FOURTH SECTION

DECISION

Application no. 71797/13 Ivan Mykolayovych KHALANCHUK against Ukraine

The European Court of Human Rights (Fourth Section), sitting on 3 July 2018 as a Committee composed of:

Faris Vehabović, President, Carlo Ranzoni, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 30 October 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ivan Mykolayovych Khalanchuk, is a Ukrainian national who was born in 1975 and lives in Slavuta.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.

A. The circumstances of the case

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

4. In 1994 the applicant married L., with whom he had two daughters, V., born in 1995, and D., born in 2007.

5. On 15 November 2010 the Rivne District Court dissolved the applicant ’ s marriage, finding that it was contrary to the interests of the couple and those of their children. The court further noted that the children lived with L. and granted custody of the children to L., ordering the applicant to pay maintenance for their upbringing.

6 . On 3 January 2012 the applicant lodged a claim under Article 159 of the Family Code of 2002 with the Rivne District Court, stating that his former wife had hindered his contact with D., the younger daughter, and requesting that the court order specific arrangements for such contact. He sought authorisation to, inter alia : have contact with her on a fortnightly basis between 4 p.m. on Friday and 9 a.m. on Monday, with D. staying overnight at his home; have contact with her between 12 noon and 8 p.m. on his birthday and on that of his father and grandmother; have her spend half of her school holidays with him at his home; and travel abroad with her for leisure purposes without his former wife ’ s permission.

7 . On 27 February 2012 the court started proceedings in respect of the applicant ’ s claim. The court heard both parents in person and ordered the Childcare Service to give an opinion as regards possible arrangements for the applicant ’ s contact with D.

8 . On 16 July 2013 the Childcare Service submitted its opinion, in which it considered that the applicant should be allowed to meet D. once a month between 12 noon and 5 p.m., with L. ’ s agreement and in her presence. During the court hearing the representative of the childcare authority explained that D. was to attend primary school from September 2013 and would therefore need time to prepare for her lessons. As regards the applicant ’ s behaviour, according to the information provided by the police, criminal cases had been opened against him and he had been convicted of a crime (for a violation of traffic safety regulations resulting in injuries or death) and an administrative offence (for malicious disobedience to a lawful order or demand by a police officer).

9 . On 17 July 2013 the Rivne District Court delivered a judgment obliging D. ’ s mother not to prevent the applicant from meeting with D. and participating in her upbringing. The court ordered that: the applicant should be granted contact with D. once a month on Saturday or Sunday between noon and 5 p.m., with L. ’ s agreement and in her presence; another contact session should be granted on the applicant ’ s birthday between 2 p.m. and 6 p.m. at his place of residence; the applicant should be allowed to take D. on holiday for a period not exceeding one month, with D. ’ s mother ’ s agreement; and the holidays could be split into two parts. The court further ordered that the parents should respect moral principles and act in the best interests of the child. As regards the applicant travelling abroad with the child, the court considered that he could follow the available procedure for obtaining the other parent ’ s permission, permission which had to be certified by a notary.

10. In its reasoning, the court mentioned that the applicant met D. at her nursery quite often and took her for walks. The court stated that the monthly meetings with the child proposed by the Childcare Service were sufficient and were in the best interests of the child, given that D. would have to attend school and do homework and would therefore need more attention from her mother. In determining the scope of the applicant ’ s contact rights, the court also took into account the applicant ’ s personality, having regard in particular to the information provided by the police concerning criminal and administrative cases against the applicant.

11 . The applicant appealed, arguing that the first-instance court had failed to thoroughly examine the circumstances of the case and ensure fairness in the proceedings. In particular, he challenged the Childcare Service ’ s opinion and argued that L. would not consent to his taking D. abroad. He also contended that it would be detrimental to his relationship with D. and to her mental well-being if he had to meet her in the presence of L., as the latter would cause conflicts and disputes during such meetings, as she had done in the past. The applicant further argued that the information provided by the police had not been precise, because it was important to specify that he had been amnestied for the crime he had been convicted of, and the administrative-offence case had been closed for lack of elements of an offence. Even though there were two other sets of criminal proceedings against him regarding intentional infliction of minor bodily injuries and a theft, those cases were pending and no decision on the merits had been taken.

