In the case of Chabrowski v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
61680/10) 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 Polish national, Mr Dariusz Chabrowski (“the applicant”), on
19 October 2010.
The applicant was represented by Ms B.
Woźniak-Szymanek, a lawyer practising in Częstochowa, Poland. The Ukrainian Government (“the Government”) were represented most recently by their Agent, Mr N. Kulchytskyy, from the Ministry of
Justice. The Polish Government exercised their right of third-party intervention
in accordance with Article 36 § 1 of the Convention and were represented
by their Agent, Mr. J. Wołąsiewicz,
from the Ministry of Foreign Affairs.
The applicant alleged, in particular, that the
Ukrainian authorities had failed to enforce a judicial decision on returning
his abducted child to Poland.
On 27 September 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Częstochowa, Poland.
On 30 January 1997 the applicant married M.,
a Polish national. On 20 June 1997 their daughter C. was born.
In September 2008 M. instituted divorce
proceedings in the Częstochowa Regional Court (Sąd Okręgowy w Częstochowie).
In the course of those proceedings, on 2 March 2009, the court issued an
interim order prohibiting C. from leaving Poland. However, on the same date, M.
and C. left Poland for Ukraine. They settled in Ivano-Frankivsk.
On 21 March 2009 the applicant applied for proceedings
to be opened against his wife in Ukraine in order to secure the return of their
daughter to Poland in accordance with the Hague Convention on the Civil Aspects
of International Child Abduction of 25 October 1980 (“the 1980 Hague
Convention”).
On 1 December 2009 the Ivano-Frankivsk City Court
found against the applicant.
On 4 February 2010 the Ivano-Frankivsk Regional
Court of Appeal quashed the decision of the first-instance court and ordered
the return of C. to Poland. On the same date a writ of execution was issued.
On 5 February 2010 a bailiff from the Ivano-Frankivsk State Bailiffs’ Service ordered the writ to be enforced at 8 a.m. on 8
February 2010.
On 8 February 2010 the bailiff arrived at the address
of C.’s great-grandmother and found that C. and M. were not there. Their
relatives informed the bailiff that C. and M. had left Ukraine and they had not been told when they would be coming back.
On 8 February 2010 the applicant asked for a
search order for C.
On 9 February 2010 the bailiff applied to the
Ivano-Frankivsk City Court to issue a search order for C. and, if and when she
was found, to keep her in a children’s temporary care facility until the applicant
arrived from Poland. On 12 February 2010 the Ivano-Frankivsk City Court set
aside the bailiff’s application and granted him time to rectify some
shortcomings in the application.
On 24 February 2010 the bailiff made another
visit to C.’s great-grandmother and once again found that M. and C. were not
present. Their relatives claimed ignorance of their whereabouts but they showed the bailiff a certificate indicating that C. was registered
as an outpatient with the City Children’s Hospital.
On 4 March 2010 the bailiff ordered the
compulsory enforcement of the writ of execution for 8
a.m. on 5 March 2010.
On 05 March 2010 the bailiff visited secondary
school no. 3 and found that C. was registered there as a pupil, but was absent
that day, possibly because of sickness, as, according to
her teacher, the girl was often ill.
On the same day the bailiff paid a visit to C.’s
great-grandmother and found M. and
C. absent and their whereabouts unknown.
On 10 March 2010 M. applied to the
Ivano-Frankivsk State Bailiffs’ Service for suspension of the execution of the judgment
of 4 February 2010 on account of C.’s illness.
On 23 March 2010 the bailiff requested the Chief
Registrar of the Ivano-Frankivsk Regional
Children’s Hospital (“the Regional Hospital”) to provide information concerning the treatment C. was receiving as an outpatient at the hospital and whether
the interruption of that treatment would cause her
health to deteriorate.
On 25 March 2010 the Regional Hospital reported that C. had been admitted on 10 March 2010 and was receiving treatment in the hospital’s centre for the early medical and social
rehabilitation of children with organic diseases of the nervous system. Despite the
necessity for the girl to continue being treated, it was felt that an interruption
in the treatment would not affect her health adversely.
On 25 March 2010 the Supreme Court of Ukraine
delivered a decision ordering cassation proceedings in the applicant’s civil
case and the suspension of the enforcement of the
judgment of 4 February 2010 until
the termination of the cassation
proceedings.
On 9 April 2010 the bailiff suspended the
enforcement proceedings in compliance with the decision of the Supreme Court of
Ukraine of 25 March 2010.
On 21 April 2010 the Ivano-Frankivsk City police station informed the bailiff that M. had applied for permanent
residence in Ukraine.
On 30 April 2010 the Supreme Court of Ukraine
rejected an appeal by M. against its decision of 25 March 2010 and upheld the
judgment delivered by the Regional Court of Appeal on 4 February 2010.
