Communicated on 24 January 2020 Published on 1 0 February 2020

THIRD SECTION

Application no. 54628/19 Miguel Angel VELASCO AYRA against Russia lodged on 9 October 2019

STATEMENT OF FACTS

The applicant, Mr Miguel Angel Velasco Ayra , is a nat ional of Spain, who was born in 1980 and lives in Madrid. He is represented before the Court by Ms S. Garcia, a lawyer practising in St Petersburg.

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

In 2014 the applicant ’ s girlfriend Ms. E.Kh ., a Russian national, moved to Spain to live with the applicant.

On 20 March 2015 the applicant and E.Kh . married .

On 8 August 2016 E.Kh . gave birth to their son, O.A . He is a national of Spain and, since 16 February 2017, of Russia.

On 28 February 2017 E.Kh . went to visit her relatives in Russia. The applicant signed a written consent to O.A. ’ s travel with E.Kh .

Upon her arrival to Russia E.Kh . informed the applicant that she had changed her plans, that she did not intend to return to Spain and that she and the child would stay in Russia.

After failed attempts to persuade E.Kh . to return to Spain, on 6 August 2017 the applicant lodged an application with the Ministry of Education and Science of the Russian Federation (the Russian Central Authority on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)) for his son ’ s return to Spain.

On 22 January 2018 he was advised to institute court proceedings for the child ’ s return.

On 18 October 2017 the applicant found out that E.Kh . had instituted proceedings before the Oktyabrskiy District Court of St Petersburg for divorce and determination of O.A. ’ s residence as being with her.

On 15 January 2018 the applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the D istrict Court”) seeking his son’s return to Spain on the basis of the Hague Convention.

On 30 January 2018 the applicant requested the Oktyabrskiy District Court to suspend the proceedings for divorce and child residence instituted by E.Kh . pending the outcome of the return proceedings.

On the same day the Oktyabrskiy District Court granted the applicant ’ s request.

On 30 March 2018 the District Court granted the applicant ’ s claim and ordered O.A. ’ s return to Spain. In taking this decision the District Court took into consideration the following circumstances. First of all, E.Kh . had failed to disprove the fact that Spain had been the child ’ s (and the family ’ s) place of habitual residence. Secondly, the applicant who had exercised his custody rights prior to the child ’ s retention had not consented to changing the child ’ s habitual place of residence. Thirdly, E.Kh . had not provided evidence that the applicant had not been actually exercising his custody rights. Neither had she provided evidence to the effect that there had been a grave risk that the child ’ s return to Spain would expose him to physical or psychological harm. The District Court further gave consideration to the fact that the child ’ s return would not lead to his separation from his mother since nothing prevented E.Kh . from going to Spain with her son. In this respect the District Court noted the absence of any pending criminal proceedings against E.Kh . in Spain in connection with the abduction of O.A. Finally, the Court considered that such circumstances as the child ’ s registered place of residence in St Petersburg, his being monitored by a paediatrician in St Petersburg, his placement on a waiting list for a kindergarten in St Petersburg, etc., did not have any legal value since they had occurred after the child ’ s removal from Spain.

F ollowing E. Kh . ’ s and prosecutor ’ s appeal, on 13 June 2018 the St Petersburg City Court (“the City Court”) quashed the above judgment and decided to refuse the applicant ’ s claim. The City Court held, first of all, that the child ’ s retention had not been unlawful within the meaning of Article 3 of the Hague Convention. It referred in this connection to the following circumstances: the child ’ s permanent residence in St Petersburg since March 2017 where all conditions had been put in place for his living and development; his age at the moment of his removal from Spain – six months, when a child has both psychological and physiological need for his mother (the child was still being breastfed at the moment of the return proceedings); the defendant ’ s reluctance to return to Spain; and the child ’ s integration into the social and family environment in Russia. The City Court took into account the opinion of psychologist I. who came to the conclusion that O.A. ’ s separation with his mother would run contrary to his interests and would disturb his psychological health and development.

The City Court further arrived at the conclusion that Spain had not been the child ’ s habitual place of residence. It relied in this respect on the child ’ s registered place of residence in St Petersburg, the fact that he had been residing in Russia for over a year since February 2017, that he did not speak the Spanish language, that he was atte nding various medical and child ‑ rearing facilities in St Petersburg and by permanently living in Russia since March 2017 O.A. had achieved significant integration into the Russian social and family environment.

