CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 septembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt }     Communicated on 10 September 2015   FIRST SECTION Application no. 54366/08 Zaven Volodyayevich NALTAKYAN against Russia lodged on 10 October 2008 STATEMENT OF FACTS The applicant, Mr Zaven Volodyayevich Naltakyan, is a Russian national, who was born in 1972 and lives in Miramas. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is married to Ms I. Kh. The latter, as appears, kept her maiden surname, Kh., after she married the applicant. They are raising together their four children – a daughter, M.N., born in 1996, and three sons, T. N., born in 1997, V. N., born in 2005 and Va. N., born in 2007. At the time of the events described below the applicant and his family lived in the village of Pyatigorskiy in the Stavropol Region of Russia. 1.     Birth of the applicant’s son V. On 2 September 2004 the applicant brought his wife, who he believed was approximately six months pregnant at that moment, to the Pyatigorsk maternity hospital, as she was showing symptoms of premature labour. Later that day Ms I. Kh. gave birth to a baby boy, V. It was the third child in her and the applicant’s family at that time. As Ms I. Kh. later alleged, the doctors had dissuaded her from having a look at the baby and stated that, born long before term, he was very weak and had very poor prospects of survival. Being in a state of shock and distress, the applicant’s wife decided to give the baby up in the maternity hospital. On 3 September 2004 Ms I. Kh. wrote and signed a statement in which she renounced her parental authority over her newly born son and indicated that she would not object to his subsequent adoption ( заявление об отказе от ребенка и согласии на его усыновление ). She further wrote a similar statement on the applicant’s behalf, having changed her hand-writing and having imitated his signature. Copies of the statements have not been submitted to the Court. On the same day the applicant came to see his wife in the maternity. According to him, the doctors informed him that Ms I. Kh. had “miscarried”. On her part, Ms I. Kh. explained to him that she had given a premature birth to a baby boy, who had died shortly after. The applicant and Ms I. Kh. then left the maternity. It does not appear that either the applicant or his wife saw the newborn at any moment. In reality, the boy survived and remained under the care of the maternity hospital. On 28 September 2004 a competent authority issued a birth certificate for V., where the applicant and Ms I. Kh. were indicated respectively as his father and mother. V.’s patronymic, Z., reflected the applicant’s first name, whereas V.’s surname, Kh., corresponded to the maiden surname of his mother, I. Kh. On 18 October 2004, by virtue of a local authority’s decision, V. was transferred to an infant foster home. 2.     V.’s adoption by Mr S. and Ms Ch. At some point in July 2005 Mr S. and Ms Ch. visited the orphanage seeking a child for adoption. When they saw V., they immediately decided to adopt him. By a decision of a competent local authority dated 26 July 2005 Ms Ch. was appointed V.’s legal guardian. The decision stated, inter alia , that V. had been abandoned by his parents, who, each in a separate written statement of 3 September 2004, had expressed their consent to his potential adoption. On 27 July 2005 Mr S. and Ms Ch. took V. from the foster home and brought him home at their address in the town of Zheleznovodsk in the Stavropol Region of Russia, where the boy has been living with them since then. On 4 April 2006 the Zheleznovodsk Town Court examined an application for V.’s adoption lodged by Mr S. and Ms Ch. The court noted that V.’s had been given up by his mother in the Pyatigorsk maternity hospital, that since July 2005 the boy had been living with Mr S. and Ms   Ch., the latter being his legal guardian, that the materials of the case contained V.’s parents’ written statements renouncing their authority over the boy and expressing their consent to his adoption, and that a local childcare authority had carried out a relevant check and had given a favourable opinion to V.’s adoption by Mr S. and Ms   Ch. The court thus granted them the full adoption of V. and ordered that V.’s surname and patronymic be changed to reflect Ms S.’ surname and first name respectively. It also ordered that V.’s place of birth be changed to that of Zheleznovodsk. This judgment was not appealed against and became final on 15 April 2006. 3.     