On 19 May 2010 the bailiff resumed the enforcement
proceedings.
On 9 June 2010 the bailiff ordered the compulsory enforcement of the writ of execution for 8.20 a.m.
on 16 June 2010.
On 16 June 2010 the bailiff visited C.’s great-grandmother
and once again ascertained that M. and C. were absent. According to C.’s great-
grandmother, M. and C. had left on 10 June 2010 for a summer holiday, but she
did not know where they were staying.
On 7 July 2010 the Ministry
of Justice of Ukraine informed its
regional department in Ivano-Frankivsk that according to the information
it had received from the applicant, C. and M. were living in Simferopol at the
home of C.’s grandmother. Consequently, on 9 July 2010, the bailiff took a
decision to terminate the enforcement proceedings, notice of
which (together with the writ of execution)
was sent to the Simferopol Kyivskiy District Department of the State Bailiffs’ Service (“the
Kyivskiy State Bailiffs’ Service”).
On 29 July 2010 the bailiff of the Kyivskiy
State Bailiffs’ Service took the decision to initiate enforcement proceedings in
that district.
According to the applicant, he made numerous requests
to the Ukrainian authorities through the Polish Ministry of Justice for the
acceleration of the enforcement proceedings and informed them that he had
received messages from M. in which she had threatened him and declared that he
would never see their daughter again. The Ukrainian authorities had either
failed to notify him of the attempts at enforcement that had been made or had
done so at such short notice that he could not possibly take part in them. For
example, on 3 August 2010 he was notified that an enforcement attempt was planned
for 6 August 2010.
On 9 September 2010 the bailiff visited C.’s grandmother. and found that M. and C. were absent. Allegedly, on 5
September 2010 they had gone back to C.’s great-grandmother in Ivano-Frankivsk.
C.’s grandmother further confirmed this in a written statement to the Kyivskiy State Bailiffs’ Service.
. On 10
September 2010 the bailiff took the decision to terminate the enforcement
proceedings and sent the writ of execution
back to Ivano-Frankivsk.
On 27 September 2010 the bailiff of the
Ivano-Frankivsk State Bailiffs’ Service took the decision to resume enforcement
proceedings.
On 11 October 2010 the bailiff went to the
address of C.’s great-grandmother but nobody answered the door. On the
same day the State ordered the compulsory enforcement of the writ of execution for 8 a.m. on 15 October 2010.
On 15 October 2010 the bailiff went again to C.’s
great-grandmother’s home but to no avail.
On 26 October 2010 the Częstochowa Court in
Poland granted a divorce to the applicant and M. The court further granted
the applicant full parental rights over his daughter, while his former wife was
granted limited parental rights and was ordered to pay child support.
On 18 November 2010 the bailiff applied to the Ivano-Frankivsk
City Court with a request for a temporary care order to place the applicant’s daughter in a medical
or juvenile institution until the applicant’s arrival in Ukraine from Poland.
On 7 December 2010 the Ivano-Frankivsk City
Court set aside the bailiff’s application of 18 November 2010 and granted
additional time for the rectification of some shortcomings in the application.
On 20 December 2010 the bailiff went to the
address of C.’s great grandmother but there was no answer.
On 13 January 2011 the bailiff reapplied to the
Ivano-Frankivsk City Court with a further request for a temporary care order to
place the applicant’s daughter in a medical or juvenile institution until the applicant’s
arrival in Ukraine from Poland.
On 24 January 2011 Ivano-Frankivsk City Court
returned the application, declining jurisdiction to deal with the case.
On 8 February 2011 the bailiff went again to the
address of C.’s great-grandmother and again to no avail.
On 9 February 2011 the bailiff applied to the
Ivano-Frankivsk Regional Court of Appeal with a request for a temporary care
order to place the applicant’s daughter in
a medical or juvenile institution until the applicant’s arrival in Ukraine from Poland.
On 24 February 2011 the bailiff visited
secondary school no. 3 in Ivano-Frankivsk and discovered that C. had left the
school on 27 August 2010 because she had moved to Simferopol. On the same day
the bailiff visited C.’s great-grandmother and found out that C. had not been resident
at that address since the summer of 2010, as she had moved to the Autonomous Republic of Crimea.
On 25 February 2011 the bailiff asked
the Ivano-Frankivsk Education Department whether C. was
currently attending a school in the Ivano-Frankivsk
region.
On 28 February 2011 the Ivano-Frankivsk Education
Department informed the bailiff that C. was no longer a pupil
at any of its educational institutions and that M. had
taken C.’s school file away from
secondary school no. 3.in August 2010 because she
and her daughter were moving to another region.
On 3 March 2011 the Ivano-Frankivsk Regional
Court of Appeal held a hearing to examine the bailiff’s application of 9 February 2011 for a temporary care order to place C. in a medical or juvenile institution.
