Communicated on 22 September 2020 Published on 12 October 2020

FIFTH SECTION

Application no. 52411/18 Borys Ivanovych SPITSYN against Ukraine and 2 other applications (see list appended)

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

The circumstances of the cases

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

In 2005 the applicant started to live with Ms S. On 7 October 2012 their daughter was born. In 2015 the couple separated. The child continued to live with Ms S.

The applicant instituted civil proceedings, submitting that Ms S. had prevented him from having contact with their daughter. He asked the court to establish arrangements for regular contact with his child.

On 22 June 2016 the Kovpakivskyy District Court of Sumy instructed Ms. S. not to prevent the applicant from seeing the child and established a schedule for regular meetings of the applicant with the child. That judgment became final on 2 August 2016.

Enforcement proceedings were opened at the request of the applicant. However, they were closed on 12 September 2016.

As the contact arrangements had not been followed by the parties, the applicant requested criminal prosecution of Ms S. for her failure to comply with the above-mentioned court judgment. He further initiated civil proceedings to establish new contact arrangements.

On 3 August 2017 the Kovpakivskyy District Court of Sumy again instructed Ms. S. not to prevent the applicant from seeing the child and ordered that the applicant should have regular meetings with the child every Tuesday and Thursday from 4 p.m. to 8 p.m. and every Saturday from 10 a.m. to 8 p.m. The meetings were to be held in the presence of the child ’ s mother and in the place agreed upon by the parents. The child ’ s state of health and her willingness to see the applicant had to be taken into consideration when making meeting arrangements.

On 28 September 2017 and 14 June 2018 the Sumy Regional Court of Appeal and the Supreme Court, respectively, upheld that judgment.

In February 2018 Ms S. was charged with the offence of failure to comply with the court judgment of 22 June 2016.

According to the applicant, the contact schedule is not operational owing to the conduct of the child ’ s mother.

The first applicant and Ms A. were married until 2015, when they divorced. They have two common children: their son was born in 2000 and their daughter, who is the second applicant, was born in 2011. After the divorce, the first applicant continued to live with the son and Ms. A. lived with the second applicant.

In March 2016 the first applicant initiated civil proceedings, claiming that Ms A. had prevented him from seeing their daughter. He asked the court to establish arrangements for regular contact with the second applicant.

By the first-instance court ’ s judgment of 24 October 2016, as amended by the Court of Appeal on 21 February 2017, the following contact arrangements were put in place. Regular meetings between the applicants were to take place on the first and the third Sundays of each month, from 11 a.m. to 3 p.m., and on the second and fourth Saturdays of each month, from 3 p.m. to 8 p.m. Until 8 April 2017 those meetings would be held in the presence of the child ’ s mother or grandmother.

On 21 September 2018 the bailiffs opened the enforcement proceedings. On 21 November 2018 they found that the writ of execution had been flawed and refused to enforce it.

On 27 December 2018, the bailiffs reopened the enforcement proceedings, based on the amended writ of execution. On 20 March 2019 the bailiffs requested the local childcare authority to assist them in the enforcement of contact arrangements. The first applicant repeatedly complained to the bailiffs that Ms A. had not abided by the meeting schedule. On 23 September 2019 the bailiffs imposed a fine on Ms A., finding that she had not complied with the contact arrangements set by the court.

On 17 June 2006 the first applicant married Ms V. On 9 November 2006 their son (the second applicant) was born. In July 2014 the couple separated. The child continued to live with Ms V.

(a) Proceedings on contact arrangements between the second applicant and his paternal grandparents (the third and fourth applicants)

On 16 March 2015 the paternal grandparents of the second applicant (the third and fourth applicants) applied to Tsentralno-Miskyy District Court of Kryvyy Rih (“the District Court”), claiming that Ms V. had prevented them from seeing their grandson. They asked the court to arrange a schedule for regular meetings with their grandson.

On 3 February 2016 the District Court approved a friendly settlement agreement between Ms V. and the paternal grandparents of the child. The parties agreed that the grandparents and the child would spend time together every second Saturday of each month, from 12 noon until 2 p.m. the next day. During summer holidays they would additionally meet every Tuesday, unless the child was away from the town. That court decision became final on 9 February 2016.

As Ms V. had not abided by the above agreement, on 3 August 2017 the grandparents requested the bailiffs to enforce the contact arrangements. On the same day the bailiffs refused to open enforcement proceedings on the grounds that the grandparents had missed the one-year time-limit for seeking the enforcement measures. The grandparents asked the District Court to restore the time-limit for enforcement proceedings in respect of the court decision of 3 February 2016. On 8 July 2019 the District Court dismissed the request, noting that the one-year time-limit had expired and there had been no valid grounds for its renewal.

(b) Proceedings on contact arrangements between the second applicant and his father (the first applicant)

On 13 May 2015 the first applicant initiated civil proceedings in the District Court seeking to establish arrangements for regular contact with his son (the second applicant).

On 8 July 2019 the District Court examined the first applicant ’ s claim and decided that he should have regular meetings with the second applicant on two days-off each week, from 12 noon to 5 p.m., without the presence of the child ’ s mother. In addition, the first and the second applicants should spend summer holidays together during the period when the first applicant was granted leave from work. The decision was not appealed against by the parties.

On 10 December 2019 the bailiffs opened enforcement proceedings in relation to the meetings schedule established for the first and the second applicants. According to the applicants, the contact schedule is not operational owing to the conduct of the child ’ s mother.

COMPLAINTS

1. The applicants complain that the domestic authorities have failed to ensure the effective enforcement of the child contact arrangements determined or approved by the courts. They rely on Articles 1, 6, 8 and 13 of the Convention.

2. In the case of Bolshenko v. Ukraine (no 9725/20) the first applicant also complains that the length of the court proceedings on the child contact arrangements has been unreasonable.

COMMON QUESTION

With regard to the applicants ’ allegations regarding the non-enforcement of the court decisions on contact arrangements for family members and children, has there been a violation of the applicants ’ right to respect for family life, contrary to Article 8 of the Convention?

The Government are invited to provide, among other material, the chronological information and the documents on the relevant enforcement proceedings.

CASE-SPECIFIC QUESTIONS

Spitsyn v. Ukraine (52411/18)

With regard to the allegations of non-enforcement of the court decision of 3 August 2017, has the applicant complied with the rule of exhaustion of domestic remedies?

Bolshenko v. Ukraine (no 9725/20)

1. With regard to the complaints lodged by the child ’ s grandparents, have those applicants complied with the rule of exhaustion of domestic remedies, as required by Article 35 § 1 of the Convention? In particular, have they appealed against the court decision of 8 July 2019 refusing to restore the time-limit for enforcement proceedings?

2. With regard to the complaints lodged by the child ’ s father, was the length of the court proceedings in breach o f the requirements of Article 6 § 1 and Article 8 of the Convention?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

52411/18

29/10/2018

Borys Ivanovych SPITSYN

28/06/1965

Sumy

5783/20

13/01/2020

Dmytro Gennadiyovych PLESHKOV

29/09/1974

Kyiv

Alisa Dmytrivna PLESHKOVA

28/12/2011

Irpin

Iryna Volodymyrivna KUSHNIR

9725/20

07/02/2020

Sergiy Grygorovych BOLSHENKO

27/03/1976

Kryvyy Rig

Bogdan Sergiyovych BOLSHENKO

09/11/2006

Kryvyy Rig

Tetyana Petrivna BOLSHENKO

22/06/1957

Kryvyy Rig

Grygoriy Mykhaylovych BOLSHENKO

14/11/1955

Kryvyy Rig

Sergiy Georgiyovych YAKYMENKO