CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 4 mai 2023

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UKRAINE (Application no. 53099/19)         JUDGMENT     STRASBOURG 4 May 2023     This judgment is final but it may be subject to editorial revision.   In the case of Lyakh v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Carlo Ranzoni , President ,   Mattias Guyomar,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   53099/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 October 2019 by an Israeli national, Mr Sergiy Ivanovych Lyakh (“the applicant”), who was born in 1978 and lives in Bat Yam, Israel, and was represented by Ms O. Kobylska, a lawyer practising in Brovary; the decision to give notice of the complaints under Articles 6 and 8 of the Convention regarding the outcome and duration of the domestic proceedings to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr   I.   Lishchyna, of the Ministry of Justice, and to declare the remainder of the application inadmissible; the decision to give priority to the application (Rule 41 of the Rules of Court); the parties’ observations; Having deliberated in private on 30 March 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaints under Articles 6 and 8 of the Convention that the Ukrainian authorities failed to promptly examine and allow his application for the return of his two sons, born in July 2004 and July 2007, to Israel, where they had lived until December 2013, from Ukraine, where they had been living since then, having been initially brought there by the applicant and eventually left with their grandmother. 2 .     The applicant lodged the above-mentioned application with the Ukrainian authorities in February 2017 under the Hague Convention of 25   October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). Following his application, in September 2017 the Khmelnytskyi Regional Department of Justice, acting on his behalf, instituted proceedings in the Khmelnytskyi District Court, which dismissed the application on 20 December 2017, having relied in particular on Articles 12 and 13 of the Hague Convention setting out grounds for refusing the child’s return to the country of his or her habitual residence. Appeals by the applicant against that decision were dismissed by the Khmelnytskyi Regional Court of Appeal on 4 April 2018 and by the Supreme Court on 5   June 2019, which agreed with the Khmelnytskyi District Court’s factual and legal findings, in particular in so far as it concerned the application of the Hague Convention. 3 .     The courts decided that the children could not be considered to have been wrongfully removed to or retained in Ukraine, where they had been living for over three years with the consent of their parents and where they were entirely settled, and that removing them to Israel would be contrary to their best interests. The courts relied on statements by the children, who were heard in person, that they did not wish to return to their father in Israel because they would have language difficulties and had no friends in that country and that they were comfortable living with their grandmother in Ukraine. The courts also relied on a report prepared by a psychologist and written submissions by the children’s mother, confirming the children’s wish to stay with their grandmother in Ukraine. The courts also took into account evidence demonstrating that the children were living in satisfactory material and physical conditions. 4.     According to the applicant, between April 2014 and June 2016 he had been unable to go to Ukraine, as criminal proceedings had been pending against him in Israel. In July 2016 he went to Ukraine and met with his children. His further attempts to have contact with them were allegedly obstructed by their grandmother, with whom they lived. Shortly after his visit to Ukraine in July 2016, the applicant had to return to Israel and stay there for the next eighteen months to perform community work imposed on him in the framework of the above-mentioned criminal proceedings. THE COURT’S ASSESSMENT 5.     Relying on Articles 6 and 8 of the Convention, the applicant complained that the Ukrainian authorities had unreasonably delayed the examination of his application for his children’s return to Israel and that they had failed to ensure his reunion with his children. 6.     The Government contended that the domestic courts had duly examined the applicant’s case and had made a decision in his children’s best interests, in view of the fact that until February 2017 he had not objected to his sons living separately from him in Ukraine; that he had not been deprived of the possibility of contacting them in person; that his sons had settled well in Ukraine; and that they wished to remain in that country. 7.     The Government also contended that the duration of the proceedings had been justified by the need for comprehensive examination of the relevant circumstances and that the parties had been responsible for a delay of around forty days by lodging a procedural application and by failing to attend a hearing. Also, it had taken the applicant about two months, between June and August 2017, to respond to the other parties’ preliminary submissions. The only delay imputable to the authorities had occurred during the examination of the applicant’s appeal on points of law by the Supreme Court and had been due to that court’s heavy workload at the time. 8.     