On 4 March 2011, on instructions from the court, the
bailiff requested written consent from a
temporary care facility for children to place
C. in that facility until the applicant’s arrival in Ukraine from Poland. The consent was provided that same day.
On 10 March 2011 the bailiff asked
the Ivano-Frankivsk Education Department whether C. was attending school in the Ivano-Frankivsk
region at that time.
On 14 March 2011 the bailiff made enquiries
about the place of residence of M. and C. at the Residence Registry at the Ivano-Frankivsk regional police headquarters.
On 15 March 2011 the Ivano-Frankivsk Regional Court of Appeal allowed
the request of the Ivano-Frankivsk Bailiffs’ Service for C. to
be placed in the Ivano-Frankivsk
temporary care facility for children while the judgment of 4
February 2010 was enforced.
On 21 March 2011 the Residence Registry of the Ivano-Frankivsk regional police headquarters reported that M.
had been registered as living at the
address of her grandmother in Ivano-Frankivsk until 28 December 2005,
when she had left for Poland, and
C. was registered as living in the Ivano-Frankivsk region.
On 25 March 2011 the bailiff made
another enquiry with the Ivano-Frankivsk
Education Department as to whether C.
was attending a school in the Ivano-Frankivsk
region at that time. On 29 March 2011 the Department
replied in the negative.
On 30 March 2011 the bailiff went to the address
of C.’s great-grandmother but nobody answered the door. The neighbours
alleged that they had not seen C. at that address since the summer of 2010.
On 8 April 2011 the bailiff made
an enquiry with the Simferopol Education Department as to whether C. was attending a
school in that city at that time.
. By a letter
of 27 April 2011 the Simferopol Education
Department reported that the applicant’s
daughter was currently attending secondary school no. 12
in Simferopol. This information was further confirmed on 6 May 2011 by the
administration of the above-mentioned school.
Consequently, on 10 May 2011 the bailiff of the
Ivano-Frankivsk Bailiffs’ Service terminated the enforcement proceedings and transferred
the writ of execution for further enforcement to the Kyivskiy State Bailiffs’
Service in Simferopol.
On 20 May 2011 the Kyivskiy State Bailiffs’ Service
initiated enforcement proceedings.
On 26 May 2011 the bailiff visited secondary school no. 12 and found out
that, at M.’s request, citing family reasons, C. was temporarily absent from
school for the period between 5 May and 15 June 2011.
On 27 May 2011 the bailiff visited C.’s grandmother
in Simferopol and found that M. and C. had left for
Ivano-Frankivsk.
On 31 May 2011 the bailiff in Simferopol asked
the Ivano-Frankivsk State Bailiffs’ Service to check whether M. and C. were now
living in Ivano-Frankivsk.
On 9 June 2011 the bailiff in Ivano-Frankivsk visited
C.’s great-grandmother and were informed that M. and C. had not resided
there since the summer of 2010.
On 15 June 2011 the bailiff in Simferopol made
repeated visits to C.’s grandmother but did not find M. or C.
at that address.
On 16 June 2011 the bailiff requested the Simferopol
Kyivskiy District Court to issue a search order for M. and C.
On 20 June 2011 the court ordered a search for M.
and sent the decision to the Kyivskiy District police station for enforcement.
On 23 June 2011 the bailiff in Ivano-Frankivsk visited
C.’s great-grandmother, who said (as was confirmed by some of her neighbours)
that M. and C. were in Simferopol.
On 30 June 2011 the bailiff in Simferopol suspended
enforcement proceedings until M. was found and informed the parties of this
decision.
On 1 July 2011 the Simferopol Kyivskiy District
Court ordered a search for C. and sent the decision for enforcement to the
Kyivskiy District police station.
On 27 July 2011 C. sent an application to the Acting Head of
the Children’s Service of the Simferopol
Kyivskiy District Council in which, in accordance with Article 160 § 3
of the Family Code (see paragraph 81 below), she declared her
wish to live with
her mother at her
grandmother’s address in Simferopol.
On 1 August 2011 and on 12 September 2011 the
bailiff enquired at the Kyivskiy District police headquarters as to whether
there had been any results of the search for M. and C.
On 14 September 2011 the bailiff passed on a letter
to the Kyivskiy district police headquarters from the Polish
Embassy, in which it was claimed that C. might be staying with her grandmother’s
neighbours.
On 12 October 2011 the bailiff enquired at the
Kyivskiy district police headquarters as to whether there had been any results
of the search for M. and C.
On 13 October 2011 the Kyivskiy district police headquarters
reported to the bailiff that its officers had visited C.’s grandmother and found that C.
had been living with her at this address
for about a year, during which time she had
been studying at Simferopol secondary school no.12. After receiving this information, the
bailiff then resumed the enforcement proceedings, on 14 October 2011.
