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FIRST
SECTION
CASE OF KHANAMIROVA v. RUSSIA
(Application
no. 21353/10)
JUDGMENT
STRASBOURG
14 June
2011
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 Khanamirova v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou,
Mirjana Lazarova
Trajkovska, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21353/10) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Diana Guseynbekovna
Khanamirova (“the applicant”), on 11 March 2010.
- The
applicant was represented by Ms M. Mamedova, a lawyer practising in
the town of Makhachkala, the Republic of Dagestan. The Russian
Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant alleged that the continuous failure of the authorities to
enforce the domestic judgment granting her custody of her son
breached her rights under the Convention.
- On
11 June 2010 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1987 and lives in the village of Gereykhanova,
the Republic of Dagestan.
- In
November 2006 the applicant got married to F.Kh. In September 2007
she gave birth to their son, A. The applicant, her son and husband
lived at his parents' house in the village of Stepnoy near the town
of Makhachkala.
- In
February 2008 the family's relationship deteriorated and the
applicant left the house. According to her, her husband and his
parents forced her to leave and did not let her take her son, then
aged some five months.
A. Court proceedings concerning the applicant's request
for divorce and custody of her son
- Thereafter
the applicant applied to a court, seeking to divorce her husband and
asking for alimony payments and custody of her son.
- On
12 August 2008 the Leninskiy District Court of Makhachkala examined
the applicant's case. The court essentially granted the applicant's
claims, having pronounced the divorce, awarded the applicant alimony
payments and custody of her son.
- On
14 November 2008 the Supreme Court of the Republic of Dagestan (the
Supreme Court) upheld the judgment of 12 August 2008.
B. Enforcement proceedings of the judgment of 12 August
2008
1. First round of the enforcement proceedings
(a) Writ of execution and the bailiffs'
attempts to locate the applicant's former husband
- On 5 December 2008 the Leninskiy District Court of
Makhachkala issued a writ of execution, which quoted the ruling of
the judgment of 12 August 2008 as follows:
“[The court decided that] the place of residence
of child Khanamirov Anrid Faridovich, born on 20 September 2007,
should be with [the applicant].”
The
writ specified that the applicant's former husband's resided in the
village of Stepnoy, near Makhachkala.
- The applicant applied for enforcement within a few
days and in December 2008 the bailiffs of the Leninskiy District of
Makhachkala of the Department of the Federal Court Bailiffs Service
of the Republic of Dagestan opened enforcement proceedings in this
connection.
- Having learned that in the meantime the applicant's
former husband had moved to another house belonging to his family and
identified the actual place of his residence in the village of
Magaramkent, on 18 February 2009 the bailiffs closed the enforcement
proceedings and transferred the case to the Magaramkentskiy District
Department of the Federal Service of Court Bailiffs of the Republic
of Dagestan.
(b) First attempt to enforce the judgment
of 12 August 2008
- On 5 March 2009 the competent local bailiffs opened
the enforcement proceedings.
- On an unspecified date the bailiffs informed the
applicant's former husband of his duty to hand the child over to the
applicant and set a five-day time-limit for for him to comply with
the request voluntarily. It appears that the applicant's former
husband did not comply with the bailiffs' request and refused to
transfer the child to the applicant voluntarily.
- On 3 April 2009 a bailiff, along with the applicant,
paid a visit to the home of the applicant's former husband and his
parents. In the presence of a paediatrician, a psychologist, a
representative of the local child welfare service and two attesting
witnesses the bailiff physically removed the applicant's son from his
father and handed him over to the applicant. The child was seriously
stressed during the procedure and resisted.
- According
to the bailiff's report of 3 April 2009, the applicant had “refused
to take her son and to enforce the judgment of 12 August 2008”.
The applicant, along with her former husband, the paediatrician, the
psychologist, the representative of the local child welfare service
and two attesting witnesses, signed the bailiff's report and left the
house.
- It appears that the applicant still wanted to enforce
the judgment but objected to the manner in which the bailiff had
acted on 3 April 2009.