The applicant’s attempts to obtain information about V. and further developments According to the applicant, on 10 March 2006 he received a copy of Ms   Ch.’s request for depriving him of his parental authority over V. lodged in the context of the proceedings for V.’s adoption by Mr S. and Ms Ch. A   copy of a statement allegedly written and signed by him on 3 September 2004 was also enclosed. According to the applicant, he never consented either orally or in writing to renounce his parental authority over V. or to his adoption and, until that moment, he remained unaware of the fact that his son was alive. On 12 March 2006 the applicant, in his submission, arrived at a district court in an attempt to obtain information about V. There he was allegedly told that Ms Ch. had withdrawn her request. He then found her and Mr S. at the address of their domicile, and they confirmed that his son V. was alive and stated that they were his legal guardians. According to the applicant, Mr   S. and Ms Ch. showed him the boy but strongly opposed all his attempts to establish any contacts with V. On 17 May 2006 the applicant requested the Zheleznovodsk Custody and Guardianship Agency ( отдел опеки и попечительства г. Железноводска ) to revoke Ms Ch.’s guardianship over V. and order V.’s transfer to his family. The Agency refused the request, with reference to the judgment of Zheleznovodsk Town Court of 4 April 2006 approving the adoption of V. by Mr S. and Ms Ch. On 18 May 2006 the applicant complained to the Zheleznovodsk prosecutor’s office. He stated that he had been unware that his son was alive and had been admitted to a foster home after his birth, and that he had never made any written statements renouncing his parental authority over the boy or consenting to his adoption. The applicant then described his unsuccessful attempts to recover his son and requested the prosecutor’s office to carry out a check into the fact of falsification of his written statement of 3 September 2004, to lodge a request on his behalf for re-opening of the proceedings on V.’s adoption and review of the relevant judgment due to newly discovered circumstances, and to institute on his behalf court proceedings for restoration of original information about V.’s parents, date and place of birth. In the context of a check instituted by the Zheleznovodsk prosecutor’s office at the applicant’s request, a handwriting expert examination had been ordered and carried out. In a report of 27 May 2006 the expert confirmed that the statement of 3 September 2004 had been written and signed by a third person and not by the applicant. These materials were transferred to the Pyatigorsk Office of the Interior for a further check. The latter established that it was the applicant’s wife, Ms I. Kh., who had written the statement of 3 September 2004 instead of him and forged his signature. On 30 June 2006 the Pyatigorsk Office of the Interior decided not to institute criminal proceedings against Ms I. Kh. for “forging of an official document”, as she had written the impugned document immediately after childbirth, and therefore being in a vulnerable state, particularly in view of the doctors’ statement to the effect that the boy had been very weak and would not survive. The decision also stated that the document in question was “a personal statement” rather than an “official document issued by a State body or authority”. 4.     Refusal of the application of Mr S. and Ms   Ch. for V.’s adoption and other developments On 9 June 2006 the Zheleznovodsk prosecutor’s office applied, on the applicant’s behalf, to the Zheleznovodsk Town Court with a view to having the proceedings on V.’s adoption by Mr S. and Ms Ch. re-opened and the relevant judgment reviewed. As appears, the court proceedings were then re-opened and the Zheleznovodsk Town Court examined anew an application of Mr S. and Ms   Ch. for V.’s adoption. In a judgment of 12 July 2006 the court rejected the application. The court referred to relevant provisions of national law stating that biological parents’ formal explicit consent to their child’s adoption was indispensable. It further noted, with reference to the findings of the check carried out by the Pyatigorsk Office of the Interior, that it was the applicant’s wife who had written a statement of 3 September 2004 instead of him, and that the applicant, himself, had never given his consent to V.’s adoption by third persons, nor had he been deprived of his parental authority or declared legally incapacitated. The court concluded that, in the absence of the applicant’s explicit consent to V.’s adoption by third persons, there were no grounds to grant the relevant request of Mr S. and Ms Ch. Mr S. and Ms Ch. appealed against the judgment of 12 July 2006. They pointed out, in particular, that they had been upbringing V. in their family since July 2005, that the applicant had come to them in March 2006 in order to see the child as he had doubted that the boy was his son, and that they had informed the applicant at that moment that their request for V.’s adoption had been pending before a court. However, before the judgment of 4 April 2006 on V.’s adoption by Mr S. and Ms Ch. had been taken, the applicant had not made any attempts to join the proceedings, and it was not until 17 May 2006 that he had finally applied to a prosecutor’s office. They further argued that Ms I. Kh. had, in fact, not participated in the present proceedings when they had been pending before the first-instance court, having attended only one hearing, which, in their view, was indicative of the