Communicated on 20 March 2014

FOURTH SECTION

Application no. 44851/09 O.K. against Georgia lodged on 4 August 2009

STATEMENT OF FACTS

1. The applicant, Ms O.K. , is a Ukrainian national, who was born in 1974 and currently lives in Birkirkara, Malta.

A. The circumstances of the case

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

1. Background

3. The applicant, who was living at that time in Poti, Georgia, was in a relationship with a married Georgian nat ional, Mr T.V., from 1995 until 1999. She became pregnant as a result of that relation and on 15 January 1997 gave birth to a daughter.

4. The subsequent events are a matter of controversy between the applicant ’ s version and that which follows from certain documents and a video recording available in the case file.

5. Thus, according to the applicant ’ s assertions, Mr T.V. forcefully removed the new-born baby from her for the purpose of “selling” her to a childless family, Mr and Mrs Ts. (“the Ts. family.”). The applicant was then forbidden by Mr T.V., on pain of physical violence, to make any further enquiries about her daughter ’ s whereabouts.

6. However, according to statements given by the Ts. family and an inquiry subsequently conducted, in May 2000, by the Poti City Public Prosecutor ’ s Office (see paragraphs 10 and 24 below), the applicant, who had not have sufficient means to take care of the baby, who was born with certain health problems, voluntarily gave up her daughter to the above-mentioned family in exchange for an amount of money.

7. Subsequently, the applicant got pregnant twice while in relationship with Mr T.V. and gave birth to two more daughters on 27 January 1998 and 14 March 1999.

8. The applicant lived with her two children in Poti, Georgia, until the end of December 1999. Subsequently, she moved back to her native Donetsk Region in Ukraine.

9. In March-April 2000, the applicant filed a criminal complaint with the General Public Prosecutor ’ s Office of Georgia for alleged abduction of her first daughter by Mr T.V., on the basis of which the Poti City Public Prosecutor ’ s office immediately launched an inquiry.

10. On 30 May 2000 the Poti City Prosecutor informed the applicant of the results of the inquiry, stating that the abduction of her daughter could not be confirmed by the undertaken investigative measures. Notably, the prosecution authority reminded the applicant that she had consented herself to give up her new-born baby to the Ts. family for adoption, in exchange for which Mrs Ts. had paid her in the maternity house, in the presence of a number of witnesses, 300 Georgian laris in cash (some 140 euros). That amount was supposed to cover the costs related to the medical services provided in the maternity house. As a further proof of the ill-founded nature of the applicant ’ s allegation of abduction, the prosecution authority reminded the applicant that, whilst she had continued to live in Poti until 29 December 1999, she had never attempted to take any measures aimed at the return of her daughter for two years. Lastly, the City Prosecutor confirmed to the applicant that her daughter still lived in the Ts. family, specifying the family ’ s exact address, where all the necessary conditions for raising a child had been created.

11. On 5 October 2000 the Poti City Hall, in reply to the applicant ’ s query, advised her that if she considered that the adoption of her daughter by the Ts. family had been effectuated in breach of the relevant provisions of the Civil Code, she was entitled to initiate child return proceedings in court.

2. Judicial proceedings

12. Almost six years later, on 26 June 2006 the applicant filed a civil action against the Ts. family aimed at the return of her daughter. She argued that the adoption had been unlawful.

13. On 27 November 2006 the Khobi District Court dismissed the applicant ’ s action. The court stated that the applicant had failed to provide evidence which could prove that the child living in the Ts. family was her biological daughter.

14. By a decision of 6 June 2008, the Kutaisi Court of Appeals, after a re-examination of the factual circumstances, rejected again the applicant ’ s action, but for different reasons.

15. Thus, having regard to the relevant circumstances of the case, the appellate court first established that the child who lived in the Ts. family was indeed the applicant ’ s biological daughter. It then noted that the Ts. family had been raising the child without any lawful basis as the family had not adopted her according to the rules provided for by the Civil Code. On the contrary, the child had been registered as Mr and Mrs Ts. ’ s daughter illicitly, on the basis of a forged birth certificate issued by an obstetrician of the maternity house who had attended the child ’ s birth on 15 January 1997. Consequently, the applicant was entitled to request return of her minor daughter under Article 1204 § 1 of the Civil Code. Nevertheless, the appellate court continued, the return could not be allowed in the particular circumstances of the given case, pursuant to the second paragraph of Article 1204 of the Civil Code, as it would be prejudicial to the child ’ s own interests. In support of its conclusion, the court referred to the following factual circumstances – on the one hand, the child had been raised in the Ts. family for more than eleven years already and had become inalienable part of that family and of the associated social environment, and that, on the other hand, the applicant, who did not currently live in Georgia, had not had slightest contact with her daughter during all those years.

