Communicated on 25 June 2019

THIRD SECTION

Application no. 59064/18 Andrey Aleksandrovich ASTAPENKO against Russia lodged on 27 November 2018

STATEMENT OF FACTS

The applicant, Mr Andrey Aleksandrovich Astapenko , is an Estonian national who was born in 1962 and lives in Tallinn. He is represented before the Court by Mr A.A. Kristenko , a lawyer practising in Kharkov, Ukraine.

A. The circumstances of the case

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

1. Factual background

Since 2006 the applicant has lived with his partner Ms Ye.A ., a Russian national. They settled in Tallinn, Estonia, where on 20 November 2006 Y e.A . gave birth to their son A. A. has both Estonian and Russian nationality.

Later in 2006 they moved to Ivanovo, Russia.

In 2011 they moved back to Tallinn, where the applicant bought a house and a flat.

On 20 March 2013 the applicant and Ye.A . married .

Starting from then the relationship between the couple deteriorated and in 2014 they separated. A. continued living with Ye.A . in the house, and the applicant moved to the flat.

On 30 September 2015 Ye.A . together with the child moved to Ivanovo.

The applicant remained in Tallinn. He travels to Ivanovo once every two to three months to see A.

2. Proceedings in Estonia

On 12 February 2015 the Harju County Court approved a friendly settlement agreement between the applicant and Ye.A . Under the terms of this agreement, the parties shared custody of their son, A., the latter remained living with Ye.A . in Estonia, and the applicant maintained contact with him in accordance with the contact arrangement set out in the agreement. It was agreed, in particular, that the applicant would spend with A. every other weekend, alternate spring and autumn holidays, half of the Christmas holidays, half of the summer holidays, Father ’ s Day, A. ’ s birthday (together with Ye.A .), as well as other periods with the consent of both parties. The agreement further provided for the applicant ’ s travel, including international travel, with the child, without additional written consent from Ye.A ., and for telephone communication between the applicant and the child.

On 27 August 2015 the Harju County Court dissolved the marriage between the applicant and Ye.A .

On 24 September 2015 the Harju County Court confirmed the applicant ’ s and Ye.A. ’ s joint custody in respect of A., save for the determination of A. ’ s place of residence and stay and the decisions concerning the latter ’ s health and education, which were granted exclusively to Ye.A . No contact arrangement was set out in the judgment in question.

3. Proceedings in Russia

(a) Proceedings for compulsory enforcement of the decision of the Harju County Court of 12 February 2015

In January 2017 the applicant applied, through the Ministry of Justice of Estonia, for compulsory enforcement in Russia of the decision of the Harju County Court of 12 February 2015.

On 12 May 2017 the Ivanovo Regional Court (“the Regional Court”), relying on Articles 50-52 of the Treaty of 26 January 1993 between the Russian Federation and the Republic of Estonia on legal assistance and legal relations in civil, family and criminal cases and Articles 409-12 of the Russian Code of Civil Procedure, granted the applicant ’ s application.

On 25 July 2017 the appeal chamber of the Regional Court upheld the above decision.

(b) Residence and contact proceedings

Meanwhile, on 11 July 2016 the applicant brought proceedings before the Frunzenskiy District Court of Ivanovo (“the District Court”) against Ye.A . seeking t o have determined the terms of his contact with the child. The applicant alleged that Ye.A . was interfering with his right to maintain contact with his son and to participate in his upbringing. In particular, she had forbidden the applicant ’ s travel with the child outside the territory of the Russian Federation and opposed their communication by telephone.

In response, Ye.A . brought proceedings to determine the child ’ s residence as being with her and to change the contact arrangement between the applicant and the child as approved by the Harju County Court of 12 February 2015 . She referred to the substantial change of circumstances, that is to say her and A. ’ s having moved from Estonia to Russia to take up permanent residence there, which had made the previous contact arrangement impractical. She expressed her wish that the contact between the child and the applicant, including during holidays, would take place in Ivanovo, and that the applicant should not be able to take A. abroad without her consent.

The applicant agreed in general with the arrangement proposed by Ye.A ., except for the exclusion of the possibility for him to travel with A. internationally without Ye.A . ’ s consent.

On 18 September 2017 the District Court, having taken into account the opinion of the childcare authority (supporting Ye.A . ’ s wishes), determined A. ’ s place of residence as being with Ye.A . and established the schedule for his contact with the applicant as follows: not more than three consecutive days once every month on the condition that A. was healthy and willing to communicate with his father; seven days alternately during the spring or autumn holidays, from 2 to 8 January each year, fifteen days in the period from 10 June to 31 July each year, with a one-month prior written notice to Ye.A . The District Court further determined that the applicant could not travel with the child internationally without Ye.A . ’ s consent. In taking this decision the District Court took into account the explanations given by A. in the course of the hearing to the effect that, although he would want to travel abroad, he feared that his father might not return him to his mother. The District Court noted, with reference to the relevant domestic law, that in the absence of Ye.A . ’ s consent to A. ’ s trip abroad with the latter it was open to the latter to bring this issue before a court. The District Court further stated that the applicant had failed to provide any exceptional circumstances proving the crucial need for A. ’ s travel abroad, including to Estonia, and that the judgment of the Harju County Court of 24 September 2015 had vested on Ye.A . an exceptional right to determine the child ’ s place of residence and stay. Lastly, the District Court dismissed the applicant ’ s argument to the effect that the decision of the Harju County Court of 12 February 2015, which had been recognised in Russia, had already determined the contact arrangement between the applicant and his son. It noted that the decision in question had not determined the child ’ s place of residence, and that the substantial change of factual circumstances involving Ye.A. ’ s and the child ’ s moving from Estonia to Russia for permanent residence required the revision of the previous contact arrangement.

The applicant appealed. He submitted that the necessity of A. ’ s travel abroad was explained by the fact that the latter, like the applicant himself, was an Estonian national and had many relatives in Estonia (his stepbrother, grandmother and aunt). He further argued that the fears raised by his son regarding his travel abroad had been unsubstantiated and that the District Court should have ordered the a psychological expert examination of the latter so as to ascertain whether the statement in question had not been influenced by Ye.A .

On 13 December 2017 the Regional Court upheld the judgment of 18 September 2017 on appeal. The Regional Court noted, inter alia , the absence of any circumstances which would allow the conclusion that A. ’ s opinion had been influenced by his mother and necessitate the carrying out of a psychological expert examination of A.

On 17 May 2018 a judge of the Regional Court refused to refer the case for consideration by the Presidium of that Court.

On 10 July 2018 a judge of the Supreme Court of Russia refused to refer the case for consideration by the Civil Chamber of that Court.

B. Relevant domestic law

For the relevant provisions of domestic law, see Pakhomova v. Russia (no. 22935/11, §§ 91-112, 24 October 2013).

COMPLAINTS

Relying on Articles 6 and 8 of the Convention the applicant complains of the failure of the domestic authorities to secure contact with his son in accordance with the schedule determined by the domestic court. He complains, in particular, that the child ’ s mother prevents their contact by referring to the child ’ s unwillingness to see the applicant.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

2. 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, h ave 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 Frunzenskiy District Court of Ivanovo of 18 September 2017 ?