Communicated on 5 October 2020 Published on 26 October 2020

FIFTH SECTION

Application no. 44158/19 Maksym Mykolayovych OMELCHENKO and Vladyslav Maksymovych OMELCHENKO against Ukraine and 2 other applications (see list appended)

STATEMENT OF FACTS

The applicants are Ukrainian nationals. Their details are provided in the Appendix.

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

On 20 February 2009 the first applicant married Ms O. On 8 November 2009 their son (the second applicant) was born. On 1 February 2012 the first applicant and Ms O. divorced. The child continued to live with his mother.

(a) Proceedings on contact arrangements

On 4 November 2013 the first applicant initiated court proceedings for determining contact arrangements with the second applicant, arguing that Ms O. had been preventing meetings and communication between the applicants.

On 22 May 2015 the Dnipropetrovsk District Court determined a schedule for the applicants ’ regular meetings which was amended by the Dnipropetrovsk Regional Court of Appeal on 19 October 2015. On 27 April 2016 the Higher Specialised Court for Civil and Criminal Matters quashed those decisions, finding that the contact arrangements had been insufficient to ensure the interests of the child to communicate with his father. The case was remitted to the first-instance court.

By the Dnipropetrovsk District Court ’ s decision of 14 November 2017, as amended by the appellate court on 1 June 2018, the applicants were provided with a detailed schedule for regular meetings; the child ’ s mother was ordered not to prevent those meetings.

On 5 December 2018 the Supreme Court upheld those decisions.

On 18 March 2019 the bailiffs opened enforcement proceedings in respect of the contact arrangements.

(b) Proceedings on permission to travel with the child abroad

On 24 June 2014 Ms O. applied to the Uman District Court of Cherkasy Region seeking to obtain judicial permission to travel abroad with the second applicant without the consent of the first applicant (see below, under the “Relevant domestic law”, the domestic rules on crossing the State border).

On 25 July 2014 the Uman District Court, having examined the case in the absence of the first applicant, granted permission for the second applicant to travel abroad without his father ’ s consent, if accompanied by his mother. Permission was issued for travel to any country until the child reaches the age of majority.

On 3 May 2015 Ms O. and the second applicant left Ukraine and started to live in Poland. The first applicant initiated proceedings in Poland for return of the second applicant to Ukraine; those proceedings are pending.

On 30 May 2016 the first applicant requested the Uman District Court to reopen the proceedings on permission to travel with his son abroad and to reconsider the case, arguing that he had become aware of the decision of 25 July 2014 only in May 2016. He claimed that he had never lived in the town of Uman and that his registered home address was in Dnipropetrovsk; moreover, Ms O. had been perfectly aware of his correct address as she had indicated it in the other pending court proceedings. The first applicant submitted that the decision of 25 July 2014 had been taken in breach of the rules on territorial jurisdiction and his right to be heard.

On 7 December 2016 the Uman District Court quashed the decision of 25 July 2014 in view of the fact that the first applicant had not participated in the proceedings. By another ruling adopted on the same day the court ordered that the case should be transferred to the Krasnogvardiyskyy District Court of Dnipropetrovsk, where the first applicant resided.

Ms O., acting via her lawyer, appealed against the ruling on the transfer of the case and on 12 May 2017 the Cherkasy Regional Court of Appeal found that it had not been open for the first-instance court to transfer the case at that late stage of the proceedings. The case therefore remained with the Uman District Court.

Between August 2018 and June 2019 several court hearings were scheduled, but they did not take place for various reasons.

On 5 October 2012 the applicant married Ms L. On 23 March 2013 their son was born. In March 2015 the couple divorced. The child continued to live with his mother.

On 30 September 2015 the applicant applied to the Darnytskyy District Court of Kyiv (“the District Court”), claiming that Ms L. prevented him from having access to his son and asking the court to establish a schedule for his regular meetings with the child.

On 27 January 2016 the District Court ordered an expert forensic psychiatric examination.

On 20 October 2017 the Kyiv Institute of Forensic Examinations provided the District Court with its expert opinion in the case.

On 29 November 2017 the case was reassigned to a different judge of the District Court because the former judge dealing with the case had been suspended from his position.

