FIRST SECTION

CASE OF NAZARENKO v. RUSSIA

( Application no. 39438/13 )

JUDGMENT

STRASBOURG

16 July 2015

FINAL

16/10/2015

This judgment is final.

In the case of Nazarenko v. Russia ,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Ksenija Turković, Dmitry Dedov, judges, and Søren Nielsen, Section Registrar ,

Having deliberated in private on 23 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 39438/13) 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, Mr Anatoliy Sergeyevich Nazarenko (“the applicant”), on 15 May 2013.

2 . The Russian Government (“the Government”) were represented by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights.

3 . The applicant alleged, in particular, that the termination of his parental status had deprived him of the right to contact his daughter or to lodge civil actions in defence of her rights and that he had not been informed of the date of an appeal hearing.

4 . On 15 October 2013 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible. The Court also decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1965 and lives in Ulan-Ude.

6 . In 2007 the applicant’s wife, N., gave birth to a daughter, A.

7 . In 2010 the applicant and N. divorced.

8 . On 18 January 2011 the Oktyabrskiy District childcare and guardianship authority (“the childcare authority”) determined that A. would reside with the applicant during even weeks and with her mother, N., during odd weeks. In January, June, July and August, A. was to live with the applicant for one week of his choice per month.

A. Events preceding the termination of parental status

9 . On 22 March 2011 the applicant discovered several bruises on A.’s body. Suspecting that she had been beaten and sexually abused by N.’s new partner, he refused to return A. to N.

10 . During the following year, A. lived with the applicant and her paternal grandmother. On several occasions the applicant allowed N. to visit A. in his presence.

11 . On 25 March 2011 the applicant complained to the police and to the Oktyabrskiy District investigation committee that his daughter had been beaten and sexually abused by N.’s partner. The investigation committee opened a pre-investigation inquiry.

12 . The applicant and N. both applied to the Oktyabrskiy District Court of Ulan-Ude for a residence order in respect of A.

13 . On 25 April 2011 A. was questioned by an investigator in the presence of a psychologist as part of the pre-investigation inquiry. A. stated that she wanted to live with the applicant because he was nice, whereas her mother and her mother’s new partner had treated her badly. She was again questioned by the investigator in the presence of a psychologist on 27 June and 3 August 2011, and confirmed her previous statements.

14 . On 19 May 2011 the Oktyabrskiy District Court granted N.’s application for a residence order and refused the applicant’s similar application. The court found that both parents had taken an equal share in A.’s upbringing. They both had sufficient financial means and their standard of living was equally satisfactory. However, taking into account A.’s gender and age, it was preferable for her to be brought up by her mother. A child under the age of twelve could be separated from the mother only in exceptional circumstances. No such circumstances had been established in the present case. N. was employed and had sufficient income. There was no evidence of negligence or mistreatment on her part. A.’s bruises could have been sustained as a result of a fall or in the course of a game, and were insufficient to prove mistreatment. A criminal inquiry into the allegations of mistreatment was still pending. The court-appointed expert psychologist’s finding that A. was emotionally closer to her father and paternal grandmother than to her mother could not be taken into account in the absence of established evidence of mistreatment by the mother. The court concluded that it was therefore in A.’s best interests to live with her mother.

15 . On 20 May 2011 the childcare authority noted that A. wished to live with her father. An inspection of the applicant’s flat had revealed that he had created all the appropriate conditions for A.’s normal development. The childcare authority therefore found that A. should reside with the applicant.

16 . On 22 June 2011 the Supreme Court of the Republic of Buryatiya upheld the judgment of 19 May 2011 on appeal. It found that the Oktyabrskiy District Court had failed to consider the childcare authority’s findings and opinion and had therefore committed a serious breach of the procedure prescribed by law. However, given that the childcare authority’s opinion was advisory rather than binding on the court, the failure to consider that opinion did not warrant reconsideration of the judgment, which was correct in substance.

