CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 décembre 2016

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RUSSIA   (Application no. 66157/14)               JUDGMENT     STRASBOURG   20 December 2016       FINAL   20/03/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Yusupova v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Dmitry Dedov,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 29 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 66157/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Petimat Abubashirovna Yusupova (“the applicant”), on 11 September 2014. 2.     The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicant alleged that the domestic authorities had failed to enforce a judgment granting her a residence order in respect of her son. 4.     On 29 June 2015 the application was communicated to the Government and granted priority treatment (Rule 41 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1973 and lives in Grozny. A.     Background of the case 6.     In September 2006 the applicant began living with A.A. 7.     On 24 June 2007 she gave birth to a son, A.-M. 8.     In September 2007 relations between the couple deteriorated and they separated. The child continued to live with the applicant. 9.     In August 2011 the applicant’s brother-in-law, M.A., asked the applicant’s permission to take the child for a couple of days to see his father, A.A., who was visiting from Moscow. The applicant agreed. 10.     The child was never returned to the applicant. A.A. took the boy to Moscow, and the applicant has not seen him since. She twice went to Moscow to find A.A., but in vain. B.     Residence dispute 11.     On 30 September 2011 the applicant applied to the Oktyabrskiy District Court of Grozny (“the District Court”), seeking to determine the child’s place of residence as being with her. She also asked the court to order A.A. to pay child maintenance. 12.     On 24 October 2011 the District Court took a decision to leave the applicant’s claim without consideration owing to a failure by the parties to appear. 13.     The applicant went to the police, asking for their help to locate A.A. 14.     On 10 June 2012 the proceedings were resumed at the request of the applicant. 15.     A.A. lodged a counterclaim with the District Court, seeking to have the child’s place of residence to be determined as being with him. 16.     On 27 December 2012 the District Court decided that the child should live with his mother, the applicant, and that A.A. should pay the applicant child maintenance. A.A.’s application for a residence order was dismissed. A.A. appealed. 17.     On 7 May 2013 the Supreme Court of the Chechen Republic (“the Supreme Court”) upheld the judgment of 27 December 2012 on appeal. 18.     On 24 July 2013 the District Court clarified its judgment of 27   December 2012 and held that the operative part of the judgment should read as follows: “to remove the minor [child’s name], born on 24   June 2007, from [A.A.], residing at the address ..., and to hand him over to his mother P.A. Yusupova”. 19.     However, A.A. refused to comply with the judgment. 20.     On 12 August 2013 the District Court issued a writ of execution. C.     Enforcement proceedings 21.     On 21 August 2013 bailiffs from the Inter-district Bailiffs Service of the Chechen Republic opened enforcement proceedings. 22.     It was established from A.A.’s mother that A.A. lived in Moscow. Consequently, the enforcement file was referred to the Golovinskiy District Bailiffs Service in Moscow. 23.     On 22 August 2013 a bailiff from the Golovinskiy District Bailiffs Service visited A.A.’s presumed place of residence in Moscow and established that A.A. and the child did not live there and were not registered there. The relevant report was drafted. 24.     On 5 September 2013 the bailiff received a statement from the owner of the above-mentioned flat, who stated that A.A. and the boy had left the flat in August 2013. 25.     The bailiff obtained further information that in 2013 the child had not attended his kindergarten in Moscow, kindergarten no. 615, and that there was no data about A.A. in the individual personalised tracking system of the Russian Pension Fund for Moscow and Moscow Region. 26.     On 9 December 2013 the enforcement file was returned to the bailiffs service in the Chechen Republic. 27.     On 25 March 2014 a bailiff from the Oktyabrskiy District Bailiffs Service of Grozny found that his counterparts in the Golovinskiy District Bailiffs Service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment of 27   December 2012. Namely, they had failed to inspect the premises and draw up the relevant act of inspection, to involve the local police in carrying out the enforcement measures, to question A.A.’s partner O.S., named as the child’s mother in his medical record, and to institute a search for A.A. and the child. On the same day the enforcement file was again referred to the Golovinskiy District Bailiffs Service in Moscow. 