Communicated on 17 April 2020 Published on 18 May 2020

THIRD SECTION

Application no. 5504/20 K.Y . against Russia lodged on 16 January 2020

STATEMENT OF FACTS

The applicant, Mr K.Y. , is a Russian national, who was born in 1978 and lives in Tambov.

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

On 22 October 2011 the applicant married Ms Ye.

On 3 December 2012 Ye. gave birth to their son A.

On 11 August 2014 the marriage between the applicant and Ye . was dissolved. A. remained living with the applicant.

On 15 June 2015 the Sovetskiy District Court of Tambov determined A. ’ s residence as being with Ye.

On 17 March 2016 the applicant handed the child to Ye., following which he brought proceedings against the latter seeking to have determined the terms of his contact with A.

On 13 May 2016 the Michurinsk Town Court of the Tambov Region (“the Town Court”) granted the applicant ’ s claim partly and determined the following schedule for his contact with the child: every first and third weekend of the month from 10 a.m. on a Saturday to 7 p.m. on a Sunday at the applicant ’ s place of residence; as well as on the day of the child ’ s birthday from 2 p.m. to 3 p.m. at Ye. ’ s place of residence.

On 24 August 2016 the Tambov Regional Court (“the Regional Court”) upheld the judgment of 13 May 2016 on appeal.

Since Ye. refused to comply with the above judgment voluntarily, on 4 October 2016 the Michurinsk District Bailiffs ’ Service instituted the enforcement proceedings.

Between October 2016 and January 2017 Ye. provided bailiff L. in charge of the enforcement proceedings with medical certificates to the effect that the child had been sick, which prevented the enforcement of the judgement. The service check conducted by the Tambov Regional Healthcare Department later in July 2017 revealed that the medical certificates in question had been fake , and disciplinary measures were applied to doctors responsible for issuing them.

In the above period bailiff L. had accompanied the applicant to Ye. ’ s place of residence so as to proceed with the enforcement on two occasions – on 15 October and 3 December 2016.

On 2 December 2016 bailiff L. imposed on Ye. enforcement fees in the amount of 5,000 Russian roubles [1] (RUB).

In February 2017 the enforcement proceedings were referred to bailiff Zh ., who on six occasions accompanied the applicant to Ye. ’ s place of residence. On 18 February 2017 nobody opened the door and later Ye . submitted a certificate that the child had been at the dentist on that date. On 4 March, 18 March, 17 June, 15 July and 16 September 2017 the bailiff recorded that the child was unwilling to have any contact with the applicant. The enforcement attempt of 15 July 2017 had taken place with participation of psychologist Zh . from the kindergarten attended by A.

On 16 March 2017 bailiff Zh . imposed an administrative fine on Ye. in the amount of RUB 1,000 [2] , which Ye. paid on 28 March 2018.

On 21 July 2017 the psychologist, present at the enforcement attempt of 15 July 2017, drafted a report, where she noted that A. had been reluctant to have contact with the applicant, that he had been emotionally stable and comfortable at his mother ’ s place of residence, that having regard to his psychological unpreparedness to leave his mother it was better to not force his contact with the applicant at the latter ’ s place of residence. She further recommended to prepare the child psychologically for communicating with his father, that in order to do so the applicant and Ye . had to reconsider their behaviour and to stop active actions against each other which created a risk of the child developing dysfunctional social norms, phobias and neurosis.

In October 2017 the enforcement proceedings were referred to bailiff B.

Between October 2017 and March 2018 ten consecutive administrative fines in the amount of RUB 1,000 were imposed on Ye. for failure to comply with the judgment of 13 May 2016. Ye. paid all the fines voluntarily.

On 9 July and 16 October 2018 the chief bailiff of the Michurinsk District Bailiffs ’ Service held Ye . liable for administrative offence of persistent non-compliance with the judgment of 13 May 2016 and imposed on the latter administrative fines of RUB 2,500 [3] each.

On 27 March, 7 May, 30 July, 13 August and 22 October 2019 the Michurinsk Juvenile Commission ( Комиссия по делам несовершеннолетних и защите их прав при администрации города Мичуринска Тамбовской области ) imposed administrative fines on Ye. in the amounts of RUB 4,800, RUB 4,850, RUB 5,000, RUB 5,000 and RUB 5,000, respectively, for preventing the child from communicating with the applicant.

In September 2019 the enforcement proceedings were again referred to bailiff L.

None of the measures carried out by the domestic authorities had led so far to the enforcement of the judgment of 13 May 2016.

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 amounts to an administrative offence, punishable by a 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, §§ 91-112, 24 October 2013).

COMPLAINTS

Relying on Articles 6 and 8 of the Convention and Article 5 of Protocol No. 7 to the Convention the applicant complained of the failure of the domestic authorities to take effective measures for securing his contact with his son in accordance with the contact arrangement 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 the child in accordance with the contact schedule set out in the judgment of the Michurinsk Town Court of the Tambov Region of 13 May 2016?

[1] . Approximately EUR 75 at the material time.

[2] . Approximately EUR 15 at the official exchange rate at the material time.

[3] . Approximately EUR 30 at the official exchange rate at the material time.