absence of her interest in V.’s faith. They also argued that the applicant’s allegation that V. had been born at approximately six months gestational age, that is long before term, and had therefore been very week stood in conflict with an extract from V.’s medical chart ( выписка из истории развития ) stating that at birth he had weighed 3,150 kg and measured 50   cm, those being characteristics of a baby born at term. With reference to those discrepancies, Mr S. and Ms Ch. expressed their doubts that the applicant and his wife were V.’s biological parents and stated that the first ‑ instance court could have resolved those discrepancies by examining relevant medical documents from the Pyatigorsk maternity hospital and by ordering a genetic expert examination, but it had failed to do so. On 23 August 2006 the Stavropol Regional Court upheld the judgment of 12 July 2006 on appeal, rejecting the arguments of Mr S. and Ms Ch. The court noted, in particular, that the scope of their claim was limited to their request for V.’s adoption, and that they had never challenged before the first-instance court the authenticity of V.’s birth certificate, or the fact that the applicant was his biological father. Moreover, Mr S. and Ms. Ch. had not requested the first-instance court to order any expert examinations or to obtain any additional documents on demand, nor had they submitted any additional documents themselves to corroborate their allegations. Against that background, the Stavropol Regional Court saw no reasons to order genetic expert examination or to question the authenticity of V.’s birth certificate. It further noted that it had no grounds to doubt the fact that the applicant and Ms I. Kh. were V.’s biological parents, and considered it proven, with reference to the facts as established by the first-instance court, that the applicant had never renounced his parental authority over V. The court concluded therefore that there were no legal grounds to grant the request of Mr S. and Ms. Ch. for V.’s adoption. According to the applicant, after the court decisions refusing V.’s adoption by Mr S. and Ms Ch. had been taken, he applied to them in an attempt to get his son back. Mr S. and Ms Ch. refused to return the boy, with reference to the administrative decision of 26 July 2005, by which Ms   Ch. had been appointed V.’s legal guardian and which was still in force. The applicant then requested the Zheleznovodsk Custody and Guardianship Agency to have the decision of 26 July 2005 invalidated. On 21 September 2006 the head of Zheleznovodsk, with reference to the decision of the Pyatigorsk Office of the Interior dated 30 June 2006 and the judgment of 12 July 2006, invalidated the decision of 26 July 2005 and revoked Ms Ch.’s guardianship in respect of V. Ms Ch. challenged that decision before the courts. On 23 March and 25 May 2007 respectively the first-instance and appellate courts upheld the administrative decision of 21   September 2006. On 3 October 2006 a civil registration authority issued a repeated birth certificate for V. The applicant and Ms I. Kh. were indicated respectively as his father and mother. V.’s patronymic, Z., corresponded to the applicant’s first name, and V.’s surname reflected his mother’s maiden surname. At some point in 2008 Ms Ch. seized a court with a request to alter V.’s birth certificate by excluding a record about his father, the applicant, and by replacing his patronymic with “Vasilyevich”. On 24   April 2008 the Pyatigorsk Town Court left Ms Ch.’s request without examination, stating that she was neither V.’s parent nor his legal guardian, and therefore had no standing to lodge such requests. On 13 October 2006 Ms I. Kh. sent to the Zheleznovodsk Custody and Guardianship Agency a written statement, in which, with reference to Article 129 of the Russian Family Code, she revoked her consent to V.’s adoption given by her on 3 September 2004 on behalf of herself and on the applicant’s behalf. The Agency received the letter on 17 October 2006, but it does not appear that any reply was given to Ms I. Kh. According to the applicant, he made numerous attempts to recover his son, but Mr S. and Ms Ch. refused to return V. and obstructed all contacts of the applicant and his wife with the boy. 5.     Proceedings for deprivation of the applicant and Ms I. Kh. of their parental authority over V. a.     