On 18 October 2018 the case was again reassigned to another judge of the District Court because the term of office of the former judge dealing with the case had expired.

On 17 May 2019 the District Court took a decision in the case. It instructed Ms. L. not to prevent the applicant from seeing the child and established a detailed schedule for regular meetings of the applicant with the child.

Both parents appealed against that decision.

Between August and December 2019 the Kyiv Court of Appeal conducted several hearings in the case. The proceedings are pending.

The applicant was married to Mr P. They have three children. On 2 September 2014 the applicant together with her three minor children (born in 2004, 2006 and 2011) left Ukraine and moved to Poland. The children ’ s father, Mr. P., provided permission to travel with the children abroad that was valid until 31 December 2014. On 14 November 2014 the applicant moved with the children from Poland to Germany. On 29 April 2015 the applicant and Mr P. divorced.

On 30 December 2015 Mr P. instituted proceedings in Germany against the applicant, seeking to return the children to Ukraine. On 11 July 2016 the High Court of Rostock Region in Germany ordered the return of the children to Ukraine. On 11 October 2016 the two younger children returned to Ukraine. The older daughter stayed with the applicant in Germany, upon consent of Mr P.

On 21 February 2017 the applicant instituted proceedings against Mr P. seeking determination of the children ’ s place of residence, payment of alimony and a temporary permit for the children to travel abroad without the father ’ s consent. On 23 February 2017 the Vasylkivskyy District Court of Kyiv Region (“the District Court”) opened the proceedings. From May 2017 until December 2019 the court proceedings were adjourned on numerous occasions, including two adjournments for the reason that the judge ’ s term of office had expired and the case had to be reassigned to another judge.

On 11 December 2019 the District Court partially allowed the applicant ’ s claim and awarded the alimony for the three children. The court dismissed the applicant ’ s claim regarding the children ’ s place of residence, finding that the two younger children lawfully resided with their father and there were no grounds to change their residence. As regards the older daughter, the parties had agreed that she would stay with the applicant in Germany. In the course of examination of the case on the merits, the court took into account the opinion issued on 19 January 2017 by the childcare authority in Vasylkivskyy District suggesting that the applicant should be deprived of parental authority in respect of her three children.

The Rules on crossing the State border of Ukraine (approved by the Resolution of the Cabinet of Ministers of Ukraine of 27 January 1995 No. 57) provide that Ukrainian citizens under the age of sixteen years may leave Ukraine either if accompanied by both parents (paragraph 3) or if accompanied by one parent and subject to the presentation of the notarised consent of the other parent (paragraph 4). The notarised consent of the other parent is not required, however, if ‒ among other exceptions ‒ there is a court decision permitting the respective Ukrainian citizen under the age of sixteen years to leave Ukraine without the consent and accompaniment of the other parent (paragraph 4).

COMPLAINTS

Relying on Article 6 § 1 and Article 8 of the Convention, the applicants complain about the excessive length of the domestic proceedings.

The applicants further complain under Article 13 of the Convention as regards the lack of effective remedies in respect of the excessive length of proceedings.

COMMON QUESTIONS

1. With regard to the proceedings before the Ukrainian courts, was the length of those proceedings in breach of the “reasonable time” requirement under Article 6 § 1 of the Convention?

With regard to the application of Omelchenko v. Ukraine (no 44158 /19), the above question concerns the proceedings on contact arrangements as well as the proceedings on permission to travel with the child abroad.

The Government are invited to provide chronological information on the proceedings complained of and the documents related to those proceedings.

2. Has the length of the above proceedings breached the applicants ’ right to respect for family life, guaranteed by Article 8 of the Convention?

3. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

44158/19

02/08/2019

Maksym Mykolayovych OMELCHENKO

11/06/1982

Dnipro

Vladyslav Maksymovych OMELCHENKO

08/11/2009

Krakow

Bogdan Vasylyovych FOKIY

10919/20

16/02/2020

Svyatoslav Valeriyovych TRYETYAK

10/12/1976

Ukrayinka

Bogdan Vasylyovych FOKIY

17030/20

20/03/2020

Nadiya Leonidivna PONOMARENKO

13/03/1982

Schwerin

Viktoriya Yuriyivna PETRUK