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FIFTH
SECTION
CASE OF
HUNT v. UKRAINE
(Application
no. 31111/04)
JUDGMENT
STRASBOURG
7 December 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Hunt v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 13 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31111/04) 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 national of the United States of America, Mr
Alexander Hunt (“the applicant”), on 25 August 2004.
- The
applicant was represented by Mr N. Yeremenko, a lawyer practising in
Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agents, Mrs V. Lutkovska and Mr. Y. Zaytsev, of
the Ministry of Justice.
- On
24 March 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Riga, Latvia.
- The
applicant was married to Mrs M., a Ukrainian national. They lived in
Ukraine. They have a son, N., who was born in 2000. Mrs M. also had
another child, M., who was adopted by the applicant in November 2002.
- In
January 2003 the applicant left Ukraine and in April 2003 the
applicant and Mrs M. divorced.
- On
24 June 2003 Mrs M. wrote a letter to the Head of the
Department for Combating Organised Crime of the Ministry of the
Interior requesting that the applicant be banned from entering
Ukraine. Mrs M. complained, in particular, that in June 2003 the
applicant had come to Cannes, France, where their son N. had been on
holidays with a nurse, and had threatened to take N. away. She
further stated that in his previous marriage the applicant had
inflicted grievous bodily harm on his wife.
- On
26 June 2003 the Ministry of the Interior sent a request to
the State Committee of Border Control to ban the applicant from
entering Ukraine.
- On
27 June 2003 the State Committee for Border Control
informed the Ministry that Mr. Hunt was prohibited from entering
Ukraine for five years. The applicant learned about this decision
shortly afterwards.
A. Custody proceedings initiated by Mrs M.
- In
November 2003 the applicant was informed by Mr T., his lawyer in
another civil case, that his former wife had lodged a claim with the
Pechersky District Court of Kyiv seeking to deprive the applicant of
his parental rights with respect to his natural son N. The applicant
could not be present in the court due to the prohibition on entering
Ukraine, but was represented before the court by his lawyer, Mr T.
- On
5 December 2003 the first-instance court found for Mrs M.
and decided to deprive the applicant of his parental rights. The
court based its decision on the fact that the applicant did not
fulfil his parental duties properly, in particular he did not
participate in bringing up the child, did not contact him and had
lost any interest towards him. The court also took into consideration
that the applicant had not complained to the local tutelage and
supervision board that Mrs M. refused him access to the child. The
court disregarded the applicant's argument about the impossibility of
participating in the up-bringing of the child due to the prohibition
on entering the country, stating that the applicant had not met his
son since January 2003.
According
to the Government, the domestic courts had been aware that the
applicant had deliberately indicated false data on his place and date
of birth in official documents and that he had been previously
criminally prosecuted and had never been formally acquitted.
- This
decision was appealed against by the applicant's representative to
the Kyiv City Court of Appeal. In the appeal it was mentioned that
the conclusion of the court of first instance that the applicant did
not want to meet his son was incorrect, since in her request of 24
June 2003 to the police Mrs M. had clearly mentioned his attempt to
see their son in June 2003. It was also mentioned that the applicant
had tried to lodge a request with the tutelage and supervision board
of the Pechersky Local Administration of Kyiv, but had been informed
that his presence was required in order for the request to be
examined. The representative complained that the court of first
instance heard only witnesses of the opposing party, who had been
employed by Mrs M. He noted that the court had not sought to receive
first-hand information from the applicant himself through the
international legal assistance instruments.
- On
5 March 2004, the court of appeal upheld the decision of
the first instance court. Having repeated the findings of the first
instance court, the court of appeal noted that the applicant's
objections had not been supported by any evidence and the arguments
of the opposite side had been confirmed by testimonies of two nurses
of the child. It further decided that the arguments of the
applicant's appeal did not dispose of the findings of the
first-instance court and did not influence the correctness of those
findings.
- The
applicant appealed in cassation. In his appeal he reiterated his
previous arguments and complained that the court of appeal refused to
call a witness on his behalf.