28.     In June 2014 the applicant enquired with the Golovinskiy District Bailiffs Service about the progress of the enforcement proceedings. She was informed about the referral of the enforcement file to the Oktyabrskiy Bailiffs Service in Grozny in December 2013. 29.     The applicant then contacted the Oktyabrskiy District Bailiffs Service of Grozny, which on 16 October 2014 informed her that they did not know the whereabouts of the enforcement file. 30.     At the request of the Oktyabrskiy Bailiffs Service, on 10 November 2014 the District Court issued it with a duplicate of the writ of execution of the judgment of 27   December 2012. 31.     On 10 February 2015 the applicant filed a court complaint about the inaction of the Oktyabrskiy District Bailiffs Service of Grozny. 32.     On 11 March 2015 the District Court held that between 21   August 2013 and 10 February 2015 no enforcement actions had been carried out by the Oktyabrskiy District Bailiffs Service of Grozny to enforce the judgment of 27 December 2012. The District Court further held that the inaction of the bailiffs service had led to an unjustifiably long delay in the enforcement of the judgment, which violated the applicant’s right to judicial protection, including her right to have the judgment enforced. It therefore found the bailiffs service’s inaction unlawful and ordered it to remedy the above violations. 33.     On an unspecified date after the above judgment the enforcement file was referred back to Moscow, where a search for A.A. and the child was instituted. 34.     On 26 August 2015 A.A.’s right to leave the country was temporarily restricted. On the same day the Bailiffs’ Service for Moscow Region was entrusted with carrying out enforcement actions in Moscow Region aimed at establishing A.A.’s and the child’s place of residence with A.A.’s partner O.S. Enquiries were sent to the Health and Education Departments of Moscow to trace the child. Two of A.A.’s presumed places of residence in Moscow, including the one visited in August 2013 (see paragraph 23 above), were visited. Nobody opened the door at the flats in question or at the neighbouring flats. 35 .     On 5 October 2015 the enforcement file was referred to the inter ‑ district special enforcement unit of the Moscow Bailiffs’ Service (межрайонный отдел по особым исполнительным производствам неимущественного характера Управления Федеральной службы судебных приставов по Москве). 36.     It was established that the child was not attending a school in Moscow and that he was not attached to any public health-care structure in that city. However, on several occasions he had consulted doctors and received treatment in medical establishments there, most recently in June 2015. It was further established that between January and October 2015 A.A. had not made any payments using his bank cards and that he had not married. 37.     On 15 October and 21 December 2015 another two of A.A.’s presumed places of residence in Moscow were visited. It was established that A.A. had never lived at the first address. He had lived at the other address, but by that time the flat had been rented to someone else. 38.     On 18 December and 24 December 2015 a bailiff asked the Moscow Veshnyaki District Department of the Interior (ОМВД по району Вешняки ГУ МВД России г. Москвы) and the State Inspectorate for Road Safety in Moscow (УГИБДД ГУ МВД России по г. Москве) respectively for assistance in searching for the child and locating A.A.’s vehicle. 39.     On 30 December 2015 the bailiff ordered that A.A. be brought in by force. 40.     On 31 December 2015 the bailiff attempted to bring in A.A. by force by paying a visit to another of his presumed places of residence in Moscow. However, the door was opened by a Ms V.I. who explained that A.A. did not live at that address on a regular basis, that he rarely visited and that she did not know his whereabouts. 41.     On 14 January 2016 the bailiff sought the help of the joint stock company the Federal Passenger Company in order to obtain information about any railway travel by A.A. On 3 February 2016 it reported that A.A. had bought a train ticket from Nazran to Moscow for 30 April 2015. No tickets had been bought for the child. 42.   On 27 January 2016 Sberbank of Russia provided the bailiff with information on the movement of money in A.A.’s bank accounts, with information about the cash dispensers where withdrawals had been made. 43.     The search dossier was subsequently sent to the Department of the Federal Bailiffs Service for the Chechen Republic to establish the whereabouts of A.A. and the child and to obtain information from people residing at an address that had been indicated in Grozny. 44.     To the present date the domestic authorities do not know the whereabouts of A.A. and the child and the judgment of 27   December 2012 remains unenforced. D.     