Ms Ch.’s claim In December 2006 Ms Ch. brought a civil claim against the applicant and Ms I. Kh., seeking to have them deprived of their parental authority over V. Ms Ch. argued that the applicant and Ms I. Kh. had neglected their parental duties in respect of V., had never inquired about his faith, had never participated in his upbringing and education, and had never supported him financially. She further argued that Ms I. Kh. had never intended to take care of the boy, as she had given him up in the Pyatigorsk maternity hospital immediately after his birth, and, moreover, had attempted to get rid of her unborn baby. In the latter respect, Ms Ch. referred to an extract from V.’s medical chart, which allegedly stated that Ms I. Kh. had made an attempt to abort her pregnancy at its thirtieth week using oxytocin. Ms Ch. also insisted that the fact that V. had been diagnosed with perinatal encephalopathy and light anaemia had not been a reasonable excuse for abandoning the baby at the maternity hospital, as those diseases had been curable. At the current moment, V. was healthy and fit, as confirmed by a paediatrician’s certificate, and that fact could be attributed to the efforts of Mr S. and Ms Ch., who had replaced V.’s biological parents in taking care of him. Ms Ch. further submitted in her claim that the applicant had come to her place with his elder son in order to find out whether V. resembled him, and asked her to give him V.’s photograph, which, in Ms Ch.’s submission, had made her realise that the applicant had doubted that he was V.’s biological father. She added that although the applicant had known at that time that the proceedings for V.’s adoption by her and Mr S. had been pending, he had not joined those proceedings. b.     Proceedings before the first-instance court On 7 February 2007 the Predgorny District Court of the Stavropol Region (“the Predgorny District Court”) examined Ms Ch.’s claim on its merits. The court heard Ms Ch., Ms I. Kh., the applicant and a number of witnesses. i.     Ms Ch.’s statements At the hearing Ms Ch. upheld her claim and reiterated her arguments. She also stated that she had cohabited with Mr S. for thirteen years and that they had registered their marriage in order to adopt a child. They had never applied to a maternity hospital to that end, or had ever applied to be put on a list of persons seeking children for adoption. According to Ms Ch., she had visited a foster home, upon an invitation from her neighbour, who worked there, and she had seen the then ten-month’ old V. whom she had liked and immediately decided to adopt. Ms Ch. further stated that in the foster home she had received an extract from V.’s medical chart, which stated that at birth he had weighed 3.150 kg, had measured 50 cm, his head circumference had equalled 36 cm and he had been given 7-8 of Apgar score. It had also stated that during pregnancy he had suffered from chronic hypoxia and phetoplacental insufficiency. The personnel of the foster home had also informed Ms Ch. about V.’s biological parents, having indicated their full names, as well as about diseases V. had had while in the foster home. Ms Ch. went on to note that V. had had certain health problems and, after she had taken him from the foster home, she had ensured that he had undergone necessary medical treatment with the result that the state of his health had noticeably improved. Ms Ch. further alleged that she had not met V.’s parents prior to March   2006, when the applicant had been summoned to a court in the context of the proceedings instituted by her and Mr S. for V.’s adoption. The applicant then had visited them at their home address and had allegedly stated that on 2 September 2004 he had taken his wife to the maternity hospital for abortion and that he had been unaware that the baby had survived. Mr S. and Ms Ch. had shown the applicant the statements of 3   September 2004 in which Ms I. Kh. and himself had consented to V.’s adoption; the applicant had recognised his wife’s signature but stated that his signature had been falsified. According to Ms Ch., the text of the statements had not provoked any visible indignation or surprise of the applicant. He had also asked to show him V.’s photographs and stated that the boy had resembled his elder son T.N. He had then taken the photographs and left. Ms Ch. went on to state that the next time the applicant had come with his sister, his elder son and his father. Mr S. and Ms Ch. had invited them to come in. They had looked at V. and the applicant’s sister had filmed him by her mobile telephone camera. When they had been leaving, they had offered yogurts and a teddy bear. Ms Ch. had refused stating that V. was allergic for yogurts and that he had already had two teddy bears. In Ms Ch.’s opinion, the applicant and his family members had come to find out who the child had looked like. Ms Ch. insisted that during his first visit the applicant had not recognised V. as his son, and that he had been thinking for two months before taking any action. She also recited the developments in V.’s case, and, in particular, referred to the court and administrative decisions by which legal guardianship and adoption of V. had been granted and then revoked. Ms Ch. confirmed that the boy continued living with her and Mr S. According to her, on 21 September 2006, when her guardianship in respect of V. had been revoked, the applicant had come to her home address in her absence, as she and V. had been in another town at that moment, and had threatened “to handcuff” Mr S. for deliberate retention of his son. In Ms Ch.’s submission, the applicant had also visited their domicile with an official of a custody and guardianship agency, and they had threatened Ms Ch.’s mother-in-law. ii.     