17 . On 30 June 2011 the Oktyabrskiy District investigation committee opened criminal proceedings into the alleged mistreatment and sexual abuse of A.

18 . As the applicant continued to retain A., N. applied to the Oktyabrskiy District Court for an injunction requiring the applicant to return A. to her.

19 . On 29 November 2011 the Oktyabrskiy District Court allowed N.’s application. It found that the applicant had refused to comply with the judgment of 19 May 2011, upheld on appeal. It ordered that, in compliance with that judgment, the applicant should return A. to N. On 30 January 2012 the Supreme Court of the Republic of Buryatiya upheld that judgment on appeal.

20 . On an unspecified date the applicant applied for a second time to the Oktyabrskiy District Court for a residence order in respect of A. At the same time he applied for a restriction of N.’s parental authority over A.

21 . On 23 January 2012 the Oktyabrskiy District Court dismissed the application and confirmed its previous order to the effect that A. should live with her mother, citing the same reasons as in the judgment of 19 May 2011. The court found no reason to restrict N.’s parental authority over A. On 2 April 2012 the Supreme Court of the Republic of Buryatiya upheld that judgment on appeal.

22 . On 13 March 2012 N. kidnapped A. from the applicant. She has since prevented the applicant from seeing his daughter.

23 . On 20 March 2012 A. was again questioned by the investigator in the presence of a psychologist. She said that she liked living with her mother and that her mother was treating her well.

24 . On 23 April 2012 A. was examined by a panel of psychologists appointed by the investigator as part of the criminal proceedings. They found that A. was not suffering from any learning difficulties or disorders. However, owing to her age, level of development and susceptibility to external influence, she was unable to give reliable evidence about her relationships with her mother, her father or her mother’s new partner.

25 . On 30 April 2013 the Oktyabrskiy District investigation committee discontinued the criminal proceedings, finding that there was no evidence of mistreatment or sexual abuse and that the bruises could have been caused by a fall. According to the experts, A.’s statements that her mother’s partner had treated her badly were unreliable. The witnesses had been unable to provide any information confirming the applicant’s allegations of child abuse.

B. Termination of parental status and subsequent events

26 . The applicant applied for a third time to the Oktyabrskiy District Court for a residence order in respect of A. He also asked that N. be deprived of parental authority over A.

27 . While those proceedings were pending, N. lodged an application with the Oktyabrskiy District Court, contesting the applicant’s paternity of A. She requested that his name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed.

28 . On 23 July 2012 a DNA paternity test established that the applicant was not A.’s biological father.

29 . On 18 September 2012 the Oktyabrskiy District Court allowed N.’s claims. It found that the applicant was not A.’s biological father and terminated his parental status in respect of her. It ordered that the applicant’s name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed to a family name and a patronymic not connected with the applicant. On 19 November 2012 the Supreme Court of the Republic of Buryatiya upheld that judgment on appeal.

30 . On 16 January 2013 the Oktyabrskiy District Court discontinued the proceedings concerning the applicant’s application for a residence order and an order to deprive N. of parental authority over A . The court reasoned that as the applicant was not A.’s biological father, he had no standing under domestic law to lodge civil actions concerning parental authority over A. or A.’s residence arrangements. The applicant was absent from the hearing because he was ill.

31 . On 27 February 2013 the Supreme Court of the Republic of Buryatiya upheld that decision on appeal. According to the applicant, he had not been informed of the date of the hearing. Nor was he informed about the appeal decision until 12 March 2013.

32 . On 31 May 2013 a judge of the Supreme Court of the Republic of Buryatiya refused to refer a cassation appeal lodged by the applicant to the presidium of that court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. It noted, in particular, that there was proof in the case file that a letter had been sent to the applicant on 7 February 2013 informing him of the date of the appeal hearing. Information regarding the hearing date had also been published on the court’s official website. The applicant had therefore been duly informed of the date of the appeal hearing.