On 14 October 2011 the bailiff requested the Ivano-Frankivsk
Regional Court of Appeal for clarification of the further order of execution of
the judgment of 4 February 2010, since by the day the enforcement proceedings
were due to be resumed C. had attained the age of fourteen and,
in accordance with Article 160 § 3 of the Family Code, she
then had the right to choose
a place of residence at her own discretion. The bailiff
suspended the proceedings on that same day until the examination of that
request.
On 17 November 2011 the Ivano-Frankivsk Regional
Court of Appeal examined the bailiff’s request of 14 October 2011 and delivered
a decision to reject it.
On 22 December 2011, with the help of the Polish
Embassy, the applicant succeeded in meeting C., but she refused to return to Poland. According to the applicant, wishing to act in the interests of his child and
unwilling to use coercion, he then applied for suspension of the enforcement
proceedings as C. had expressed a desire to return to Poland at the beginning of the winter holidays.
On 23 January 2012 the applicant had met with
his daughter in the presence of the Polish Consul. C. had refused to return to Poland with her father but had agreed to visit him there during the spring holidays. The
same day the bailiff returned the writ of execution to the applicant upon his
request as he and his daughter had come to an agreement to communicate
voluntarily and C. had consented to visit him in Poland for the spring and
summer holidays. As a result of this, the enforcement proceedings, ordered by the
judgment of 4 February 2012, were terminated.
On 16 March 2012 the applicant requested the
reopening of the enforcement proceedings as the promises made previously had not
been kept.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND
PRACTICE
A. 1980 Hague Convention on the Civil Aspects of
International Child Abduction
The preamble of the 1980 Hague Convention on the
Civil Aspects of International Child Abduction, to which Ukraine acceded on 1
September 2006 (Law of 11 January 2006 no. 3303-IV on accession of Ukraine to
the Convention on the Civil Aspects of International Child Abduction), includes
the following statement as to its purpose:
“ ... to protect children internationally from the harmful
effects of their wrongful removal or retention and to establish procedures to
ensure their prompt return to the State of their habitual residence ...”
The relevant provisions of the Hague Convention
read as follows:
Article 3
“The removal or
the retention of a child is to be considered wrongful where
(a) it is in breach of rights of custody attributed
to a person, an institution or any other body, either jointly or alone, under
the law of the State in which the child was habitually resident immediately
before the removal or the retention; and
(b) at the time of the removal or retention those
rights were actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention. ...”
Article 7
“Central Authorities shall co-operate with each other and
promote co-operation amongst the competent authorities in their respective
States to secure the prompt return of children and to achieve the other objects
of this Convention.
In particular, either directly or through any intermediary,
they shall take all appropriate measures
(a) To discover the whereabouts of a child who has
been wrongfully removed or retained;
(b) To prevent further harm to the child or
prejudice to interested parties by taking or causing to be taken provisional
measures;
(c) To secure the voluntary return of the child or
to bring about an amicable resolution of the issues;
(d) To exchange, where desirable, information
relating to the social background of the child;
(e) To provide information of a general character as
to the law of their State in connection with the application of the Convention;
(f) To initiate or facilitate the institution of
judicial or administrative proceedings with a view to obtaining the return of
the child and, in a proper case, to make arrangements for organizing or
securing the effective exercise of rights of access;
(g) Where the circumstances so require, to provide
or facilitate the provision of legal aid and advice, including the
participation of legal counsel and advisers;
(h) To provide such administrative arrangements as
may be necessary and appropriate to secure the safe return of the child;
(i) To keep each other informed with respect to the
operation of this Convention and, as far as possible, to eliminate any
obstacles to its application.”
Article 11
“The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement of the
proceedings, the applicant or the Central Authority of the requested State, on
its own initiative or if asked by the Central Authority of the requesting
State, shall have the right to request a statement of the reasons for the delay.
...”
Article 12
“Where a child has been wrongfully removed or retained in terms
of Article 3 ..., the authority concerned shall order the return of the child
forthwith.”
Article 13
“Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State is not bound to
order the return of the child if the person, institution or other body which
opposes its return establishes that
...
(b) there is a grave risk that his or her return
would expose the child to physical or psychological harm or otherwise place the
child in an intolerable situation. ...”
B. The Ukrainian Family Code 2002
The relevant provision of the Code reads as
follows:
Article 160
The right of parents to determine the child’s place of residence
“...
3. If the parents live separately,
the residence of a child who has reached the age of fourteen shall be
determined by the child himself or herself.”
