CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 juin 2021

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display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   THIRD SECTION CASE OF Y.S. AND O.S. v. RUSSIA (Application no. 17665/17)     JUDGMENT Art 8 • Family life • Domestic court failure to genuinely take into account allegations of “grave risk” of harm or exposure to an intolerable situation in returning abducted child under the Hague Convention to a conflict zone in eastern Ukraine • Insufficient reasoning by domestic court falling short of procedural requirements inherent in Art 8   STRASBOURG 15 June 2021   FINAL   11/10/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Y.S. and O.S. v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Dmitry Dedov,   Alena Poláčková,   María Elósegui,   Lorraine Schembri Orland,   Ana Maria Guerra Martins, judges, and Milan Blaško, Section Registrar, Having regard to: the application 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 and Ukrainian national, Y.S. (“the first applicant”), on behalf of herself and her daughter, O.S. (“the second applicant”), who also has both Russian and Ukrainian nationality, on 7 March 2017; the decision to give notice of the application to the Russian Government (“the Government”); the decision to grant the application priority under Rule 41 of the Rules of Court; the decision not to have the applicants’ names disclosed to the public under Rule 47   §   4 of the Rules of Court; the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by the Government of Ukraine and by the second applicant’s father, A.S., who were granted leave to intervene by the President of the Section; Having deliberated in private on 11 May 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the decision of the Russian courts to order the second applicant’s return to Donetsk, Ukraine, under the Hague Convention on the Civil Aspects of International Child Abduction. THE FACTS 2.     The applicants, a mother and daughter, were born in 1976 and 2006 respectively and live in Nakhodka, Primorye Region, Russia. The applicants, who had been granted legal aid, were represented by Mr   A.N.   Laptev, a lawyer practising in Moscow. 3.     The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUMSTANCES OF THE CASE Background information 5.     On 28 April 2001 the first applicant married a Ukrainian national, A.S. The couple settled in Donetsk, Ukraine. 6.     On 5 December 2006 their daughter, the second applicant, was born. 7.     After the birth of the second applicant, relations between the first applicant and A.S. deteriorated, and in 2011 the first applicant left him and the second applicant. She moved to Nakhodka, Primorye Region, in the far east of Russia. The second applicant remained in Donetsk with her father. The applicants maintained contact with each other by telephone and Skype. 8.     On 5 March 2012 the first applicant applied to the Primorye regional department of the Federal Migration Service of Russia (“the FMS”) for a temporary residence permit in Russia. 9.     On 23 April 2012 the FMS granted her request. 10.     On 13 September 2013 the first applicant applied to the FMS for a permanent residence permit in Russia. 11.     On 12 March 2014 the FMS granted her request and issued her with a residence permit valid until 12 March 2019. 12.     In April 2014 armed groups started to take control of State facilities in Donetsk Region and announced the creation of a self-proclaimed entity known as the “Donetsk People’s Republic” (the “DPR”). The situation escalated to an armed conflict between the Ukrainian authorities and the “DPR”. 13.     According to the first applicant, following the outbreak of hostilities in Donetsk Region and the proclamation of the “DPR”, with its centre in Donetsk, she attempted to move the second applicant to a safe place in Russia, but A.S. blocked her attempts. 14.     On 1 December 2015 the FMS issued a certificate attesting to the first applicant’s participation in the State Programme to Assist Voluntary Resettlement of Compatriots Living Abroad to the Russian Federation. The second applicant’s name featured in the “family members” column. 15.     In January 2016 the first applicant arrived in Donetsk and, without obtaining A.S.’s consent or informing him of her intentions, took the second applicant to Nakhodka, where she applied for Russian nationality for herself and the second applicant. In compliance with the requirements of Russian law, her application was accompanied by a document confirming that she had lodged a request with the competent Ukrainian authorities for renunciation of her and her daughter’s Ukrainian nationality. 16.     On 23 June 2016 the Primorye regional department of the Ministry of Internal Affairs granted the first applicant’s application. 17.     The applicants continue to live in Nakhodka. 18.     Meanwhile, on 20   March 2016 A.S. began renting a flat in Kramatorsk, a city some 100 kilometres south of Donetsk, situated outside the conflict zone. Proceedings in Ukraine 19.     On 27 June 2012 the Budyonovskiy District Court of Donetsk dissolved the marriage between the first applicant and A.S. Both parents retained parental authority over the second applicant. 