Communicated on 1 December 2020 Published on 21 December 2020

THIRD SECTION

Application no. 35474/20 Stefano С AMPANELLI against Russia lodged on 14 June 2020

STATEMENT OF FACTS

The applicant, Mr Stefano С ampanelli, is an Italian national, who was born in 1969 and lives in San Teodoro, Italy. He is represented before the Court by Mr Y.A. Tarasov, a lawyer practising in St Petersburg.

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

The applicant lived in an extramarital relationship with a Belorussian citizen, Ms M.L., in Italy.

On 25 September 2014 M.L. gave birth to their son, D. The latter is a citizen of Italy and Belarus.

On 23 March 2016 the Nuoro Court established joint custody of the applicant and M.L. over the child, determined the schedule for the applicant ’ s contact with the child and obliged the applicant to pay child maintenance.

On 8 July 2016 the Cagliari Court of Appeal modified the above judgment, having revised the contact schedule between the applicant and his son, and increased the amount of child maintenance to be paid by the applicant.

On 9 February 2018 M.L. informed the Italian police that she and D. had left Italy and that she had no intention to come back to Italy.

On 9 March 2018 the applicant received a letter from M.L., posted from Russia on 5 February 2018, in which she informed him that from then on she would reside in St Petersburg.

On 30 May 2018 M.L. was granted a residence permit in Russia valid until 30 May 2023.

After failed attempts to establish any contact with his son, on 27 July 2018 the applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the District Court”), seeking his son ’ s return to Italy on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). As a security measure, he requested the District Court that, pending the proceedings, M.L. be prohibited from changing D. ’ s place of residence in the Russian Federation and from taking him outside the Russian Federation ( заявление об обеспечении иска ) .

On 13 August 2018 the District Court took an interim decision ( определение о принятии мер по обеспечению иска ) preventing M.L. from changing the child ’ s place of residence in Russia and from taking the child outside the bounds of the Russian Federation pending the proceedings. On the same day the decision in question was transferred to the Border Guard Service and the Chief Department of the Ministry of the Interior of the Russian Federation.

Despite the above interim decision, on an unspecified date later in August 2018 M.L. and the child left Russia for Belarus.

On 4 October 2018 the applicant requested the District Court to determine the contact arrangement between him and his son pending the Hague Convention proceedings.

On 26 October 2018 the District Court granted the applicant ’ s request and determined a provisional schedule for his contact with the child pending the proceedings. On the same day the District Court rejected M.L. ’ s request to transfer the proceedings in the case to Belarus. M.L. appealed against this decision, but her appeal was returned without examination for failure to comply with the statutory time-limit for filing it.

At the applicant ’ s request, on 16 November 2018 enforcement proceedings were instituted into the interim contact decision of 26 October 2018.

During the enforcement actions on 24 November 2018 at the place of M.L. ’ s and the child ’ s residence in St Petersburg the owner of the flat explained that she had not seen M.L. since August 2018.

On 14 February 2019 the District Court granted the applicant ’ s request and ordered that the child be returned to the place of his habitual residence in Italy.

Following M.L. ’ s and a prosecutor ’ s appeal, on 6 June 2019 the St Petersburg City Court (“the City Court”) quashed the judgment of 14 February 2019 on appeal and rejected the applicant ’ s request for the child ’ s return to Italy. The City Court considered that Italy had not been the State of D. ’ s habitual residence and that D. ’ s removal from Italy had not been unlawful within the meaning of Article 3 of the Hague Convention. These conclusions were reached on the basis of the following considerations: (i) M.L. and D. had been citizens of Belarus; (ii) they had been permanently residing in Belarus where they had their registered place of residence; (iii) D. had been three and a half years old when he had been removed from Italy, the age when the child had both psychological and physiological need for his mother; (iv) M.L. had no intention of returning to Italy; criminal proceedings had been pending against her in Italy in connection with D. ’ s removal; (v) D. lacked the necessary knowledge of the Italian language and had reached a significant level of integration into the social and family environment in Russia and, subsequently, in Belarus.

The City Court furthermore relied on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provided that a child of tender years should not, save in exceptional circumstances, be separated from his or her mother, as well as on the report by the childcare authority, stating that D. ’ s separation from his mother would cause him psychological trauma and affect his psychological well-being and development. In view of such factors, the City Court concluded that the circumstances of the present case fell under exceptions to immediate return under Articles 13 (b) and 20 of the Hague Convention and that there had been, therefore, no grounds for granting the applicant ’ s request for D. ’ s return to Italy.

The City Court also took into account that M.L. had another son, D. ’ s half-brother, and that separation from the latter would also be against D. ’ s interests. It went on to note that one year and four months had elapsed since D. ’ s removal from Italy in February 2018, that D. had had no long ‑ term communication with the applicant since then and that the family ties between them had therefore been ruptured.

The City Court took the view that the circumstances of the child ’ s removal from Italy had not been in breach of the applicant ’ s custody rights and that he had been free to make use of his parental rights at the place of the child ’ s residence in Belarus.

The City Court further noted M.L. ’ s concerns as regards D. ’ s return to Italy in view of her bitter relations with him, as well as the criminal proceedings initiated at her request and pending against the applicant in Belarus since March 2019 on suspicion of violent actions of a sexual nature in relation to the child.