The Court considers that the applicant’s complaints are to be examined solely under Article 8 of the Convention. 9.     Even if it is unclear whether the present case concerns a situation falling within the ambit of the Hague Convention, regard being had to the fact that the domestic courts found that the children could not be considered to have been wrongfully removed to or retained in Ukraine, it should be noted that the domestic courts did not hold that the Hague Convention was inapplicable and moreover relied on its specific provisions when dismissing the applicant’s application (see paragraphs 2 and 3 above). For the Court, the general principles concerning the manner in which the domestic courts should examine cases under the Hague Convention, which have been summarised in, among other authorities, Vilenchik v. Ukraine (no.   21267/14, §§ 47 and 53, 3   October 2017), can therefore be applied to the present case, although its treatment at domestic level might not have required the same degree of urgency as compared to cases involving wrongful removal or retention of children within the meaning of the Hague Convention. 10.     With regard to the outcome of the domestic proceedings in the present case, the Court notes that the relevant judicial decisions were well reasoned and based on cogent and sufficient grounds. The domestic courts conducted a comprehensive examination of the relevant circumstances and took into account the wishes of the applicant’s sons and the psychologist’s opinion on that matter (see paragraph 2 above). The courts gave due consideration to the children’s best interests and adequately correlated them with the other interests at stake. Having regard to the margin of appreciation enjoyed by the authorities in such matters, the Court rejects the applicant’s complaint about the outcome of the domestic proceedings as manifestly ill-founded pursuant to Article   35   §§   3 and 4 of the Convention (compare Vilenchik , cited above, §§   48-52). 11.     As to the applicant’s complaint about the length of those proceedings, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 12.     The Court notes that the domestic proceedings for the return of the applicant’s then 10- and 13-year-old sons lasted more than two years before the courts at three levels and involved delays attributable mainly to the authorities. 13.     More specifically, it took the Khmelnytskyi Regional Department of Justice around seven months to institute the domestic court proceedings following the submission of the applicant’s application (see paragraph 2 above), a delay which is excessively long, given the nature of the application, even if the applicant could be considered responsible for part of that delay and/or additional time was needed for the authorities to clarify certain aspects of the case. 14.     The Court is mindful that a further delay of about one year before the Supreme Court (see paragraph 2 above), which started functioning in December 2017 following the implementation of the judicial reform of September 2016, might have been caused by serious challenges it faced in the examination of appeals on points of law at that time, including a heavy workload (see Gumenyuk and Others v. Ukraine , no.   11423/19, §§ 6-16, 22   July 2021). Nonetheless, the overall length of the present type of proceedings appears to be excessive, even if the six-week time-limit set out in Article 11 of the Hague Convention, which is not mandatory (see, for instance, M.R. and D.R. v. Ukraine , no. 63551/13, § 60, 22 May 2018, with further references), is of no direct relevance for this case. 15.     The applicant did indeed partly contribute to the overall length of the proceedings, but there is no evidence that he was abusing his procedural rights rather than engaging in legitimate procedural activity, and his actions caused no significant delays. 16.     In the light of the above considerations, the Court finds that the authorities failed to examine the case in the most expeditious manner as required by Article   8 of the Convention in this type of dispute (see Vilenchik , cited above, §§ 53-56). 17.     There has therefore been a violation of Article 8. APPLICATION OF ARTICLE 41 OF THE CONVENTION 18.     The applicant claimed 1,000,000 euros (EUR) in respect of non ‑ pecuniary damage. 19.     The Government contended that the claim was unsubstantiated. 20.     The Court awards the applicant EUR   3,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claim. 21.     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 complaint under Article   8 of the Convention regarding the length of the domestic proceedings under the Hague Convention admissible and the remainder of the application inadmissible; 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, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 4 May 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Carlo Ranzoni   Deputy Registrar   President