20.     On 20 May 2013 the Budyonovskiy District Court held that the second applicant should continue to live with her father and ordered the first applicant to pay him child maintenance. The judgment was not appealed against and became final on 7 July 2013. 21.     The first applicant lodged an application with the Budyonovskiy District Court, seeking an order that the second applicant live with her in Russia. 22.     On 2 June 2014 the Budyonovskiy District Court ordered that the second applicant continue to live with her father. According to the first applicant, at that time the Budyonovskiy District Court was under the control of the “DPR”. According to the Government, however, it was not until October 2014 that the Ukrainian judicial bodies stopped functioning in certain areas of Donetsk Region. The judgment was not appealed against and became final on 27   June 2014. 23.     According to the first applicant, she did not appeal against the judgment of 2   June 2014, because the Constitution of the “DPR” abolished Ukrainian judicial bodies on the territory of the “DPR”, including the Donetsk Regional Court of Appeal, which was replaced by the Supreme Court of the “DPR”. Proceedings in Russia 24 .     On 23 March 2016 A.S. submitted an application for the second applicant’s return to Ukraine under the Hague Convention (see paragraph 38 below), to which both Russia and Ukraine are parties. The application was submitted to the Ukrainian Central Authority – the Ministry of Justice of Ukraine, which transmitted it to its Russian counterpart. In the application, he gave his address as being in Kramatorsk. 25.     On 6 July 2016 A.S. lodged an application with the Tsentralniy District Court of Khabarovsk (“the District Court”), seeking the second applicant’s return to Ukraine under the Hague Convention. He gave his address as being in Kramatorsk. 26 .     In her objections, the first applicant argued that A.S. had not been effectively exercising his custody rights at the time of the second applicant’s removal, as the child had been living with her maternal grandparents and only occasionally with him. She further claimed that A.S. had neglected the child and mistreated her (by locking her up at home alone, preventing her from going for walks, applying physical force to her, feeding her a bad diet, humiliating her, buying her oversized clothes, and letting her drink beer and use the Internet so that she would not be in his way). The first applicant further argued that the child’s return to Ukraine would put her physical and emotional well-being at risk in view of the ongoing military conflict in Donetsk. Furthermore, the child had already adapted to her new life in Russia and was not willing to go back to Ukraine. The first applicant asked the District Court to examine the case in her absence. 27 .     A.S. argued that the alleged reason for the first applicant’s removal of the child – Donetsk being part of the ongoing military conflict – was far ‑ fetched. It was two years after the outburst of hostilities in Donetsk Region that the first applicant had taken the child away. A.S. further alleged that no military actions had been ongoing in the part of Donetsk where he and the second applicant lived, which he confirmed by photographs and videos. At the time of her removal, the child had been in good health, which was confirmed by her medical records; she had been eating well and had never been subjected to physical force. 28.     At the hearing of 3   August 2016 A.S. was asked to specify whether he lived in Donetsk or Kramatorsk as indicated in his application. He explained that he lived in Donetsk, and that the address in Kramatorsk was his work address. 29.     In the course of the same hearing the prosecutor requested that the hearing be adjourned in order to set up a video link with the first applicant in Nakhodka and, if possible, to hear the child. The prosecutor’s request was granted and the new hearing was scheduled for 16   August 2016. The first applicant was asked to appear and to ensure, if possible, the second applicant’s appearance. 30.     On 16 August 2016 the District Court resumed the examination of the case. The first applicant participated in the hearing by video link from the Nakhodka Town Court. However, she did not ensure the appearance of the second applicant arguing that she feared for her child’s mental health. 31 .     