The applicant’s attempt to have criminal proceedings instituted 45.     The applicant sought to have criminal proceedings instituted against her brother-in-law for the alleged abduction of the child, but without success. After several rounds of pre-investigation inquiries, the Investigations Department of the Leninskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings for lack of evidence of a crime. The most recent refusal, dated 26 July 2012, was set aside on 10   August 2015 and an additional pre-investigation inquiry was ordered. 46.     According to the applicant, she saw her son and A.A on 31   May 2012 while she was on her way to the Investigations Department. The applicant bent down to hug the boy. At that moment A.A. punched the applicant close to her left ear. She fell down, hitting her head on the pavement and lost consciousness. The applicant recovered in hospital and was subsequently diagnosed by a forensic medical expert as having a traumatic rupture of the left eardrum, intracranial hypertension syndrome, astheno-neurotic syndrome and bruising of the soft tissues of the left cheekbone. After several rounds of pre-investigation inquiries about the above incident, the Investigations Department of the Staropromyslovskiy District of Grozny of the Investigative Committee of Russia in the Chechen Republic took several decisions refusing to institute criminal proceedings against A.A. for lack of evidence of a crime. The most recent refusal, dated 23   October 2014, was set aside on 10 August 2015 and an additional pre ‑ investigation inquiry was ordered. 47.     No further information was made available to the Court regarding the outcome of the additional pre-investigation inquiries. II.     RELEVANT DOMESTIC LAW 48.     For the relevant provisions of domestic law see Pakhomova v.   Russia (no. 22935/11, §§   91-112, 24   October 2013). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49.     The applicant complained that the authorities had failed to enforce the judgment granting her a residence order in respect of her son. The Court will examine this grievance under Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     The parties’ submissions 50.     The Government submitted that there had been no violation of the applicant’s right to respect for her family life, guaranteed by Article 8 of the Convention. The domestic authorities had taken all the measures necessary to have the judgment of 27 December 2012 enforced as soon as possible, however, owing to the fact that A.A. was in hiding with the child the judgment had remained unenforced. The Government further stated that domestic law provided for a number of effective mechanisms aimed at the enforcement of judgments similar to the one at hand. They included subjecting a respondent to an administrative fine or imposing criminal responsibility on them, enabling a plaintiff to challenge the lawfulness of bailiffs’ decisions before a court, the putting into practice of an algorithm developed by the Federal Bailiffs Service for organising and carrying out searches for a respondent and his property, a child or a respondent in a civil case, and the exchange of information in digital format between the Federal Bailiffs Service and the Ministry of Internal Affairs. 51.     The applicant challenged the Government’s submissions. She acknowledged that certain enforcement measures had been carried out by the bailiffs between 22   August and 19   November 2013. However, nothing had been done after that to have the judgment of 27 December 2012 enforced. The applicant noted, in particular, that on 25 March 2014 the bailiffs service of Grozny had found that the Moscow bailiffs service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment, including, inter alia , the involvement of the local police in carrying out the enforcement measures, questioning A.A.’s partner O.S. and instituting a search for A.A. and the child. Furthermore, on 11 March 2015 the District Court had granted the applicant’s claim and found the inaction of the bailiffs service of Grozny to be unlawful. Moreover, the bailiffs had lost the enforcement file and had had to apply to the District Court for a duplicate of the writ of execution. The domestic authorities had become more active only in August 2015 after the application had been communicated to the Russian Government. For almost two years therefore no measures had been taken by the authorities to enforce the judgment of 27 December 2012, and the measures that had been taken since then had shown that the domestic authorities had to some extent handled their responsibility to enforce the judgment in a purely formal way. The applicant noted that the Government had failed to show that the mechanisms aimed at the enforcement of judgments, on which they had relied in their submissions, had been used in the present case. B.     The Court’s assessment 1.     