Communicated on 14 October 2015

FIFTH SECTION

Application no. 6878/14 Nataliya Olegivna LAZORIVA against Ukraine and Russia lodged on 16 December 2013

STATEMENT OF FACTS

The applicant, Ms Nataliya Olegivna Lazoriva , is a Russian national, who was born in 1966 and lives in Magadan, Russia. She is represented before the Court by Mr B.V. Fokiy , a lawyer practising in Chernivtsi, Ukraine.

A. The circumstances of the case

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

1. Background of the case

The applicant was born in Chernivtsi and in 1984 moved to Magadan (which is about 12,000 kilometres away from Chernivtsi), where she obtained a teacher ’ s degree and worked as a school teacher for over twenty years.

Her sister, K.T.O., a Russian national, also lived in Magadan for a certain period of time. In February 1993 she gave birth to a girl, K.L.S. In December 1993 K.T.O. moved to Chernivtsi, where her and the applicant ’ s parents (grandparents of K.L.S.) lived. Subsequently, they took care of K.L.S. ’ s upbringing for a long period of time.

In 2004 the applicant ’ s parents and K.L.S. moved to Russia. Since August 2007 they have lived together with the applicant at her flat.

By a decision of 29 December 2007, the Mayor of Magadan appointed the applicant as guardian of K.L.S. on the ground that the child ’ s parents did not take care of her.

On 20 February 2009 the Magadan Town Court allowed the applicant ’ s claim and deprived the parents of K.L.S. of their parental rights in her respect on the grounds that they had failed to take care of her for over fifteen years. No appeal was lodged and on 11 March 2009 the judgment entered into force.

2. The applicant ’ s attempt to become a tutor of her sister ’ s second child

In March 2007 K.T.O. gave birth to a boy, K.O.S. According to the material submitted by the applicant, K.T.O. failed to take care of him. For that reason, in November 2008 the Shevchenkivskyy District Court in Chernivtsi ordered his placement into public care (an orphanage). In March 2010 the same court ordered the child ’ s return to his mother. Subsequently, K.O.S. was taken to an orphanage on four other occasions.

The applicant claims that she and her parents visited K.O.S. in Chernivtsi on several occasions and maintained “a close family link” with him. In particular, she referred to her parents ’ visit in April 2010 and her visit in August 2010.

In March 2012 K.O.S. was taken into public care as his mother had left him alone for over twenty-four hours in her flat.

On 5 July 2012 the District Court deprived K.T.O. of her parental rights in respect of K.O.S. holding that she had not cared of him and had not taken part in his upbringing. No appeal was lodged and on 15 July 2012 the judgment entered into force.

On 27 July 2012 K.O.S. was put on the list of children deprived of parental care who could be adopted. On 14 August 2012 the Executive Committee of the Chernivtsi Town Council gave K.O.S. the formal status of a child deprived of parental care.

In the meantime, in July 2012 K.L.S. paid a visit to Chernivsti to meet with K.O.S. She discovered that K.O.S. had been placed in an orphanage and informed the applicant accordingly. The applicant decided to become her nephew ’ s tutor. She informed the Tutelage and Guardianship Service of Magadan of her wish to become a tutor and started collecting documents and certificates to make a formal request. In particular, on 22 August 2012 her flat was inspected by representatives of the Magadan Public Health Service who found that the flat had adequate hygienic and sanitary conditions for the applicant ’ s family to accommodate K.O.S.

In August and September 2012 the applicant made a number of telephone calls to the Childcare Service of Chernivtsi and to the orphanage, requesting them to take into account that she wished to become K.O.S. ’ s tutor and that she was preparing the necessary documents to make a formal request.

Upon the applicant ’ s request, the Tutelage and Guardianship Service of Magadan sent a letter to the Childcare Service of Chernivtsi informing them that she wished to become K.O.S. ’ s tutor and that she had fulfilled her obligations as K.L.S. ’ s tutor. The Tutelage and Guardianship Service of Magadan also requested the Childcare Service of Chernivtsi not to consider other candidates for becoming K.O.S. ’ s tutor. The letter was received by the Childcare Service of Chernivtsi on 4 September 2012.

By a letter of 17 September 2012, the Childcare Service of Chernivtsi informed the Tutelage and Guardianship Service of Magadan that they had received the information about the applicant ’ s wish to become K.O.S. ’ s tutor on 4 September 2012. The Childcare Service of Chernivtsi further informed the Tutelage and Guardianship Service of Magadan that a couple wishing to adopt K.O.S. had been given permission to establish contact with him prior to that date (see below) and had already submitted all the necessary documents for his adoption; that an opinion in favour of that adoption would be issued; and that on the basis of such an opinion the couple would submit an application for adoption to the Pershotravnevyy District Court in Chernivtsi. Finally, the Childcare Service of Chernivtsi noted that the applicant had the right to lodge a tutelage application with the same court and advised her to do so “within the shortest delay”.