Ms I. Kh.’s statements Ms I. Kh. disagreed with Ms Ch.’s claim and contested her allegations. She stated, in particular, that so far she had had no possibility to see her son V. and to bring him up. She insisted that she had signed her written consent to V.’s adoption without understanding the meaning of her actions at that moment, and that at present she would like to return her son, but Ms Ch. kept retaining him. As to the events of 2-3 September 2004, the applicant’s wife explained that by the moment she had got pregnant with V., she had already had two children, and that none of her pregnancies, including that with V., had ever been surveyed by doctors. She had not had any problems with her pregnancy with V. and, according to her, had never attempted to abort it. It was for the first time during the present proceedings that she found out that in V.’s medical chart had allegedly been written that she had made such an attempt using oxytocin. Ms I. Kh. continued that, according to her estimation, she had been six months pregnant when on 2 September 2004, while working in her garden, she had felt pain in lower abdomen and contractions and had started bleeding. Her husband had then taken her to the maternity hospital of Pyatigorsk. According to Ms I. Kh., she had been admitted to the hospital at around 3-4 p.m. She had then been assisted by doctors, in particular by doctor B., who had been in charge of her. The doctors administered her intravenous and intrauterine injections and drips. As appears, anaesthesia had been used, as she had been sleeping during the labour, and therefore could not remember exactly at what time her baby had been born, though she had been awaken at the moment of delivery. When the baby had been born Ms I. Kh. had not heard him crying. She had been told that it had been a boy and that he had been hardly breathing and had not been crying. Ms I. Kh., in her submission, had been worried about the baby’s health. Doctor B. had told her that the childbirth had been premature, that the baby had been pre-term and would not survive, and that, in fact, Ms I. Kh. had had “a miscarriage rather than childbirth.” According to the applicant’s wife, the medical staff had not told her the baby’s weight or height and had not even shown her the boy, stating that he had been kept in an incubator. In reply to her request to let her see the baby, doctor B. had replied that “there [had been] nothing to look at”, that the baby had been premature and weak. Instead, Ms I. Kh. had been asked to fill in papers for the baby’s adoption. According to the aplicant’s wife, the childbirth had taken place during the night time, and she had been feeling very bad because of a loss of blood, she felt dizziness and faint. Ms I. Kh. went on to note that the next morning, at 8 a. m. doctor B. had invited her to her office and had stated that the baby had still been breathing but most likely would not survive, that there had been “one chance out of thousand” that he would live. She had then invited Ms I. Kh. to sign certain documents, indicating her height, education, profession and occupation. Doctor B. had stated that it was necessary for any further checks of the documents. According to Ms I. Kh., she had written a text, but had not realised at that moment which exactly text it had been, as she had been feeling very bad, had had dizziness and faint. She informed doctor B. that she had been married, and doctor B. had then invited her to write a similar statement on her husband’s behalf, changing her hand-writing. Ms I. Kh. had written the statement and signed it, without, in her submission, understanding the meaning of her actions. She had then taken a rest in her hospital ward until 9-10 a.m. and then called her husband on his mobile telephone. Her husband had asked her who had been born and she had replied that it had been a boy and that she had lost him because of a miscarriage. Ms I. Kh., according to her, had chosen to say so to her husband because the doctors had said that the boy would not survive, and since she had wished to spare her husband because of his heart condition. When she had been leaving the maternity hospital, she had known that the baby had been alive, but thought that he had been very weak and had been hardly breathing. Ms I. Kh. further stated that several days after doctor B. had come to her domicile as the maternity hospital had needed Ms I. Kh.’s medical insurance certificate. According to Ms I. Kh., she had inquired about the baby, and doctor B. had said the boy had not survived. The applicant had been at home at that moment but had not heard that conversation. Several days after doctor B. had again visited Ms I. Kh. at home and inquired about her and the applicant’s marriage certificate’s number. After she had obtained the necessary information, doctor B. had left. The applicant’s wife also stated that when in March 2006 she and the applicant had received a claim for their deprivation of their parental authority in respect of V., they had been very surprised and had