By a judgment of the same day, the District Court established the following facts. A.S., a Ukrainian national, and the first applicant, a Russian and Ukrainian national, were married from 28   April 2001 to 27   June 2012 and had their daughter, the second applicant, on 5   December 2006 in Donetsk, Ukraine. Their daughter had dual nationality. She was born and lived in Donetsk, where she had her registered place of residence and where she attended school and medical facilities. All issues related to the child’s education and medical assistance were dealt with entirely by A.S. Before her removal to Russia, she was living with her father in Donetsk and had no other place of residence. On 20   May 2013 the Budyonovskiy District Court of Donetsk held that the second applicant should live with her father, and the first applicant was ordered to pay him child maintenance. On 2 June 2014 the same court again held that the second applicant should live with A.S., and the first applicant’s request for the court to determine the second applicant’s place of residence as being with her in Russia was dismissed. Contrary to the provisions of Ukrainian law (Articles 141 and 161 of the Family Code of Ukraine) and the Hague Convention, the first applicant took the decision to change the second applicant’s habitual place of residence without A.S.’s consent, wrongfully taking the child from Ukraine to Russia and retaining her there. No circumstances capable of constituting an exception under Articles   13 and 20 of the Hague Convention to the general obligation to secure the child’s return were detected by the District Court. The first applicant’s arguments that A.S. had not actually been exercising his custody rights at the time of the second applicant’s removal and had been mistreating and neglecting her were found to be unsupported and disproved by the evidence submitted by A.S. (certificates, receipts, photographs and videos). The first applicant’s arguments that there was a “grave risk” that the second applicant’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation owing to the military conflict ongoing in Ukraine were also found to be unsupported by any objective and reliable evidence. The District Court considered 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. That risk was not individual to the child, but rather a general consequence of living in a conflict zone. Besides, although the military conflict had been ongoing in Donetsk since April   2014, it was not until 2016 that the first applicant took the second applicant to Russia. She did not provide the District Court with any evidence that the alleged risk could not be addressed by the competent Ukrainian authorities. Nor did she provide proof that the second applicant’s removal from her habitual place of residence was the only possible way of protecting her from the alleged risk. The District Court further refused to accept the first applicant’s argument about the child’s unwillingness to return to Ukraine. It took into account a report on an inspection of the first applicant’s living conditions in Nakhodka prepared on 21 July 2016 by the chief inspector of the local childcare authority, which stated, amongst other things, that the second applicant was afraid to return to Donetsk because she feared gunfire and exploding bombs, and that she preferred to stay with the first applicant in Russia. The District Court considered, however, that the report in question was more relevant to the determination of the issue of the child’s residence, which was to be decided by the courts of her habitual place of residence. In view of the above, the District Court granted A.S.’s application and ordered the second applicant’s return to the place of her habitual residence in Ukraine – Donetsk. 32.     The first applicant appealed, claiming that she had not been stripped of her parental authority or banned by any judicial decision from taking her daughter to Russia. She further indicated that the psychological climate at A.S.’s place of residence had not been favourable for the child and that military actions were being carried out in Donetsk, which would put the second applicant’s life and health at risk in the event of her return there. She further indicated that both herself and the child were Russian nationals and no longer had Ukrainian nationality, and that the child had been unwilling to return to her father. 33 .     During the examination of the case on appeal A.S. submitted that he could ensure the second applicant’s safety upon her return to Donetsk, and could also move his home address as his work permitted him to do so. He further submitted that no military actions had been underway in Donetsk and that his flat in Donetsk was situated 25 km from the airport of Donetsk, which had been the scene of heavy fighting between separatist forces affiliated with the “DPR” and Ukrainian military in the period between September 2014 and January 2015. 34 .     On 12 October 2016 the Khabarovsk Regional Court (“the Regional Court”) endorsed the reasoning of the judgment of 16   August 2016 and upheld it on appeal, following which it became enforceable. The Regional Court held, in particular, that the first applicant’s argument to the effect that the child’s return to her father in Donetsk would put her life and health at risk due to the military actions there had not been supported by admissible and relevant evidence. The first applicant’s request to participate in the appeal hearing by video link was rejected owing to a lack of technical equipment. 35.     On 5 May 2017 a judge of the Regional Court refused to refer the case for consideration by the Presidium of that court. 36.     On 29 September 2017 a judge of the Supreme Court of Russia refused to refer the case for consideration by its Civil Division. 37.     