in a safe, secure and stable environment and in an environment which is not dysfunctional. As the Court stated in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, ECHR 2010):
In this context, it is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K. and T., cited above, § 173). Nor can a measure severing family ties be justified by a mere reference to the parents’ precarious situation, which can be addressed by less radical means than splitting the family such as targeted financial assistance and social counselling (see, for example, Saviny v. Ukraine, no. 39948/06, § 50, 18 December 2008).
Taking a child into care should normally be regarded as a temporary measure, to be discontinued if and as soon as circumstances permit. It cannot, therefore, be justified without prior consideration of the possible alternatives (see K. and T., cited above, § 166, and Kutzner, cited above, § 67) and should be viewed in the context of the State’s positive obligation to make serious and sustained efforts to facilitate the reuniting of children with their natural parents and, until that time, to enable regular contact between them (see, mutatis mutandis, Kutzner, cited above, §§ 76-77, and K. and T., cited above, § 179).
As to the decision-making process, what must be determined is whether, having regard to the particular circumstances of the case and the serious nature of the decisions to be taken, the parents were involved in the decision-making process, seen as a whole, to a sufficient degree to satisfy the requisite protection of their interests, and have been able fully to present their case (see R. and H., cited above, § 75). Thus, it is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors – in particular of a factual, emotional, psychological, material and medical nature – and made a balanced and reasonable assessment of the respective interests of each person, being constantly mindful of what would be the best solution for the child. In practice, there is likely to be a degree of overlap in this respect with the need for relevant and sufficient reasons to justify a measure in respect of the care of a child.
(β) Application of the general principles in the present case
Before turning to an assessment of the necessity and proportionality of the interference in the present case, the Court notes that it has dealt with a somewhat similar situation where the custody of a child had been transferred to grandparents who had previously hindered access to the child by her sole parent (the applicant in that case) for a considerable period of time. In that case the Court accepted the domestic judgment finding that it was based on relevant and sufficient reasons supported by an expert opinion and that the matter was well within the domestic margin of appreciation (see Hokkanen, cited above, § 64).
In the present case, the Court is not prepared to accept the domestic judgment, having taken into consideration the following aspects of the case, which appear to be decisive.
Firstly, the applicant was not involved in the decision-making process leading to the tutelage decision. He was not informed of it and was not invited to take part in those proceedings. The District Council did not carry out any meaningful or professional assessment of the overall situation or the parties’ interests, finding instead that the mere fact that the applicant suffered from a disability was sufficient to demonstrate that he could not take care of his child. For instance, the District Council did not even check whether the applicant could have outside assistance in housekeeping matters.
Secondly, although the District Council’s flawed assessment could have been remedied during the ensuing court proceedings – in which the applicant took part and had an opportunity to raise and defend his arguments – the Court notes that the judicial process fell short of the requirements of thoroughness and objectivity. The courts’ decision to uphold the contested measure is not based on “sound and weighty” considerations.
In particular, one of the principal arguments on which the measure was based – that the applicant’s disability prevented him from taking care of the child – was not supported by any further analysis. No independent assessment of his ability to take care of his child was ordered nor was any potential for assistance or support even considered. The observation made by the Court of Appeal that the applicant was staying at work overnight on workdays does not appear to be conclusive as regards the applicant’s inability to fulfil parental duties. The information available concerning the applicant’s level of disability does not indicate definitively that he would have been unable to take care of his child.
As regards the courts’ findings that the child had not lived with the applicant for a long time prior to the adoption of the tutelage decision and that the applicant had not taken care of the child, the Court notes that the applicant consistently contested those findings during the proceedings, claiming that he had not had access to the child during that period and that he had unsuccessfully requested the authorities’ assistance in having his daughter returned. As the Court found above, the applicant’s claims in this regard required a more thorough and professional analysis and examination than can be found in the decisions of the domestic courts (see paragraph 84 above).
The courts’ other findings – that the tutor had fulfilled her obligations and that the applicant had not demonstrated that it had been in the best interests of the child to live with him rather than the tutor – relate to considerations concerning the more or less beneficial environment of the child’s upbringing, which are not sufficient in themselves to justify such an extreme measure as separating the child from her sole parent (see, for instance, Y.C. v. The United Kingdom, cited above, § 134).
Although the child’s staying with the grandmother might have been justified – in particular considering the length of time she had already lived with her and her lack of contact with the applicant – the possibility of reuniting the applicant with his daughter was not assessed, and no effort to facilitate such a reunion was made (see Saviny, cited above, § 57). Little, if any, consideration was given to the applicant’s interests in having custody of his child and in taking full responsibility for her upbringing, nor to the child’s interest in preserving close ties with her father and her half-sister.
Finally, the Court notes that, although the measure at issue did not involve the permanent severance of family ties – the applicant remains formally entitled to have access to the child and to participate in the child’s upbringing – the domestic authorities made no effort to help the applicant to enforce his parental rights, which had the effect of rendering the relevant legal guarantees futile (see paragraph 85 above).
Given the foregoing considerations, the Court finds that the interference at issue was not based on a thorough and professional assessment of the entire family situation and factors pertinent to the applicant’s interests.
Therefore, there has been a violation of Article 8 of the Convention in this regard too.
B. Alleged violation of Article 14 of the Convention taken in conjunction with Article 8
The applicant complained that in the exercise of his family rights he had been, and continued to be, treated differently from V.K.
In particular, he alleged that prior to the start of the first set of proceedings, his disability had been the only reason for the interference with his family rights. During the subsequent examination of the matter by the courts in the first set of proceedings, the District Council had relied on other reasons concerning the living conditions at V.K.’s home. The applicant’s disability had thus remained the principal reason for the interference. During the second set of proceedings the applicant’s disability had also been the decisive reason behind the courts’ conclusion that he was not able to take care of his daughter, which was not based on any medical reports.