initially thought that there had been a misunderstanding, as in September 2005 she and the applicant had had another son, whose first name was also V. The applicant inquired at the court and then visited doctor B. who had said to him that it must be his and Ms I. Kh.’s son who had survived after “the miscarriage”. Thereafter the applicant had visited Ms Ch., who had told him about V. and had given his photograph. According to Ms I. Kh., when she had seen the photograph of V., who had resembled her elder son T.N. a lot, she had realised what a mistake she had done and had disclosed the truth to the applicant. The latter “had nearly fainted” as he had had a heart condition. From that moment onwards the applicant had become actively involved in V.’s faith, whereas she, herself, could not participate as her younger son Vl. had been admitted to an intensive care unit and she had remained with him. Ms I. Kh. then listed the numerous steps the applicant had taken in an attempt to recover their son. She added that in her written request of 13   October 2006 she had revoked her consent to V.’s adoption but she had never received any reply to her request from the competent custody and guardianship agency. Ms I. Kh. insisted that she wanted to take V. back to her and the applicant’s family and to bring him up. iii.     The applicant’s statements The applicant disagreed with Ms Ch.’s claim and stated that V. was his and his wife’s third and desired child. The whole family had known about Ms I. Kh.’s pregnancy. She had never attended doctors in connection with any of her pregnancies. He and his wife had estimated that she had been 5.5 ‑ 6 months pregnant when she had felt ill and he had accompanied her to the Pyatigorsk maternity hospital. According to the applicant, doctor B. had said to him that the baby had had no chances of survival and that they had to save the mother, and with that aim to provoke a miscarriage. The applicant had volunteered to bring additional medicines, if necessary, to save both the mother and the baby, but doctor B. had stated that his wife would have a miscarriage. The applicant had also been told not to wait and to go home. The applicant, in his submission, had accepted the situation and had relied on the doctors. He had then left the maternity hospital. The next day his wife had called him and had asked to take her home, stating that she had lost the baby and that it had been a boy. At home the whole family had mourned the loss of the baby. The applicant further stated that in March 2006 he had found out from the documents received from a court that his son had been alive. His wife had then told him that she had not wished to traumatise him, and therefore had told him that the baby had died, as she had been persuaded that was the case as the doctors had told her so. The applicant added that he had no doubts regarding his paternity and insisted on V.’s return to his and Ms I. Kh.’s family. iv.     Doctor B.’s statements Doctor B. stated that she was the head of the observation unit of the Pyatigorsk maternity hospital. There usually were approximately 3,000   childbirths per year, therefore she was unable to remember any of her patients. Doctor B. further stated that she had not met Ms I. Kh. before, but added that it was likely that she just did not remember her. She furthermore could not recall whether she attended Ms I. Kh.’s childbirth. She could have recalled everything, if the medical record of Ms I. Kh.’s labour and delivery ( медицинская карта родов ) had been preserved, but that file had been lost in 2005. She further stated that she could not confirm any of the statements Ms   I.   Kh. had made before that court, as she did not remember anything. In particular, Ms B. insisted that she did not remember whether she had ever obtained Ms I. Kh.’s consent to her baby’s adoption, or any other documents from her. According to doctor B., she had no right or necessity to decide with the maternity patients on questions concerning renouncement of their parental authority or adoption of their newborn babies. Any such statements could only be made to the chief medical officer ( главный врач ), of the hospital, who was entitled to certify the authenticity of such statements. Doctor B. also denied giving Ms I. Kh. any information about her baby’s state of health. She insisted that she never gave any such information, as it fell to a paediatrician’s to give information on newly born babies’ health. Ms B. did not exclude that Ms I. Kh. could mistakenly have believed that her son had been dead. As for the information regarding Ms I. Kh.’s alleged attempt of abortion with the use of oxytocin, Ms B. noted that, in principle, such information could have been copied to the child’s medical file from the mother’s medical file, or could have been inserted there after a conversation with Ms   I. Kh. Doctor B. went on to point out that a baby born at 5.5-6 months of gestational age could be viable. She also stated that after childbirth a new mother remained in a state of stress for up to 42 days and may even have a short-term amnesia. In doctor’s B. opinion, by virtue of her condition after childbirth, Ms I. Kh. might not remember something, or might remember only certain details. She added that a mother’s state of stress after childbirth may go unnoticed by the others, and therefore it was not unlikely that Ms   I.   