CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 27 février 2020

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AZERBAIJAN (Application no. 76251/11)             JUDGMENT   STRASBOURG 27 February 2020   This judgment is final but it may be subject to editorial revision. In the case of Abushov v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   André Potocki, President,   Lәtif Hüseynov,   Anja Seibert-Fohr, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 4 February 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 76251/11) against the Republic of Azerbaijan lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Rasim Abush oglu Abushov ( Rasim Abuş oğlu Abuşov - “the applicant”), on 21 November 2011. 2.     The applicant was represented by Mr K. Bagirov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. 3.     On 30   June 2015 notice of the application was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1971 and lives in Kurdamir. 5.     On 10 February 2000 the applicant married G. They had two children, a daughter born in 2001 and a son born in 2004. 6.     In 2007 the applicant and his wife separated. On 11 September 2009 the Kurdamir District Court adopted a divorce judgment, decided that the children should stay with G. and ordered the applicant to pay alimony of 20   Azerbaijani manats (AZN) for each child. 7.     After the divorce, the applicant’s son lived with his mother in her parents’ house in the Kurdamir District, while his daughter lived with G.’s grandmother in Bagman, a village in the Kurdamir District. It appears from the documents submitted to the Court that at the time of the events, the applicant lived and worked mainly in Smolensk (Russia), but each year during his several months’ return back to Azerbaijan, he lived in the village of Khirdapay in the Kurdamir District, which was 35 km away from Bagman. 8.     G. refused that the applicant have contact with the children. Consequently, the applicant and his mother lodged a lawsuit against G., arguing that she was impeding their communication with the children and requesting the court to allow the applicant, his mother and their close relatives to have contact with the children. On 4 May 2010 the Kurdamir District Court granted the applicant’s claims and ordered that the applicant, his mother and close relatives meet with the children every Saturday and Sunday of the first, second and fourth weeks of each month. 9.     G. lodged an appeal against this judgment. During the hearing before the appellate court, she submitted that the applicant, who lived in Russia at that time, was not interested in their children and did not assist her in their upbringing. In her appeal, she also submitted that the applicant had ill ‑ treated her and their son. Furthermore, she objected to the children’s contacts with other relatives. On 27   July 2010 the Shirvan Court of Appeal partly granted her appeal and quashed the first-instance court’s judgment to the extent that it allowed the close relatives to have communication with the children, because no relative had authorised the applicant or his mother to lodge a complaint on their behalf. The Court of Appeal also found it necessary to establish certain times for the applicant’s meeting with his children in order to minimise any future tension. It allowed the applicant and his mother to meet the children from 11:00 a.m. to 1:00 p.m. every Saturday and Sunday of the first, second and fourth weeks of each month. 10.     The applicant lodged a cassation appeal. He argued in his appeal that, taking into account the distance between Bagman and Khirdapay, the two-hour time-limit for their meeting was insufficient and made it impossible for him to have any meaningful contact with his children. On 14   October 2011 the Supreme Court delivered a final decision dismissing the applicant’s cassation appeal without addressing or mentioning the abovementioned argument. RELEVANT DOMESTIC LAW 11.     The Family Code provides that, when parents separate, a child’s residence arrangements are to be determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are to be determined by a court order, having regard to the child’s best interests, his or her opinion on the matter and other relevant factors. These include the child’s attachment to siblings and each parent, the parents’ moral and other personal qualities, the child’s age, and the assurance that proper conditions are met for the child’s upbringing and development (Article   60.4). 12.     The parent not living with the child is entitled to maintain contact with him or her and be involved in his or her upbringing and education. The parent living with the child may not hinder his or her contact with the other parent, unless it harms the child’s physical or psychological health or moral development. The parents may reach a written agreement on the manner in which the parent not living with the child is to exercise his or her parental authority. If the parents are unable to come to an agreement, any dispute between them is to be decided by a court following an application by one or both parents, with the participation of the childcare authorities. If a parent does not comply with the court decision, measures provided for by civil ‑ procedure law may be taken against him or her. If that parent deliberately refuses to comply with the court decision, following an application by the parent not living with the child, a court may allow the latter residence, taking into account the child’s interests and his or her opinion (Article 61). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 13.     Relying on Articles 6 and 8 of the Convention, the applicant complained that the Supreme Court had failed to address his arguments against the restricted time schedule for meeting his children and that this resulted in the violation of his right to respect for his family life. In the instant case the Court considers that since the main legal issue raised by this application concerns the applicant’s right to respect for his family life, its examination should exclusively address the issue raised under Article 8 of the Convention, and that therefore it is not necessary to examine whether there has also been a violation of Article 6 (compare Cristescu v. Romania , no. 13589/07, § 50, 10   January 2012). Article 8 of the Convention reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” Admissibility 14.     The Court notes that this complaint 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. Merits The parties’ arguments 15.     