C. The Ukrainian Enforcement Proceedings Act of 21
April 1999(Law No. 606-XIV)
The relevant
provisions of the law read as follows:
Section 40
Declaration of a search
“1. In absence of
information regarding the place of permanent or temporary residence or
whereabouts ... of a child in documents relating to the enforcement proceedings
for the return of the child, the State bailiff shall submit an application to
the court to order a search for ... the child. ...
2. The search for ...
the child ... shall be carried out by authorities of the Ministry of Internal
Affairs ...The order for the search shall be delivered either at the place of
enforcement or the last known place of permanent or temporary residence or
whereabouts of the debtor or the location of his or her property, or the place
of residence (or whereabouts) of the plaintiff ...”
Section 77
Enforcement of a judgment on the return of a child
“1. During the
enforcement of a judgment on the return of a child, the State bailiff shall
carry out the enforcement measures with the compulsory participation of the
person responsible for bringing up the child and with the cooperation of representatives
from the relevant care institutions.
2. If necessary, the
State bailiff may apply to the court for a temporary order placing the child in
an appropriate childcare or medical institution.
3. If the debtor hinders
the enforcement of the decision on the return of the child, the measures
provided for by the law shall be imposed on him or her.”
Section 89
Responsibility for non-enforcement of a decision, which requires the debtor to
perform certain actions, and a decision on reinstatement
“1. In case of
non-enforcement without good reason within the time-limit established by the
State bailiff of a decision that requires the debtor to perform certain actions
... the State bailiff shall take a decision to impose a fine on the debtor -
individual in the amount of ten to twenty minimal incomes ... and set a new
time-limit.
2. In case of
repeated non-enforcement by the debtor without good reason, the State bailiff
shall by the same procedure impose on him a fine in the double amount and apply
to law enforcement agencies with a request (notification) for bringing the
debtor to criminal liability under the law.”
Section 90
Responsibility for non-compliance with lawful requirements of the bailiff and
for violation of this Law
“1. For violation of
this Law, non-compliance with the lawful requirements of the State bailiff ...
the responsible persons shall be liable in accordance with the law.
2. If there is
evidence of a crime in the actions of a person who intentionally impedes the
enforcement of judgment or otherwise violates the requirements of enforcement
proceedings law, the State bailiff shall draw up a violation report and apply
to law enforcement agencies with request (notification) for bringing the person
to criminal liability under the law.”
The term “debtor” encompasses respondents in all types of
enforcement proceedings, including enforcement of judgments on the return of children.
D. Instruction on carrying out enforcement measures, approved
by the Order of the Ministry of Justice of Ukraine of 15 December 1999 No. 74/5
The relevant provisions of the instruction read
as follows:
8.3. Enforcement of a
judgment on the return of a child
“8.3.1. During an enforcement of a judgment on the
return of a child, the State bailiff shall carry out the enforcement measures with
the compulsory participation of the person responsible for bringing up the
child and with the cooperation of representatives from the relevant care institutions,
and, if necessary, representatives of childcare and educational agencies and health
care workers.
8.3.2. If necessary, the State bailiff may apply to
the court for a temporary order placing the child in an appropriate childcare or
medical institution.
8.3.3. If it is impossible to determine the whereabouts
of the respondent, the child or both, the State bailiff may apply to the court
to order a search for the child or the respondent. If the enforcement is
hindered by the respondent, the State bailiff may decide to impose a fine on
him or her.
8.3.4. During the enforcement of a judgment on the
return of a child, it is forbidden to apply physical force to the child ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the inefficiency
of the Ukrainian authorities and thus, in particular, their continual failure
to enforce the judgment of 4 February 2010 intended to reunite him with his daughter,
had violated his right to respect for family life as provided in Article 8 of
the Convention, which reads 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
85. The respondent Government noted that the
present case concerned the enforcement of a judgment in a dispute between two
private individuals. They stated that in such a situation the responsibility of
the State could extend no further than the involvement of State authorities in
enforcement proceedings. They further submitted that Ukrainian legislation
provided for the possibility of challenging before the courts the lawfulness of
acts and omissions of the State Bailiffs’ Service in enforcement proceedings
and of claiming damages. Given that the applicant had failed to challenge any
of the bailiffs’ actions before the Ukrainian courts, the respondent
Government, referring to the Court’s case-law (see Kukta v. Ukraine (dec.), no.
19443/03, 22 November 2005, and Dovgal v. Ukraine (dec.), no. 50726/06, 20 October 2009), took the view that the
application should be declared inadmissible for non-exhaustion of domestic
remedies.
The applicant did not comment on the Government’s
objection to the admissibility of his application.
The Court notes that the cases referred to by
the respondent Government concerned debt recovery proceedings conducted against
private parties, while the present case concerns a different type of
enforcement proceedings aimed at returning an abducted child to a parent.
Therefore, the case-law referred to by the Government cannot be applied
automatically in the present case. Given that this is the first case of this
type against Ukraine and the Government’s objection is closely linked to the
merits of the applicant’s complaint under Article 8 of the Convention, the Court
joins it to the merits.