Kh.’s written statement had been accepted from her despite her condition. Ms B. further stated that she had requested the chief medical officer of the hospital to give her the medical record of Ms I. Kh.’s labour and delivery, and that the officer had told her that the file had been lost. She confirmed that initially she had avoided appearing in court since Mr S. and Ms Ch. had been putting pressure on her in an attempt to make her testify in their favour, and more precisely to make her state that Ms I. Kh. had deliberately abandoned her baby. Lastly, doctor B. stated that she did not remember and therefore was unable to deny or confirm whether she had met the applicant in March 2006 and whether she had said to him that V. was his child. v.     Other witnesses Representatives of the Zheleznovodsk Custody and Guardianship Agency and of the Custody and Guardianship Agency of the Predgorny District supported Ms Ch.’s claim, stating that deprivation of the applicant and Ms I. Kh. of their parental authority would be in V.’s best interests. They submitted, in particular, that the child had been placed in a foster home after he had been left without parental care, that since July 2005 he had been living in Ms Ch.’s family and that the state of his health had considerably improved. They also indicated that they had sought a psychologist’s opinion and that the latter had opined that an abrupt change of home and established family ties was undesirable and could provoke V.’s psychological trauma. The applicant’s father and sister stated that they had been aware of Ms   I.   Kh.’s pregnancy. They gave positive references to the applicant’s family and stated that the whole family had wanted that child. The applicant had then told them that Ms I. Kh. had had a miscarriage. After they had found out that V. had been alive, they all were looking forward to the end of the judicial procedures and his return to their family. The applicant’s acquaintance R. gave positive references to the applicant’s family and stated that the applicant had told him that he and Ms   I. Kh. had been expecting the third child, and that the whole family had wanted the child. In Mr R.’s submission, the applicant had said to him that it did not matter to him whether that would be a boy or a girl, as he had already had a girl and a boy. The applicant had then told him that his wife had had a miscarriage. vi.     Examination of documentary evidence The Predgorny District Court also examined documentary evidence. It observed, in particular, the documents submitted by the Pyatigorsk maternity hospital, which included V.’s personal file ( анкета ребенка ) drawn up at the hospital, a medical report attesting the state of his health after birth, and written statements of 3 September 2004 containing V.’s parents’ consent to his adoption. The court observed that, according to the boy’s personal file, Mr   V.   Vasilyevich Kh. – the boy’s surname corresponded to Ms I. Kh.’s surname, whereas his patronymic was “Vasilyevich” rather than “Zavenovich”, which would reflected the applicant’s first name – had been born on 2 September 2004, weighing 3,150 kg and measuring 54 cm. The medical report attested to foetal hypoxia and light disorder of cerebral circulation. The file contained information about the baby’s mother, including her address, whereas information about his father was missing. The file cited “a written consent to adoption” as the ground for the baby’s adoption. The court further noted a number of defects in the file. It stated, in particular, that the file contained no information of the person who had filled it in; that information about the baby’s father was missing; that the baby’s patronymic was erroneously indicated as “Vasilyevich” whilst it should be “Zavenovich”; that the file did not indicate who of the parents and when had filed a statement with “a consent for adoption”; that the file did not indicate who had certified that statement; that the file contained no date on which it had been filled in nor its number; that the file contained no information about V.’s birth certificate, its serial number, or date of issue, and that the baby’s photograph was not enclosed to the file. As for the medical report, the court noted that it also erroneously indicated “Vasilyevich” rather than “Zavenovich” as V.’s patronymic, that it did not mention the official position of a member of the medical commission who had drawn it up and that the official stamp was missing. The court also noted that both written statements of 3 September 2004 had been certified by the then chief medical officer of the Pyatigorsk maternity hospital, Ms K. It went on to note that it had not received any other documents from the Pyatigorsk maternity