Communicated on 11 June 2018

THIRD SECTION

Application no. 3101/18 Jamil ZOUAOUI against Russia lodged on 12 December 2017

STATEMENT OF FACTS

The applicants, Mr Jamil Zouaoui (“the first applicant”) and Ms Miriam Elizabeth Zouaoui (“the second applicant), who are father and daughter, are American nationals who were born in 1964 and 2016 respectively. The second applicant also holds Russian nationality. The first applicant lives in Washington, D.C., the United States of America. The second applicant lives in Moscow, Russia.

A. The circumstances of the case

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

1. Background information

In 2015 the first applicant and a Russian national, Ms O.M., became romantically involved. After they ended their relationship, O.M. learned that she was pregnant.

When she announced the news to the first applicant, they decided to reunite and live as a family.

On 25 May 2016 in Washington, D.C., their daughter M., the second applicant, was born. She is an American national. Her birth certificate lists the first applicant and O.M. as her parents.

In October 2016 O.M. told the first applicant that she needed to go to Russia because her mother was seriously ill. She said that she wanted to take M. with her.

Given the fact that there was growing distrust between the first applicant and O.M. at that time, the first applicant insisted on a written parental agreement with O.M. establishing that they had joint custody in respect of M., affirming the latter ’ s citizenship and her place of residence in Washington, D.C., and limiting M. ’ s trip to Russia to thirty days starting from 17 October 2016. The agreement was signed on 13 October 2016.

On 17 October 2016 O.M. left for Russia.

It had been agreed that O.M. and M. would return on 14 November 2016. However, on that date O.M. informed the first applicant that she had decided to stay in Russia.

In December 2016 the first applicant travelled to Russia, but O.M. refused to let him see M. She cut off all communication with him.

On 30 June 2017 the second applicant acquired Russian nationality.

2. Custody proceedings in the United States of America

On 21 November 2016 the first applicant initiated proceedings before the Superior Court of the District of Columbia (“the Superior Court”), seeking to be granted sole legal and sole physical custody of M. He also filed an application for emergency relief, seeking a temporary custody order in respect of M.

On 22 November 2016 the Superior Court issued an emergency temporary custody order (“the emergency order”) granting the first applicant temporary custody of M. The emergency order incorporated the terms of the parental agreement between the first applicant and O.M. of 13 October 2016 and ordered that O.M. comply with its terms within forty-eight hours of receiving the emergency order. It further noted that the first applicant was unable to invoke the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”) to pursue the child ’ s return or to seek access to her, since the United States had not recognised Russia as a treaty partner.

On 11 December 2016 a copy of the emergency order of 22 November 2016, a copy of the first applicant ’ s custody application of 21 November 2016, a summons and a notice of hearing were served on O.M. at her Moscow address. However, O.M. ignored them.

The Superior Court attempted to secure O.M. ’ s participation in the custody proceedings, in vain.

On 20 March 2017 the Superior Court held that O.M. ’ s decision to remove M. from the District of Columbia and prevent her having contact with the first applicant was harmful to the child and sufficient to declare the presumption of joint custody rebutted. Having weighed O.M. ’ s conduct against all other factors, it decided that it was in M. ’ s best interests for the first applicant to be awarded sole legal custody and sole physical custody. The Superior Court held that either party could seek modification of the custody order at any time based on a substantial and material change in circumstances affecting the best interests of the child. The Superior Court further ordered that contact between O.M. and the child should be at the first applicant ’ s sole discretion, provided that he be guided by the court ’ s preference for frequent and continuing contact between each parent and the child, the sharing of child-rearing responsibilities, and efforts to encourage love, affection and contact between the child and both parents. The Superior Court recognised that the first applicant could seek enforcement of the custody order in Russia.

3. Proceedings in Russia

Meanwhile, on 11 December 2016 the first applicant had filed a missing persons report with the Moscow police, requesting information about the second applicant ’ s whereabouts. In the past year, he has not been provided with any information.

