Communicated on 24 August 2015

FIFTH SECTION

Application no. 2091/13 M.S. against Ukraine lodged on 18 December 2012

STATEMENT OF FACTS

The applicant is a Ukrainian national born in 1986. He is acting on his own behalf and on behalf of his daughter born in 2008 and holding Ukrainian nationality.

A. The circumstances of the case

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

The applicant is a fireman. At certain point he entered into close relations with V., a female student born in 1989. On 24 March 2008 V. gave birth to their daughter. On 29 August 2008 the applicant and V. registered their marriage.

Since that time the applicant, V. and their daughter lived in the applicant ’ s apartment in Sumy. The parents of the applicant lived in the same apartment and assisted the young family in bringing up the child.

The relations between the couple got worse and on 20 September 2011 V. took the child and moved from the apartment without agreement or knowledge of the applicant. The applicant was not informed of the place where V. and the child moved to live.

Following that incident, the applicant requested the police to establish the whereabouts of the child. He and his parents were conducting their own inquiries.

On 1 December 2011 the applicant found the child in a village near Sumy where V. was living together with a man, F. (born in 1967). The child ’ s body displayed bruises, scratches and skin disease. The applicant took the child back to his apartment.

On 2 December 2011 a forensic medical expert examined the child and reported a red pigmentation spot on the chin, measuring 1.5x0.8 cm which – in the expert ’ s opinion – was a sign of abrasion. The expert also documented two abrasions on the nose, measuring 0.4x0.3 cm and 0.3x0.2 cm; a bruise on the back, measuring 2x1 cm; two bruises on the right shin, measuring 1.8x1 cm and 1.5x1 cm; red spot in the abdominal area provoking skin itch . The expert stated that the injuries could have been caused by blunt objects three or four days before the examination.

1. Criminal investigations on allegations of child sexual abuse

During February and March 2012 the applicant ’ s daughter told her grandmother personal stories which suggested that the child could have been a victim of sexual abuse in the period when she was living together with V. and F. The applicant and the grandmother requested the authorities to prosecute V. and F.

On 18 April 2012 the Sumy District Police Department (“the Police Department”) informed the applicant that the pre-investigation enquiries had not disclosed any elements of crime committed by V. and F. and the decision was therefore taken not to institute criminal proceedings against them.

On 7 May 2012 the Sumy District Prosecutor ’ s Office informed the applicant that the decision of the Police Department was reversed and further pre-investigation enquiries were ordered.

On 16 May 2012 the Police Department again decided not to open criminal proceedings against V. and F. for the reason that there had been no reliable evidence in support of the allegations of the child sexual abuse. The investigator also noted that F. could not be questioned as he had left for Moscow.

On 19 October 2012 the Sumy Regional Prosecutor ’ s Office informed the applicant that the decision of 16 May 2012 had been reversed and that further pre-investigation enquiries had been ordered.

On 8 November 2012 the Police Department again refused to open criminal proceedings against V. and F. for lack of corpus delicti .

On 8 May 2013 the applicant, relying on the new Code of Criminal Procedure of 2012, requested to open investigation against V. and F. for the alleged child sexual abuse.

On 14 May 2013 the Police Department opened the investigation.

On 21 November 2013 a panel of experts carried out a forensic psychiatric examination of the applicant ’ s daughter. In the course of the examination, the child described the movements of V. and F. in the bed that she had observed. That description could resemble sexual intercourse. The child also described how F. had been touching her genitals and how she, in compliance with his commands, had to touch F. ’ s genitals.

The experts found that the child had not been suffering from any mental illness at the time of the events or at the time of examination; she had not shown any tendency for fantasising; the child was able to remember the circumstances of the events at issue and give truthful statements in that regard, however, she could not understand the meaning of the actions that she had observed or in which she had participated; the child could take part in the investigating measures relevant for the criminal case.

On 28 April 2014 the Police Department decided to close the criminal proceedings for lack of corpus delicti in the actions of V. and F . The investigator essentially considered that there had been insufficient evidence to bring charges of sexual abuse.

On 16 July 2014 the Sumy District Prosecutor ’ s Office reversed the decision of 28 April 2014 as unsubstantiated and ordered further investigation.

On 27 December 2014 the Police Department decided once again to close the criminal proceedings. The investigator considered that the statements of the applicant ’ s daughter could not convincingly prove the alleged facts since the child had only been full three years at the time of the events and she had made the statements much later. In addition, it did not appear that the adults had been aware of the fact that the child had been observing them during the alleged sexual intercourse.

As to the other evidence, the investigator questioned the applicant and his mother, as well as the mothers of two girls with whom the child used to play. The latter two women witnessed that the applicant ’ s daughter told them the stories which suggested that she had been subjected to sexual abuse while living with V. and F. In sum, the investigator noted that those persons had not witnessed personally the alleged facts and that they had just repeated the statements of the child.

The investigator had also questioned V. and F. The first stated that she had only friendly relationships with F. and denied having any sexual intercourse in the presence of her daughter. The second denied any allegations of child sexual abuse.

The other persons, such as teacher of the child-minding centre, submitted that the child was attending the child-minding centre rarely, the village habitants stated that V. lived with F.; V. did not abuse alcohol; other men had not attended her dwelling.

