PARTLY CONCURRING OPINION OF JUDGE SCHUKKING

1 . I voted with the majority in finding no violation of Article 8 of the Convention in this case. I fully support the reasoning and the conclusions reflected in paragraphs 84-94 of the judgment.

2 . My concern relates to the second applicant ’ s representation before the Court, a topic that is also raised by Judges Keller and Pastor Vilanova in their partly dissenting opinion.

3 . As is pointed out in their opinion under points 2 to 4, it is a matter of fact that the second applicant, the daughter of the first applicant, was 14 years old when the application – submitted also on her behalf – was lodged with the Court, that she turned 18 two years ago and that she is now 20, at the time when the Court is deciding on the admissibility and the merits of the case.

4 . It is true that when the application was lodged the first applicant acted ex officio as his child ’ s legal representative, on the basis of Article 64 § 1 of the Family Code of the Russian Federation. The power of attorney issued to his lawyer therefore authorised the latter to represent both the first applicant and his daughter in the proceedings before the Court. The question, however, arises whether this power of attorney remains valid in respect of the daughter as of the point where she reached the age of majority. In my view the answer to that question should be regarded as relevant information in relation to the Court proceedings.

5 . Although the Rules of Court do not contain a provision stipulating expressly that applicants ’ representatives are required to provide information as regards their powers of attorney on behalf of minors who have become adults in the course of the proceedings before the Court, it is within the Court ’ s competence to request representatives to submit such information before it decides on the admissibility and merits of a case.

6 . In order to do so, the representative would have to contact the now adult child, thereby drawing his or her attention to the fact that an application has been lodged with the Court on his or her behalf, which may not necessarily be known to that person. The person concerned would thus have the option either to withdraw from the pending proceedings or to take a well-informed decision on remaining a party. Such a procedure would avoid the unfortunate position of an adult child being confronted with a judgment of the Court in which he or she features as a party without being aware of that fact.

7 . Given the majority ’ s conclusion that there was no violation of Article 8, the point is not crucial to the outcome of even part of this judgment. My preference, however, would have been for the Court to proceed in this way in the present case.

JOINT PART LY DISSENTING OPINION OF JUDGES KELLER AND PASTOR VILANOVA

(Translation)

1 . Our dissenting opinion, at first sight, concerns the representation of the second applicant during the proceedings. However, this aspect has an impact on the substance of the case and necessarily affects the first applicant. These reasons prompted us to vote with the majority as regards point 1 of the operative provisions, which makes no distinction between the two applicants (father and daughter), but subsequently to vote against the finding that there had been no violation of Article 8 (point 2 of the operative provisions, which also concerns both applicants). We will now elaborate on our joint position.

2 . When the first applicant lodged his application his daughter was fourteen years old. It is unquestionable that she did not have legal capacity at that time. For that reason she was initially represented by her father, who in turn authorised his own lawyer to defend the rights of his minor daughter.

3 . That situation changed when the second applicant reached full age, approximately two years ago. From that point onwards, her father could no longer represent her. As regards their joint lawyer, it should be pointed out that legal representation cannot be presumed and that there is nothing in the present case to suggest that the second applicant was at any stage aware of the proceedings before our Court.

4 . The second applicant is now twenty years old. She is personally affected by the proceedings and, accordingly, should have the right to take whatever decisions she deems necessary regarding a case that was brought six years ago on her behalf, for instance by requesting that the proceedings be continued, agreeing to a friendly settlement or withdrawing from the proceedings. That is why it would have been wise to stay the proceedings in order to ascertain whether the lawyer still had authority to act for her. The respondent Government were unable to raise this procedural objection for the simple reason that the second applicant did not reach full age until after their last observations were submitted, on 30 May 2016. It follows that the parties should not be penalised because of the lengthy period (two and a half years) that elapsed between that date and the Court ’ s judgment.

5 . Not having been informed of an express wish on the second applicant ’ s part to continue the proceedings initially brought on her behalf, the majority, with all due respect, disregarded her basic right to be heard before her case was determined, a right enshrined in particular in Article 38 of the Convention, which requires the Court to examine the case together with the representatives of the parties . Moreover, the question of rigorous observance of the principle of equality of arms was stressed again in the recent Grand Chamber case of Radomilja and Others v. Croatia (nos. 37685/10 and 22768/12, § 123, 20 March 2018). Compliance with the basic rules of procedure remains vital, as they constitute first and foremost a means of guaranteeing effective exercise of fundamental rights and freedoms. We should not forget that the proceedings belong primarily to the parties, in accordance with the party initiative or adversarial principle which prevails in the procedure before our Court.

6 . The fact that the second applicant was actually absent from the proceedings is not necessarily without consequences for the substantive issues. We cannot speculate as to what arguments she might have advanced in support of or against the position taken by her father. Nevertheless, the fact cannot be overlooked that, during the proceedings brought by the first applicant against the maternal grandparents concerning the second applicant ’ s return, the second applicant (then aged thirteen) was not heard by the competent court but through the intermediary of a different court (see paragraph 36 of the judgment) and, most importantly, in the presence of the grandparents but not of the first applicant. Furthermore, the second applicant was not the subject of any independent psychological expert assessment, although the first applicant had claimed that his daughter was under the influence of her grandparents (see paragraph 43 of the judgment). There would appear to be a clear conflict of interests here. The presence of the second applicant might conceivably have shed new light on this complex case and resulted in a finding of a violation of Article 8, with regard to both her and her father. It is clear to us that the second applicant ’ s lack of participation in the proceedings prevented the Court from obtaining an overall view and does not allow it simply to find no violation of her right to family life. We were therefore obliged to vote against the conclusion of the majority.

7 . The most unfortunate aspect of this case is the fact that the second applicant is now confronted with a judgment in which she had no opportunity to intervene. It would be desirable in the interests of justice for the judgment to be served on her so that, should she so wish, she can take whatever action she deems necessary.