FIFTH SECTION

Application no. 10383/09 Aleksandr Yegorovich MAMCHUR against Ukraine lodged on 7 February 2009

STATEMENT OF FACTS

The applicant, Mr Aleksandr Yegorovich Mamchur , is a Ukrainian national, who was born in 1954 and lives in Chernigiv . Since childhood the applicant has suffered from the second highest officially recognised degree of disability. In particular, the applicant ’ s walking ability is impaired – he can only walk with crutches. Since August 1977 the applicant has worked as a senior researcher at the Chernigiv Institute of Agricultural Microbiology.

A. The circumstances of the case

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

1. The applicant ’ s family situation and the events leading to the dispute over his daughter ’ s custody and care

The applicant was married to Ms O. M. with whom he had a daughter, Ms A.M. , who was born on 5 May 2002. They lived together as a family in the applicant ’ s flat in Chernigiv . Ms Y. L., another daughter of Ms O. M. who was born on 30 April 1994, and Ms M. M., the applicant ’ s mother, also lived in the same flat.

In October 2005 Ms O. M. moved to live at her mother ’ s flat in Chernigiv , as she was suffering from cancer and required outside assistance and took Ms A.M. , her three-year old child, with her.

On 16 June 2006 Ms O. M. died. Ms V.K. , mother of Ms O. M., took Ms A.M. away from Chernigiv without informing the applicant of the latter ’ s whereabouts.

The applicant lodged a number of complaints with the police, prosecutors, local child-care authorities and non-governmental organisations seeking assistance in his daughter ’ s return.

By a letter of 16 October 2006, the Municipal Centre of Social Services for Family, Children and Youth ( Міський центр соціальних служб для сім ’ ї , дітей та молоді , “the Municipal Family Welfare Centre”) in Chernigiv informed the applicant that, according to the neighbours of Ms V.K. , she had left Chernigiv for Andriyivka , a village in the Chernigiv oblast, and had taken Ms A.M. with her. The local authorities in Andriyivka were thus asked to assist the applicant in his request for return of his daughter. The Chernigiv Municipal Family Welfare Centre also informed the applicant that the question of determination of his daughter ’ s place of residence should be raised before the courts.

On 22 December 2006 the Desnyanskyy District Council in Chernigiv adopted a decision, upon a request of Ms V.K. , appointing her as a tutor of Ms A.M. for the reason that “the child ’ s mother had died [and] her father, who suffered from the second [highest officially recognised] degree of disability, could not take care of [the child ’ s] upbringing because of his state of health” (“the tutelage decision”). The decision noted that Ms A.M. lived with Ms V.K. at the latter ’ s place of residence.

The applicant states that he learned about the tutelage decision much later, though he does not specify when .

On 31 December 2006 Ms A.M. broke her hip as she fell from a cupboard in the flat of Ms V.K. According to the applicant, this happened because Ms V.K. left his daughter without supervision for a long period of time.

2. The first set of court proceedings

On 10 September 2007 the applicant lodged a claim with the Desnyanskyy District Court in Chernigiv seeking his daughter ’ s immediate return pursuant to Article 162 of the Family Code. The applicant argued that Ms V. K. had changed the place of residence of his daughter in an arbitrary manner and without the applicant ’ s consent. Subsequently, the applicant also invoked other provisions of the domestic law, including Article 58 of the Civil Code, Articles 152, 153, 157, 160 and 163 of the Family Code, and the provisions of the Convention on the Rights of Children of 1989 (Articles 3 and 9).

Having disagreed with the applicant ’ s claim, Ms V. K. argued that she was a tutor of Ms A. M. and thus her granddaughter la wfully lived at her home. Ms V. K. stated that in October 2005 Ms O.M. and Ms A. M. had co me to live in her flat as Ms O. M. had required outside assistance for health reasons. After the latter ’s death, Ms A.M. stayed with Ms V. K.

Ms V.K. also lodged a counterclaim seeking compensation for non ‑ pecuniary damage for allegedly untruthful information the applicant submitted to the courts.

The representatives of the tutelage service ( орган опіки та піклування ) within the Desnyanskyy District Council submitted that the tutelage decision had been taken as the applicant had not been able, because of his disability, to take care of the child ’ s upbringing, that the living conditions at the child ’ s place of residence had been checked and that the interests of the child had been taken into account.

During a court hearing on 19 December 2007 the applicant stated that his claim was to be amended to include a request for the annulment of the tutelage decision. The judge invited the applicant to subm it an amended claim in writing.