- On
1 June 2004 the panel of three judges of the Supreme Court
of Ukraine rejected the applicant's request for leave to appeal in
cassation, having found that the lower courts did not violate any
substantive or procedural law.
- By
letter of 7 June 2004, the Ministry of Justice of Ukraine informed
the applicant's lawyer that the service abroad of judicial documents
could be conducted under the relevant international instruments. In
relations between them, Ukraine and the United States of America used
the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, 15 November
1965.
B. Other related proceedings
1. Proceedings about corrections in the applicant's
date of birth
- On
12 May 2003 the Pechersky District Court of Kyiv examined the
applicant's request to correct the date of his birth in the civil
state register. The court decided for the applicant.
- On
16 June 2003 the same court quashed its previous decision of 12 May
2003 in the light of newly discovered circumstances and re-opened the
proceedings.
- On
19 December 2003 the court rejected the applicant's request
concerning mistake in his date of birth in the register. On 10 March
2004 and 5 July 2004 respectively the Kyiv City Court of Appeal and
the Supreme Court upheld the decision of the first instance court.
2. Proceedings on invalidation of the adoption decision
- On
1 October 2004 the Pechersky District Court of Kyiv considered a
claim by the applicant, in which he requested to invalidate the
decision on adoption of M., the elder son of Mrs M., and rejected it
as unsubstantiated, having found that at the time of adoption the
applicant and Mrs M. had genuine and good family relations.
- On
8 June 2005, the same court invalidated the above-mentioned decision
on adoption of M. by the applicant.
3. Proceedings challenging the prohibition of entry
- On
15 October 2003 the Pechersky District Court rejected the applicant's
complaint against the decision about prohibition of his entry in
Ukraine.
- On
11 February 2004 the Kyiv City Court of Appeal upheld the decision of
the first instance court.
- On
1 March 2005 the applicant appealed in cassation. The proceedings are
still pending.
II. RELEVANT DOMESTIC LAW
A. The Constitution of 1996
- The relevant extracts of the Constitution of Ukraine
read as follows:
Article 26
“Foreigners and stateless persons who are in
Ukraine on legal grounds enjoy the same rights and freedoms and also
bear the same duties as citizens of Ukraine, with the exceptions
established by the Constitution, laws or international treaties of
Ukraine...”
Article 32
“No one shall be subject to interference in his or
her personal and family life, except in cases envisaged by the
Constitution of Ukraine...”
Article 51
“...The family, childhood, motherhood and
fatherhood are under the protection of the State.”
B. Code of Civil Procedure of 18 July 1963 (repealed as
of 1 September 2005)
- Article
6 of the Code provided that civil proceedings should be conducted on
the grounds of equality of persons regardless, in particular, of
their place of residence.
- Article
103 of the Code provided that the claimant and the defendant had
equal procedural rights.
- Article
423 provided that foreign citizens had equal procedural rights with
Ukrainian citizens in civil proceedings. The Ukrainian legislation
could foresee restrictions on procedural rights of citizens of other
countries, where the procedural rights of Ukrainian citizens were
restricted.
C. Marriage and Family Code (repealed as of 1 January
2004)
- Article
70 of the Code provided that parents could be deprived of their
parental rights if it was established that they neglected their
duties of bringing up their children, or abused their parental
rights, treated the children cruelly, influenced the children
harmfully by their immoral, antisocial behaviour, as well as when the
parents were chronic alcoholics or drug addicts. The deprivation of
parental rights did not preclude the possibility for a person
concerned to seek access to the child through the courts.
- Article
71 established the circle of persons entitled to seek deprivation of
parental rights before the courts. It also envisaged participation of
guardianship authorities and the prosecutor in the hearing.
D. Family Code (in force since 1 January 2004)
- This
Code replaced the Marriage and Family Code and contains similar
provisions as to deprivation of parental rights.
E. Law on Legal Status of Foreigners and Stateless
Persons of 4 February 1994
- Article
18 provides that foreigners can marry and divorce Ukrainian citizens
under Ukrainian law. They have equal rights in family relations with
Ukrainian citizens.
