Published on 6 April 2021

FIFTH SECTION

Application no. 51222/20 Igor Vasylyovych DUBAS against Ukraine lodged on 9 November 2020 communicated on 19 March 2021

STATEMENT OF FACTS

The applicant, Mr Igor Vasylyovych Dubas , is a Ukrainian national, who was born in 1979 and lives in Kyiv. He is represented before the Court by Ms I.V. Koval , a lawyer practising in Kyiv.

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

On 22 March 2013 the applicant married O. On 21 July 2013 their daughter S. was born. On 25 July 2016 the couple divorced. The child continued to live with her mother.

In December 2016 the applicant instituted civil proceedings, claiming that O. had prevented him from having contact with his daughter. He asked the court to establish arrangements for regular contact with his child.

On 13 December 2017 the Holosiyivskyy District Court of Kyiv issued an interim measure ordering the child ’ s mother to abstain from any actions preventing the applicant from communicating with the child.

On 24 January 2018 the same court took a judgment on the merits of the dispute. The court found that O. had prevented the applicant from seeing the child and established a child contact schedule for the applicant.

The applicant appealed, arguing that the schedule established by the court had not provided sufficient time for him and his daughter.

On 12 July 2018 the Kyiv Court of Appeal partly allowed the applicant ’ s appeal and fixed a new schedule which provided for gradual increase of the duration and the frequency of applicant ’ s meetings with his daughter. After the ruling of the appellate court, the contact schedule became enforceable (see the details of the enforcement proceedings in the second chapter below).

Both the applicant and O. disagreed with the contact schedule established by the appellate court and appealed on points of law to the Supreme Court.

During the cassation proceedings, the Supreme Court suspended the enforcement of judgment of 12 July 2018.

On 8 April 2019 the Supreme Court dismissed the appeals lodged by the parties and upheld the judgment of 12 July 2018. It ordered resumption of the enforcement proceedings.

On 31 August 2018 the State Bailiffs Service (“the bailiffs”) opened enforcement proceedings in respect of the judgment of 12 July 2018.

On several occasions the bailiffs ordered the local childcare authority to join the proceedings.

On multiple occasions between 2018 and 2020 the bailiffs imposed fines on O. on account of her failure to comply with the contact schedule. The bailiffs then froze the bank accounts of O. to secure the payment of fines.

O. challenged the numerous fines imposed on her by the bailiffs. Part of those claims was allowed. On 1 October 2019 the Sixth Administrative Court of Appeal considered that certain fines had been imposed unlawfully. The court generally stated that under domestic law the bailiffs could not impose more than two fines in the enforcement proceedings which concerned childcare disputes.

On 4 March 2020 the Supreme Court allowed another claim against the bailiffs submitted by O. and found that the bailiffs had unlawfully frozen O. ’ s bank accounts. The Supreme Court reasoned that domestic law had not provided the bailiffs with the powers to freeze bank accounts in the course of enforcement proceedings relating to non-pecuniary disputes.

According to the applicant, none of the fines has been actually paid by O.

The relevant provisions of domestic law can be found in Vyshnyakov v. Ukraine (no. 25612/12, § 28, 24 July 2018) and Bondar v. Ukraine ([Committee] no. 7097/18, §§ 17 and 18, 17 December 2019).

COMPLAINT

The applicant complains under Articles 6 and 8 of the Convention that the domestic authorities failed to enforce the court judgment of 12 July 2018 granting him regular meetings with his minor daughter.

QUESTIONS TO THE PARTIES

With regard to the applicant ’ s allegations regarding the non-enforcement of the court judgment of 12 July 2018, has there been a violation of the applicant ’ s right to respect for family life, contrary to Article 8 of the Convention? In particular:

- Did the bailiffs take all necessary steps to enforce the contact arrangements?

- In the light of the Supreme Court ’ s decision of 4 March 2020, did the bailiffs have appropriate means to ensure payment of fines imposed on the child ’ s mother?

The Government are invited to provide a copy of the Supreme Court ’ s decision suspending the enforcement of the judgment of 12 July 2018.