At a hearing on 8 February 2008 the applicant submitted to the court his amended claim in which he challenged the lawfulness of the tutelage decision and asked the court to order the Desnyanskyy District Council to adopt immediate measures to ensure his daughter ’ s return. The applicant argued that the contested decision had been taken without his consent and that he had not been informed about the consideration of that matter. Referring to the incident on 31 December 2006 as a result of which Ms A.M. had been injured, the applicant argued that his daughter ’ s life and health was endangere d while she was staying with Ms V.K.

The judge refused to include the amended claim into the case file on the ground that the amended claim was in fact a new claim. The judge was of the view that its inclusion in the case would require the participation of new parties and would complicate the consideration of the original claim.

At that hearing on 8 February 2008 the court delivered a judgment rejecting the applicant ’ s original claim. The court found that the applicant had been informed of the tutelage decision before he had lodged the claim with the court. As he did not challenge that decision, Ms A.M. was lawfully staying with Ms V.K.

By the same judgment, the court also rejected the counterclaim of Ms V.K. as unsubstantiated.

The applicant appealed, stating that the first instance court had groundlessly refused to consider his amended claim, that it had not allowed the applicant to question the witnesses who had appeared before the court, and that the judgment was not in accordance with the relevant law.

On 10 April 2008 the Chernigiv Oblast Court of Appeal rejected the applicant ’ s appeal. It noted that Ms A.M. had permanently lived at the place of residence of Ms V.K. since October 2005 and that, by a judgment of 16 May 2006, the Desnyanskyy District Court had ordered the applicant to pay alimony to Ms O. M. for upbringing of Ms A.M. The Court of Appeal held that there was no ground to return Ms A.M. to the applicant pursuant to paragraph 2 of Article 163 of the Family Code, as the tutelage decision was in force, Ms A.M. was lawfully staying with Ms V.K. and the latter was against the child ’ s living with the applicant because Ms V.K. believed that it would be contrary to the child ’ s interests.

Relying on Article 3 of the Convention on the Rights of the Child of 1989, the Court of Appeal found that the applicant had not provided evidence that it would be in the best interest of Ms A.M. to stay with the applicant or that it was contrary to her interests to stay with her tutor.

The Court of Appeal refused to deal with the applicant ’ s arguments based on his amended claim, as it had not been examined by the court of first instance. In that context the Court of Appeal held that the first instance court ’ s decision not to include the amended claim was in compliance with Article 126 of the Code of Civil Procedure.

The applicant appealed in cassation. He argued that the courts had dealt with his case not in accordance with the procedure. In particular, the applicant alleged that the courts had unlawfully refused to consider his amended claim, that they had refused to summon witnesses on his behalf without providing any reasons for that; that the courts had not considered the applicant ’ s requests to include important documentary evidence; and that they had systematically restricted his procedural rights in particular the right to study the case file and to put questions to the those who took part in the proceedings.

The applicant also argued that the courts ’ decisions were not in accordance with the law.

In his appeal in cassation the applicant alleged that Ms V.K. systematically hindered his access to the child.

By a decision of 9 September 2008, the Supreme Court rejected the cassation appeal as unsubstantiated, finding that the arguments contained in the appeal did not form the basis for a conclusion that the judgments of the lower courts were wrong or unlawful. No further reasons were given by the Supreme Court.

According to the applicant, some of the court hearings were held in the absence of his representative who could not attend them for reasons of illness.

3. The second set of court proceedings

In April 2008 the applicant lodged a claim with the Desnyanskyy District Court seeking the annulment of the tutelage decision. The claim was based on the same arguments as the applicant ’ s original and amended claims which he had raised in the course of the first set of proceedings (see above).

On 18 September 2008 the Desnyanskyy District Court, relying on paragraph 1 of Article 3 of the Convention on the Rights of the Child of 1989, Articles 243-244 of the Family Code and Section 2.2 of the Regulations on Tutelage and Guardianship of 1999, found against the applicant.

The court noted that (i) the applicant had not provided any evidence that it would be in the best interest of Ms A.M. to stay with the applicant and that it would be contrary to her interests to stay with her tutor; (ii) the tutelage service within the Desnyanskyy District Council had not had any concerns about the fulfilment by Ms V.K. of her duties as a tutor; (iii) Ms A.M. had lived at her grandmother ’ s home for three years before the decision in the case was taken; (iv) during that period the applicant had not enquired about his child ’ s situation, had not used any means to communicate with her, and had not visited the child either at her place of residence or at the nursery she had been attending; and (v) the applicant had taken part in his daughter ’ s upbringing only by making alimony payments. The court held that the contested decision had been adopted in accordance with the law and that the interests of Ms A.M. had been duly taken into account.