Meanwhile, on 7 March 2017 the applicants lodged their application before the Court. On 8 March 2017 the Court decided to indicate to the Government of Russia, under Rule 39 of the Rules of Court, that the applicants’ request to suspend the enforcement of the second applicant’s return to Donetsk was granted. RELEVANT INTERNATIONAL LAW AND PRACTICE The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 38 .     The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Ukraine on 1 June 2012. It provides, in so far as relevant, as follows: Article 1 “The objects of the present Convention are – a)     to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b)     to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ...” Article 3 “The removal or the retention of a child is to be considered wrongful where – a)     it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b)     at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 8 “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. ...” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a)     the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b)     there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 14 “In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” Explanatory Report to the Hague Convention, Part II of the Guide to Good Practice under the Hague Convention 39.     For a summary of the relevant parts of the Explanatory Report to the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982, and Part   II of the Guide to Good Practice under the Hague Convention published by HCCH in 2003, see X v. Latvia ([GC] no. 27853/09, §§   35-36, ECHR   2013). Part VI of the Guide to Good Practice under the Hague Convention – Article 13 (1) (b) of the Hague Convention 40 .     Part VI of the Guide to Good Practice under the Hague Convention published by the HCCH in 2020, provides as follows: “29.     The grave risk exception is based on “the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation. ... 34.     The term "grave" qualifies the risk and not the harm to the child. It indicates that the risk must be real and reach such a level of seriousness to be characterised as "grave". As for the level of harm, it must amount to an “intolerable situation”, that is, a situation that an individual child should not be expected to tolerate. The relative level of risk necessary to constitute a grave risk may vary, however, depending on the nature and seriousness of the potential harm to the child. 35.     The wording of Article 13(1)(b) also indicates that the exception is “forward ‑ looking” in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk. ... 40.     As a first step, the court should consider whether the assertions are of such a nature, and of sufficient detail and substance, that they could constitute a grave risk. Broad or general assertions are very unlikely to be sufficient. 41.     If it proceeds to the second step, the court determines whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return / information gathered, and by taking into account the evidence / information pertaining to protective measures available in the State of habitual residence. This means that even where the court determines that there is sufficient evidence or information demonstrating elements of potential harm or of an intolerable situation, it must nevertheless duly consider the circumstances as a whole, including whether adequate measures of protection are available or might need to be put in place to protect the child from the grave risk of such harm or intolerable situation, when evaluating whether the grave risk exception has been established. 42.     Once this evaluation is made: –     where the court is not satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it orders the return of the child; –     where the court is satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it is not bound to order the return of the child, which means that it is within the court’s discretion to order return of the child nonetheless. ... 61.     The grave risk analysis associated with the circumstances in the State of habitual residence must focus on the gravity of the political, economic or security situation and its impact on the individual child, and on whether the level of such impact is sufficient to engage the grave risk exception, rather than on the political, economic or security situation in the State generally. Assertions of a serious security, political or economic situation in the State of habitual residence are therefore generally not sufficient to trigger the grave risk exception. Similarly, (isolated) violent incidents in an unsettled political environment will typically not amount to grave risk. Even where the facts asserted are of such a nature that they could constitute a grave risk, the court must still determine whether protective measures could address the risk and, if so, the court would then be bound to order the return of the child. ... 91.     In line with the relevant laws and procedures and where it is deemed appropriate in evaluating assertions of grave risk, courts can seek additional information through Central Authorities in order to better understand the legal framework or child protection system in place in the State of habitual residence, or to clarify certain assertions of facts. Courts may be able also to ask specifically for available information regarding the social background of the child through the Central Authorities. ... 