JOINT DISSENTING OPINION OF JUDGES LEMMENS, DEDOV AND ELÓSEGUI

1. To our regret, we are unable to agree with the majority’s finding of a violation of Article 8 of the Convention. In our opinion, the domestic courts applied the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) in a way that is fully compatible with Article 8 of the European Convention on Human Rights (the “Convention”).

2. Like the majority, we start from the premise that the order to return the second applicant constituted an interference with the applicants’ right to respect for their family life (see paragraph 86 of the judgment).

The majority further find that the interference was in accordance with the law and pursued a legitimate aim (see paragraphs 88-91 of the judgment). We agree.

3. We also agree with the general principles relating to the “necessity” of the interference, set out in paragraphs 76-83 of the judgment.

In particular, we would refer to paragraph 83, which deals with the procedural obligation imposed by Article 8 on the domestic authorities in the context of an application for return made under the Hague Convention and in the presence of an allegation that such return would expose the child to a “grave risk” within the meaning of Article 13, first paragraph (b), of the Hague Convention: the domestic courts “must not only consider arguable allegations of a ‘grave risk’ for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case” (quoted from X v. Latvia [GC], no. 27853/09, § 107, ECHR-2013).

In our opinion, the Russian courts complied with that obligation, as we shall try to demonstrate below.

4. As far as the allegations of a “grave risk” are concerned, the majority focus on the first applicant’s objection based on the general security situation in the Donetsk region, due to the ongoing military conflict in that region (see paragraphs 26 and 32 of the judgment). According to the majority, the applicant’s allegations “were not genuinely taken into account by the Russian courts” and the courts’ decisions dismissing the applicant’s objections to the return of her daughter “were not sufficiently reasoned” (see paragraph 99 of the judgment).

It is on this point that we disagree with the majority.

5. The District Court dismissed the first applicant’s argument on the ground that it was not supported “by any objective and reliable evidence” (see paragraph 31 of the judgment).

It held in the first place that “occasional military actions in various settlements in Ukraine did not as such constitute an exception relating to a very serious risk of harm to the child”, and that the alleged risk “was not individual to the child, but rather a general consequence of living in a conflict zone” (ibid.). We find this a reasonable answer to the first applicant’s argument. Not every risk constitutes a legitimate reason for not ordering the return of the child. As the majority acknowledge, the exception provided for in Article 13, first paragraph (b), of the Hague Convention “concerns only the situations which go beyond what a child might reasonably bear” (see paragraph 95 of the judgment, repeating what the Court stated in X v. Latvia , cited above, § 116). It is therefore necessary to assess the impact of the security situation on the health and well-being of the second applicant, or in other words to examine whether she ran an “individual” risk.

In fact, the dismissal of the first applicant’s argument should be read in the light of the counter-argument made by A.S., the father of the child. He argued that no military actions had been ongoing in the part of Donetsk where he and his daughter had lived, and he illustrated the peaceful and quiet life in that place by photographs and videos (see paragraph 27 of the judgment). The District Court thus dismissed the first applicant’s argument, which was based on the general situation in the region, by taking into account the specific situation prevailing in the place to which the child would return.

Moreover, the District Court relied on other grounds as well to dismiss the first applicant’s objection to the return of her daughter: the first applicant had waited two years before taking her daughter from Ukraine to Russia (which was an indication of the exaggerated character of the alleged gravity of the risk); the first applicant did not demonstrate that the Ukrainian authorities could not address the alleged risk; the first applicant did not demonstrate that the removal from her daughter from Ukraine to Russia was the only possible way of protecting her from the alleged risk (see paragraph 31 of the judgment). Again, these were arguments based on an assessment of the concrete situation in the place of residence of A.S.

6. Before the Regional Court, the first applicant reiterated her argument that the military actions in Donetsk “would put the second applicant’s life and health at risk” (see paragraph 32 of the judgment).

A.S. repeated that no military actions had been underway in Donetsk and that his flat in Donetsk was situated 25 km from the place which had been the scene of heavy fighting. He was, moreover, prepared to move his home address even further away (see paragraph 33 of the judgment).

The Regional Court endorsed the reasoning of the District Court, confirming that the first applicant’s argument about the risk to her daughter’s life and health “had not been supported by admissible and relevant evidence” (see paragraph 34 of the judgment).

7. From the point of view of the procedural obligation imposed by Article 8 on the domestic courts (see paragraph 3 above), we conclude that the first applicant’s argument was duly examined by the District Court, whose decision was endorsed by the Regional Court.