- Article
22 provides that foreigners are entitled to seek protection of their
individual, property and other rights in the courts and other state
bodies. In judicial proceedings foreigners have equal procedural
rights with Ukrainian citizens.
- Article
25 stipulates that entry to Ukraine can be prohibited to a foreigner
in the interests of national security and public order, if public
health, the protection of the rights and legitimate interests of
Ukrainian citizens and residents require so, if the foreigner
violated Ukrainian legislation during his previous stay in Ukraine,
etc.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained under Article 8 of the
Convention about unjustified interference with his private and family
life by prohibiting him from entering Ukraine, where his son resides,
and by depriving him of his parental rights. Article 8 of the
Convention provides as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The Court notes that the applicant's complaint under
this Article raises two distinct issues: the ban on entering Ukraine
and the deprivation of his parental rights. It will consider them
separately.
1. Ban on entering Ukraine
- The Government maintained that the applicant had a
possibility to challenge the decision of the domestic authorities on
the ban to enter the country in the courts, but did so only after his
application had been lodged with this Court, and that the relevant
judicial proceedings were still pending (see paragraphs 22-24). The
Government therefore submitted that this complaint of the applicant
should be declared inadmissible for non-exhaustion of domestic
remedies.
- The applicant replied that it was not his only
complaint and that he was prevented from his seeing the child as a
result of this ban, even though the Government suggested the
opposite.
- The Court considers that to the extent that the
applicant meant to complain about the decisions prohibiting him from
entering Ukraine as a separate issue, he failed to exhaust remedies
available to him under Ukrainian law since the relevant proceedings
are still pending (see paragraph 24 above). It follows that this
complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
2. Deprivation of parental rights
- The Court further notes that the Government's above
objection does not relate to the complaint concerning the deprivation
of the applicant's parental rights. In the Court's view this latter
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Parties' submissions
(a) The Government
- The Government agreed that the deprivation of parental
rights could be considered an interference with the applicant's
family life. Nevertheless, they maintained that such interference was
justified and proportionate.
- The Government submitted that the alleged interference
was in accordance with the law. In particular, Articles 70 and 71 of
the Marriage and Family Code provided for such interference.
- The Government further maintained that in the present
case the interference had been made in order to protect rights of
other persons. This necessity was supported by the facts, of which
the domestic courts were aware, that the applicant deliberately
indicated false data on his place and date of birth in official
documents and that he had been previously criminally prosecuted and
had never been formally acquitted. The Government also referred to
the domestic courts' findings (see paragraph 11 above) as a
ground that justified the interference.
- Having
acknowledged the gravity of the interference, the Government
maintained that the deprivation of the parental rights was justified
by the interests of the child and these interests should prevail over
the interests of the parents. Therefore, in the Government's opinion,
such interference was necessary in a democratic society and the State
authorities acted within their margin of appreciation.
- They
also submitted that the applicant could seek permission to see his
son or try to contact him even after the decision depriving him of
his parental rights, and the only consequence of the deprivation was
that the applicant could not claim any right to meet or educate his
son, but could ask Mrs M. for meetings with his son.
(b) The applicant
- The
applicant contended that the ban on entry into the country could not
be found among the grounds for deprivation of parental rights
stipulated in Article 70 of the Family and Marriage Code. He further
maintained that his relations with his son were sufficiently
established and the State was obliged to safeguard such family
relations.
- Taking
into account the young age of his son, the necessity to maintain and
safeguard their relations were of particular importance. He further
maintained that Mrs M. led the public life which presupposed her
frequent absence from home and the child was left for care of other
people.
- The
applicant finally contended that there was no evidence that he had
ever treated badly his son or any other child. He regarded the
remainder of the Government's submissions about his personality, as
irrelevant to the dispute about his parental rights.
2. The Court's assessment
(a) Whether there was an interference with
the applicant's right to respect for his family life under Article 8
of the Convention
- The
Court finds, as it was not disputed by the parties, that the
deprivation of the applicant of his parental rights constituted an
interference within the meaning of Article 8 § 2 of the
Convention with the applicant's right to respect for his family life
guaranteed by paragraph 1 of Article 8.