95.     As part of their responsibilities, Central Authorities also have a duty to cooperate with each other and to promote cooperation among internal authorities to secure the prompt return of the child (Art. 7(1)). In cases where the Article 13(1)(b) exception is raised, such cooperation may notably allow the Central Authorities to respond quickly to requests from the court to provide information on the availability of protective measures to protect the child from the grave risk, subject to the relevant laws. ...” Application and Implementation by Ukraine of the Obligations under the Hague Convention on the Territory of “the DPR” 41 .     On 16 October 2015 Ukraine stated that its application and implementation of the obligations under the Hague Convention on the territory of the “DPR” was limited and not guaranteed as from 20   February 2014 onwards (accessible at: https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=974&disp=resdn ). RELEVANT DOMESTIC LAW Code of Civil Procedure of the Russian Federation 42 .     The procedure for the examination of applications for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with international treaties to which the Russian Federation is party, is governed by Chapter 22.2 of the Code of Civil Procedure. 43.     The Code provides that an application for return must be submitted to a court by a parent or other individual who considers that his or her custody or access rights have been violated, or by a prosecutor. The application must be submitted to the Tsentralniy District Court of Khabarovsk if the child is within the territory of the Far Eastern Federal Circuit (Article   244.11). 44.     The application for return is examined by the court with the mandatory participation of a prosecutor and the relevant childcare authority, within forty-two days of receipt, including the time for preparation for the hearing and the drawing-up of the judgment (Article 244.15). 45.     The judgment taken in a case concerning the return of a child unlawfully removed to, or retained in, the Russian Federation must specify the reasons for the need to return the child to the State of his or her habitual residence, in accordance with international treaties to which the Russian Federation is party, or the reasons for refusing the application for return, in accordance with international treaties to which the Russian Federation is party (Article 244.16). 46.     The judgment may be appealed against within ten days. The appeal is examined by the appellate court within one month of receipt (Article   244.17). Family Code of the Russian Federation 47 .     A child is entitled to express her or his opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57). OTHER RELEVANT INTERNATIONAL MATERIAL Situation in Donetsk in 2016 48 .     The Council of Europe Parliamentary Assembly’s Resolution 2133   (2016), entitled “Legal remedies for human rights violations on the Ukrainian territories outside the control of the Ukrainian authorities”, was adopted on 12   October 2016. It reads as follows: “6.     ... in the conflict zone in the Donbas region, serious human rights violations have occurred, and are still occurring, as documented by numerous reports from, inter alia , the Council of Europe’s Commissioner for Human Rights, the United Nations Human Rights Monitoring Mission in Ukraine, the Special Monitoring Mission to Ukraine of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR), and leading Ukrainian and international non-governmental human rights organisations. These violations include extrajudicial executions, enforced disappearances, torture and inhuman and degrading treatment, unlawful detentions and disproportionate restrictions on the freedom of expression and freedom of information. 7.     Victims of human rights violations have no effective internal legal remedies at their disposal: 7.1.     As far as the residents of the “DPR” ... are concerned, local “courts” lack legitimacy, independence and professionalism; the Ukrainian courts in the neighbouring government-controlled areas, to which jurisdiction for the non ‑ controlled areas was transferred by Ukraine, are difficult to reach, cannot access files left behind in the “DPR” ... and cannot ensure the execution of their judgments in these territories; ... 10.     In the conflict zone in the Donbas region, the civilian population ... were subjected to violations of their rights to life and physical integrity and to the free enjoyment of property, as a result of war crimes and crimes against humanity including the indiscriminate or even intentional shelling of civilian areas, sometimes provoked by the stationing of weapons in close proximity. 11.     Numerous inhabitants of the conflict zone in the Donbas, on both sides of the contact line, still suffer on a daily basis from numerous violations of the ceasefire that was agreed in Minsk. ... The inhabitants also suffer from the prevailing climate of impunity and general lawlessness due to the absence of legitimate, functioning State institutions, and in particular access to justice in line with Article 6 of the European Convention on Human Rights ...” 