(c) Examination of the bailiffs' request
to terminate the enforcement proceedings in the applicant's case
- The bailiffs decided that the applicant did not want
to pursue the enforcement proceedings and on 6 April 2009 they
applied to the Magaramkentskiy District Court of the Republic of
Dagestan (the Magaramkentskiy District Court) to have the enforcement
proceedings terminated.
- On 16 October 2009 the Magaramkentskiy District Court
examined the bailiffs' request. At the hearing the applicant
continued to insist on the transfer of the child to her and asked the
court to reject the bailiffs' request. The court noted the
applicant's apparent waiver of her rights under the judgment of 12
August 2008 had been manifested by her refusal to take her son on 3
April 2009 and terminated the enforcement proceedings on the basis of
the provisions of the relevant domestic law concerning the
enforcement of monetary debts and debts in kind (Article 439 § 1
of the Code of Civil Procedure, see the relevant domestic law section
below). It does not appear that the domestic law provided for special
rules as regards the enforcement of custody claims.
- On the applicant's appeal on 18 November 2009 the
Supreme Court upheld the decision of 16 October 2009.
(d) The applicant's attempt to challenge
the bailiff's report of 3 April 2009
- In a parallel set of proceedings the applicant
challenged the actions of the bailiffs and the report of 3 April
2009, alleging that the bailiff who had attempted to carry out the
enforcement had deceived her into signing it. According to the
applicant, the bailiff had only shown her the second page of the
report and had told her that she had been required to sign it in
order to be allowed to take her son. Once she had signed the report,
the bailiff had allegedly refused to enforce the judgment of 12
August 2008.
- On
9 June 2009 the Magaremkentskiy District Court rejected the
applicant's complaint. The court questioned the bailiff, the
paediatrician, the psychologist, the representative of the local
child welfare service and two attesting witnesses, who all gave an
essentially similar description of the events of 3 April 2009. The
witnesses stated that the bailiff had taken the child from his father
and had given him to the applicant, but the child had resisted,
cried, pushed himself away from the applicant and run to his father.
The applicant had stated that the child would be better off living
with his father and had refused to take him. The witnesses also
testified that the applicant had read all the pages of the report
before signing it. The court checked and disproved the applicant's
allegations that she had been deceived by the bailiff. It then
concluded that both the report of 3 April 2009 and the bailiff's
actions had been lawful.
- On 26 August 2009 the Supreme Court upheld the
judgment of 9 June 2009.
(e) Supervisory review proceedings in
respect of the decision to terminate the enforcement proceedings
- On an unspecified date the applicant filed a request
with the Supreme Court to review the decisions of 16 October 2009 and
18 November 2009 by way of supervisory review.
- On 26 March 2010 a judge of the Supreme Court granted
the applicant's request and reopened the proceedings.
- On
10 June 2010 the Presidium of the Supreme Court quashed the decisions
of 16 October 2009 and 18 November 2009. The Court considered that
under the domestic law the bailiffs had had no right to request the
court to terminate the enforcement proceedings and that such a
request could only have been lodged by the applicant herself. It
further stated that under Article 439 of the Code of Civil
Procedure the applicant would have had to explicitly waive her claims
in court. The court noted that these two conditions had not been met
and remitted the bailiffs' request to terminate the enforcement
proceedings for a fresh examination at first instance.
- On 14 September 2010 the Magaramkentskiy District
Court examined and rejected in full the bailiffs' request to
terminate the enforcement of the judgment of 12 August 2008,
reiterating the conclusions reached by the Presidium of the Supreme
Court.
2. Second round of the enforcement proceedings
- On 7 October 2010 the bailiffs opened the enforcement
proceedings with regard to the judgment of 12 August 2008. The
applicant's former husband's place of residence was located in the
village of Magaramkent, the Republic of Dagestan. The latter informed
the bailiffs that the child was staying with his parents.
- On
9 December 2010 the bailiffs requested the Leninskiy District Court
of Makhachkala to clarify the manner in which the judgment of
12 August 2008 should be enforced. The bailiffs claimed that the
terms of the writ of execution were too vague.
- On 25 January 2011 the Leninskiy District Court of
Makhachkala issued a decision specifying that the judgment should be
enforced by taking the applicant's child from his father and any
third persons and by handing him over to his mother.