The Court further notes that this complaint 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.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant maintained that the enforcement
proceedings had been opened on 21 March 2009 on the lodging of his application for
the return of his daughter, but the Ukrainian courts, in violation of Article
12 of the 1980 Hague Convention, had not delivered a decision until 1 December
2009. Furthermore, that decision had not been in his favour. It was not until
4 February 2010 that the appellate court had overturned the decision of
the first-instance court and had ordered the return of C. to Poland. The applicant further submitted that only in March 2011 had an attempt to find M. and C.
been made by the bailiff.
The applicant further alleged that the
enforcement proceedings had been continually unsuccessful because the Ukrainian
authorities had notified M. in advance about the enforcement actions, thus
giving her the opportunity to avoid them. He submitted that the fact that the
authorities had not informed M. of the final enforcement attempt, planned for
22 December 2011, was only due to the intervention of the Polish Consulate.
He also drew attention to the acknowledgment by the
Ukrainian Government of the fact that M. had hindered the enforcement process,
Nevertheless, no legal remedies had been pursued against M. in the entire course
of the proceedings, although such remedies were provided for by Ukrainian law (Section
77 of the Enforcement Act). In his opinion, the lack of any sanctions imposed
on M. had been the cause of her negligent attitude towards the judgment.
The applicant further disagreed with the
Government’s submission that during the two years in which the enforcement
proceedings had taken place, the whereabouts of M. and C. had been unknown. He submitted
that the bailiffs had known that M. and C. had been in either Ivano-Frankivsk
or Simferopol. The bailiffs could therefore have conducted simultaneous
proceedings in both places, instead of which they had discontinued the enforcement
proceedings in one region, transferring the case to the other and then
discontinued them again and transferred the case back again. This had happened
three times. The applicant submitted that it was worth noting that the police, although
aware of the enforcement proceedings being conducted against M., had failed to intervene
when she had applied to them for permanent residence in Ukraine.
He noted that he had submitted numerous requests
to the Ukrainian authorities through the Polish Ministry of Justice for the
acceleration of the enforcement proceedings and informed them that he had
received messages from M. in which she had threatened him and declared that he
would never see their daughter again. He stated that the Ukrainian authorities
had either failed to notify him of the attempts at enforcement that had been
made or had done so at such short notice that he could not possibly take part
in them. He complained that he had only received notification three days in
advance of an enforcement attempt planned for 6 August 2010.
He criticised the bailiffs for their inactivity
and their delays in taking action. He claimed that these failures had not
simply violated his and his daughter’s family life, but had ruined it
completely. He submitted that the rebuilding of his relationship with his
daughter had become very difficult, if not impossible. Adapting to new
conditions would now be very difficult for C. In his opinion, the conduct of
the enforcement process by the Ukrainian authorities had led to a situation in
which his young daughter, deprived of contact with her father, had lost her sense
of safety, which was indispensable during adolescence.
In reply to the third party’s comments (see
paragraphs 97 to 103 below), the applicant noted that they generally coincided,
with his position. However, he argued that it would not be premature for the
Court to deliver its decision on the merits of the case. In his opinion, even
if the enforcement proceedings reached a successful conclusion, this could not have
an impact on the assessment of the actions taken by the State Bailiffs’ Service
of Ukraine in the period between 4 February 2010 and January 2012.
(b) The respondent Government
The respondent Government recognised that the State
had a positive obligation to enforce the judgment in question and stated that
the bailiffs’ service had repeatedly taken all possible steps to enforce the
judgment in the applicant’s favour as soon as possible. They submitted that the
applicant had not challenged any actions or failures to act by the bailiffs
before the courts; therefore it could be assumed that he had agreed with them.
Furthermore, delays in enforcement had also been caused by the behaviour of the
applicant’s ex-wife M. as the applicant himself had agreed when he had mentioned
this point in letters he had sent to the Ministry of Justice. For example, M.
had failed to appear when summoned to do so and, in moving from one city to
another, she had knowingly hindered the enforcement proceedings. Furthermore,
M.’s relatives, in particular C.’s grandmother and great-grandmother, had
further complicated matters by concealing information about the actual
whereabouts of M. and C. All these actions had led to the involvement in the
proceedings of the police and the bailiffs’ services from two different regions.
The Government concluded that the State authorities had taken all the necessary
steps to enforce the judgment in the applicant’s favour but had been hindered by
the behaviour of private parties for whom the Government could not be held
responsible.
(c) The third party
The Polish Government observed that a State’s
positive obligations under Article 8 included taking measures to enable parents
to be reunited with their children. The decisive issue was therefore whether
the national authorities had taken all the measures that could be reasonably
demanded of them to facilitate the exercise by a parent of his or her rights of
custody, access and parental authority as recognised by the applicable law or
granted by a judicial decision.
