Resolution CM/ResDH(2008) 64 [1]

Execution of the judgment of the European Court of Human Rights

Hunt against Ukraine

(Application No. 31111/04, judgment of 7 December 2006, final on 7 March 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant ' s right to respect for his family life due to the deprivation of his parental rights in respect of his natural son as a result of unfair proceedings (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Ukraine ' s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2008)64

Information about the measures taken to comply with the judgment in the case of

Hunt against Ukraine

Introductory case summary

The case concerns a violation of the applicant ' s right to respect for his family life in that in 2003 the domestic courts deprived him of his parental rights with respect to his natural son in proceedings brought by his wife. The applicant was represented before the court by his lawyer but was unable to attend the hearing himself since he had not been allowed to enter Ukraine .

The European Court considered that since the case required an assessment of the applicant ' s personal character and his behaviour, domestic courts should have provided him with an opportunity to give a personal account of events, for example, under international legal assistance instruments. Consequently, the Court found that “the applicant was not involved in the decision-making process to an extent necessary to protect his interests and that the national authorities overstepped their margin of appreciation and failed to strike a fair balance between the interests of the applicant and those of other persons” (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 EUR

1,40 EUR

10 001,40 EUR

Paid on 05/06/2007

b) Individual measures

On 27/03/2007, the Ukrainian authorities wrote to the applicant and his lawyer reminding them of the right provided by Article 10 of the Law of Ukraine on enforcement of judgments and application of the case-law of the European Court of Human Rights to initiate proceedings to restore the violated rights following the European Court ' s judgment. On 18/06/2007, the applicant ' s lawyer informed the Secretariat that the applicant would not request the re-opening of the proceedings.

In addition, in their letter of 22/01/2008 the Ukrainian authorities indicated that, according to domestic family law (Article 169 of the Family Code), the applicant also had and still has the right to initiate proceedings seeking restoration of his parental rights.

II. General measures

1) As regards deprivation of parental rights . On 30/03/2007 the Plenary of the Supreme Court of Ukraine issued a Resolution No. 3 containing guidelines for courts when considering cases on adoption and of deprivation and restoration of parental rights with a view to ensuring coherent and correct treatment of custody cases.

The resolution provides inter alia that deprivation of parental rights is a measure of last resort aiming at influencing those who fail to comply with their parental duties. Accordingly courts must decide to apply this measure only after fully, comprehensively and objectively establishing the circumstances of the case, in particular as regards the parents ' treatment to the child.

Procedural aspects of the proceedings regarding deprivation of parental rights are governed by the general provisions of the Code of Civil Procedure, setting forth the obligation to notify the date of the hearing to the parties to the proceedings before considering a case. Before starting to consider a case, the trial court is bound to establish who is present at the hearing, whether any absentees have been duly notified and what are the reasons for their absence, etc. The court may summons absentees if it considers it necessary to hear them in person. However, failure to appear in the absence of valid reasons is not an obstacle to consideration of a case.

2) Dissemination and publication of the judgment . Given the direct effect of the Convention and of the European Court ' s judgments in Ukraine , courts are expected to bring their practice in line with the judgment at issue. For this purpose, on 27/03/2007, the judgment was sent to all competent authorities together with letters inviting them to take account of the findings of the European Court in their daily practice, i.e. to the Supreme Court of Ukraine and the Ministry of Internal Affairs.

The judgment was translated into Ukrainian and published in the government ' s official print outlet – Official Herald of Ukraine , No. 23, 10/04/2007. A summary of the Court ' s judgment in Ukrainian was published in the Government Currier , No. 59 of 03/04/2007.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that Ukraine has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 25 June 2008 at the 1028th meeting of the Ministers’ Deputies