II. RELEVANT DOMESTIC LAW

34 . In the event of the parents’ separation, the child’s residence arrangements are fixed by an agreement between the parents. If no such agreement can be reached, the child’s residence arrangements are fixed by a court order, having regard to the child’s best interests and his or her opinion on the matter. In particular, the court must take into account the child’s attachment to each of the parents and the siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities, and the possibilities each of them have for creating appropriate conditions for the child’s upbringing and development, such as their occupation, employment schedule, and financial and family situation (Article 65 § 3).

35 . The parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development (Article 66 § 1).

36 . A child is entitled to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives. The parents’ divorce or separation, or the annulment of their marriage, has no bearing on the child’s rights. In particular, where the parents reside separately from each other, the child is entitled to maintain contact with both of them (Article 55 § 1).

37 . Grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, the childcare authority may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authority’s order, the relative concerned or the childcare authority may apply to a court for a contact order. The court must take a decision in the child’s best interests and must take the child’s opinion into account. If the parents do not comply with the contact order issued by a court, they may be held liable in accordance with the law (Article 67).

38 . A court may deprive a parent of parental authority at the request of the other parent, a guardian, a prosecutor or social services if, among other reasons, the parent mistreats the child by resorting to physical or psychological violence or sexual abuse (Articles 69 and 70 § 1).

39 . A court may restrict a parent’s parental authority and remove the child from the parent’s care in the interests of the child at the request of a close relative, social services, an educational institution or a prosecutor. Parental authority may be restricted in cases where the parent represents a danger to the child (Article 73).

III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW MATERIALS

A. United Nations documents

41 . Article 3 of the Convention on the Rights of the Child, adopted in 1989 by the UN General Assembly and ratified by Russia in 1990, provides as follows.

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

...”

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

...

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

...”

43 . In its General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3, paragraph 1), adopted on 29 May 2013 (CRC/C/GC/14), the UN Committee on the Rights of the Child stated, in particular:

“13. Each State party must respect and implement the right of the child to have his or her best interests assessed and taken as a primary consideration, and is under the obligation to take all necessary, deliberate and concrete measures for the full implementation of this right.

14. Article 3, paragraph 1, establishes a framework with three different types of obligations for States parties:

(a) The obligation to ensure that the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially in all implementation measures, administrative and judicial proceedings which directly or indirectly impact on children;

(b) The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child’s best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision.

...

15. To ensure compliance, States parties should undertake a number of implementation measures in accordance with articles 4, 42 and 44, paragraph 6, of the Convention, and ensure that the best interests of the child are a primary consideration in all actions, including:

(a) Reviewing and, where necessary, amending domestic legislation and other sources of law so as to incorporate article 3, paragraph 1, and ensure that the requirement to consider the child’s best interests is reflected and implemented in all national laws and regulations, provincial or territorial legislation, rules governing the operation of private or public institutions providing services or impacting on children, and judicial and administrative proceedings at any level, both as a substantive right and as a rule of procedure;

...

(c) Establishing mechanisms and procedures for complaints, remedy or redress in order to fully realize the right of the child to have his or her best interests appropriately integrated and consistently applied in all implementation measures, administrative and judicial proceedings relevant to and with an impact on him or her;

...

29. In civil cases, the child may be defending his or her interests directly or through a representative, in the case of paternity, child abuse or neglect, family reunification, accommodation, etc. The child may be affected by the trial, for example in procedures concerning adoption or divorce, decisions regarding custody, residence, contact or other issues which have an important impact on the life and development of the child, as well as child abuse or neglect proceedings. The courts must provide for the best interests of the child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and must demonstrate that they have effectively done so.

...

36. The best interests of a child shall be a primary consideration in the adoption of all measures of implementation. The words ‘shall be’ place a strong legal obligation on States and mean that States may not exercise discretion as to whether children’s best interests are to be assessed and ascribed the proper weight as a primary consideration in any action undertaken.