12. On 4 September 2013 the Rivne Court of Appeal rejected the applicant ’ s appeal, finding that the arrangements approved by the first ‑ instance court for his contact with D. were in accordance with the law and in the best interests of the child, given her age and the personality of the applicant, including the information about the criminal and administrative proceedings against the applicant. In particular, the Court of Appeal stated that the applicant ’ s former wife had objected to leaving the daughter with the applicant alone in view of the girl ’ s minor age and the applicant ’ s negative character. Having examined all the evidence, the Court of Appeal concluded that that the findings of the first-instance court were reasonable.

13 . The applicant lodged a cassation appeal, relying on the same arguments as those submitted before the court of appeal. On 1 October 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant ’ s cassation appeal, finding that it contained no arguments demonstrating that the lower courts had violated procedural or substantive law.

B. Relevant domestic law

14. Under Article 51 of the Constitution and Article 5 of the Family Code, the family, childhood, motherhood and fatherhood all fall under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up in a family (paragraphs 2 and 3 of Article 5 of the Family Code). Where the State puts in place regulations concerning family matters, it must take into account the interests of the child to the greatest extent possible.

15. Articles 151 and 163 of the Family Code provide that children who are minors should, as a priority, be “brought up personally” by their parents and live with them. The rights of parents – including those living separately from the child – to bring up a child who is a minor and to communicate with him or her can only be restricted by law (Articles 153 and 157). A parent who has custody of the child must not hinder the other parent ’ s communication with a child or his or her participation in the child ’ s upbringing, provided this does not impair the child ’ s normal development. A parent living separately from a child may seek the assistance of the Childcare Service or the courts to enforce his or her parental rights in cases where no agreement has been reached on that matter with the parent who has custody of the child, or where that parent hinders the exercise of the other parent ’ s parental rights. When deciding on arrangements for a parent ’ s contact with a child and his or her participation in the child ’ s upbringing, the childcare authorities and the courts should take into account the parent ’ s “attitude towards his or her parental obligations”; the child ’ s affection towards any of the parents; the child ’ s age and state of health; the parent ’ s state of health and living conditions; and any “other important circumstances”. Where it is in the best interests of a child, the courts may require the presence of another person during a parent ’ s meetings with the child (Articles 157-159).

16. Similar provisions concerning the upbringing of children and contact with their parents are contained in sections 11, 12 and 15 of the Act on the Protection of Childhood of 26 April 2001.

COMPLAINTS

17. The applicant complained about the restrictions imposed by the courts on his contact with D. He claimed that the impugned restrictions had resulted in his being unable to take part in the child ’ s upbringing. He then contended that such treatment was contrary to Article 5 of Protocol No. 7, which proclaimed equality between spouses. The applicant further complained under Article 6 § 1 about the length of the court proceedings regarding his contact arrangements with the child. Lastly, the applicant complained of a violation of Article 13 of the Convention, arguing that he did not have an effective remedy against the breach of his parental rights.

THE LAW

A. Complaint under Article 8 of the Convention

18. The applicant complained that the courts had not granted him sufficient time with his daughter, who lived separately with her mother.

19. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12 , § 114, ECHR 2018), the Court considers that this complaint should be examined under Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. The parties ’ submissions

20. The applicant argued that the domestic court decisions had not been properly reasoned and had led to the violation of his right to see his daughter.

21. The Government admitted that the court decisions determining the scope of the applicant ’ s contact rights in relation to his daughter constituted an interference with his right to respect for family life. However, they contended that the interference was lawful, pursued the legitimate aim of ensuring the best interests of the child, and was necessary in a democratic society.

2. The Court ’ s assessment

22. The Court notes that the relationship between the applicant and his daughter amounts to “family life” within the meaning of Article 8 of the Convention, and this is not disputed by the parties.

23. The Government submitted that the restrictions on the applicant ’ s contact with the child resulting from the impugned court decisions constituted an interference with the applicant ’ s right under Article 8 of the Convention, and that such interference was justified. The Court notes at the outset that, while the essential object of Article 8 of the Convention is to protect individuals against arbitrary interference by public authorities, it may also impose on the State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, albeit in a different context, Bărbulescu v. Romania [GC], no. 61496/08, § 108, ECHR 2017 (extracts)). The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (see Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003 III).