The applicant submitted that when deciding on the schedule for the contact between him and his children, the domestic courts had ignored his argument concerning the difficulties owing to the distance between the two villages, thus making his right to communicate with his children illusory. This meant that a considerable amount of time would be spent on the road and he would be deprived of the opportunity to spend quality time with his children. The applicant further submitted that when deciding on the contact issue the domestic courts had failed to take into account the children’s best interests. Lastly, in response to the Government’s submissions (see paragraph 16 below) the applicant noted that he went to Russia for seasonal work but had social ties in Azerbaijan. The fact that he worked seasonally in Russia could not be a basis for restricting his rights to communicate with his children. 16.     The Government submitted that the applicant had never participated in the hearings before the domestic courts due to the fact that he lived in Smolensk (Russia). They argued that the applicant was not himself interested in seeing his children since he lived abroad and brought the court proceedings in order to ensure his relatives’ contact with his children. 17.     The Government further argued that the applicant was not interested in maintaining good relations with his children and that his wife had submitted at the court hearing that the applicant had beaten her and their son on several occasions. Referring to the general principles established in the Court’s case-law concerning the best interests of the child the Government further submitted that the domestic courts’ procedural approach was reasonable in the circumstances of the present case and provided sufficient material to reach a reasoned decision on the question of restriction of time. The Court’s assessment 18.     The applicable general principles under Article 8 of the Convention have been stated, inter alia, in cases of Gluhaković v. Croatia (no.   21188/09, §§ 54-57, 12 April 2011), Cristescu (cited above, §§ 55-57) and Kacper Nowakowski v. Poland (no. 32407/13, §§ 70-75, 10   January 2017). 19.     The Court notes that it is common ground that the tie between the applicant and his children falls within the scope of “ family life” within the meaning of Article 8 of the Convention. 20.     In the present case, the Court notes that the applicant was granted, by way of judicial decisions, the right to regular contact with his children, who lived with their mother and her grandmother respectively. Initially, the meetings were ordered to take place every Saturday and Sunday of the first, second and fourth weeks of each month by the first-instance court without specifying the times. On 27   July   2010 the appellate court ordered that meetings should take place from 11:00   a.m. to 1:00 p.m. every Saturday and Sunday of the first, second and fourth weeks of each month. 21.     Thus, the applicant’s right to see his children at regular intervals was never in dispute for the national courts and they all agreed that the applicant should be able to enjoy that right. However, in view of the principle that the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective, the national court should have also ensured that the applicant was able to exercise his right to contact with his children effectively (see Gluhaković, cited above, § 62). 22.     In this context, in his cassation appeal the applicant submitted that the distance between his village and the village where his children resided was 30-40 kilometers and a considerable part of the two-hour meetings would be mainly spent on the road. In view of this difficulty, the applicant submitted that two hours were not enough for meeting his children and that this made it impossible for him to have any meaningful contact with his children. However, despite the importance of the issue before it, the Supreme Court did not address this argument, merely holding that the appellate court’s conclusion had been in accordance with the applicable legislation. 23.     The Court further cannot accept the Government’s argument, based on the alleged ill ‑ treatment by the applicant of his former wife and their son, that the domestic courts’ approach was reasonable and in line with the children’s best interests. The applicant’s former wife had raised this allegation in her appeal to the Shirvan Court of Appeal. However, the domestic courts neither addressed this allegation nor made any reference to it in their decisions. Indeed, no specific assessment of the children’s best interests was made by the domestic courts when deciding on the contact issue. 24.     As to the to the Government’s argument that the applicant did not have any interest in maintaining contact with his children since he lived in Smolensk and had never personally participated in the court proceedings, the Court observes that this question was of no relevance to the domestic court decisions in the present case. 25     In such circumstances, the Court concludes that the domestic courts’ handling of the applicant’s complaint fell short of the State’s positive obligation (compare Mustafa and Armağan Akın v. Turkey , no. 4694/03, §   30, 6   April 2010). 26.     There has accordingly been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 27.     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.” Damage 28.     The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 29.     The Government submitted that the applicant’s claim was unsubstantiated and unreasonable. 30.     The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated solely by the finding of the violation of Article 8 of the Convention. Ruling on an equitable basis, the Court awards him the sum of EUR 1,200 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 31.     The applicant also claimed EUR 522 for translation costs. 32.     The Government submitted that the amounts claimed for   translation costs   had not been necessarily incurred and asked the Court to apply a strict approach in respect of the applicant’s claims. 33.     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 the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 522 covering costs under all heads. Default interest 34.     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, Declares the application admissible; Holds that there has been a violation of Article 8 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent state at the rate applicable at the date of settlement: (i)         EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 522 (five hundred and twenty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 February 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   André Potocki Deputy Registrar   President