On 10 October 2012 the Tutelage and Guardianship Service of Magadan issued an opinion that, given her personal situation and qualities, the applicant could become a tutor or guardian.

3. Adoption of K.O.S.

On 30 August 2012 a married couple, S.S.V. and S.O.V., who were on the list of persons wishing to adopt a child, were allowed to meet with K.O.S. at the orphanage.

On 6 September 2012 they informed the Childcare Service of Chernivtsi that they wished to adopt K.O.S. and requested it to issue an opinion in favour of the adoption.

On 19 September 2012 the Executive Committee of Chernivtsi, acting in the exercise of its childcare related functions, issued an opinion in favour of the requested adoption. According to it, S.S.V. and S.O.V. were physically fit and had sufficient funds and facilities to accommodate and to take care of K.O.S. They had established contact and good relations with the child and, according to the orphanage ’ s psychologist, the child wished to live in their family, though he could not give a written consent as “he didn ’ t understand the fact of adoption because of his age”. It was also noted that the child had a half-sister and an aunt who lived in Magadan; that in August and September 2012 the applicant and the Magadan authorities, respectively, had informed the Childcare Service of Chernivtsi of her wish to become the child ’ s tutor; that the applicant had been informed in reply that she could lodge an application for tutorship with a district court; and that no such request had been lodged. The opinion finally read that, generally, the adoption was “the preferred form of [the child ’ s] placement” and that, in the present case, the adoption would be appropriate and in the interests of the child.

On 24 September 2012 S.S.V. and S.O.V. lodged an application for the adoption of K.O.S. with the Pershotravnevyy District Court in Chernivtsi.

On 2 October 2012 the District Court, having examined the case at a closed hearing with the participation of S.S.V. and S.O.V. and the representatives of the Childcare Service and the orphanage, delivered a judgment granting the adoption. It also ordered that K.O.S. ’ s surname be changed to that of the adoptive parents and that S.S.V. and S.O.V. be registered as his father and mother, respectively, instead of his biological parents.

The court essentially relied on the information contained in the opinion of the Executive Committee of Chernivtsi. The court held that the requested adoption was in the interests of the child to be raised in “stable life conditions and in [the atmosphere of] harmony”.

The applicant was informed of the judgment of 2 October 2012 with a delay, though she does not specify it.

On 1 February 2013 the applicant lodged an appeal with the Chernivtsi Court of Appeal against that judgment, stating that it had violated her right to become her close relative ’ s tutor and her right to submit arguments against the adoption. In particular, the applicant argued: ( i ) that the District Court had failed to take into account the fact that K.O.S. had close relatives, his half-sister and aunt, who had not been informed of the proceedings and had not taken part in them; (ii) that the District Court had not checked K.O.S. ’ s nationality; (iii) that K.O.S. was a Russian national, as his biological mother was a Russian national at the time when he had been born in 2007; (iv) that the procedure provided for in Ukraine ’ s relevant international treaties in case of adoption of a foreign national had not been followed; and (v) that the District Court disregarded the fact that the applicant had informed the Ukrainian Childcare Service of her wish to become K.O.S. ’ s tutor and that she had been preparing the necessary documents for this.

On 18 March 2013 K.L.S. sent a letter to the Court of Appeal stating that she and the rest of her family (notably, her grandparents and the applicant) had close connection with K.O.S. and that he wished to live with them.

On 4 April 2013 the Court of Appeal refused to examine the applicant ’ s appeal on the ground that the judgment did not concern her right or interest of becoming the child ’ s tutor or any obligations in that regard, which in principle could be the subject-matter of a separate claim.

The applicant appealed in cassation, mainly arguing that the Court of Appeal had failed to examine her arguments and that she had been deprived of access to a court in violation of the procedural rules.

On 10 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant ’ s cassation appeal as it did not demonstrate that the contested decision of the Court of Appeal was unlawful.

B. Relevant domestic law and practice

1. Tutelage and guardianship

Article 167 of the Family Code of 2002 provides, insofar as relevant, that, where the custodial parent has been deprived of parental rights and the child cannot be transferred to the other parent, the child ’ s grandparents, full-aged siblings and other relatives are given preference as regards their wish to take care of the child. Where this is not possible, the child should be placed in public care.

Pursuant to Article 243 of the Family Code, a tutor should be appointed for children aged up to fourteen years and a guardian should be appointed for children who are between fourteen and eighteen years old. Article 60 of the Civil Code of 2003 provides for a specific situation in which such an appointment can be made by the courts – where they decide to deprive parents of parental rights; in other situations it is for the tutelage authorities to appoint a tutor or guardian. Under Article 63 of the Civil Code, such an appointment may be made only upon a written request from the person wishing to become that tutor or guardian. Preference should be given to members of the child ’ s family or his/her relatives, having regard to their personal relations with the child and their ability to fulfil the tutor ’ s or guardian ’ s duties. The child ’ s opinion concerning the appointment should be taken into account.