They further noted that the above obligation on the
national authorities was not absolute and would depend on the circumstances of
the particular case. In particular, any obligation to apply coercion in such
cases must be limited and the interests and rights of all those involved, and,
more particularly, the best interests of the child, should be taken into
account. Where contact with the parent might appear to threaten those interests
or interfere with those rights, it was for the national authorities to strike a
fair balance between them. Furthermore, the positive obligations in this area
must be interpreted in the light of the UN Convention on the Rights of the
Child of 20 November 1989 and the Hague Convention on Civil Aspects of
International Child Abduction of 25 October 1980.
The Polish Government further stated that effective
respect for family life required that future relations between parent and child
be assessed solely in the light of all relevant considerations and not by the
mere efflux of time. Therefore, the adequacy of a measure was to be assessed by
the swiftness of its implementation. Proceedings concerning the return of an
abducted child, including the enforcement of the final decision, required
urgent handling as the passage of time could have irremediable consequences for
the relationship between the child and the parent who did not live with him or
her. They referred to the position of the Polish Supreme Court, which had
confirmed that cases of abduction should be dealt with as a matter of urgency.
The Polish Government acknowledged that there
could be instances in which a lack of cooperation on the part of private
individuals might render the return of the child difficult. They, therefore,
saw a need for States Parties to the 1980 Hague Convention to develop certain measures
and procedures within their legal systems in order to ensure the proper
implementation of that Convention. Such measures could include facilitating a
compromise between the parties concerned and synchronising various actions by
different State authorities in enforcement proceedings.
They underlined that, as regards the present
case, the Polish authorities had been cooperative and had fulfilled their
obligations under the Hague Convention. Their Ministry of Justice, as well as
their Consuls General in Lviv and Sebastopol, had acted with due diligence. The
consuls in question had also provided the Government with information about the
conduct of the Ukrainian authorities in the enforcement proceedings. Both
consuls were unanimous that the execution of the judgment in the present case had
been ineffective throughout the two-year period. According to the consul in Simferopol, the Ukrainian authorities had not been able to find C. although they knew which
school she had been attending. Furthermore, C.’s place of residence in Simferopol had been established by the Ukrainian authorities after pressure from the Polish
Consulate. In the consuls’ opinion, the Ukrainian authorities had been seen to
be declaring their full cooperation, good will and commitment while no
effective action had actually been taken by them for a significant period of
time. The Polish Government also noted the applicant’s criticism of the
Ukrainian authorities for the lack of synchronisation of their actions, in that
they had established two possible addresses for C. but had checked one after the
other, instead of checking both at the same time.
Lastly, the Polish Government noted that
the first successful attempt to execute the judgment of 4 February 2010 had
taken place on 23 January 2012, when the applicant had met with his
daughter in the presence of the Polish Consul. C. had refused to return to Poland with her father but had agreed to visit him there during the spring holidays.
The Polish Government concluded that there were
grounds to believe that the recent developments might lead to the effective
enforcement of the judgment of 4 February 2010 and to the successful
restoration of family ties between the applicant and his daughter. They noted
the good will on the part of the applicant and his reluctance to traumatise his
child with coercive enforcement measures. They also noted that the Ukrainian
authorities had stepped up their efforts in January 2012. They considered that
it would be premature to decide on the merits of the case as the situation was unpredictable
and subject to change, and therefore further developments should be awaited.
2. The Court’s assessment
As the relationship between the applicant and his
daughter is one of family life for the purposes of Article 8 of the Convention,
the Court needs to determine whether there has been a failure to respect the
applicant’s family life. The Court reiterates that the essential object of
Article 8 is to protect the individual against arbitrary action by the public
authorities. There are in addition positive obligations inherent in an effective
“respect” for family life. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the individual
and of the community as a whole; and in both contexts the State enjoys a
certain margin of appreciation (see, among other authorities, Ignaccolo-Zenide
v. Romania, no. 31679/96 § 94, ECHR 2000-I; Iglesias Gil and
A.U.I. v. Spain, no. 56673/00, § 48, ECHR 2003-V; and Mikulić
v. Croatia, no. 53176/99, § 58, ECHR 2002-I).