In this respect, it should be noted that before the domestic courts the first applicant only made general allegations about the security situation in Donetsk, without producing any concrete evidence. The international reports and the travel advice from the Russian Ministry of Foreign Affairs, which she has now produced before the Court (see paragraph 64 of the judgment), were not submitted before the domestic courts.

The majority consider that the domestic courts should have gone further. They blame the courts for not having relied on any national or international sources concerning the security situation in Donetsk, and therefore for not having taken into account the fact that there had been “thousands of conflict-related civilian casualties and deaths” (see paragraph 98 of the judgment).

We respectfully disagree with this reproach. In proceedings for the return of a wrongfully removed child the objective is “to secure the prompt return” of the child (Article 1 (a) of the Hague Convention). The Court has accepted that this objective corresponds to a “specific conception” of “the best interests of the child”, as stated in the explanatory report on the Hague Convention ( X v. Latvia , cited above, § 95). In order to meet this objective, the competent authorities “shall act expeditiously” (Article 11, first paragraph, of the Hague Convention). Moreover, the return “shall” be ordered (Article 12, first paragraph, of the Hague Convention), unless “the person, institution or other body which opposes [the child’s] return establishes” that one of the exceptions to the principle of return applies (Article 13, first paragraph, of the Hague Convention). These provisions thus not only put the burden of proof (“establishes”) on the opposing party, in this case the first applicant, but also oblige the courts to decide the case “expeditiously”. For the courts to decide that there would be a “grave risk”, they must therefore be able to rely on evidence adduced by the opposing party. To oblige the courts to look on their own initiative for other evidence would not be compatible with the nature of return proceedings.

8. We are further of the opinion that the domestic courts rejected the first applicant’s argument relating to the military conflict in Ukraine on the basis of a concrete assessment of the alleged risk to the child’s physical and emotional well-being. They gave specific reasons in the light of the circumstances of the case.

In particular, we observe that the domestic courts did not deny that there was a conflict situation in Donetsk. However, they did not take into account the general situation alone. They assessed the specific impact of that situation on the second applicant, on the basis of the evidence adduced by both parties. Their conclusion was that no “grave risk” of physical or psychological harm or other intolerable situation for the child had been established by the first applicant (see paragraph 31 of the judgment).

It is of course possible to disagree with the domestic courts’ assessment of the risk. However, it is not for the Court to substitute its own assessment for that of the domestic authorities, unless their assessment has been arbitrary or manifestly unreasonable (see, in particular, in the context of the assessment of an alleged risk in proceedings falling under the Hague Convention, Raban v. Romania , no. 25437/08, § 38, 26 October 2010; B. v. Belgium , no. 4320/11, § 60, 10 July 2012; and Royer v. Hungary , no. 9114/16, § 60, 6 March 2018). We do not believe that this is the case here.

9. To sum up, we are of the opinion that the domestic courts applied the Hague Convention in conformity with the principles developed in the Court’s case law. The majority place on the domestic authorities an obligation which goes beyond what is required by Article 8 of the Convention and does not sit well with the specific nature of return proceedings under the Hague Convention.

In our opinion, by ordering the second applicant’s return to Donetsk, the domestic courts did not violate Article 8 of the Convention.

10. As a consequence, we consider that it would be necessary to examine the complaints under Articles 2 and 3 of the Convention in respect of the second applicant. If we had to examine these complaints on the merits, we would conclude that there has been no violation of these Articles either.

11. We concur in the decision on the first applicant’s complaint under Article 3. This is a complaint of a different nature from that of the above-mentioned complaint of the second applicant. Here, we can agree with the majority that, given the Court’s decision on Article 8, there is no need to examine the first applicant’s complaint separately.

12. With respect to the continued indication of the measure under Rule 39 of the Rules of Court, we have expressed different votes among ourselves. Judges Lemmens and Dedov agree with the majority that, given the Court’s finding of a violation of Article 8, the Rule 39 measure should remain in force until the present judgment has become final. Judge Elósegui disagrees, on the basis of the minority’s opinion that there has been no violation of Article 8 and of the ensuing need, in principle, for an expeditious enforcement of the judgment of the Regional Court.

[1] The Regional Court gave judgment on 12 October 2016 whilst the Regional Court and the Superior Court refused to refer the case for further consideration on 5 May 2017 and 29 September 2017 respectively.

[2] See, in particular, Vladimir Ushakov v Russia at §§ 82 and 83.

[3] Paragraph 97 of the judgment.

[4] Friedrich v. Friedrich , 78 F.3d 1060 (6th Cir. 1996), [INCADAT Reference: HC/E/USf 82].

[5] The father stated he lived in Donetsk and worked in Kramatorsk (paragraph 28). He subsequently stated he could move from Donetsk (paragraph 33).

[6] “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”.