The applicant appealed, stating that the first instance court had not taken into consideration his submissions that (i) Ms V.K. had unlawfully retained his daughter before the tutelage decision had been adopted; (ii) Ms V.K. had been hindering his communication with the child; (iii) there had been witnesses that Ms V.K. had been abusing alcohol and had been “misbehaving”; (iv) Ms V.K. had been responsible for the incident on 31 December 2006; and (v) in addition to paying alimony the applicant had been sending money and parcels to Ms A.M. by mail, as he had not had the opportunity to bring them in person.

The applicant also alleged that the first instance court had refused to question witnesses on his behalf and that he had not been allowed to put questions to some of the witnesses who had been questioned by the court. The applicant did not provide further details in respect of those allegations.

On 4 November 2008 the Chernigiv Oblast Court of Appeal rejected the applicant ’ s appeal, finding that (i) since October 2005 Ms A.M. had lived with Ms V.K. at her home; (ii) since birth Ms A.M. had been under medical supervision at the clinic in that location; (iii) after the death of Ms O. M. the applicant had not taken care of the child ’ s upbringing; (iv) before the tutelage decision had been adopted the applicant had not challenged the lawfulness of his daughter ’ s living with the grandmother; (v) the applicant suffered from the second highest degree of disability; and (vi) due to his “impaired moving capacity” the applicant had stayed at his office overnight on workdays (from Monday to Friday) returning home only for weekends. Relying on those grounds, the Court of Appeal held that the tutelage decision ensured the interests of the child, was in accordance with the law and did not violate the applicant ’ s rights to educate and support his child.

The Court of Appeal also held that the applicant ’ s allegations that the retention of his daughter by Ms V.K. had been unlawful, that his communication with Ms A.M. had been hindered and that Ms V.K. had failed to fulfil her duties as a tutor had not been supported by evidence and had been disproved by the information submitted by the Desnyanskyy District Council.

The applicant appealed in cassation. He argued that in violation of the procedure the courts of the first and appeal instances (i) had refused the applicant ’ s requests to have unspecified audio recordings examined in court and to check the trustworthiness of the documents provided by the Desnyanskyy District Council; (ii) had not included the documentary evidence on which the applicant had relied; (iii) had not allowed the applicant to put question s to witnesses, including Ms Y. L., and to express his views regarding the way the hearings had been held; and (iv) had not taken into account the relevant regulations when accepting unspecified medical information. The applicant also stated that the courts had not taken into account his arguments that he had not been able to take care of Ms A.M. as Ms V.K. had hindered his communication with the child (in particular, she had allegedly “hidden” Ms A.M. from the applicant, had not opened the door of her house when the applicant had come, and had otherwise refused a possibility for the applicant to meet with Ms A.M. ) and that the courts had not applied the law pertinent to the case.

On 27 January 2009 the Supreme Court rejected the cassation appeal, finding that it did not contain arguments requiring examination of the case material or demonstrating that the lower courts had violated the norms of procedural or substantive law.

4. The situation after the completion of the court proceedings

According to the applicant, Ms V.K. has hindered his communication with Ms A.M. and he cannot participate in his daughter ’ s upbringing. In particular, when the applicant came to visit his daughter, Ms V.K. did not open the door of her house. She has also refused to allow the applicant to take Ms A.M. for medical examination.

The applicant alleges that despite his repeated requests for assistance in his having access to his daughter to enforce his parental rights, the authorities were reluctant to help him. The applicant provides copies of letters from the Desnyanskyy District Council and the Andriyivka Council stating inter alia that the living conditions of Ms A.M. were satisfactory and that she was doing well at school, while the applicant did not contact the school administration to learn about the child ’ s everyday life and progress. In a letter dated 6 July 2009 the Desnyanskyy District Council stated that it would no longer deal with further, similar, requests of the applicant.

The applicant also argues that the he has ensured adequate living conditions for his daughter. He is a physiologist and also has a pedagogical degree; he has sufficient income and owns a flat. The applicant also states that he is a tutor of Ms Y. L.

The applicant argues that the living conditions of his daughter at the place of residence of Ms V.K. are worse than the conditions at his home. The house of Ms V.K. in Andriyivka has no sanitary amenities and has no natural gas supply. The school which his daughter attends is about to be closed for low number of pupils. The school is two kilometres away from the house of Ms V.K. , while there is a school about two hundred metres from the applicant ’ s house.

B. Relevant domestic law

1. Upbringing of children and their contacts with parents

Under Article 51 of the Constitution and Article 5 of the Family Code of 2002 the family, childhood, motherhood and fatherhood are under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up in a family (paragraphs 2 and 3 of Article 5 of the Family Code). Where the State puts in place regulations on family matters, it must take into account, to the greatest possible extent, the interests of the child.

