Communicated on 10 July 2015

FIRST SECTION

Application no 55345/14 Mikhail Serezhayevich OVAKIMYAN against Russia lodged on 16 July 2014

STATEMENT OF FACTS

The applicant, Mr Mikhail Serezhayevich Ovakimyan , is a Russian national, who was born in 1974 and lives in Ivanovka , a village in the Saratov Region.

A. The circumstances of the case

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

On 14 October 2011 the applicant married A.V. The couple settled in Saratov.

On 4 February 2012 A.V. gave birth to a son, S.

On 17 October 2012 A.V. left the applicant. Together with the child she moved to her parent ’ s house in Kirsanov , a town in the Tambov Region. The applicant was prevented from seeing the child.

On 2 November 2012 the applicant brought court proceedings against A.V. seeking to have determined the terms of his contact with the child.

In the meantime, following an application by A.V., on 26 November 2012 the Justice of the Peace of Kirsanov dissolved the marriage between the applicant and A.V.

On 29 January 2013 the Kirsanovskiy District Court of the Tambov Region (the District Court) held that the contacts between the applicant and his son should take place in the presence of A.V. twice a month every first Saturday and third Sunday of the month from 10 a.m. to 2 p.m. [1] The judgment was not appealed against and became final.

Regardless of the above judgment, A.V. continued to hinder the applicant ’ s communication with the child. The applicant ’ s complaints to various competent domestic authorities were to no avail.

The applicant again brought court proceedings against A.V. seeking to have the obstacles in his contacts with S. removed and the terms of his contact with the latter revised so as to allow him, in particular, to take the child on summer vacations both in Russia and abroad, to spend public holidays with the child, the child ’ s birthday, as well as the applicant ’ s and the paternal grandmother ’ s birthdays.

On 8 November 2013 the District Court obliged A.V. not to hinder the exercise of the applicant ’ s contact rights. It further held that the contacts between the applicant and his son should take place in the presence of A.V. twice a month, every first Saturday and third Sunday of the month, from 9 a.m. to 1 p.m. at the place of the child ’ s residence and, if the weather permits, outside. A.V. was also obliged to inform the applicant monthly about the child ’ s health, as well as about the choice of pre-school and school facilities for the latter. The District Court rejected the remainder of the applicant ’ s claims, finding, with reference to the local childcare authority report, that the above contact schedule would be appropriate considering the young age of the child, his attachment to the mother and the importance of maintaining the child ’ s habitual lifestyle. The District Court further took into account extremely tense relationship between the applicant and A.V. and impossibility for them to reach a mutual agreement on the matter.

The applicant appealed.

On 15 January 2014 the Tambov Regional Court (the Regional Court) upheld the above judgment on appeal, having considered that in the circumstances of the case the established contact schedule was correct, that the frequency and the length of the contacts between the applicant and the child were reasonable and sufficient and in accordance with the child ’ s best interests.

The applicant lodged a cassation appeal with the Presidium of the Regional Court, asking to quash the judgment of 8 November 2013, as upheld on appeal on 15 January 2014.

On 20 March 2014 a judge of the Regional Court decided not to refer the case for consideration by the Presidium of that court.

It appears that the judgment of 8 November 2013 as upheld on 15 January 2014 is not being properly enforced.

B. Relevant domestic law

The Family Code of the Russian Federation provides that a parent residing apart from the child is entitled to maintain contact with the child and to participate in his upbringing and education. The parent with whom the child resides may not hinder the child ’ s contact with the other parent, unless such contact undermines the child ’ s physical or psychological health or moral development (Article 66 § 1).

The parents have the right to conclude a written agreement on the way the parent residing apart from the child may exercise his parental duties. If the parents cannot reach an agreement, the dispute must be resolved in court with the participation of the childcare authority, upon a claim lodged by the parents (or one of them). In the case of non-abidance by the court decision, the measures stipulated by the civil procedural legislation are applied to the parent guilty of non-compliance. In the case of persistent non-fulfilment of the court decision, the court may, upon a claim by the parent residing apart from the child, take a decision to place the child in his or her care, based on the child ’ s interests and taking into account the child ’ s opinion (Article 66 §§ 2-3).

Judgments in cases involving the issue of the upbringing of children are enforced by a bailiff in conformity with the procedure laid down by the civil procedural legislation. If one of the parents (or other person in whose charge the child is) obstructs the enforcement of the court judgment, the measures stipulated by the civil procedural legislation will be applied to him or her (Article 79 § 1).

The Code of Administrative Offences established penalties for parents who prevent minors from communicating with their other parent, provided that such communication is not contrary to the interests of the child. Such behaviour is punishable by an administrative fine ranging from 2,000 to 3,000 Russian roubles (RUB), and up to RUB 5,000 or by administrative arrest for up to five days in the case of a repeated offence (Article 5.35 §§ 2 and 3).

The failure of a judgment debtor to comply with an obligation in kind within the time-limit set by a bailiff after the imposition of an obligation to pay an execution fee amounts to an administrative fine ranging from RUB 1,000 to 2,000 (Article 17.15 § 1). Other relevant provisions of the Russian legislation on administrative offences and on enforcement proceedings and the powers of bailiffs are cited in Pakhomova v. Russia (no. 22935/11, §§ 91 et seq., 24 October 2013).

COMPLAINT

Invoking Articles 6 § 1 and 8 of the Convention the applicant complains about the failure of the domestic authorities to secure contact with his son in accordance with the contact schedule determined by the domestic court .

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, have the domestic authorities taken all the necessary steps to secure the applicant ’ s contact with the child in accordance with the contact schedule set up by the judgment of the Kirsanovskiy District Court of the Tambov Region of 8 November 2013 ?

[1] . This judgment was not made available to the Court.