Having relied on Article 38 of the Constitution of the Russian Federation, Articles 63 § 1 and 65 § 1 of the Family Code of the Russian Federation, the 1959 UN Declaration of the Rights of the Child providing, in particular, that a child of tender years shall not, save in exceptional circumstances, be separated from his mother, the City Court concluded as to the absence of any exceptional circumstances in the present case which would allow the child ’ s separation from his mother. The City Court dismissed the applicant ’ s argument to the effect that the child would not be separated from his mother in the event of his return to Spain as being of a speculative nature. It further noted in this connection that it could not impose on E.Kh . an obligation to return to Spain, the choice of the country of residence being her right.

The City Court decided, therefore, to refuse the applicant ’ s claim with reference to the exceptions from the general rule of immediate return provided for by Articles 13 (b) and 20 of the Hague Convention as the child ’ s return without his mother would run contrary to the child ’ s interests.

The City Court further noted that only such norms of international treaties to which the Russian Federation is a party are applicable in Russia that do not contradict the Russian Constitution, that any attempt to breach the bond between motherhood and childhood contradicted the Russian Constitution, which is why the provisions of the Hague Convention could not be regarded in the Russian Federation as generally recognised norms of international law. The City Court went on to say that the existing priority of motherhood and childhood against all other legal forms of family life was the fundamental principle in the Russian Federation and that the Russian legal system unequivocally prohibited the interruption of relations between a mother and a child, unless it contradicted the child ’ s interests.

In the absence of any evidence to the effect that constant contact with the mother would run contrary to the child ’ s interests in the present case, the City Court considered that the Constitution of the Russian Federation should apply so as obliging the State to secure the protection of motherhood and childhood, which excluded the separation of the child from the mother.

On 5 October 2018 and 9 April 2019, respectively, the St Petersburg City Court and the Supreme Court of Russia refused to accept the applicant ’ s case for examination in cassation proceedings.

Meanwhile, on 21 June 2018 the Oktyabrskiy District Court resumed the proceeding s instituted by E.Kh . for divorce and child residence. The applicant filed a counterclaim seeking to have the child ’ s residence be determined with him.

On 22 June 2018 the Oktyabrskiy District Court granted E. Kh . ’ s claims and dismissed the applicant ’ s claims.

On 15 November 2018 the St Petersburg City Court upheld the above judgment on appeal.

On 29 March and 29 May 2019, respectively, the St Petersburg City Court and the Supreme Court of Russia refused to accept the applicant ’ s case for examination in cassation proceedings.

On 5 April 2019 the first-instance court no. 7 in Mostoles took a decision to dissolve the marriage between the applicant and E.Kh . and granted the applicant sole custody of O.A.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Spain on 1 March 2013. For the relevant provisions of the Hague Convention see X v. Latvia [GC], no. 27853/09, § 34, ECHR 2013.

In the present context reference is made to the following provisions of the Hague Convention:

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 (Section 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 (Section 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 (Section 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 (Section 244.17).

COMPLAINTS

1. The applicant complains that the refusal of his application for the return of his son to Spain and subsequent determination of his son ’ s residence as being with his mother in Russia amounted to a violation of his right to respect for his family life under Article 8 of the Convention.

He argues, in particular, that the City Court ’ s refusal to recognise Spain as the country of the child ’ s habitual residence sits ill with the facts of the case, that the City Court failed to give proper assessment of the circumstances put forward by E.Kh . as capable of constituting an exception under the Hague Convention for the child ’ s return to Spain (risk of psychological harm due to separation in view of E. Kh . ’ s unwillingness to return to Spain, fear of criminal persecution in the event of her return with the child, alleged impossibility to obtain a visa required for her return). The applicant believes that the City Court should have carried out a careful assessment so as to ascertain whether indeed the alleged risks existed by sending relevant inquiries to the Spanish authorities.

The applicant further argues that, although the City Court considered that the provisions of the Hague Convention could not be viewed as generally recognised norms of international law and that only the Constitution of the Russian Federation should apply, the Russian Federation ratified the Hague Convention which therefore formed a part of its legal system and was binding.

Moreover, he considers that the reference of the City Court to the child ’ s having adapted to his life in Russia was irrelevant since the application for the child ’ s return was lodged less than a year from the date of the unlawful retention.

In his opinion the best interests of the child were not respected and the priority was given to the interests of the mother who was reluctant to return to Spain.

2. Referring to Article 6 § 1 of the Convention the applicant further complains that the Oktyabrskiy District Court of St Petersburg had no jurisdiction to decide upon his son ’ s residence and that it was for the Spanish courts to do so.

QUESTIONS TO THE PARTIES

1. Did the appeal decision of the St Petersburg City Court of 13 June 2018 refusing the applicant ’ s request for his son ’ s return to Spain and subsequent judgment of the Oktyabrskiy District Court of St Petersburg of 22 June 2018, as upheld on appeal on 15 November 2018, determining the applicant ’ s son ’ s residence as being with his mother in Russia 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?

2. 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, 18 June 2019) ?