Furthermore, the Court has consistently held
that the State’s positive obligation under Article 8 includes a right for
parents to have access to measures which will enable them to be reunited with
their children and an obligation on the national authorities to take such
action. However, the obligation on the national authorities to take such
measures is not absolute, since the reunion of a parent with a child who has
lived for some time with the other parent may not be able to take place
immediately and may require preparatory measures. Any obligation to apply
coercion in this area must be limited since the interests and the rights and
freedoms of all concerned must be taken into account, and more particularly the
best interests of the child and his or her rights under Article 8. Where
contacts with the parent might appear to threaten those interests or interfere
with those rights, it is for the national authorities to strike a fair balance
between them (see Sylvester v. Austria, nos. 36812/97 and 40104/98, § 58,
24 April 2003.
In cases concerning the enforcement of
decisions in the realm of family law, the Court has repeatedly found that what
is decisive is whether the national authorities have taken all the necessary
steps to facilitate execution which can reasonably be demanded in the special
circumstances of each case. In examining whether the failure to enforce a court
order amounted to a lack of respect for the applicant’s family life, the Court
must strike a fair balance between the interests of all persons concerned and
the general interest in ensuring respect for the rule of law. In cases of this
kind 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 who does not live with him or her (see Sylvester,
cited above, §§ 59-60).
Lastly, the Court considers that the positive
obligations which Article 8 of the Convention imposes on the Contracting States
with respect to reuniting parents with their children must be interpreted in
the light of the Hague Convention on the Civil Aspects of International Child
Abduction of 25 October 1980 (see Ignaccolo-Zenide, cited above, § 95)
and the concept of the child’s “best interests” is also a primary consideration
in the context of the procedures provided for in the Hague Convention (see Neulinger
and Shuruk v. Switzerland [GC], no. 41615/07, § 76, ECHR 2010).
In the circumstances of the present case the
Court notes that it took the Ukrainian courts almost a year to order the return
of C. to Poland and almost two years to conduct the first partially successful
attempt to enforce the judgment of 4 February 2010, by which the return had
been ordered. The Court accepts that the actions of a private individual, M.,
and her relatives hindered the enforcement proceedings; however, it should be
noted that M. and C. had been living in Ukraine quite openly. C. was attending a
State secondary school and was an outpatient at a public hospital, and her
mother M. had been in contact with the domestic authorities (see
paragraphs 15, 17, 19, 21, 24, 56 and 69 above). In these circumstances,
it cannot be said that the bailiffs had an impossible task to perform in
tracing their whereabouts and in at least bringing C. into contact with her
father. The actions taken by the domestic authorities appeared to be
formalistic and uncoordinated, although, according to the respondent Government,
these had been the only steps possible for the enforcement of the judgment. The
penalty provided by the domestic law for hindering the enforcement procedure is
formulated in very general terms and the Government did not argue that the
bailiffs could effectively have brought M. and her relatives to account for
deliberate obstruction of the enforcement proceedings. At the same time the
application of the only clearly formulated penalty against M. for failure to
enforce the judgment, namely the fine (see paragraph 82 above), does not appear
to be ever considered by the bailiffs, even though it would probably be to no
avail until M. could be effectively located and contacted. If the competence of
the bailiffs was limited, as the Government maintained, only to the actions
that were actually taken by the bailiffs in this case, the applicant could not
be reproached for not challenging the bailiffs’ actions in the courts.
Furthermore, the Government did not demonstrate in what way any further
judicial action by the applicant could have accelerated the enforcement
proceedings, nor did they furnish any examples of the domestic case-law applied
to that effect in any previous cases of child abduction. Therefore, the
Government’s objection as to admissibility must be dismissed.
The Court finds that the present case
demonstrates that the actions available, under domestic law, to the Ukrainian bailiffs’
service were not sufficient in the circumstances to face the challenges of the
enforcement of the judgment and the lack of effectiveness of the enforcement
led to a serious rupture of the family ties between the applicant and his
daughter.
There has accordingly been a violation of Article 8 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant also complained that the lengthy
failure to enforce the judgment ordering the return of his daughter to Poland
was in breach of Article 6 § 1 of the Convention, the relevant part of which
reads as follows:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by a ...
tribunal ...”
A. Admissibility
The Court notes that this complaint is linked
to the one examined above and must therefore likewise be declared admissible.
B. Merits
Having regard to its findings in relation to
Article 8 (see paragraphs 108 and 109 above), and that it was the
unreasonable delay by the court and the subsequent enforcement proceedings
which were at the heart of the applicant’s complaint, the Court considers that
it is not necessary to examine whether, in the instant case, there has been a
violation of Article 6 § 1 (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 30,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the claimed amount
exorbitant and completely unsubstantiated.
The Court, ruling on an equitable basis, awards
the applicant EUR 7,500 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed 13,599 Polish złotys
(PLN -approximately EUR 3,285) for costs and expenses incurred at the domestic
level and before the Court.
The Government considered that the majority of
the claimed expenses submitted were not sufficiently specific and detailed.
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 amount claimed in full.
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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. Holds that there is no need to examine the
complaint under Article 6 § 1 of the Convention;
4. 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, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,285 (three thousand two hundred and
eighty-five euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Mark
Villiger
Registrar President