49.     The report of the United Nations Human Rights Monitoring Mission in Ukraine (“the HRMMU”) on the human rights situation in Ukraine covering the period from August to November 2016 states: “4.     Between 16 August and 15 November 2016, OHCHR recorded 164   conflict ‑ related civilian casualties in Ukraine. Due to the renewed commitment to the ceasefire on 1   September, there was a 13 per cent decrease compared to the previous reporting period. In October, OHCHR recorded eight times more civilian casualties in armed group-controlled territories than in Government-controlled areas of the conflict zone, indicating that civilians in territories controlled by the armed groups continue to be particularly at risk of injury and death. OHCHR interviews with families of killed and injured civilians reveal the devastation and harm caused by the ongoing armed conflict in Donetsk and Luhansk region. The reported continued flow of weapons and ammunition to the conflict area, which results in serious human rights violations and abuses and violations of international humanitarian law, compounds their suffering. In total, from mid-April 2014 to 15 November 2016, OHCHR recorded 32,453 casualties, among Ukrainian armed forces, civilians and members of the armed groups. This includes 9,733 people killed and 22,720 injured. ...” 50.     The Organisation for Security and Co-operation in Europe (“the OSCE”) Special Monitoring Mission to Ukraine (“the SMM”) published a thematic report entitled “Civilian casualties in Eastern Ukraine 2016”, which states: “Between 1 January and 31 December 2016 the SMM documented 442 cases of civilian casualties in the areas affected by the conflict in eastern Ukraine: 88 civilians were killed ... and 354 were injured ... The vast majority of casualties were attributed to shelling, including from artillery and mortars with large caliber ... Incidents leading to civilian casualties mostly occurred in Donetsk region where the Mission confirmed 355 cases: 68 killed and 287 injured. ... On 5 September 2014, the Protocol agreed in Minsk called for an immediate cessation of the use of weapons. More than two years later the adherence to ceasefire is not respected and civilian lives are constantly under threat ...” 51.     The relevant part of the   “Amnesty International Report 2016/17 – Ukraine”, states: “Sporadic fighting and exchange of fire between government and Russia-backed separatist forces continued. Gunfire, shelling and unexploded ordnance continued to cause civilian deaths and injuries. The UN Human Rights Monitoring Mission estimated that there were more than 9,700 conflict-related deaths, of which around 2,000 were civilians, and at least 22,500 conflict-related injuries since the beginning of the conflict in 2014.” 52 .     The relevant part of Human Rights Watch’s “World Report 2017” states: “The 2015 Minsk II Agreements significantly reduced hostilities, but frequent skirmishes and exchanges of artillery fire continued during the year. According to the [HRMMU], mortar, rocket, and artillery attacks between April 2014 and May 2016 killed over 9,000 people and injured more than 21,000—including civilians and combatants on all sides—in Donetsk and Luhansk regions. The HRMMU reported a 66 percent increase in civilian casualties from May to August compared to earlier in 2016, and documented 28 civilian deaths in the summer, many of which resulted from shelling and landmines.” Subsequent Evolvement of the Situation in Donetsk 53 .     The report of the HRMMU on the human rights situation in Ukraine covering the period from 1 August to 31 October 2020 states: “From 1 August to 31 October 2020, HRMMU recorded no civilian casualties resulting from active hostilities, nor damage to civilian objects ... The welcomed reduction in civilian casualties can be attributed to the introduction of a strengthened ceasefire adopted by the Trilateral Contact Group in Minsk, which took effect from 27   July. However, civilian casualties resulting from mine-related incidents and handling of explosive remnants of war continued. From 1 August to 31 October, HRMMU recorded 24 such casualties: two killed (both men) and 22 injured (16 men, four boys and two women).” 54 .     The OSCE SMM’s thematic report “Civilian casualties in the conflict-affected regions of Eastern Ukraine”, covering the period between 1   January 2017 and 15 September 2020, states: “Between 1 January 2017 and 15 September 2020, the SMM corroborated 946   civilian casualties, of which 161 were fatalities. In 2017, the number of confirmed casualties rose from 442 in 2016 to 486. While the number of casualties has declined every year in the reporting period, so far in 2020 (January to September) the Mission has confirmed 74 civilian casualties. ... The vast majority of civilian casualties were due to shelling (518, including 66   fatalities) ... While shelling caused the most civilian injuries and fatalities combined, it is important to note that the majority of civilian fatalities in 2017-2019 were caused by mines and other explosive objects. ... Of the 946 civilian casualties corroborated during the reporting period, 750 occurred in Donetsk region ... During the reporting period, the SMM has