On 19 December 2016 the first applicant applied to the Timiryazevskiy District Court of Moscow, seeking enforcement of the parental agreement of 13 October 2016 between himself and O.M., and the return of his daughter to the District of Columbia. He made reference to the emergency order of 22 November 2016 made by the Superior Court.

On 27 March 2017 the Timiryazevskiy District Court returned the first applicant ’ s claim without examination on the basis that it had not been filed in accordance with the rules of territorial jurisdiction. The court held in particular that, pursuant to Article 244.11 of the Code of Civil Procedure of the Russian Federation, claims for the return of children unlawfully removed to or retained in the Russian Federation, or to exercise access rights in respect of such children on the basis of an international treaty of the Russian Federation, were to be submitted to the Tverskoy District Court of Moscow if the child was located in the territory of the Central Federal Circuit (as in the applicant ’ s case).

The first applicant appealed against the above decision, explaining that his request for the return of the child was not based on an international treaty of the Russian Federation, but on the provisions of the Russian Family Code (Article 163 of the Family Code in particular), and therefore, in accordance with the general rules on jurisdiction, his claim had been correctly lodged with the Timiryazevskiy District Court of Moscow.

On 2 November 2017 the Moscow City Court upheld the decision of 27 March 2017 on appeal. The City Court dismissed the first applicant ’ s arguments, relying on the emergency order of 22 November 2016 which obliged O.M. to comply with the terms of the parental agreement of 13 October 2016 and return the child to the United States of America, and the fact that both Russia and the United States of America had acceded to the 1980 Hague Convention, which should be applicable in the case.

On 9 December 2017 the first applicant lodged an application with the Tverskoy District Court, seeking the second applicant ’ s return to the United States of America on the basis of the 1980 Hague Convention.

On 16 January 2018 the Tverskoy District Court dismissed the first applicant ’ s claim. The court found that the 1980 Hague Convention was not applicable between the Russian Federation and the United States, and neither was the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Having taken into account that M. was a Russian national, that the necessary conditions for her life and development were created by O.M., and that the unlawfulness of her removal and retention on the territory of the Russian Federation had not been established, the Tverskoy District Court dismissed the first applicant ’ s claim. The court further noted that the first applicant was not prevented from exercising his parental rights in respect of the second applicant by other means.

The first applicant appealed against the above judgment.

The appeal proceedings are currently pending.

B. Relevant international and domestic law

1. Relevant international law

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force in respect of the United States of America on 1 July 1988 and in respect of Russia on 1 October 2011. The United States have not declared their acceptance of Russia ’ s accession to the Convention, therefore the Convention does not apply between the two countries. For the provisions of the 1980 Hague Convention, see X v. Latvia [GC], no. 27853/09, § 34, ECHR 2013.

The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children entered into force in respect of Russia on 1 June 2013. The United States signed the 1996 Hague Convention on 22 October 2010, but have not ratified it yet.

2. Relevant domestic law

(a) The Constitution

No one may be deprived of the right to have his or her case considered in a court and by a judge with jurisdiction to take cognisance of the case in accordance with the law (Article 47 § 1).

(b) The Family Code of the Russian Federation

All issues related to a child ’ s upbringing and education are decided upon by mutual agreement between the parents, guided by the child ’ s best interests and his or her opinion on the matter. If no such agreement can be reached, the parents (or one of them) can apply to the childcare authority or a court for assistance (Article 65 § 2).

In the event of parents separating, the child ’ s residence arrangements are fixed by an agreement between them. If no such agreement can be reached, the child ’ s residence arrangements are fixed by a court order, having regard to the child ’ s best interests and his or her opinion on the matter. In particular, the court must take into account the child ’ s attachment to each of the parents and his or her siblings, the relationship between the child and each of the parents, the child ’ s age, the parents ’ moral and other personal qualities, and the possibilities each of them have for creating good conditions for the child ’ s upbringing and development (such as each parent ’ s occupation, employment schedule, financial and family situation, and so on) (Article 65 § 3).