...

...”

B. Comparative law material

44 . Article 371-4 of the French Civil Code provides that if the interests of the child so require, the family-affairs judge fixes the arrangements concerning the relationship between the child and any other person, whether a relative or not, who has resided in a stable manner with the child and one of his or her parents, has participated in the child’s education, everyday care or accommodation and has developed lasting emotional bonds with him or her.

45 . Article 1685 of the German Civil Code provides that any persons with whom the child has close ties may claim contact rights if they have or have had actual responsibility for the child (a social and family relationship) and if this serves the best interests of the child. It is in general to be assumed that “actual responsibility” has been taken on if the person has been living for a long period in “domestic community” with the child.

46 . Section 10 of the Children Act 1989 of the United Kingdom provides that contact rights may be claimed, in particular, by “any party to a marriage (whether or not subsisting) in relation to whom the child is a child of the family”, by a foster parent or any relative with whom the child has lived for a period of at least one year immediately preceding the application; or by any person with whom the child has lived for a period of at least three years.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

47 . The applicant complained that the termination of his parental status had deprived him of the right to maintain contact with his daughter and to defend her interests in court. He relied on 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

48 . The Court 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

49 . The Government submitted that a DNA test had established that the applicant was not A.’s biological father. The test had been carried out in accordance with the procedure prescribed by law, and the Russian courts had accepted it as admissible and reliable evidence providing a sufficient basis for the decision to terminate the applicant’s parental status in respect of A. There was no reason to doubt the accuracy of the DNA test.

50 . The Government argued that termination of parental status was compatible with the Convention where it had been proved that a child’s “legal” father was not the biological father. According to the Court’s case-law, respect for family life required that biological and social reality should prevail over a legal presumption of paternity (the Government cited Kroon and Others v. the Netherlands , 27 October 1994, § 40, Series A no. 297 ‑ C, and Shofman v. Russia , no. 74826/01, § 44, 24 November 2005). Furthermore, the decision to terminate the applicant’s parental status in respect of A. had had a basis in domestic law, namely Article 52 § 1 of the Family Code (see paragraph 40 above), which did not set any time-limit for bringing an action contesting the paternity of a child.

51 . The Government further submitted that under Russian law only close relatives – parents, grandparents, great-grandparents, siblings, uncles, aunts and cousins – were entitled to maintain contact with a child (see paragraph 37 above). Given that the applicant’s parental status in respect of A. had been terminated, he did not have any entitlement under domestic law to maintain contact with her. The Government noted in this respect that the applicant had never applied to a court for a contact order. In any event, given that a conflict existed between the applicant and A.’s mother, it would not have been in the best interests of the child to grant the applicant contact rights (they referred to Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003).

52 . The Government also submitted that the applicant had no standing under domestic law to apply for a court order depriving A.’s mother of parental authority. Russian law provided that only a parent, a guardian, a prosecutor or social services could apply for such a court order (see paragraph 38 above). The domestic courts’ decision to discontinue the proceedings had therefore been lawful.

53 . Lastly, the Government submitted that all of the domestic courts’ decisions had been taken with A.’s best interests in mind. In particular, they had found that it was in A.’s best interests to be brought up by her mother.

54 . The applicant maintained his claims.

2. The Court’s assessment

55 . The Court must first examine whether there existed a relationship between the applicant and A. amounting to private or family life within the meaning of Article 8 of the Convention.

57 . The Court has found in previous cases that the relationship between a foster family and a fostered child who had lived together for many months amounted to family life within the meaning of Article 8 § 1, despite the lack of a biological relationship between them. The Court took into account the fact that a close emotional bond had developed between the foster family and the child, similar to the one between parents and children, and that the foster family had behaved in every respect like the child’s parents (see Moretti and Benedetti v. Italy , no. 16318/07 , §§ 49-50 , 27 April 2010, and Kopf and Liberda v. Austria , no. 1598/06 , § 37, 17 January 2012).