The Government submitted that there were no grounds for considering that the applicant had suffered any form of discrimination.
The Court notes that this part of the application is essentially linked to the applicants’ complaints under Article 8 of the Convention in so far as they concern his argument that the authorities and the courts had advanced his disability as the principal reason for the interference with his family rights, having failed to give a thorough assessment of the entire family situation and factors pertinent to the applicant’s interests and those of his child. This part of the application must therefore likewise be declared admissible.
The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Chassagnou v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III, and Dudgeon v. The United Kingdom, 22 October 1981, § 67, Series A no. 45). In the circumstances of the present case and having regard to its findings under Article 8 (see paragraphs 84, 87, 112 and 113 above), the Court considers that it is not necessary to examine the applicant’s complaints under Article 14 of the Convention taken in conjunction with Article 8 (see A.K. v. Croatia, no. 37956/11, §§ 93-94, 8 January 2013).
C.Alleged violation of Article 6 § 1 of the Convention
119.The applicant complained that the courts had dealt with his case in an unfair and biased manner. In particular, they had given preference to the opposing party’s arguments, had disregarded the applicant’s arguments and pertinent evidence, and had failed to provide sufficient reasons for their decisions. The applicant further complained that the courts had refused to summon witnesses on his behalf and had not given him the opportunity to put questions to the witnesses who had been questioned by the courts.
120.The Government argued that the first set of proceedings had not concerned the determination of the applicant’s civil rights and obligations. His claim for the child’s return had had no prospects of success because he had been aware of the tutelage decision at the time of lodging the claim, and his amended claim of 8 February 2008 could not have been examined within the framework of those proceedings. For those reasons, the Government stated that the applicant’s complaints regarding the unfairness of the first set of proceedings were incompatible ratione materiae with Article 6 § 1 of the Convention.
121.The Court notes that by bringing his claims before the courts the applicant sought to have his parental rights protected, in particular the rights of custody and direct contact with his child and the right to bring her up. While the matters examined by the courts in the two sets of proceedings at issue overlapped to a certain degree – in particular as regards the applicant’s argument that it was in his child’s interest to live with him rather than with V.K. (see paragraphs 32 and 41 above) – the first set of proceedings was focussed mainly the applicant’s claim for the return of his child and the second set on the question of whether the tutelage decision was lawful and well-founded. Those matters were examined by the courts on the merits. Both sets of proceedings were therefore decisive for determining the applicant’s parental rights, which fall within the ambit of “civil rights” within the meaning of Article 6 § 1 of the Convention. The fact that the applicant’s claims were eventually dismissed does not retrospectively deprive them of their arguability (see, for instance, Le Calvez v. France, 29 July 1998, § 56, Reports of Judgments and Decisions 1998-V). Consequently, the Court holds that Article 6 § 1 of the Convention applied to the impugned proceedings and that the Government’s objection in this regard must be rejected.
The Court further notes that this part of the application is essentially linked to the applicants’ complaints under Article 8 in so far as they concern defects in the judicial assessment of the applicant’s claims and must therefore likewise be declared admissible.
Notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of the relevant complaints, in the present case the interference with the applicant’s family life is at the heart of the application (see paragraph 69 above). Therefore, having regard to its findings concerning the procedural aspect of Article 8 (see paragraphs 84, 87, 112 and 113 above), the Court considers that it is not necessary to examine whether in the present case there has been a violation of Article 6 § 1 (see Saviny, cited above, § 70).
II.APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.
The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.
The Government contested the claim, stating that it was exorbitant.
Making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 15,000 for non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicant also claimed 97,405 Ukrainian hryvnias (UAH), at the material time equivalent to about EUR 9,000, for legal costs and UAH 179, at the material time equivalent to about EUR 17, for postal expenses incurred before the Court. The applicant asked for those sums to be paid directly into the bank account of his representative. The sum claimed as regards legal costs was based on a rate of UAH 2,420, at the material time equivalent to about EUR 222, per hour, though it was not stated whether the sum included tax. According to the applicant, his representative had needed to spend about forty hours studying the case materials, communicating with the applicant and preparing observations and just satisfaction claims on his behalf.
The Government contested the claim, stating in particular that the lawyer’s hourly rate was excessive, as was the time he claimed to have spent on the case, and that part of the claim for postal expenses was not supported by acceptable evidence.
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. The Court notes that the present case involves complex and serious issues under the Convention and that the time the applicant’s representative had to spend on it appears to be generally justified. It is also mindful that certain parts of the applicant’s complaints were declared inadmissible. Regard being had to all these aspects of the case and to the documents in its possession, the Court considers it reasonable to award the sum of EUR 4,000 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to the applicant. This sum should be paid into the applicant’s lawyer’s bank account.
C. Default interest
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,
Joins to the merits the Government’s objection as to the exhaustion of domestic remedies, and dismisses it;
Declares the complaints under Article 8 of the Convention taken alone and also in conjunction with Article 14 about the interference with the applicant’s family life and his complaints under Article 6 § 1 of the Convention about unfair court proceedings admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article 8 of the Convention as regards the authorities’ failure to take any meaningful action in order to ensure the applicant’s access to his child and his ability to participate in her upbringing;
Holds that there has been a violation of Article 8 of the Convention as regards the unjustified placement of the applicant’s child;
Holds that there is no need to examine the complaints under Article 14 of the Convention taken in conjunction with Article 8;
Holds that there is no need to examine the complaint under Article 6 § 1 of the Convention;
that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant’s lawyer, Mr A. Kristenko;
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;
Dismisses the remainder of the applicant’s claim for just satisfaction.
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