The City Court noted furthermore that M.L., a citizen of Belarus, had been free to choose to reside there.

The City Court went on to say that “motherhood and childhood” had been distinguished into a separate independent legal concept by the Russian Constitution and that any attempt at disrupting the tie between motherhood and childhood contradicted the Russian Constitution. The priority of motherhood and childhood against all other legal forms of family life organisation, set out by Article 38 § 1 of the Russian Constitution, was one of the fundamental principles of the Russian Federation, unequivocally implying the impossibility of disrupting the relations between the mother and the child, except when it contradicted the interests of the child. The City Court noted the absence of any such contradiction in the present case.

On 10 September 2019 a judge of the City Court refused to refer the applicant ’ s cassation appeal to the Presidium of that court for examination, having found no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.

A second cassation appeal by the applicant was rejected on 29 October 2019 by a judge of the Supreme Court of the Russian Federation.

On 4 February 2020 the Tsentralniy District Court of Gomel rejected M.L. ’ s request for depriving the applicant of his parental rights in respect of his son and determined a contact arrangement between the applicant and the child.

On 29 May 2020 the local department of internal affairs informed the applicant that M.L. had not been living at the place of her registration in Belarus.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Italy on 1 July 2016.

Article 3

“The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 12

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

...”

Article 13

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

...”

Article 20

“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

Article 3

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

...”

Article 7

“1. The child shall be registered immediately after birth and shall have the right from birth ... to know and be cared for by his or her parents.

...”

Article 9

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will.

...”

Article 18

“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

...”

Principle 6

“The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. ...”

The generally recognised principles and norms of international law and the international treaties to which the Russian Federation is a party are an integral part of its legal system. If an international treaty to which the Russian Federation is a party establishes other rules than those provided for by law, the rules of the international treaty must apply (Article 15 § 4).

The rights and freedoms of human beings and citizens in conformity with the generally recognised principles and norms of international law are recognized and guaranteed by the Russian Federation and under the Constitution (Article 17 § 1).

Maternity and childhood and the family shall be protected by the State (Article 38 § 1).

Parents ’ right to bring up their children has precedence over any other person ’ s right to do so (Article 63 § 1).

The exercise of parental rights must not contravene the children ’ s interests. Providing for the children ’ s interests is the principal object of the parents ’ care. Parents who exercise parental rights to the detriment of the rights and interests of the children are answerable under procedures established by law (Article 65 § 1).

The procedure for the examination of requests for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with the international treaty of the Russian Federation, is governed by Chapter 22.2 of the Code.

The Code provides that the return request is to be submitted to a court by a parent or other individual who believes that his/her custody or access rights have been violated, or by a prosecutor (Article 244.11).

The return request must be examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of its receipt, including the time for the preparation of the hearing and the drawing up of the judgment (Article 244.15).

The judgment handed down in a case concerning the return of a child unlawfully removed to, or retained in, Russia must contain the reasons why the child must be returned to the State of his/her habitual residence ‒ in accordance with the international treaty of the Russian Federation ‒ or the reasons for refusing the request for return in accordance with the international treaty of the Russian Federation (Article 244.16).

An appeal may be lodged against the judgment within ten days. The appeal must be examined within one month of its receipt by the appeal court (Article 244.17).

COMPLAINTS

Referring to Articles 6 § 1, 8 and 13 of the Convention, the applicant complains that the Russian authorities failed to secure his right to respect for his family life in the proceedings for his son ’ s return to Italy on the basis of the Hague Convention. The applicant deplores, in particular:

(a) the failure of the Russian authorities to secure the enforcement of the interim decision of 13 August 2018 prohibiting the child ’ s mother from leaving Russia or changing the child ’ s place of residence in Russia pending the Hague Convention proceedings;

(b) the failure of the Russian authorities to secure the enforcement of the interim decision of 26 October 2018 determining the temporary contact arrangement between the applicant and his son pending the Hague Convention proceedings;

(c) the refusal of his application for the return of his son to Italy and legalising the unlawful factual situation brought about by the child ’ s mother.

QUESTIONS TO THE PARTIES

Did the way the Russian authorities handled the proceedings for the return of the applicant ’ s son to Italy secure respect for the applicant ’ s right to respect for his family life under Article 8 of the Convention (see X v. Latvia [GC], no. 27853/09, §§ 92-120, ECHR 2013)? More specifically:

(a) Did the domestic authorities take all the necessary measures to secure the enforcement of the interim decisions of 13 August and 26 October 2018 taken by the Dzerzhinskiy District Court of St Petersburg in the framework of the proceedings for the return of the applicant ’ s son to Italy?

(b) Did the appeal decision of the St Petersburg City Court of 6 June 2019 refusing the applicant ’ s request for his son ’ s return to Italy amount to an interference with the applicant ’ s right to respect for his family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference “in accordance with the law” and “necessary” within the meaning of Article 8 § 2 of the Convention?

(c) Did the St Petersburg City Court ’ s interpretation and application of the provisions of the 1980 Hague Convention on the Civil Aspects of International Child Abduction secure the guarantees of the applicant ’ s rights under Article 8 of the Convention (see Vladimir Ushakov v. Russia , no. 15122/17, §§ 84-105, 18 June 2019) ?