16. The applicant then filed a cassation claim against the Kutaisi Court of Appeals ’ decision of 6 June 2008. On 6 February 2009 the Supreme Court of Georgia overturned the contested decision and granted the applicant ’ s civil action in full.

17. The cassation court first stated that, given the absence of the applicant ’ s written consent for adoption of her daughter by the Ts. family, it was apparent that the latter had gotten hold of, through illicit complicity by the relevant obstetrician, and been raising the child unlawfully. That clearly wrongful situation had to be ended. The cassation court further considered that the biological mother was fully capable of creating conditions necessary for decent upbringing of her daughter, that the latter had two biological sisters who lived with the applicant, and that it was not justifiable for the siblings to be raised in two separate families. Acknowledging that the return of the child to the mother who had not had any contact with her since the day of the birth was a sensitive matter, the cassation court called upon both parties, the applicant and the Ts. family, to be cooperative with each other, so that the difficult period for the child could be overcome with as little stress as possible.

18. Thus, in its final and enforceable judgment of 6 February 2009, the Supreme Court ordered that the child be removed from the Ts. family and returned to the applicant, and that the corresponding changes be entered into the child ’ s birth record. The respondent family was also ordered to pay the applicant 480 Georgian laris (some 320 euros) as a compensation for the incurred court fees.

3. Enforcement proceedings

19. On 9 and 10 March 2009, respectively, the applicant obtained an enforcement writ and requested the Enforcement Office of the Ministry of Justice (“the enforcement authority”) to proceed with a compulsory execution of the Supreme Court ’ s judgment of 6 February 2009.

20. On 7 April 2009 the applicant ’ s daughter ’ s birth certificate was amended by the Civil Register of Georgia according to the judgment of 6 February 2009, and recorded the parental line between the child and the biological mother. On the same day, the Ukrainian Consulate in Georgia, acting upon the applicant ’ s request, registered the child as Ukrainian national.

(a) First attempt to transfer the child which took place on 15 May 2009

21. The enforcement authority fixed the date for the transfer of the child on 15 May 2009, inviting the Ts. family to abide voluntarily by the enforcement order. The applicant travelled for that occasion from Ukraine to Georgia.

22. On 15 May 2009 the Ts. spouses confirmed to the bailiffs that they did not object to the transfer of the child to the applicant, providing that the latter would herself agree to it. Their position was duly recorded in writing.

23. As further disclosed by a record which was drawn up by the bailiffs, Mr and Mrs Ts. then brought the 13-year old girl into a room where the applicant, the bailiffs, a child psychologist, social workers and a number of independent witnesses were present. The child started to cry hysterically, categorically refusing to follow her biological mother, and threatened to commit a suicide if that was allowed to happen. The psychologist opined that, with the child being in such an utterly stressful condition, the enforcement of the judgment at that time was highly prejudicial for the latter ’ s mental well-being. The bailiffs decided to postpone the enforcement until further notice.

24. The case file also contains a video recording of the events which occurred on 15 May 2009 in the Ts. family ’ s house. As was shown in the recording, the Ts. family reiterated to a journalist their allegation that the applicant had abandoned her newly born daughter in January 1997 in exchange for an amount of money. The baby had certain health problems, and, in order to cover the costs of her subsequent treatment, the Ts. family sold one of their houses. The recording then showed a terrified child, bitterly crying and repeating “I don ’ t want this woman [referring to the applicant], I want my Mommy and Daddy [referring to Mrs and Mr Ts.]”

25. The following scenes of the recording showed certain neighbours and Mr Ts. describing various facts concerning the child ’ s nervous breakdown (panic, depression and so on), who had attempted to drawn herself in the sea upon learning that the applicant would be removing her from her Georgian family.

26. Another scene showed Mrs Ts., who was embraced by the crying child, saying that she would in no way impede the enforcement of the judgment, forbid the child from reuniting with her biological mother, if the child wanted that. One of the witnesses then expressed her astonishment on how the Supreme Court had decided the child ’ s fate without even seeking the latter ’ s opinion.