Admissibility 52.     The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     General principles 53.     The Court reiterates that the essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities. There may also be positive obligations inherent in an effective “respect” for family life (see Keegan v. Ireland , 26 May 1994, §   49, Series A no. 290). In cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see, for example, Zawadka v. Poland , no.   48542/99, §   55, 23 June 2005, and Hokkanen v. Finland , 23   September 1994, §   55, Series A no. 299-A), the Court’s case-law has consistently held that this Convention provision includes, among other things, a right for a parent to have measures taken with a view to his or her being reunited with their child, and an obligation on the national authorities to take such measures. 54.     At the same time, the national authorities’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately, and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. Whilst the national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, as should be, more particularly, the best interests of the child and his or her rights under Article 8 of the Convention (see Strumia v. Italy , no. 53377/13, §   111, 23   June 2016; P.P. v. Poland , no.   8677/03, §   82, 8   January 2008; Ignacc olo-Zenide v.   Romania , no.   31679/96, §   96, ECHR 2000 ‑ I; and Hokkanen , cited above, § 53). The adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent (see P.P. v. Poland , cited above, §   83). (b)     Application in the present case 55.     The Court notes that it was not disputed between the parties that the ties between the applicant and her son constituted “family life” for the purposes of Article 8 of the Convention. The Court next notes that the District Court’s judgment of 27   December 2012, as upheld on appeal on 7   May 2013, ordering that A.-M., then aged five, reside with his mother, the applicant, remains unenforced some four years later. Accordingly, it has to be determined whether the national authorities took all the necessary steps to facilitate the enforcement which they could reasonably have been expected to take in the particular circumstances of the case. 56.     The Court observes that after the clarification of the judgment by the District Court, on 21   August 2013 the Bailiffs Service in the Chechen Republic opened enforcement proceedings. Having established that A.A. lived in Moscow, they referred the enforcement file to the Bailiffs Service in Moscow. 57.     Between August and December 2013 the Moscow Bailiffs Service visited A.A.’s presumed place of residence, established that the latter had not lived there since August 2013, that the child had not been attending Moscow kindergarten no. 615 and that there were no data about A.A. in the individual personalised tracking system of the Russian Pension Fund for Moscow and Moscow Region. Afterwards, the enforcement file was returned to the Bailiffs Service in the Chechen Republic. 58.     Subsequently, in March 2014 the Bailiffs Service in the Chechen Republic found that the Moscow Bailiffs Service had failed to take all the measures provided by the law on enforcement proceedings necessary for the enforcement of the judgment of 27   December 2012 and referred the enforcement case back to Moscow. However, the file appears to have been lost somewhere between the Grozny and Moscow Bailiffs Services, resulting in the Grozny Bailiffs Service having to apply to the District Court for a duplicate of the writ of execution (see paragraphs 27-30 above). 59.     The Court observes therefore that in the period between December 2013 and at least February 2015 no measures were taken by the domestic authorities to have the judgment of 27   December 2012 enforced. It notes in this connection the judgment of the District Court of 11   March 2015, finding that the inaction of the Bailiffs Service in Grozny between August 2013 and February 2015 (see paragraph 32 above) was unlawful. The Court further notes that it was not until the case was communicated to the Russian Government in June 2015 that the domestic authorities resumed their efforts to have the judgment of 27   December 2012 enforced (see paragraphs 34-43 above). 60.     The Court is not convinced by the Government’s argument that the failure to enforce the judgment of 27 December 2012 was due entirely to the fact that A.A. was in hiding with the child. In particular, it was not until 2015 that a search for A.A. and the child was instituted by the domestic authorities (see paragraph 33 above), some two years after the opening of the enforcement proceedings. In the Court’s view, had the domestic authorities been more active in carrying out the enforcement measures and had they co-operated better, it could have become clear at an earlier stage that the child’s father was hiding and that the institution of a search for him and the child was necessary. 