Communicated on 11 February 2021 Published on 1 March 2021

THIRD SECTION

Application no. 34684/20 Andrey Ivanovich YEROKHIN against Russia lodged on 16 June 2020

STATEMENT OF FACTS

The applicant, Mr Andrey Ivanovich Yerokhin , is a Russian national, who was born in 1968 and lives in Shakhty, the Rostov Region.

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

On 7 September 2013 the applicant married Ms D.Ye .

On 24 August 2015 D.Ye . gave birth to their son I.

On 20 September 2016 the marriage between the applicant and D.Ye . was dissolved. I. remained living with his mother.

Faced with obstacles to his contacts with I., the applicant brought proceeding against D.Ye . seeking to have determined the terms of his contact with the child.

On an unspecified date the Shakhty City Court (“the City Court”) determined the contact arrangement between the applicant and his son. The arrangement was put in place until the child ’ s reaching the age of three years old on 24 August 2018. The judgment became final on 27 July 2017.

Since D.Ye . refused to comply with the above judgment voluntarily, on 24 August 2017 the Shakhty City Bailiffs ’ Service instituted the enforcement proceedings.

D.Ye . breached the contact arrangement on several occasions, which prompted the applicant on 23 January and 3 May 2018 to apply to the Bailiffs ’ Service for institution of administrative proceedings against her. According to the applicant, he received no reply.

On 28 June and 10 July the applicant applied to the Bailiffs ’ Service for granting him access to the enforcement material. Again, no reply followed.

Meanwhile, on 27 June 2018 the enforcement proceedings were discontinued. The applicant found out about this decision in November 2018 from a letter addressed by the bailiff Ch. in charge of the enforcement proceedings to the Shakhty Prosecutor ’ s Office.

Following a complaint to the Shakhty Prosecutor ’ s Office, the Bailiffs ’ Service granted the applicant access to the enforcement material on 6 December 2018 and 17 January 2019. The applicant had to refuse to study the enforcement material on the first occasion owing to his visual impairment and the refusal by the bailiff to put in place certain conditions necessary for him to do so.

On 23 January 2019 the applicant challenged the bailiff ’ s inactivity before the court.

On 30 January 2019 the City Court granted the applicant ’ s claim in the part concerning the bailiff ’ s failure to react to his request of 3 May 2018. As regards the remaining requests of 23 January, 28 June and 10 July 2018, the City Court held that bailiff Ch. had examined them on 29 January, 11 July and 23 July 2018, respectively, and sent relevant replies to the applicant, which was confirmed by the Bailiffs ’ Service ’ s internal records of outgoing mail. As regards the discontinuation of the enforcement proceedings, the City Court held that, since the applicant had found out about the decision of 27 June 2018 in November 2018, he had missed the statutory time-limit for challenging its lawfulness before the court. In any event, between 27 June and 24 August 2018 the applicant did not apply to the bailiff for assistance in his contacts with the child.

On 15 May 2019 the Rostov Regional Court (“the Regional Court”) upheld the above judgment on appeal.

On 13 August 2019 a judge of the Regional Court refused to refer the applicant ’ s cassation appeal to the Presidium of that court for examination.

A second cassation appeal by the applicant was rejected on 8 November 2019 by a judge of the Supreme Court of the Russian Federation.

The Family Code of the Russian Federation provides that a parent residing apart from the child is entitled to maintain contact with the child and to participate in his upbringing and education. The parent with whom the child resides may not hinder the child ’ s contact with the other parent, unless such contact undermines the child ’ s physical or psychological health or moral development (Article 66 § 1).

The parents have the right to conclude a written agreement on the way the parent residing apart from the child may exercise his parental duties. If the parents cannot reach an agreement, the dispute must be resolved in court with the participation of the childcare authority, upon a claim lodged by the parents (or one of them). In the case of non-abidance by the court decision, the measures stipulated by the civil procedural legislation are applied to the parent guilty of non-compliance. In the case of persistent non-fulfilment of the court decision, the court may, upon a claim by the parent residing apart from the child, take a decision to place the child in his or her care, based on the child ’ s interests and taking into account the child ’ s opinion (Article 66 §§ 2-3).

Judgments in cases involving the issue of the upbringing of children are enforced by a bailiff in conformity with the procedure laid down by the civil procedural legislation. If one of the parents (or other person in whose charge the child is) obstructs the enforcement of the court judgment, the measures stipulated by the civil procedural legislation will be applied to him or her (Article 79 § 1).

The Code of Administrative Offences establishes penalties for parents who prevent minors from communicating with their other parent, provided that such communication is not contrary to the interests of the child. Such behaviour is punishable by an administrative fine ranging from 2,000 to 3,000 Russian roubles (RUB), and up to RUB 5,000 or by administrative arrest for up to five days in the case of a repeated offence (Article 5.35 §§ 2 and 3).

The failure of a judgment debtor to comply with an obligation in kind within the time-limit set by a bailiff after the imposition of an obligation to pay an execution fee is punishable by an administrative fine ranging from RUB 1,000 to 2,000 (Article 17.15 § 1). Other relevant provisions of the Russian legislation on administrative offences and on enforcement proceedings and the powers of bailiffs are cited in Pakhomova v. Russia (no. 22935/11, §§ 91 et seq., 24 October 2013).

COMPLAINT

The applicant complains under Article 8 of the Convention about the failure of the domestic authorities to secure contact with his son in accordance with the contact schedule determined by the domestic court.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

More specifically, did the State comply with its positive obligation to secure the applicant ’ s right to respect for his family life guaranteed by Article 8 of the Convention? In particular, have the domestic authorities taken all the necessary steps to secure the applicant ’ s contact with his son in accordance with the contact schedule set out in the judgment of the Shakhty City Court which became final on 27 July 2017?