FIFTH SECTION

DECISION

Application no . 40033/14 Iryna Vasylivna STETSYKEVYCH against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 20 October 2015 as a Committee composed of:

André Potocki , President, Ganna Yudkivska , Síofra O ’ Leary, judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 16 May 2014,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Iryna Vasylivna Stetsykevych , is a Ukrainian national, who was born in 1982 and lives in Chernihiv . She was represented before the Court by Mr O.V. Zarutskyy , a lawyer practising in Kyiv .

The circumstances of the case

The facts of the case may be summarised as follows.

On 24 July 2009 the applicant and V. (a US citizen) were married in Minneapolis, Minnesota, the USA.

On 28 August 2009 their son, M. was born there. The family lived in Minneapolis .

In June 2011 the family arrived in Ukraine for a holiday and to visit the applicant ’ s relatives.

On 13 July 2011 V. returned alone to the USA. According to the applicant, it was agreed that she and M. would return to the USA later.

In May 2012 the applicant ’ s US p ermanent r esident c ard expired.

On 14 August 2012 V. asked the Ministry of Justice of Ukraine to order the return of M. from Ukraine to the USA in accordance with the Hague Convention on the Civil Aspect of International Child Abduction (“the Hague Convention”).

On 24 September 2012 the Minnesota District Court dissolved the marriage between the applicant and V. The court reserved the issue of M. ’ s custody, finding that it did not have jurisdiction over that issue.

On 10 April 2013 the Chernihiv Regional Chief Department of Justice, acting in the interests of V., lodged a claim with the Desnyansky District Court of Chernihiv (“the Desnyansky District Court”) asserting that M. had been due to return to the USA on 16 August 2011 and that after that date V. had not given his consent to M. ’ s staying in Ukraine. The claimant submitted that the child had been wrongfully retained in Ukraine and must be returned to the US in accordance with the Hague Convention.

On 19 June 2013 the Desnyansky District Court found that M. had arrived in Ukraine with both parents ’ agreement but that later the mother had retained the child in Ukraine without the father ’ s consent. The court found that such retention was wrongful within the meaning of the Hague Convention and that the child must be returned to the country of his habitual residence. No exceptions under the Hague Convention applied. The court considered that there were no objective obstacles to the mother ’ s accompanying the child to the USA and resolving the custody dispute in that jurisdiction. In the operative part of the decision the court ordered that M. should be returned to the USA ‒ to the father ’ s home address in Minneapolis ‒ specifying that the child should be accompanied on the journey by both parents.

On 2 July 2013 the Desnyansky District Court issued an additional decision stating that if the child were not returned voluntarily, the applicant would be ordered to transfer the child to V. at his home address in Minneapolis.

The applicant appealed against those decisions.

On 13 August 2013 the Municipal Centre of Social Services for Family, Children and Youth of Chernihiv issued a certificate stating their psychiatrist ’ s opinion that M. was “well settled in Ukraine and, having regard to the strong bond between the child and the mother and the need to avoid causing the child psychological trauma, it would be inappropriate to remove the child to the other place of residence”.

On 14 August 2013 the Chernihiv Regional Court of Appeal (“the Court of Appeal”) quashed the decisions of 19 June and 2 July 2013 and dismissed the claim as unsubstantiated. It found that M. was completely settled in his new environment as he had been living in Ukraine since June 2011; furthermore, there was a grave risk that M. ’ s return to the USA would expose him to psychological harm or would otherwise place him in an intolerable situation.

On 20 November 2013 the Higher Specialised Court of Ukraine for Civil and Criminal Matters (“the Cassation Court”) quashed the decision of 14 August 2013 and upheld the Desnyansky District Court ’ s decisions of 19 June and 2 July 2013, noting that they were well substantiated and had been adopted in compliance with the requirements of the Hague Convention. It found the evidence concerning the risk of exposing M. to psychological harm unconvincing.

Bailiffs started enforcement proceedings during which the applicant was imposed fines of 170 and 340 Ukrainian hryvnias for her failure to comply with the return order.