59 . The Court will next examine whether there has been a failure to respect the applicant’s family life.

60 . The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained . The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary , no. 71099/01, § 70, 5 April 2005, and K. and T. v. Finland, cited above, § 150).

62 . In relation to the State’s obligation to implement positive measures, the Court has repeatedly held that Article 8 includes a parent’s right to the taking of measures with a view to being reunited with his or her child and an obligation on the national authorities to take such action. This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Manic v. Lithuania, no. 46600/11, § 101, 13 January 2015, with further references).

63 . In the context of both the negative and the positive obligations, a fair balance has to be struck between the competing interests of the individual and of the community as a whole; in both contexts the State enjoys a certain margin of appreciation (see Glaser, cited above, § 63 ). Article 8 requires that the domestic authorities strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII, and PÅ‚aza v. Poland , no. 18830/07, § 71, 25 January 2011) .

65 . The Court is concerned about the inflexibility of the Russian legal provisions governing contact rights. They set out an exhaustive list of persons who are entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result a person who, like the applicant, is not related to the child but who has taken care of him or her for a long period of time and has formed a close personal bond with him or her cannot obtain contact rights in any circumstances, irrespective of the child’s best interests. The Government did not give any reasons why it had been considered “necessary in a democratic society” to establish an inflexible list of persons entitled to maintain contact with a child and not to make any exceptions to the application of that provision to take account of the child’s best interests in the particular circumstances of each case.

67 . The Court observes that, as a result of the operation of domestic law, the applicant was entirely and automatically excluded from A.’s life after his paternal status was terminated. However, it considers that a person who has for some time brought up a child as his own must not be completely excluded from the child’s life after it has been revealed that he is not the child’s biological father, unless there are relevant reasons relating to the child’s best interests for doing so. No such reasons were advanced in the present case. It has never been suggested that contact with the applicant would be detrimental to A.’s development. On the contrary, it was established by both the childcare authority and expert psychologists that there existed a strong mutual attachment between the applicant and A. and that the applicant had been taking good care of her (see paragraphs 14 - 15 above).

There has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION

69 . The applicant complained of the discontinuation of the judicial proceedings in respect of his application for a residence order and an order depriving A.’s mother of parental authority. He also complained of the failure to inform him of the appeal hearing of 27 February 2013. He relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

70 . The Government submitted that the applicant had not lodged a cassation appeal with the Supreme Court of the Russian Federation against the decision of 16 January 2013 by the Oktyabrskiy District Court and the subsequent appeal and cassation decisions of 27 February and 31 May 2013. Nor had he lodged a supervisory-review complaint with the Presidium of the Supreme Court. He had, therefore, not exhausted domestic remedies.

71 . The Government further submitted that the applicant had no standing under domestic law to apply for a court order depriving A.’s mother of parental authority (see paragraph 38 above) or for a residence order. The domestic courts’ decision to discontinue the proceedings had therefore been lawful. Furthermore, the applicant’s previous applications for a residence order had been examined by the domestic courts on the merits. The applicant had, moreover, been duly informed about the hearing of 27 February 2013.

72 . The applicant maintained his claims.

73 . The Court considers that the Government’s objection as to the non-exhaustion of domestic remedies is closely linked to the substance of the applicant’s complaints under Article 6 § 1 and Article 13 of the Convention and that it must be therefore joined to the merits. The Court considers that the complaints should be declared admissible and finds, in the light of its above conclusion under Article 8, that it is not necessary to examine separately the applicant’s complaints under Article 6 § 1 and Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74 . 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.”

75 . The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection regarding the non-exhaustion of domestic remedies;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 8 of the Convention;

4. Holds that there is no need to examine either the complaints under Article 6 § 1 and Article 13 of the Convention, or, as a consequence, the Government’s above-mentioned preliminary objection.

Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro Registrar President