FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8984/11 by Tetyana Valentynivna TARKHOVA against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 6 September 2011 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Boštjan M. Zupančič , Isabelle Berro-Lefèvre , Ann Power , Ganna Yudkivska , Angelika Nußberger , judges, and Claudia Westerdiek , Section Registra r ,

Having regard to the above application lodged on 25 January 2011 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Tetyana Valentynivna Tarkhova , is a Ukrainian national who was born in 1962 and lives in Kyiv .

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 15 April 1996 the applicant married Sh. (a Polish national). On 7 July 2000 their son T. was born. The family resided in Poland . According to the applicant, T. is a Ukrainian national. However, according to a letter dated 13 May 2011 from the Ministry of Justice of Ukraine , he is also a Polish national.

In June 2008 the applicant and T. went on holiday to Ukraine with Sh. ’ s consent. They were supposed to return by the middle of August 2008. However, on 30 August 2008 the applicant informed Sh. that they were not returning.

On 12 March 2009 the Ministry of Justice of Ukraine lodged an application on behalf of Sh . with the Solomyansky District Court in Kyiv , seeking the return of the child to Poland under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”).

On 9 July 2009 the court rejected the Ministry ’ s claim. On 19 November 2009 the Kyiv City Court of Appeal quashed this decision and remitted the case for fresh consideration.

On 11 February 2010 the Solomyansky District Court refused to institute civil proceedings concerning a claim brought by the applicant for custody and maintenance of T., referring to Article 16 of the Hague Convention which precludes the relevant authorities from consideration of such claims before deciding on a child ’ s return. This decision was final and not subject to appeal.

On 24 February 2010 the court ordered T. ’ s return to Poland .

The applicant contested the order, alleging that Sh. had not provided financially for basic family needs, including food and medical treatment. She asserted that in Ukraine she had created a proper environment for herself and her son, who had become well integrated into the Ukrainian school system and who objected to his return to Poland . She referred to Article 13 of the Hague Convention.

The representative of the Solomyansky District State Administration Childrens ’ Services Department ( Служба у справах дітей Солом ’ янської районної у м. Києві державної адміністрації ) agreed that the child had been unlawfully held on the territory of Ukraine, but that his mother had provided him with all which was necessary for the child ’ s development. The child was very emotionally attached to his mother and did not want to change his place of residence.

The court found that the applicant had not provided convincing evidence that Article 13 of the Hague Convention was applicable to her situation. On the contrary, there was sufficient documentary proof that Sh. had taken care of his child (including Sh. ’ s salary slips, a note from T. ’ s school in Poland that Sh. had taken an active part in his son ’ s school life, and so forth). The materials submitted by the applicant about the child ’ s living conditions in Ukraine had simply confirmed that the applicant had been properly performing her duties as a mother. T. ’ s preference to stay in Ukraine could not by itself constitute a basis for legalising his abduction, particular regard being had to his young age. The court also noted that Sh. had guaranteed financing the return of both T. and the applicant to Poland , where they had permanently resided before T. ’ s abduction. Moreover, the child ’ s return to Poland would be in his best interests, which included the need to ensure that he was developing in conditions allowing him free linguistic and ethnic self-identification in the future. The court finally noted that t he applicant would be able to lodge a claim seeking to have the child ’ s residence changed via court proceedings in Poland .

On 19 May 2010 the Kyiv Regional Court of Appeal upheld the District Court ’ s judgment. The court found that the first-instance court had adopted a lawful decision. In particular, the applicant ’ s statements that Sh. had insufficient income had not been confirmed by the case-file materials.

On 26 July 2010 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

The applicant ’ s further attempts to review the above decisions in the light of newly discovered circumstances were to no avail.

B. Relevant international law

The relevant provisions of the Hague Convention can be found in the decision in the case of Levadna v. Ukraine (dec.) (no. 7354/10, 27 April 2010).

COMPLAINTS

The applicant complained under Article 6 of the Convention that the consideration of her case had been excessively lengthy. She further complained that the courts had disregarded her arguments. The applicant also complained that the courts had refused to consider her custody claim.

The applicant further complained under Article 8 of the Convention of a violation of her right to respect for family life arising from the courts not having regard to her son ’ s nationality and preference to stay in Ukraine or to her request that her son ’ s opinion be heard.

Finally, the applicant cited Articles 2 and 3 of Protocol No. 4 to the Convention.

THE LAW

1. The applicant complained that by ordering her child ’ s return to Poland the courts had infringed Article 8 of the Convention. This provision reads, in so far as relevant, as follows:

“1. Everyone has the right to respect for his ... 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 ... for the protection of the rights and freedoms of others.”

The Court observes that the decision regarding the return of the applicant ’ s son to Poland amounts to an interference with the applicant ’ s right s protected by Ar ticle 8 of the Convention (see Tiemann v . France and Germany ( dec .), nos. 47457/99 et 47458/99, 27 April 2000 ; Paradis and Others v . Germany (dec.), no. 4783/03, 15 May 2003 ; and Eskinazi and Chelouche v. Turquie (dec.), no. 14600/05, 6 December 2005 ) .

Having regard to the circumstances of the present case, the Court considers that the interference in question was in accordance with the law, in that it was based on the provisions of the Hague Convention ratified by Ukraine and forming part of its domestic law, and pursued a legitimate aim, namely the protection of the family rights of the applicant ’ s husband and son (see Levadna v. Ukraine (dec.), cited above).

Accordingly, it remains to be determine d whether the interference was “necessary in a democratic society” within the meaning of the second paragraph of Article 8 of the Convention, interpreted in the light of the above-men tioned international instrument, the decisive issue being whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck, with particular importance being attached to the best interests of the child .

In this context, the Court observes that in the present case the domestic courts did not decide on the child ’ s custody but rather examined whether the child ’ s abduction had been justified and whether there existed any reasons precluding his return to Poland . In doing so, the courts examined the evidence submitted by the parties and found that there were no circumstances which would have justified the child ’ s removal from his place of residence in Poland and that there were no reasons to believe that his return would put him in danger of physical or psychological harm. There is no evidence that the national courts disregarded the applicant ’ s arguments or that their decisions were arbitrary. The evidence submitted by the applicant both before the national courts and before this Court does not confirm her statements that the life and well-being of her child would be in danger in Poland or that any other conditions which would preclude the child ’ s return have been met.

As regards the applicant ’ s complaint that the courts failed to take into consideration the child ’ s unwillingness to return to Poland, the Court is of the opinion that, given that the subject matter of the dispute was not the determination of the child ’ s place of residence and given the other circumstances of the case, including the child ’ s age, it was correctly balanced against the protection of his father ’ s family rights. The applicant ’ s argument that the child has excellent living conditions in Ukraine equally does not outweigh her partner ’ s right for respect for his family life. Moreover, it is now open to the applicant to lodge a custody claim in Poland if she so wishes.

In these circumstances, h aving regard to the margin of appreciation enjoyed by the authorities in such matters , the Court takes the view that the decision to return the child was proportionate to the legitimate aim pursued , within the meaning of paragraph 2 of Article 8 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. As regards the remainder of the applicant ’ s complaints, the Court has examined them and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann              Registrar              President