Communicated on 17 June 2015

FIRST SECTION

Application no. 69572/10 Marvan Sasine EL KHURI against Russia lodged on 22 November 2010

STATEMENT OF FACTS

The applicant, Mr Marvan Sasine El Khuri , is a Lebanese national, who was born in 1973 and lives in Dahr el S awan , Lebanon. He is represented before the Court by Ms A. El Maveyed , a lawyer practising in the Moscow Region .

A. The circumstances of the case

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

On 13 March 2003 the applicant, who was living in Russia at the material time, married a Russian national EK.

On 12 October 2003 EK gave birth to a son, K.

In 2004 the family moved to Lebanon there they all lived until 2006. EK and K both acquired Lebanese nationality, in addition to their Russian nationality.

On an unspecified date in 2006 EK and K went to Russia for holidays. EK then refused to come back to Lebanon. In 2007 she filed for divorce.

On 17 January 2008 the Tsentralniy District Court of Tula pronounced the divorce between the applicant and EK . The court granted a residence order in respect of K to EK.

On 19 February 2008 EK got missing. The applicant had not learned about his ex-wife ’ s disappearance until the end of 2008.

On 25 June 2008 the Mayor of Tula granted guardianship over K to his maternal grandmother TK. He noted that K was left without parental care because his mother was missing and his father, who lived in Lebanon, did not fulfil the parental obligations.

In January 2009 the applicant applied to the Tsentralniy District Court of Tula, asking for annulment of the guardianship order of 28 June 2008. He also asked to be granted a residence order in respect of K. He submitted, in particular, that he had maintained regular contact with his son, by talking to him over the tele phone once a week . He had also paid child maintenance . He had thought that EK worked in Moscow while K temporally lived with his grandmother TK in Tula. He had learned about EK ’ s disappearance only recently. There had been therefore no reason to conclude that he did not fulfil his parental obligations. Neither he, nor the Lebanon Consulate had been informed about the guardianship order of 28 June 2008 . He complained that the guardianship order had breached his parental rights. The applicant further argued that, being K ’ s father, he should have priority over any other member of the family in raising K. He submitted that K had lived in Lebanon for two years and spoke Arabic. The applicant worked as a doctor and had a comfortable and stable income. He possessed a house of 300 sq. m in a safe neighbourhood in the town of Dahr-el-Sawan in the Bikfaya district. He therefore required K ’ s return to him.

TK counterclaimed, asking that the applicant be deprived of parental authority over K. She submitted that the applicant had not participated in K ’ s upbringing, had not visited him and had not paid any child maintenance. She therefore asked for child maintenance payment arrears.

On 31 August 2009 the Tsentralniy District Court decided to sever the guardianship claims from the residence and parental authority claims, finding that it would improve and speed up the examination of the case. It further stayed the residence and parental authority proceedings pending termination of the guardianship proceedings.

On 21 September 2009 the Tsentralniy District Court upheld the guardianship order of 25 June 2008 . It found that the guardianship order had been made by a competent authority. Given that the applicant, who lived in Lebanon, had not visited his son for more than two years and had maintained contact by telephone only and that K ’ s mother was missing, the court found it established that K was left without parental care. Taking into account K ’ s very young age and the fact that the applicant had not assumed everyday care of him after the mother ’ s disappearance, the court found that the applicant had not fulfilled his parental obligations. In such circumstances the decision to grant guardianship over K to his grandmother had been lawful and justified. That decision had not limited the applicant ’ s right to maintain contact with K and to participate in his upbringing and education .

The District Court further noted that the 1963 Vienna Convention on Consular Relations required the authorities of the receiving state to inform the competent consular post of any case where the appointment of a guardian appear ed to be in the interests of a minor who was a national of the sending State. The giving of th at information should , however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments . Under Russian law the authorities were not required to search for the parents of the child left without parental care. The Russian authorities had not been informed about K ’ s Lebanese nationality and the failure to inform the Lebanese Consulate had not been therefore unlawful.

On 17 December 2009 the Tula Regional Court upheld the judgment of 21 September 2009 on appeal, finding that it had been lawful, well-reasoned and justified. It noted, in particular, that the guardianship order had not breached the applicant ’ s right to priority in raising his child because the issue of the child ’ s further residence arrangements would be examined in separate proceedings pending before the District Court.