(b) Whether the interference was justified
- This
interference constitutes a violation of Article 8 unless it is “in
accordance with the law”, pursues an aim or aims that are
legitimate under paragraph 2 of this provision and can be regarded as
“necessary in a democratic society”.
(i) “In accordance with the law”
- It
was undisputed before the Court that the domestic courts' decisions
had a basis in national law, namely, Articles 70 and 71 of the Family
and Marriage Code as in force at the relevant time.
(ii) Legitimate aim
- In
the Court's view the court decisions of which the applicant
complained were clearly aimed at protecting the “rights and
freedoms” of the child. Accordingly they pursued legitimate
aims within the meaning of paragraph 2 of Article 8.
(iii) “Necessary in a democratic
society”
- In
determining whether the impugned measure 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 this
measure were relevant and sufficient for the purposes of paragraph 2
of Article 8 of the Convention. Undoubtedly, consideration of what
serves best the interest of the child is of crucial importance in
every case of this kind. Moreover, it must be borne in mind that the
national authorities usually have the benefit of direct contact with
all the persons concerned. It follows from these considerations that
the Court's task is not to substitute itself for the domestic
authorities in the exercise of their responsibilities regarding
custody and access issues, but rather to review, in the light of the
Convention, the decisions taken by those authorities in the exercise
of their power of appreciation (see the Hokkanen v. Finland
judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55,
and, mutatis mutandis, the Bronda v. Italy, judgment of
9 June 1998, Reports of Judgments and Decisions 1998 IV,
p. 1491, § 59).
- The
Court further recalls that a fair balance must be struck between the
interests of the child and those of the parent (see, for example, the
Olsson v. Sweden judgment (no. 2) of 27 November 1992, Series
A no. 250, pp. 35 36, § 90) and that in doing so
particular importance must be attached to the best interests of the
child which, depending on their nature and seriousness, may override
those of the parent. In particular, the parent cannot be entitled
under Article 8 of the Convention to have such measures taken as
would harm the child's health and development (see the Johansen v.
Norway, judgment of 7 August 1996, Reports of Judgments and
Decisions 1996 III, pp. 1008-09, § 78).
- In
the present case the Court notes that the competent national courts,
when deciding to deprive the applicant of his parental rights,
advanced the argument that the applicant lacked interest in his son
as suggested by the child's mother and other witnesses on her side.
- The
Court does not doubt that these reasons could be relevant. However,
given the Court's well established case-law that Article 8 contains
implicit procedural requirements, it must be determined whether,
having regard to the particular circumstances of the case and notably
the importance of the decisions to be taken, the applicant has been
involved in the decision-making process, seen as a whole, to a degree
sufficient to provide him with the requisite protection of his
interests (Elsholz v. Germany [GC], no. 25735/94, §
52, ECHR 2000 VIII, P., C. and S. v. the United Kingdom,
cited above, § 119, and Venema v. the Netherlands,
no. 35731/97, § 91, ECHR 2002 X, with references to W.
v. the United Kingdom, judgment of 8 July 1987, Series A no. 121,
pp. 28-29, § 64).
- Reverting
to the circumstances of the instant case, the Court observes that the
civil proceedings in questions concerned relations within the
applicant's family and the issue on deprivation of the parental
rights both under the relevant law and in the impugned proceedings
had to be based on the assessment of the applicant's personal
character and his behaviour. The Court finds it difficult to
comprehend to what extent the national courts could undertake such an
assessment without having heard the applicant in person or at least,
in the circumstances of the present case, having sought to obtain
first-hand information from the applicant with his account of events
and his relations with his son and Mrs M. via international legal
assistance instruments.
- Furthermore,
the domestic courts disregarded the fact that the applicant had
attempted to see his son in June 2003, and they failed to call a
witness proposed by the applicant, and the respective higher courts
failed to answer to the applicant's complaints about such actions of
the respective lower courts (see paragraphs 12-15 above). Moreover,
the fact that the applicant contested the request of Mrs M. for
deprivation of his parental rights could also evidence his interest
in his son.