Under Article 247 of the Family Code and Article 62 of the Civil Code, a child under tutelage should live with the tutor, either at the tutor ’ s home or at the child ’ s place of residence. The tutor determines the child ’ s upbringing (Article 249 of the Family Code). The tutor ’ s consent is required inter alia for the child ’ s adoption, unless the tutelage authority gives such consent or the court decides that the adoption would be in the child ’ s interests (Article 221 of the Family Code).

According to the Regulations on Tutelage and Guardianship, enacted by the Cabinet of Ministers on 26 May 1999 (no. 34/166/131/88) and the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children ’ s Rights, enacted by the Cabinet of Ministers on 24 September 2008 (no. 866), persons wishing to become a tutor or guardian should submit a number of specific documents demonstrating their financial situation, state of health, living conditions, capability to become a tutor or guardian etc. The majority of those documents should be issued by public authorities.

2. Adoption

Under Article 207 of the Family Code, the adoption must serve the child ’ s best interests and ensure that he or she is raised in stable life conditions and in the atmosphere of harmony. It has the effect that the adopted child attains the legal status of the child of the adoptive parents. The legal relationship of the child to its previous relatives and the respective personal and economic rights and obligations arising out of that relationship are thereby extinguished (Article 232 of the Family Code). The child should be informed of the legal consequences of adoption; his or her consent to the adoption is required, unless the child does not understand “the fact of adoption” (Article 218 of the Family Code).

Pursuant to Article 252 of the Civil Code, those wishing to adopt a child who is a foreign national should inter alia submit a written consent of the relevant foreign authority.

The adoption may be annulled or invalidated by the court upon an application of the child who has become fourteen years old, his or her parents, adoptive parents, tutor, guardian, tutelage authority, or the prosecutor (Article 240 of the Family Code). This list is exhaustive.

C. Relevant international treaties

The relevant provisions of the United Nations Convention on the Rights of the Child of 1989, which entered into force in respect of Ukraine on 27 September 1991, read:

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.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

...”

Article 5

“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. ”

Article 20

“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child ’ s upbringing and to the child ’ s ethnic, religious, cultural and linguistic background.”

Article 21

“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

...”

Article 37 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993, a multilateral treaty concluded between the States members of the Commonwealth of Independent States, which entered into force in respect of the Russian Federation on 10 December 1994 and in respect of Ukraine on 14 April 1995, reads, in so far as relevant, as follows:

“1. Adoption or its annulment shall be governed by the laws of the Contracting Party of which the adoptive parent is a national...

2. If the child is a national of another Contracting Party, the adoption or its annulment shall be subject to consent of the child ’ s legal representative and of the relevant authority [of that Contracting Party], and also the child ’ s consent where the law of the Contracting Party of which the child is a national so requires.

...”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention of a lack of access to a court as regards her appeal against the judgment of 2 October 2012. In particular, she argues that the decision rejecting her appeal was arbitrary and taken in violation of domestic law.

The applicant complains under Article 8 of the Convention that the interference with her right to respect for her family life was unlawful, disproportionate and arbitrary. She claims that the adoption of K.O.S. essentially curtailed the child ’ s family links with his half-sister, the applicant and his grandparents, which was not in his interest.

The applicant contends that the Ukrainian administrative authorities and courts failed to examine her nephew ’ s entire family situation and to take into account all the interests at stake. According to the applicant, she, K.O.S. ’ s half-sister and his grandparents were not involved in the decision-making process; the applicant ’ s arguments and claims were completely ignored; K.O.S. was not invited to express his view on his possible adoption; and the Court of Appeal refused to review the lawfulness of his adoption further to her appeal. The Ukrainian authorities also disregarded the fact that K.O.S. was a Russian national and thus failed to follow the procedure provided for in the relevant international treaties.

The applicant further contends that the Ukrainian authorities failed to strike a fair balance between her interests and those of the couple wishing to adopt K.O.S. In particular, she points to the fact that S.S.V. and S.O.V. first met with K.O.S. on 30 August 2012 and therefore they could not have effectively established a close family link with him by the time the adoption was granted on 2 October 2012. In contrast, the applicant was his relative and had established family ties with him. As a result of the adoption, those ties were curtailed.

QUESTIONS TO THE PARTIES

1. Does the present case concern the applicant ’ s right or interest protected by Article 8 § 1 of the Convention? Does it concern the right to respect for her “family life” or her “private life” , within the meaning of that provision? What were the nature and the extent of the applicant ’ s relationship with her nephew?

2. Has there been an interference with the applicant ’ s right to respect for her “family life” or her “private life”?

3. If so, was it in accordance with the law and necessary in terms of Article 8 § 2?

4. Has there been a violation of the applicant ’ s right of access to a court, as guaranteed by Article 6 § 1 of the Convention, having regard to the refusal of the Chernivtsi Court of Appeal to consider her appeal against the decision of the Pershotravnevyy District Court of 2 October 2012?