61.     As regards the Government’s argument about the existence in Russia of effective mechanisms aimed at the enforcement of judgments similar to the one in question, the Court notes that there is nothing in the case file to show that those mechanisms were actually applied in the present case. 62.     The Court notes with concern that the judgment of 27   December 2012 determining the child’s place of residence as being with his mother, the applicant, has remained unenforced for the very long period of about four years, a major part of the child’s life, with all the consequences that might have for his physical and mental well-being. Not once in that period has the applicant been able to see or communicate with her son. 63.     Having regard to the foregoing, and without overlooking the difficulties created by the resistance of the child’s father, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment determining that the child’s place residence was with his mother. 64.     There has therefore been a violation of the applicant’s right to respect for her family life, as guaranteed by Article 8 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 65.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 66.     The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage, referring to the mental anguish and the feeling of uncertainty she experiences as a result of her long separation from her son and the failure of the domestic authorities to enforce the judgment determining the child’s place of residence as being with her. 67.     The Government argued that the applicant’s claim was excessive and had no basis in the Court’s case-law. 68.     The Court considers that the applicant must have suffered, and continues to suffer, profound distress as a result of her inability to enjoy the company of her son. In the light of the circumstances of the case, and making an assessment on an equitable basis as required by Article 41, the Court awards the applicant EUR 12,500 under this head. The Court further holds that the Government should take, as a matter of urgency, all the appropriate measures to ensure respect for the applicant’s family life, duly taking into account the best interests of the child (see Pakhomova, cited above, §   135). B.     Costs and expenses 69.     The applicant also claimed EUR 2,250 for the costs and expenses incurred before the Court. The sum claimed comprised legal research and preparation amounting to EUR 2,070, administrative expenses amounting to EUR   60 and translation expenses of EUR 120. In support of this claim, the applicant submitted a conditional fee agreement with her lawyer and an itemised claim for the fees and expenses incurred. The applicant asked that the award be paid into her representative’s bank account. 70.     The Government argued that the applicant had failed to prove that legal and administrative costs and expenses had been actually incurred. In particular, the legal services agreement between the applicant and her representative provided that those expenses were payable to the representative only in the event of a successful outcome of the proceedings before the Court, which made such an agreement unenforceable against the applicant in Russia. The Government further argued that the applicant had failed to substantiate the translation expenses by submitting relevant copies of receipts or payment orders. 71.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In addition, the Court has found that conditional fee agreements may show, if they are legally enforceable, that the sums claimed are actually payable by the applicant and that it must, as always, assess whether they were reasonably incurred (see Iatridis v. Greece (just satisfaction) [GC], no.   31107/96, §§   54 and 55, ECHR 2000 ‑ XI, with further references, and, more recently, Adam v. Slovakia , no. 68066/12, §   102, 26 July 2016). 72.     The Court notes the Government’s argument to the effect that the legal services agreement between the applicant and her lawyer is not enforceable in Russia. However, that argument was not supported by any reference to a relevant established domestic practice. The Court will therefore proceed on the assumption that the sums claimed are actually payable by the applicant, in accordance with the legal services agreement between her and her lawyer. 73.     Regard being had therefore to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 2,250 for costs and expenses in the proceedings before the Court. The award should be paid into the representative’s bank account, as identified by the applicant. C.     Default interest 74.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 8 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 2,250 (two thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of Mr D. Itslayev; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Luis López Guerra   Deputy Registrar   President