Articles 151 and 163 of the Family Code provide that minor children should, as a priority, be “brought up personally” by their parents and live with them. The rights of parents, including those living separately from the child, to bring up the minor child and to communicate with him or her may only be restricted by the law (Articles 153 and 157). A parent, living separately from the child, may seek the assistance of the State Tutelage Service or of the courts to enforce his or her parental rights, where no agreement has been reached on that matter with the parent who has custody of the child (Articles 157-161). Where the child is being retained by a person without lawful basis, the courts, at parents ’ request, may order the return of the child, if this does not run contrary to the child ’ s interests (Articles 162 and 163). Parents jointly determine where the minor child should live (Article 160). Article 155 generally prohibits the exercise of parental rights where it is contrary to the interests of the child.

Similar provisions concerning upbringing of children and their contacts with parents are contained in Sections 11, 12, 14, 15 and 15-1 of the Act on the Protection of Childhood of 26 April 2001.

2. Tutelage and guardianship

Article 243 of the Family Code and Article 58 of the Civil Code of 2003 provide that orphans and “children deprived of parental care” should be placed under tutelage or guardianship. A tutor should be appointed to children who are up to fourteen years old and a guardian should be appointed to children who are between fourteen and eighteen years old. Under Article 63 of the Civil Code such an appointment may be made only upon a written request of the person wishing to become a tutor or a guardian.

According to Section 1 of the Act on the Protection of Childhood of 26 April 2001 and Section 1 of the Act on the Social Protection of Orphan Children and Children Deprived of Parental Care of 13 January 2005, the notion of “children deprived of parental care” covers the situations where such care is not being provided as (i) parents have been deprived of the parental rights; (ii) children have been removed from parents without depriving them of parental rights; (iii) parents were found to be missing or legally incapable or declared dead; (iv) parents are serving a prison sentence or are being detained during pre-trial investigations; (v) parents are wanted by law-enforcement authorities for failure to pay alimony and their whereabouts are unknown; (vi) parents have been suffering from a long ‑ term illness which prevents them from fulfilling their parental obligations; (vii) parents abandoned the child. Children deprived of parental care also include foundlings whose parents are unknown and homeless (abandoned) children.

Regulations on Tutelage and Guardianship, enacted by the Cabinet of Ministers on 26 May 1999, provide that a child may be placed under tutelage where parents “have not been able (because of their state of health (people suffering from the first or the second officially recognised degree of disability) ... ) to take care of the child ’ s upbringing for over six months” or “have not lived with the child and, for no acceptable excuse, have not taken part in the child ’ s upbringing and sustenance, have not taken care of the child for over six months or abandoned the child, which is demonstrated by the relevant reports of the police”.

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 or at the child ’ s place of residence. The tutor determines the child ’ s upbringing and may seek the child ’ s return from any person who retains the child without legal grounds. The tutor should not hinder the child ’ s communication with parents where such communication does not run contrary to the child ’ s interests (Article 249 of the Family Code). The tutor ’ s actions may be challenged before the authorities, including the courts (Article 79 of the Civil Code).

Tutelage should be terminated where the minor child is transferred to parents or when the child becomes fourteen years old (paragraph 1 of Article 76 of the Civil Code). In the latter case the child ’ s tutor becomes his or her guardian, for which no separate decision is needed.

C. The United Nations Convention on the Rights of the Child of 1989

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 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 sh all 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 legislati ve 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 9

“ 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests.

... ”

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.”

COMPLAINTS

The applicant complains under Articles 6 and 13 of the Convention stating that the courts which dealt with his case were biased, that they did not apply the relevant law, that they restricted in an unfair manner his procedural rights, and that their decisions were wrong, discriminatory and lacked reasons.

The applicant also complains under Article 14 of the Convention that he was discriminated against by the authorities, including the courts, which gave preference to Ms V.K. in his case because of his gender and disability.

The applicant complains that his communication with Ms A.M. has been hindered and that he has not been able to take part in the child ’ s upbringing.

QUESTIONS TO THE PARTIES

1. Did the decision of the Desnyanskyy District Council in Chernigiv of 22 December 2006 to appoint a tutor for Ms A.M. , as upheld by the higher courts, constitute an interference with the applicant ’ s right to respect for his family within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law, did the interference have a legitimate aim, and was it necessary in terms of Article 8 § 2?

2. Has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention, on account of the applicant ’ s complaints that his communication with Ms A.M. has been hindered and that he has not been able to take part in her upbringing? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Has there been a violation of Article 14 read in conjunction with Article 8 of the Convention in the present case? In particular, did the authorities adopt adequate measures to ensure that the applicant did not suffer discrimination in the exercise of his right to respect for his family because of his disability?

4. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in the proceedings in his case?