corroborated 100 child casualties (73   boys and 27 girls), with 43 casualties (21 boys and 22 girls) due to shelling. The majority of the shelling incidents where children were casualties occurred while they were in or near their homes or homes of family members with whom they were staying. ... While the Mission recorded more than 400,000 ceasefire violations in Donetsk and Luhansk regions in 2017, the number of ceasefire violations steadily declined in subsequent years to some 130,000 ceasefire violations recorded in the first eight and a half months of 2020. The reduction in ceasefire violations has coincided with the reduction of civilian casualties due to shelling and SALW [small arms and light weapons]-fire. On 22 July 2020, agreement was reached in the TCG [Trilateral Contact Group] on additional measures to strengthen the ceasefire. These measures took effect at 00:01 on 27 July. Since then, the Mission has recorded a significant reduction in the number of ceasefire violations along the contact line. In the 51 days between 27 July and 15   September, the Mission recorded in total just over 1,000 ceasefire violations and received only one report of a civilian casualty due to shelling or small-arms fire ... Despite the reduction in the reports of civilian casualties due to shelling and SALW ‑ fire, between 27 July and 15 September, the Mission has confirmed and reported eight casualties, of which one was a fatality, due to mines and other explosive objects. This highlights the fact that even if the number of cease-fire violations decreases, mines and other explosive objects still pose a serious threat to the lives of civilians. ... The highest concentration of civilian casualties occurred in the settlements around Avdiivka and Yasynuvata and parts of Donetsk city (northern, central, and eastern areas), with 171 civilian casualties (20 killed and 151 injured) ...” 55 .     The relevant part of Human Rights Watch’s “World Report 2020” states: “2019 saw a significant decrease in civilian casualties. The leading causes were shelling by artillery and mortars, fire from light weapons, landmines, and explosive remnants of war. Between January and May 2019, attacks on schools on both sides of the contact line tripled compared with the same period in 2018. Throughout six years of conflict, 147   children were killed.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56.     The applicants complained that the Russian courts’ decision to return the second applicant to Donetsk under the Hague Convention had violated their right to respect for their family life. They further complained that they had not been granted a fair decision-making process in the above proceedings. The complaints fall to be examined under Article   8 of the Convention, which in its relevant part reads as follows: “1.     Everyone has the right to respect for his ... 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.” Admissibility 57.     The Government did not dispute that the first applicant had standing to lodge an application on behalf of her daughter. Given that the first applicant has parental authority over the second applicant, the Court finds that she has standing to act on her behalf (see, most recently, Petrov and X v. Russia , no. 23608/16, §   83, 23   October 2018, with further references). 58.     The Government considered that the complaints were manifestly ill ‑ founded for the reasons set out below (see paragraphs 66-70). 59.     The Court does not consider that these complaints are manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits The parties’ submissions (a)    The applicants 60 .     The applicants submitted that the judgment of the District Court of 16   August 2016 ordering the second applicant’s return to Donetsk had amounted to an interference with their right to respect for their family life under Article 8 of the Convention. They argued that the interference in question had not been in accordance with the law and had not been “necessary” within the meaning of Article 8 of the Convention. Firstly, they raised the issue of the applicability of Ukrainian law on the territory of the “DPR”, from where the child had been removed. Secondly, they noted that the text of the District Court’s judgment did not refer to any specific provisions of Ukrainian law obliging a parent travelling outside Ukraine with a child to obtain consent from the other parent. Even if such a provision existed, the applicants argued that by removing the second applicant from Donetsk to Russia the first applicant had complied with her obligation as a parent to protect her child from the dangers related to living in a military conflict zone. 61.     The applicants went on to argue that the Hague Convention was not applicable in the circumstances of the present case. In this connection, they referred to the declaration made by the Ukrainian authorities on 16   October 2015 (see paragraph 41 above). The Russian authorities’ reference to their non-acceptance of the above declaration by the Ukrainian authorities did not in any way affect the fact that the Ukrainian authorities had no control over the territory of the “DPR” and, accordingly, could not guarantee the applicability of the