Published on 4 October 2021

THIRD SECTION

Application no. 13557/21 Yelena Gennadyevna KHOMSKAYA and Petr Aleksandrovich KHOMSKIY against Russia lodged on 17 February 2021 communicated on 16 September 2021

STATEMENT OF FACTS

The applicants, Ms Yelena Gennadyevna Khomskaya and Mr Petr Aleksandrovich Khomskiy, are Russian nationals, who were born in 1975 and 1976 respectively and live in Moscow. They are represented before the Court by Ms T.I. Sustina, a lawyer practising in Moscow.

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

The applicants are husband and wife. They are parents to three daughters, born in 2009, 2016 and 2019.

On 3 August 2019 a protest rally was held in Moscow in connection with the 2019 Moscow City Duma elections. According to the applicants, they were on a walk with their children and found themselves in the middle of the rally. The applicants were not apprehended by the police or held responsible for any administrative or criminal offence in relation to their participation in the rally.

On 9 August 2019 the Nikulinskiy District Prosecutor’s Office of Moscow applied to the Nikulinskiy District Court of Moscow (“the District Court”) for the applicants to be deprived of their parental authority in respect of the children. The Prosecutor stated that the applicants had put the lives and limbs of the children in danger by deliberately allowing their presence amidst the large number of aggressive participants of the rally and law-enforcement officers using special means against such participants.

On 2 September 2019 the District Court established that unapproved protest rally had been held in Moscow on 3 August 2019 involving numerous participants and law-enforcement personnel applying special means against aggressive protesters, that the applicants had been participating in the rally with their three minor children, that at one point the baby strollers had clung to each other and nearly turned over. The District Court noted, however, that there had been no information as regards the applicants neglecting their parental obligations in respect of their children or being monitored by any social protection services, and that there had therefore been no grounds for depriving them of their parental authority. The Prosecutor’s claim was therefore dismissed. At the same time, the District Court noted that the applicants’ participation in the rally together with their children had put the latter’s lives and limbs in danger, which represented a breach of their parental rights. In this connection, the District Court issued a warning requiring the applicants to change their attitude to providing for their children’s health and safety. The District Court entrusted the social protection services of the Troparyovo-Nikulino District of Moscow to carry out the monitoring over the applicants’ compliance with the above warning.

Both the Prosecutor’s Office and the applicants appealed, the former insisting on depriving the applicants of their parental authority and the latter seeking the lifting of the warning issued by the District Court and arguing that it had had no basis in domestic law and that their participation in the rally had not amounted to a direct threat to the children’s life and health. The applicants further complained that, due to a wide coverage of their case in mass media, the warning issued by the District Court had a chilling effect discouraging them and others from participating in protest rallies with their children.

On 16 October 2019 the Moscow City Court (“the City Court”) upheld the judgment on appeal. The City Court considered that the applicants’ right to freedom of peaceful assembly had not been violated: the applicants were free to participate in any peaceful assembly and the warning issued in their respect had no chilling effect as it only prevented them from involving the children’s participation in rallies.

On 25 February and 20 October 2020 the applicants’ cassation appeals were rejected.

COMPLAINTS

The applicants complained under Articles 8 and 11 of the Convention about the institution by the domestic authorities of the proceedings against them for deprivation of their parental authority in the absence of any guilty conduct in their behaviour and about application to them of a “warning” – a measure not provided for in the domestic civil or family law, but having a series of legal, social and political consequences for the applicants and the civil society. They complained, in particular, that the warning in question amounted to an interference with their private and family life and limited their right to raise and educate their children, including in the political sphere, in the form which they considered appropriate. The applicants further complained that the warning had a chilling effect for them and for others, discouraging them from exercising their right to enjoy the freedom of peaceful assembly together with their children.

QUESTIONS TO THE PARTIES

Did the judgment of the Nikulinskiy District Court of Moscow of 2 September 2019 issuing a warning in respect of the applicants to change their attitude to their children’s health and safety following their joint participation in a protest rally amount to an interference with the applicants’ right to respect for their private and/or family life and with their freedom of peaceful assembly? If so, was that interference compatible with the requirements of Articles 8 § 2 and 11 § 2 of the Convention? In particular:

(i) Was the interference prescribed by law? Do the relevant laws and regulations meet the “quality of law” requirements and are they sufficiently precise and foreseeable in their application? Do they afford a sufficient degree of protection against arbitrariness?

(ii) Did the interference pursue a legitimate aim?

(iii) Was the interference necessary in a democratic society?