The rights and obligations of parents and children, including parents ’ obligation to provide for their children, are determined by the legislation of the State where they have their common place of residence. In the absence of a common place of residence of the parents and their children, the rights and obligations are determined by the legislation of the State of which the child is a national. The legislation of the State where the child permanently resides may be applied to claims concerning child maintenance and other relations between the parents and the children (Article 163).

For further relevant provisions of the Family Code, see Hromadka and Hromadkova v. Russia , no. 22909/10 , § § 105-11, 11 December 2014.

(c) The Code of Civil Procedure of the Russian Federation

A civil claim is to be filed with the court with territorial jurisdiction over the defendant ’ s place of residence (Article 28).

The procedure for the examination of requests for the return of children who have been unlawfully removed to or retained in Russia, and for securing protection for rights of access in respect of such children in accordance with international treaties of Russia, is governed by Chapter 22.2 of the Code.

An application for the return of a child unlawfully removed to or retained in Russia, or an application to exercise access rights in respect of such a child on the basis of an international treaty of Russia, must be lodged with a court by a parent or other person who considers that his or her custody or access rights have been violated, or by a prosecutor. The application for the child ’ s return must be lodged with the Tverskoy District Court of Moscow if the child is within the territory of the Central Federal Circuit (Article 244.11 §§ 1 and 2).

COMPLAINTS

1. The first applicant complains under Article 8 of the Convention on behalf of himself and the second applicant of a violation of their right to respect for their family life, in that the Russian authorities failed to assist them in being reunited with each other after the second applicant had been wrongfully retained in Russia by her mother. The first applicant deplores, in particular:

(a) the reluctance of the Russian authorities to assist him in locating the second applicant in Moscow and securing contact with her;

(b) the granting of Russian citizenship to the second applicant, despite her ongoing unlawful retention in Russia by O.M.;

(c) the refusal of his application for the second applicant ’ s return to the United States of America and the lack of the requisite exceptional diligence on the part of the Russian courts in dealing with his requests for assistance in this respect.

2. The first applicant complains under Article 6 of the Convention that his “right to a court” was violated by his being denied access to a competent court in the Timiryazevskiy District of Moscow, where the second applicant was being unlawfully retained, and by his being directed to Tverskoy District Court, which had no competence to examine the case in view of the inapplicability of the 1980 Hague Convention between Russia and the United States of America.

3. The first applicant further complains under Article 13 of the Convention on behalf of himself and the second applicant of the absence of an effective remedy in Russia against the alleged violations.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention? Did the Russian authorities comply with their positive obligation under Article 8 of the Convention to assist the applicants in being reunited with each other after the second applicant had been taken from the United States of America to Russia by her mother and retained there (see Hromadka and Hromadkova v. Russia , no. 22909/10 , 11 December 2014, and McIlwrath v. Russia , no. 60393/13 , 18 July 2017)? Have the Russian authorities displayed particular diligence in dealing with the first applicant ’ s requests for assistance? Did they promptly respond to the applicant ’ s request for assistance in locating the second applicant in Moscow and securing contact with her? Was the first applicant ’ s claim for the second applicant ’ s return examined within a reasonable time so that procedural requirements of Article 8 were respected?

2. Did the refusal by the Timiryazevskiy District Court of Moscow to examine the first applicant ’ s claim for enforcement of the parental agreement of 13 October 2016 and the return of the second applicant to the District of Columbia violate the first applicant ’ s right to access to a court , as required by Article 6 § 1 of the Convention? In particular, given that neither the 1980 Hague Convention on the Civil Aspects of International Child Abduction nor the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children was applicable in relations between the Russian Federation and the United States of America, did the Tverskoy District Court of Moscow have competence to examine the first applicant ’ s request for the second applicant ’ s return to the United States of America? On the basis of which international treaty of the Russian Federation was the Tverskoy District Court of Moscow determined as having jurisdiction over the first applicant ’ s application for the child ’ s return?

3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 6 and 8, as required by Article 13 of the Convention?