Based on that material, the investigator concluded that the allegations of sexual abuse of the applicant ’ s daughter had been unsubstantiated.

On 6 March 2015 the Sumy District Prosecutor ’ s Office reversed the decision of 27 December 2014 as unsubstantiated and ordered further investigation.

2. Civil dispute regarding the child ’ s place of residence

(a) Decision of the first-instance court

On 20 June 2012 the Zarichnyy District Court of Sumy dissolved the marriage between the applicant and V. and ruled that the child should live with V. The court ordered the applicant to give the child to V. and pay her monthly alimony to support the daughter.

In determining the place of the child ’ s residence, the court, in addition to various provisions of domestic law, relied on principle 6 of the Declaration of the Rights of the Child of 1959, providing that a child of tender years should not, save in exceptional circumstances, be separated from mother . The court proceeded to examine whether there had been any exceptional circumstances justifying the applicant ’ s claim that the child should reside with him.

In that regard the court referred to the conclusion of the local guardianship office that both parents provided adequate residential conditions for the child. It considered that V. was properly taking care of the child during the period when they lived separately from the applicant, noting in particular that V. regularly brought the child to a child-minding centre located in the village.

The court dismissed as unsubstantiated the applicant ’ s allegation that the mother might have exercised physical violence against the daughter: in contrast to the results of the medical examination of 2 December 2011, there had been a certificate signed by the staff of the child-minding centre suggesting that on 1 December 2011 the child had no injuries; furthermore, the police had refused to institute criminal investigation on the allegations of domestic violence. As to the applicant ’ s contention that he had higher income than V., who had just finished her fourth year in an educational institution, the court noted that V. had repeatedly taken irregular jobs to maintain the family and the level of income had not been a decisive issue in the dispute.

(b) Review proceedings

The applicant appealed against that decision, arguing that the court failed to consider the best interests of the child, the allegations of domestic violence and possible facts of child sexual abuse during the period when the child lived with her mother separately. The applicant insisted that the court had failed to pay due attention to the low financial capacities of V. and to the residential conditions offered by the mother. He argued that the court had not examined the child in person and had not questioned the individuals who would live with V. and the child. The applicant lastly emphasised that on 1 December 2011 he had lawfully taken the child back to his apartment since the child had been permanently living there and he had never given any consent to V. for changing the child ’ s place of residence.

On 9 August 2012 the Sumy Regional Court of Appeal dismissed the applicant ’ s appeal and upheld the decision of the first-instance court. The Court of Appeal found that the allegations of child sexual abuse and domestic violence had been groundless. It further specified that the child lawfully resided with V. at the different address and that it had been the applicant who had moved the child to his apartment on 1 December 2011 without V. ’ s consent.

The applicant appealed on points of law.

On 14 September 2012 the Higher Specialised Court for Civil and Criminal Matters refused dismissed the cassation appeal as unfounded.

B. Relevant international texts

1. United Nations Declaration of the Rights of the Child of 20 November 1959

The relevant extracts of the Declaration read as follows:

“Principle 2

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration. ...

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. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable. ...”

2. United Nations Convention on the Rights of the Child of 20 November 1989

The relevant extracts of the Convention, which came into force with respect to Ukraine on 27 September 19 91 , read as follows:

“ 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. ...”

C. Relevant d omestic law

Family Code of 2002

Article 160 § 1 of the Code provides that the place of residence of the child under ten years of age shall be determined on the basis of parents ’ agreement.

In accordance with Article 161 of the Code, if the parents who live separately cannot agree on the place of residence of the child under fourteen years of age, the dispute may be determined by a guardianship authority or by a court.

When determining such a dispute, the guardianship authority or the court should take into account the parents ’ attitude to their parental duties, the personal disposition of the child to each parent, the age of the child, the child ’ s state of health and other relevant circumstances.

The guardianship authority or the court cannot determine the place of child ’ s residence with the parent who does not have independent income, abuses alcohol or drugs, or who by dishonourable conduct may cause damage to the development of the child.

Article 162 of the Code provides that if the place of residence of the child under fourteen years of age is changed by a parent or by any other individual without authorisation or consent of another parent or individual with whom the child resided by virtue of law or a court decision, the court may order return of the child to the person with whom the child had been living before.

COMPLAINTS

1. The applicant complains that the allegations of child sexual abuse have not been properly investigated.

2. The applicant complain s under Article 6 of the Convention that the courts failed to properly determine the child ’ s place of residence.

QUESTIONS TO THE PARTIES

1. Did the State comply with its positive obligations under Articles 3 and 8 of the Convention as regards the allegations of child sexual abuse in the present case (see and compare M.C. v. Bulgaria , no. 39272/98, ECHR 2003 ‑ XII and Ceachir v. the Republic of Moldova , no. 50115/06 , 10 December 2013) ?

2. Was the judicial decision-making process in determining the child ’ s place of residence in conformity with the applicant ’ s right to respect for family life under Article 8 of the Convention?

The Government are invited to provide d ocuments concerning the domestic proceedings in respect of the applicant ’ s allegation s of child sexual abuse , including decisions by which the authorities refused to open an investigation (or terminated the investigation) and the decisions of the supervising authorities reviewing those decisions .