Communicated on 27 January 2020 Published on 17 February 2020

FIFTH SECTION

Application no. 36525/19 Oleg Vladyslavovych NERIVNYA against Ukraine lodged on 30 June 2019

STATEMENT OF FACTS

The applicant, Mr Oleg Vladyslavovych Nerivnya , is a Ukrainian national who was born in 1988 and lives in Kharkiv .

The circumstances of the case

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

On 22 June 2016 the applicant married Ms B., a Russian national. On 14 October 2016 their daughter, M., was born. They lived in Kharkiv , Ukraine, in the applicant ’ s flat. On 11 September 2017, after a conflict with the applicant, B. left with the child for Russia and did not return. B. and M. currently live in Russia.

Following the applicant ’ s request, a criminal investigation was initiated in Ukraine into the allegations of child abduction, illegal crossing of a border, and forgery of documents by B. The outcome of the investigation is unknown.

On 31 October 2017 the applicant lodged a claim against B. with a Ukrainian court, seeking to determine the place of the child ’ s residence with him. In the course of the proceedings the applicant contended that the child ’ s mother had not taken care of the child. In support of his claim he submitted documentary evidence which included the information that the child ’ s mother had been charged with administrative offence of domestic violence, that she had been treated in the mental hospital, and that the child had been unlawfully removed from Ukraine.

On 3 August 2018 the Moskovskyy District Court of Kharkiv dismissed the applicant ’ s claim. The court noted that according to a letter from the Interpol National Central Bureau in the Russian Federation dated 20 December 2017, B. and M. had been living in Russia; B. had been questioned by police and she had explained to the police that she had suffered from domestic violence while living with the applicant and that she had had no wish to maintain any relations with him. The court then stated that the applicant had not provided any evidence or argument to show why the applicant ’ s domicile had to be determined as the child ’ s place of residence. The court concluded therefore that the claim had been unsubstantiated.

The applicant lodged an appeal, arguing that the first-instance court had made mistakes of fact and law and that the child interests had not been examined properly. He contended that certain pieces of evidence had not been examined even though they had been decisive in the determination of the best interests of the child. On 19 September 2018 the Kharkiv Regional Court of Appeal, in the absence of the parties, upheld the judgment of the first ‑ instance court. The applicant lodged an appeal on points of law. On 12 December 2018 the Supreme Court upheld the decisions of the lower courts.

COMPLAINT

The applicant complains under Articles 8 and 13 of the Convention that his wife removed their child from Ukraine to Russia without the applicant ’ s consent and the Ukrainian courts have failed to protect his rights.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies with regard to his allegation that his child was unlawfully removed from Ukraine to Russia? Was the applicant in a position to institute proceedings under the Hague Convention on the Civil Aspects of International Child Abduction?

The Government are invited to provide relevant material of the criminal proceedings initiated in respect to the applicant ’ s allegations of unlawful removal of his child from Ukraine.

2. Did the Ukrainian courts comply with the requirements of Article 8 of the Convention in the course of the civil proceedings on determination of the child ’ s place of residence? In particular, did the courts provide relevant and sufficient reasons for their conclusions on the applicant ’ s case?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint concerning allegedly unlawful removal of his child from Ukraine to Russia, as required by Article 13 of the Convention?