On 18 June 2014 the Supreme Court of Ukraine considered the applicant ’ s request for review of the Cassation Court ’ s decision of 20 November 2013 on the grounds of divergent application of law by courts. Having examined the domestic judicial practice, the Supreme Court found that Articles 3, 12 and 13 of the Hague Convention had been applied divergently. It also found that in the present case the domestic courts had failed to apply these provisions properly. In particular, there was no clear stance on the question of whether or not the removal or retention of the child had been wrongful, and ‒ if that were the case ‒ at what moment it started to be wrongful, nor as to whether or not the father had consented to or subsequently acquiesced regarding the child ’ s retention , nor whether facts existed demonstrating that the child was settled in his current environment . The Supreme Court quashed the decision of 20 November 2013 and remitted the case to the Cassation Court for fresh consideration.

On 30 July 2014 the Cassation Court quashed the Court of Appeal ’ s decision of 14 August 2013 on the grounds that the facts relevant to the case had not been established, and remitted the case to the Court of Appeal.

On 5 September 2014 the Court of Appeal found that there was no dispute regarding removal of the child because the father had complained only about the wrongful retention of the child in Ukraine. The Court of Appeal then considered V. ’ s updated submissions, in which he no longer argued that the retention of the child had been wrongful as from 16 August 2011 but rather as from 20 June 2012, which was the date when he had first expressed his disagreement with the child ’ s retention in Ukraine. V. also admitted that in August 2011 he had sent parcels to Ukraine containing the child ’ s belongings.

As regards the period following 20 June 2012, the Court of Appeal stated that in July 2012, V. had spent holidays with the applicant and M. in Ukraine and that in August 2012, after his return to the USA, he had sent M. ’ s vaccinations certificate in order to facilitate M. ’ s admission to the children ’ s day care centre in Ukraine. In these circumstances the Court of Appeal concluded that the child ’ s retention could not be considered wrongful within the meaning of the Hague Convention. It next examined the evidence relating to the place of the child ’ s residence in Ukraine, and the social and medical care provided to him in Ukraine, and found that M. was assured of all the conditions necessary for his proper development. Based on the evidence presented and h aving regard to the overall period during which the child had lived in Ukraine, the Court of Appeal found that M. was entirely settled in his current environment . It also considered that M. ’ s return to the USA without his mother – who no longer had any legal basis for entering and living in the USA – would not be in the best interests of the child. The Court of Appeal therefore quashed the Desnyansky District Court ’ s decisions of 19 June and 2 July 2013 and dismissed the claim as unsubstantiated.

On 4 December 2014 the Cassation Court dismissed V. ’ s and Ministry of Justice ’ s appeals on points of law and upheld the decision of 5 September 2014.

COMPLAINTS

1. In her original submissions of 16 May 2014 the applicant complain ed that the Ukrainian authorities had ordered the return of her son from Ukraine to the USA without proper examination of all the relevant facts and had thus failed in their procedural obligations under Artic le 8 of the Convention.

2. The applicant also complained under Article 3 of Protocol No. 4 that the decision of the domestic court obliging her to travel abroad with the child and subsequent punitive measures undertaken in her respect by the bailiffs were not compatible with prohibiting the expulsion of nationals from their own countries.

THE LAW

The applicant ’ s complaint under Article 8 relates to court decisions which were subsequently reviewed and quashed by the domestic courts, with the result that the return order under the Hague Convention in respect of the applicant ’ s child was overturned and the relevant claim was dismissed as unsubstantiated. In these circumstances the Court considers that the applicant can no longer claim to be a v ictim of a violation of Article 8 for the purpose of Article 34 of the Convention.

This complaint must therefore be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

As to the complaint under Article 3 of Protocol No. 4 , the Court considers that neither the impugned court decisions which were finally overturned, nor the fines imposed by bailiffs in an attempt to enforce those decisions amounted to measures that could be interpreted as expulsion within the meaning of Article 3 of Protocol No. 4.

The Court therefore dismisses this complaint 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.

Done in English and notified in writing on 12 November 2015 .

Milan BlaÅ¡ko André Potocki              Deputy Registrar President