- The
Court further recalls that in the present case there were no issue of
the applicant having inflicted any bodily harm on the child (see
paragraph 48 above). As to the Government's submissions about the
domestic courts' awareness of the applicant's unlawful actions and
previous criminal records, the Court notes that such arguments could
be relevant to the decision on the deprivation of parental rights.
These arguments, however, remain mainly unsupported by any materials;
more importantly, there is no indication in the judicial decisions
and parties' submissions that these arguments were discussed during
the hearings or used in the courts' reasoning.
- The
Court thus concludes that the applicant was not involved in the
decision-making process to an extent necessary to protect his
interests and that the national authorities overstepped their margin
of appreciation and failed to strike a fair balance between the
interests of the applicant and those of other persons, thereby
violating the applicant's rights under Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that that he was deprived of the possibility to
participate in the court's proceedings and to submit evidence in
support of his case in violation of Article 6 § 1 of the
Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government maintained that the applicant was represented by the
lawyer of his choice in the impugned proceedings and furthermore his
restriction to personal participation in the proceedings derived from
the ban on his entry in Ukraine and, therefore, had been justified.
In the Government's opinion, the applicant could not complain about
violation of the principle of equality of arms in the proceedings
since nothing prevented his giving respective instructions to his
lawyer as well as to receive from the latter reports on the course of
the proceedings and to react to them. Since there were no such
complaints in the application to the Court, the Government of Ukraine
insisted that the State did not violate the principle of equality of
arms.
- The
applicant maintained that his procedural rights were neglected by the
courts, since he was not informed about the venue and time of the
proceedings and none of the procedural documents, including judgment,
had been served on him personally. He further maintained that the
domestic courts completely based their decisions on the evidence
submitted by Mrs M. and witnesses on her behalf.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
65. It
further reiterates the difference in the nature of the interests
protected by Articles 6 and 8 of the Convention. While Article 6
affords a procedural safeguard, namely the “right to a court”
in the determination of one's “civil rights and obligations”,
Article 8 serves the wider purpose of ensuring proper respect for,
inter alia, family life. The difference between the
purpose pursued by the respective safeguards afforded by Articles 6
and 8 may, in the light of the particular circumstances, justify
the examination of the same set of facts under both Articles (see for
instance McMichael, cited above, p. 57, § 91 and
Sylvester, cited above, § 76).
66. However,
in the instant case, the Court finds that the lack of respect for the
applicant's family life resulting from the non-involvement of the
applicant in the custody proceedings is at the heart of his
complaint. Therefore, having regard to its above findings under
Article 8 (see paragraphs 58-59 above), the
Court considers that it is not necessary to examine the facts also
under Article 6 (see Sylvester, cited above, § 77).
III. 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.”
A. Damage
- The
applicant claimed 120,000 US dollars in respect of non-pecuniary
damage.
- The
Government maintained that the applicant did not substantiate this
claim. They submitted that finding of a violation if any would
constitute sufficient compensation for non-pecuniary damage in the
present case. Alternatively, they considered the claimed amount
exorbitant and invited the Court to determine the amount of
non-pecuniary damage on an equitable basis.
- The
Court notes that the applicant undeniably suffered moral prejudice,
nevertheless the Court consider the claimed amount exaggerated and
awards the applicant EUR 10,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed UAH 8.50 for the costs and expenses incurred
before the domestic courts.
- The
Government maintained that the applicant did not submit any documents
in support of this claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the claimed amount, which it will set at EUR
1.40.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaints under Article 6 § 1
and 8 of the Convention concerning the decision on deprivation of the
applicant's parental rights admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
3. Holds that there is no need to examine
separately the complaints under Article 6 § 1 of the Convention;
- Holds
(a) 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, EUR 10,000 (ten thousand euros) in respect of
non-pecuniary damage and EUR 1.40 (one euro and forty cents) in
respect of costs and expenses, to be converted into US dollars at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer
Lorenzen
Registrar President