27. The final scenes showed the applicant complaining: “It was dangerous to leave the child here, this people would eat her alive! ... Look what they have done to my daughter! They scared her to death!” The applicant then stated that she was confident that the child would be happy living with her, together with her two sisters. She also recalled that the child, who had been removed from her forcefully immediately after her birth, had finally become a Ukrainian national and shared the applicant ’ s family name, which legal developments would impede the child from having any meaningful future in Georgia.

(b) Subsequent developments

28. On 20 May 2009 the applicant filed a complaint with the enforcement authority. She accused the relevant bailiffs, who had been responsible for the execution of the child ’ s transfer on 15 May 2009, of inadequate discharge of their duties. The applicant stated that she should have been given an advance opportunity to meet and interact with her child and that child psychologists should have been involved in the process not only on the day of the attempted enforcement of the judgment but well before that date. She complained that the Ts. family had been influencing her daughter towards the rejection of her biological mother and requested that, as a provisional measure, the child be immediately removed from that family and be placed in an orphanage in another region of Georgia.

29. On the same day the applicant filed a criminal complaint with the General Public Prosecutor of Georgia, requesting the initiation of criminal proceedings against Mr T.V. and other possible accomplices for wrongful removal and sale of her daughter to the Ts. family.

30. On 5 June 2009 the head of a local social service unit, who was in charge of the applicant ’ s case, informed the enforcement authority that, despite a very intense psychological work which had been undertaken with the child by a qualified child psychologist, Dr K., the latter was still not ready for removal from the Ts. family for the purposes of either reunification with the applicant or provisional placement in an orphanage. That conclusion was separately confirmed by Dr. K. ’ s expert opinion.

31. On 23 June 2009 the applicant, having learnt the content of the above-mentioned submissions of the social service unit, filed another complaint with the head of the enforcement authority about the inadequacy of the enforcement measures undertaken by the bailiffs. Among other arguments, she challenged the qualification of Dr K., requesting that her daughter be consulted by another medical expert, and accused the Ts. family of child trafficking. The applicant also complained that the Ts. family had been ruining her child ’ s psychological health by providing her with the false story about her being sold by her biological mother.

32. On 10 July 2009 the head of the Social Service Agency of Georgia informed the Consul of Ukraine in Georgia, in reply to the latter ’ s enquiry about the state of the enforcement proceedings, that the child was still going through difficult emotional period and was not ready for quitting her family in Georgia. In support, the head of the Agency submitted an expert opinion of 17 June 2009 issued by another child psychologist, Dr T., who had consulted the child on 12 June 2009.

33. According to that expert opinion, the child had “acute stress reactions – impulsiveness, panic, vulnerability, suicidal ideation, [ ... ] fear of and utterly repulsive attitude towards her biological mother, low self-esteem [ ... ] perception of the life as a humiliating and cruel experience.” The psychologist recommended that the child should receive individual psychological assistance in conjunction with the intake of certain medication for stress relief and stay in a setting capable of instilling positive emotions and calm. Dr T. concluded that any change of the circumstances which provoked radicalisation of her already precarious mental stability could pose a high risk to her mental well-being and life.

34. On 14 July 2009 the applicant filed two more complaints about the non-enforcement of the judgment of 6 February 2009 with the head of the enforcement authority and the General Public Prosecutor ’ s Office.

35. In reply, the deputy head of the enforcement department reminded the applicant, by letters of 20 and 23 July 2009, that the enforcement of the judgment had been suspended on the basis of the relevant expert opinions pending improvement of the child ’ s emotional health.

36. On 30 July 2009 the applicant filed yet another complaint with the enforcement authority, calling into question the inactivity of the relevant bailiffs as well as the quality of the Dr T. ’ s expert opinion of 17 June 2009.

37. The case file does not provide information about any subsequent developments in the enforcement proceedings.

B. Relevant domestic law

38 . The relevant provisions of the Civil Code read as follows:

Article 1204 – The Right to Claim Return of a Minor Child

“ 1. Parents shall have the right to demand in court the return of their child from a person who holds the child without any lawful basis or a court ruling.

2. The court may reject such a claim by made the parents if the return is prejudicial to the child ’ s own interests. ”

Article 1252 – Adoption of a Child Born out of Wedlock

“ Adoption of a child born out of wedlock shall require the consent of the mother ... ”

COMPLAINT

The applicant complains under Article 8 of the Convention about the Georgian authorities ’ failure to ensure the return of her biological daughter from the Ts. family ’ s unlawful custody.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant ’ s right to respect for her private or family life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?