- On 28 January 2011, the date on which the Government
filed its latest set of observations, the judgment of 12 August 2008
was still unenforced.
II. RELEVANT DOMESTIC LAW
- The
Federal Law “On Enforcement Proceedings” of 2 October
2007 provides that the bailiff must issue a decision to open
enforcement proceedings or to refuse to do so within three days of
the receipt of the writ of execution (section 30).
- The
creditor, the debtor and the bailiff can request the court which
issued the writ of execution to clarify its provisions and the manner
of its enforcement (section 32 (1)).
- The
court shall terminate enforcement proceedings in the event of: (a)
the death of the creditor or the debtor in the enforcement
proceedings; (b) the loss of an opportunity to enforce the writ of
execution obliging the debtor to take certain measures (or refrain
from taking them); (c) the creditor's refusal to take the object
retrieved from the debtor with a view to enforcing the writ of
execution, requesting the transfer of the object to the creditor; and
(d) in other cases provided for by law (section 43).
- On
termination of the enforcement proceedings the writ of execution is
to be kept in the case file and cannot be submitted for execution
again (section 44 (5)).
- If
the debtor fails to fulfil the obligations contained in the writ of
execution within the time-limit established for doing so voluntarily
the bailiff shall recover an execution fee from the debtor and set up
a new time-limit for the execution of those obligations (section 105
(1)). If the debtor does not fulfil the obligations within the newly
established time-limit, the bailiff shall impose a fine on the debtor
(section 105 (2)).
- The
court must examine complaints about the decisions, actions or
inaction of bailiffs within a ten-day time-limit (section 128(4)).
- The
Code of Civil Procedure of 14 November 2002, in force from 1 February
2003, provides that enforcement proceedings can be terminated by the
court in the circumstances envisaged by the Federal Law “On
Enforcement Proceedings” (Article 439 § 1). If the
creditor renounces the debt or the parties reach a friendly
settlement, the parties' statements to that effect must be included
in the minutes of the hearing and signed by the parties. When the
renouncement of the debt or a friendly settlement are made in writing
those documents must be attached to the case file (Article 173 §
1). The court must inform the parties about the consequences of the
renouncement of the debt and the conclusion of the friendly
settlement agreement (Article 173 § 2).
- The
court should examine a complaint challenging the decision, action or
inaction of a state official within a ten-day period (Article 257
§ 1).
-
Once terminated, enforcement proceedings cannot be reopened (Article
439 § 3).
- The
court should resolve issues of suspension and termination of
enforcement proceedings within ten days (Article 440 § 1).
- The Order of the Judicial Department of the Supreme
Court of Russia of 29 April 2003 no.36 “On the Adoption of the
Instruction on Court Proceedings in a District Court” provides
that a court should issue a writ of execution of a court decision no
later than one working day following the entry into force of that
decision (section 9.3.2).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the authorities had failed to enforce the
judgment granting her custody of her son. The Court will examine this
grievance under Article 8 of the Convention, which reads, in so far
as relevant, as follows:
“1. Everyone has the right to respect
for his private and family life ... .
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. The parties' submissions
- The
Government submitted that the enforcement of the judgment of 12
August 2008 had been terminated due to the applicant's refusal to
take her son. They argued that the writ of execution of the judgment
of 12 August 2008 contained no reference to the object of the
enforcement, making it impossible to apply any compulsory enforcement
measures to the applicant's former husband or to hold him responsible
for non-enforcement of the judgment. They also stressed the fact that
decisions terminating the enforcement proceedings had been quashed
and the enforcement of the judgment of 12 August 2008 has been
resumed. The Government also referred to the practical difficulties
involved in the enforcement because of the need to minimize any
possible negative psychological effects on the child as a result of
his separation from the family of his father. In their additional
observations the Government referred to the best interests of the
child and argued that the transfer of the child to the applicant
could not take place immediately and could require the taking of
preparatory measures. The Government submitted that the applicant's
complaint was premature.
- The
applicant disagreed with the Government and stated that the
unjustified delay in the enforcement of the judgment of 12 August
2008 had already resulted in a situation in which the actual transfer
of the child would cause intense psychological suffering both to her
and the child.
B. The Court's assessment
1. Admissibility
- The
Court notes that 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.