24. In the present case, the essential question under Article 8 is whether, in their decisions, the domestic courts struck a fair balance between the competing interests of the applicant, the child and the mother and, in doing so, complied with the inherent procedural requirements of Article 8 of the Convention. For this reason, the Court will view the case as one involving an allegation of failure on the part of the respondent State to comply with its positive obligation under Article 8 of the Convention.

25. The Court reiterates that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Accordingly, in balancing all the interests at stake, the domestic courts had to ensure, first and foremost, the best interests of the child.

26. In the claim filed with the domestic court, the applicant sought to establish specific arrangements for contact with his daughter, who lived separately with her mother (see paragraph 6 above). The court allowed those claims only in part, granting the applicant regular meetings with the child once a month and, additionally, on the applicant ’ s birthday; the court also ordered that the applicant should be allowed to take the child on holidays for a period not exceeding one month (see paragraph 9 above). Those arrangements were upheld by the higher courts despite the applicant ’ s contentions that his right to see his daughter had not been sufficiently ensured (see paragraphs 11-13 above).

27. In reviewing these contact arrangements under Article 8 of the Convention, the Court reiterates that the domestic courts are better placed to assess the evidence and, having regard to the margin of appreciation enjoyed by the domestic authorities in such matters, considers that the courts carefully examined all the circumstances of the case in order to strike a fair balance between the competing interests. Notably, the courts took into account the child ’ s specific situation and the applicant ’ s personality. In that regard they reasonably relied on the factors connected with the child ’ s schooling needs as well as the police information concerning the criminal and administrative cases against the applicant (contrast Hunt v. Ukraine , no. 31111/04, § 59, 7 December 2006). The domestic courts also reasonably dismissed the applicant ’ s contentions that the presence of the child ’ s mother during his meetings with the child could cause conflicts and disputes at the meetings which could be harmful to the child ’ s well-being. In that regard the Court notes that these allegations were general and not supported by any evidence to substantiate the seriousness of such risks. On the other hand, the child ’ s mother ’ s objections against leaving the child with the applicant alone were supported by specific circumstances of the case pointing to the serious risks to the child ’ s well-being. It is notable that the applicant did not request the courts to ensure the meetings in the presence of any neutral party. In sum, the findings of the courts do not appear to be disproportionate.

28. Furthermore, nothing suggests that there were any procedural failings which could cast doubt on the reliability of the conclusions made by the courts. The domestic courts heard both parents in person and duly assessed the evidence in the file, including the opinion of the childcare authority which had been requested by the Rivne District Court (see paragraphs 7 and 8 above). The courts also properly ensured the procedural rights of the applicant, giving him ample opportunity to present his case and addressing his arguments sufficiently.

29. Likewise, no arbitrariness can be discerned from the courts ’ refusal of the applicant ’ s request for permission to travel abroad with the child without the consent of the mother (see paragraph 9 in fine above). The requirement to have such permission from the other parent is not, in itself, contrary to the Convention (see Penchevi v. Bulgaria , no. 77818/12 , § 67, 10 February 2015, and Dimova and Peeva v. Bulgaria , no. 20440/11, § 38, 19 January 2017). Yet the applicant ’ s claim was intended to generally set aside that legal condition in his case, without referring to any specific journey which had been prevented or which could be hindered by the child ’ s mother in the future. Overall, the courts examined the case using a proper procedure and provided relevant and sufficient reasons for their conclusions, which aimed to ensure the best interests of the child.

30. In view of the above, the present complaint is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 5 of Protocol No. 7

31. The applicant complained that the court decisions determining his contact rights in respect of the child were contrary to Article 5 of Protocol No. 7, which reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

32. The Court notes that Article 5 of Protocol No. 7 essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning matters such as their relations with their children (see Cernecki v. Austria , (dec.), no. 31061/96, 11 July 2000). However, in the present case, the applicant did not specify which laws were discriminatory and, moreover, the Court has already found under Article 8 of the Convention that the measures taken were in the best interest of the child and that they secured a fair balance between the competing interests.

33. The Court therefore rejects the present complaint as manifestly ill ‑ founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other alleged violations of the Convention

34. The Court has examined the other complaints submitted by the applicant under Articles 6 § 1 and 13 of the Convention. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 26 July 2018 .

Andrea Tamietti Faris Vehabović              Deputy Registrar President