On 9 March 2010 the Tsentralniy District Court rejected the applicant ’ s request for K ’ s return to him. It found it established that K had lived in Russia since 2006 , while the applicant had lived in Lebanon. The applicant had not visited his son during all that time, although he had sufficient financial means to travel. As a result, K had not seen his father since 2006 and their contacts were limited to regular telephone calls. The court also found it established that that the applicant had sent money to EK and then to TK through the Western Union. There was however no evidence that TK had received that money. The court therefore found that the applicant had avoided payment of child maintenance. The court also noted that it had been already established in the judgment of 21 September 2009 that the applicant had not fulfilled his parental obligations . By contrast, KT, who was K. ’ s guardian since June 2008, took everyday care of him and devoted a lot of her time and attention to his welfare and education. K was strongly attached to his grandmother. The court further relied on the report of the local childcare authority, dated 3 March 2010, that K spoke good Russian and studied English. He did not speak Arabic. He spoke to his father in Russian. He became quickly bored speaking over the telephone to his father. K did not remember how his father looked. The relationships between K and his grandparents were cordial and respectful. The court further relied on the opinion of court appointed experts, dated 13 March 2009 , that K was traumatised by his mother ’ s disappearance. Any change in his social or cultural environment or family circle could traumatise him even further. K needed calm and ordered family relationships. Environment associated with the image of his disappeared mother would be beneficial to his development. The court held that, in view of the above considerations, K ’ s return to his father would not be in his best interest as it would entail his moving to Lebanon and a considerable change in cultural and social environment. The court further deprived the applicant of parental authority over K.

On 10 June 2010 the Tula Regional Court quashed on appeal the part of the judgment depriving the applicant of parental authority over K. The court found it established that the applicant had paid child maintenance by sending money through the Western Union. He could not be held responsible for TK ’ s failure to collect the money. Moreover, the money could still be collected by TK. In addition to the child maintenance, the applicant had also opened a bank account in K ’ s name and had put 12,700 US dollars on that account. The applicant regularly talked to K over the telephone and discussed questions relating to K ’ s health, upbringing and education with TK. The applicant had also explained that he had not visited his son because he was afraid of traumatising him by ugly scenes that could have arisen because of the conflicting relationship between him and TK. In such circumstances there were no reasons to find that the applicant had not fulfilled his parental obligations . Deprivation of parental authority was an exceptional measure and no circumstances justifying application of that measure had been established in the present case.

The Regional Court further upheld the judgment in the part concerning the refusal to return K to the applicant , finding that it had been lawful, well-reasoned and justified.

B. Relevant domestic and international law

The Family Code provides that parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of the children ’ s health and their physical, psychological and moral development. Parents have a right to priority over any other person in raising and educating their children (Article 63).

Parents are entitled to require return of their child from any person who retains him/her without any legal basis. In case of a dispute, parents are entitled to apply to a court. A court may reject the application after taking into account the child ’ s opinion, if it is established that the return of the child to the parent is contrary to his/her interests (Article 68 § 1).

A parent may be deprived of parental authority if he or she does not fulfil the parental obligations, such as the obligation to pay child maintenance ; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses the parental rights; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or healt h of his/her children or spouse (Article 69) .

A guardian must be appointed to a child left without parental care (in the event of the parents ’ death, deprivation or restriction of parental authority, the parents ’ legal incapacity, lengthy illness or absence; if the parents do not fulfill their parental obligations, including in case of a refusal to collect the child from a medical, educational, social or similar institution ; if the parents ’ actions or inactions endanger the child ’ s life or health or hinder his/her normal development; or in the event of other situations where the child ha s no parental care ) (Articles 121 § 1 and 145 § 1 of the Family Code and Article 31 of the Civil Code).

The 1963 Vienna Convention on Consular Relations provides that i f the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving Sta te concerning such appointments ( Article 37 (b)) .

COMPLAINT

The applicant complains under Article 8 of the Convention about the refusal to return his son to him. He alleges that he had not been informed about the appointment of a guardian to K. As a result his son ended up in his maternal grandmother ’ s charge. The Russian courts then rejected his request to return K to him, thereby separating him from his son and depriving him of any opportunity to participate in his upbringing.

QUESTIONS TO THE PARTIES

1. The Government are requested to submit the following documents:

– the judgment of 17 January 2008 by t he Tsentralniy District Court of Tula and the relevant appeal judgment, if any;

– the expert report of 13 March 2009 ;

– the report of 3 March 2010 by the Tula Regional Committee on Family, Demographic and Guardianship Policies;

– the minutes of the hearings in the proceedings which ended with the appeal judgment of 17 December 2009;

– the minutes of the hearings in the proceedings which ended with the appeal judgment of 10 June 2010;

2. Did the appointment of a guardian to the applicant ’ s son and the subsequent refusal to return the child to the applicant violate the applicant ’ s right to respect for his family life, guaranteed by Article 8 of the Convention (see Görgülü v. Germany , no. 74969/01, 26 February 2004 ) ? In particular:

– Given the Russian authorities ’ failure to inform the applicant or the Lebanon Consulate about the appointment of a guardian, although they had been obliged to do it under the Vienna Convention on Consular Relations , was the decision-making process compatible with the requirements of Article 8 ?

– Did the domestic courts exercised exceptional diligence when examining the applicant ’ s application for the annulment of the guardianship order and the return of his son , in view of the risk that the passage of time might result in a de facto determination of the matter (see Ribić v. Croatia , no. 27148/12, § 92, 2 April 2015, with further references)?