2. Merits
(a) General principles
- The
Court reiterates that the essential object of Article 8 of the
Convention is to protect the individual against arbitrary
interference by the public authorities. There may be in addition
positive obligations inherent in an effective “respect”
for family life (see Keegan v. Ireland, 26 May 1994, § 49,
Series A no. 290). In cases where contact and residence disputes
concerning children arise between parents and/or other members of the
children's family (see, for example, Hokkanen v. Finland, 23
September 1994, § 55, Series A no. 299-A, and Zawadka v.
Poland, no. 48542/99, § 55, 23 June 2005), the Court's
case-law has consistently held that this Convention provision
includes, among other things, a right for a parent to have measures
taken with a view to his or her being reunited with the child, and an
obligation for the national authorities to take such measures.
- At the same time, the national authorities' obligation
to take measures to facilitate reunion is not absolute, since the
reunion of a parent with children who have lived for some time with
the other parent may not be able to take place immediately and may
require preparatory measures to be taken. The nature and extent of
such preparation will depend on the circumstances of each case, but
the understanding and cooperation of all concerned are always
important ingredients. Whilst the national authorities must do their
utmost to facilitate such cooperation, 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,
as should, more particularly, the best interests of the child and his
or her rights under Article 8 of the Convention (see P.P.
v. Poland, no. 8677/03, § 82, 8 January 2008;
Hokkanen, cited above, § 53; and Ignaccolo-Zenide
v. Romania, no. 31679/96, § 96, ECHR 2000 I). The
adequacy of a measure is to be judged by the swiftness of its
implementation, as the passage of time can have irremediable
consequences for relations between the child and the parent (see P.P.
v. Poland, cited above, § 83).
(b) Application in the present case
- The
Court notes, firstly, that it was common ground between the parties
that the tie between the applicant and her son constituted “family
life” for the purposes of that provision. The Court next notes
that the judgment of the Leninskiy District Court of Makhachkala of
12 August 2008 giving custody of A., then aged only one year and two
months, to the applicant remained unenforced at least until 28
January 2011 (see paragraph 32). Accordingly, it has to be
determined whether the national authorities took all the necessary
steps to facilitate the enforcement they can reasonably have been
expected to take in the special circumstances of the case.
- In
this connection, the Court notes that the lack of action on the part
of the competent authorities resulted in serious unjustified delays
in the proceedings. Thus, instead of issuing the applicant with the
writ of execution within one day (see paragraph 43), it took the
first-instance court almost two weeks to do so (see paragraph 11).
Further, despite the fact that the applicant applied to the bailiffs
for assistance with the enforcement of the judgment within a few
days, it took them almost two months to locate the applicant's former
husband and her son, even though they had made no attempts to hide
themselves, living openly in one of the houses belonging to the
family, (see paragraphs 12 and 13) and a further two weeks to
transfer the case to the competent bailiffs (see paragraphs 13 and
14). The Court finds that in the circumstances of the case the task
of finding the applicant's child was rather simple and should not
have taken so much time.
- Next,
as regards the period from 6 April 2009, when the bailiffs asked the
first-instance court to terminate the enforcement proceedings, to 14
September 2010, when the courts again decided to go on with the
enforcement, the Court finds that the resulting delay was in its
entirety attributable to the authorities. In this respect, the Court
cannot accept the Government's reference to the applicant's refusal
to take the child on 3 April 2009 as an excuse for the actions
of the bailiffs and the courts. It takes into account the fact that
the removal of the child had taken place in the house of the
applicant's former husband's parents, that for almost one year before
the events of 3 April 2009 the applicant's child had hardly seen her
at all (see paragraphs 15 and 16) and that the child had an openly
negative reaction to his mother. In these circumstances, the Court
cannot place the responsibility for the failed attempt of enforcement
of 3 April 2009 on the applicant.
- Turning
to the proceedings brought by the bailiffs on 6 April 2009, the Court
notes that instead of enforcing the judgment, however problematic
such enforcement may have been, the bailiffs and the domestic courts
appeared to have tried to reverse its effects by implying that the
applicant had waived her claims and thus rendering the initial
judgment in the applicant's favour nugatory (see paragraphs 20-21).
The Court considers that the reasoning employed by the bailiffs and
the lower courts was unacceptable in the circumstances of the case,
as the applicant not only consistently manifested her wish to have
the judgment enforced (see paragraphs 18, 22-24 and 25), but also
brought separate parallel proceedings which were meant to undermine
the intentions of the bailiffs. The Court notes that despite the
difficulties with which the applicant and the authorities were faced
on 3 April 2009 and the potential threat to the emotional well-being
and health of the child, the authorities apparently have not
considered a more gradual and flexible approach towards the
enforcement of the judgment.
- In
addition to the finding that the request for termination lodged by
the bailiffs on 6 April 2009 was erroneous, the Court would also note
that the proceedings initiated upon this request were themselves
seriously protracted. It took the first-instance court six months to
examine the bailiffs' request (see paragraphs 19 and 20) and some
five months and three weeks between March and September 2010 for a
supervisory-instance court to review and quash the erroneous decision
of 16 October 2009 (see paragraphs 26-28).
- Thirdly,
the Court notes that during the period between 14 September
2010, when the decision to terminate the proceedings was quashed (see
paragraph 28), and 28 January 2011, the date of the last factual
update submitted by the respondent Government (see paragraph 32),
there appear to have been no further developments in the case. The
Court takes note of the Government's submission that due to the
nature of the dispute the process of enforcement may have required
transitional measures and could not be completed within a short
period of time. It observes, however, that during the period at
issue, the bailiffs neither enforced the judgment, nor came up with
any other plan or set of measures which would make the transition
period smoother for the child (see paragraphs 29-32). In this
connection, the Court is unable to accept the proceedings for
clarification, brought by the bailiffs, as the writ of execution was
clear and unequivocal. In fact, the decision of 25 January 2011 made
this obvious, as it simply repeated the ruling of the custody
judgment and described what the bailiffs had already attempted to do
earlier.
- Overall,
without losing sight of the practical difficulties encountered by the
authorities in this case, the Court retains the impression that
throughout the enforcement proceedings the bailiffs and the courts
failed to display due diligence in handling the applicant's call for
assistance. The bailiffs appeared unprepared to face the task and had
no clear idea or plan of action as to what could and should be done,
whilst the courts handled the case without the urgency that it
deserved. The resulting lapse of time was to a large extent caused by
the authorities' own handling of the case.
- Having
regard to the foregoing, the Court concludes that the Russian
authorities failed to take, without delay, all the measures that they
could reasonably have been expected to take to enforce the judgment
concerning the applicant's custody of her son and thereby breached
the applicant's right to respect for her family life, as guaranteed
by Article 8.
There
has accordingly been a violation of Article 8 of the Convention.
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.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage sustained as a result of the events at issue.
- The
Government argued that the sum claimed by the applicant was excessive
and unjustified.
- As
to non-pecuniary damage, the Court sees no reason to doubt that the
applicant suffered distress as a result of the non-enforcement of the
return order and that sufficient just satisfaction would not be
provided solely by the finding of a violation. Making an assessment
on an equitable basis as required by Article 41, the Court
awards the applicant EUR 10,000.
- In
reaching this amount, the Court has taken note of the Government's
assurances that following the Leninskiy District Court's judgment of
25 January 2011 (see paragraph 31 above) the enforcement of the
judgment delivered in the applicant's favour is “under the
strict control of the competent authorities” and that the
enforcement thereof “will take place at the earliest possible
date”.
B. Costs and expenses
- The
applicant also claimed 40,000 Russian roubles (RUB) for the costs and
expenses incurred before the domestic courts and the Court.
- The
Government argued that the agreement between the applicant and her
lawyer was not sufficiently specific regarding the breakdown of the
costs of the domestic proceedings and those before this Court and
that in addition there was no evidence that the applicant had already
paid her lawyer.
- 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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 950 covering costs
under all heads.
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 application admissible;
- Holds that has been a violation of Article 8 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 950
(nine hundred and fifty euros) in respect of costs and expenses, plus
any tax that may be chargeable to the applicant on both amounts, to
be converted into Russian roubles at the rate applicable at the date
of settlement;
(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.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