hospital, as, according to letter no. 1192 of Ms Z., the chief medical officer of the Pyatigorsk maternity hospital, dated 8   December 2006, “the original of the medical record of labour and delivery of Ms I. Kh., who on 2 September 2004 [had given] birth to an alive boy, [had not been] found in the archives, as it [had been] lost in 2005.” The court further stressed once again that a copy of the initial birth certificate was missing from the materials of the case, and that the child’s patronymic had been distorted and written incorrectly “Vasilyevich” rather than “Zavenovich”. The court then stated that, since the original of the medical record of Ms   I. Kh.’s labour and delivery had been lost, it was impossible to establish the source of the document submitted by the claimant, Ms Ch. – the extract from V.’s medical chart stating that Ms I. Kh. had made an attempt to abort her pregnancy at its thirtieth week using oxytocin – an allegation categorically denied by Ms I. Kh. The court therefore found that piece of evidence to be inadmissible. vii.     Judgment The Predgorny District Court noted that it was undisputed by the parties and found it established that the applicant and Ms I. Kh. were V.’s parents. It further noted that the judgment of 12 July 2006, as upheld on 23   August 2006, by which the claim of Mr S. and Ms Ch. regarding V.’s adoption had been rejected, had established that the applicant had never given his consent to V.’s adoption, this fact being thus res judicata and was not to be proved once again. The Predgorny District Court therefore found it established that the applicant had not neglected his parental duties with regard to his son V., since he had simply not known that his son had been born alive. The court went on to note that as soon as the applicant had found out that his son was alive, he had started taking steps with a view to getting the child back to his family. The court further noted with regard to Ms I. Kh. that “she did not dispute the fact that, being in a fragile condition and being misled by the medical personnel of the Pyatigorsk maternity hospital as to the state of her newborn son’s health, she had written a statement in which she had expressed her consent to her son’s adoption”. At the same time, the court took into consideration the fact that after childbirth Ms I. Kh. had been in a fragile condition, that on 13 October 2006 she had retracted her statement and that, at the moment, she intended to take the child to her family and to bring him up. The court noted that Ms I. Kh.’s fragile condition after childbirth had “indirectly” been confirmed by doctor B.’s statement to the effect that a new mother could remain in a state of stress for a period of up to 42 days after childbirth and that this state could remain unnoticed by others. The court went on to note that deprivation of parental authority was a measure of last resort and that it could only be applied to parents flagrantly neglecting their parental duties. The court further considered that no such guilty conduct on the part of the applicant or Ms I. Kh. had been proven in those civil proceedings. It further noted that the circumstances for V.’s transfer to a foster home and then to the family of Mr S. and Ms Ch. for adoption had changed, as his biological parents had found out that the boy was alive and they wished to bring him up themselves, for which they had priority over any other person. In so far as the representatives of the two Custody and Guardianship Agencies argued that deprivation of the applicant and Ms I. Kh. of their parental authority would be in the child’s best interest, the court noted that the law not only protected the interests of a child but those of parents as well. The court also considered that the positive references given to Mr S. and Ms Ch., their caring attitude towards V., their contribution in improvement of his health and his successful development, their attachment to the child, whom they loved and perceived as their own, the child’s attachment to them should not be opposed to the interests and rights of the biological parents protected by law. The court further observed that the applicant and his wife had positive references, good living conditions, could financially support their child, wished to bring him up and insisted on his return to their family. It thus concluded that there were no grounds to grant Ms Ch.’s claim and rejected it. c.     Proceedings before the appellate court On 21 March 2007 the Stavropol Regional Court quashed the first ‑ instance judgment on appeal and sent the case for a fresh examination. The Stavropol Regional Court held that the first-instance court’s conclusions had been based on assumptions and speculations and that the evidence to which the Predgorny District Court had referred had been unreliable. In particular, the Predgorny District Court’s conclusion that Ms   I. Kh. had been misled by the medical personnel of the Pyatigorsk maternity hospital regarding the state of her baby’s health had not been supported by evidence. Furthermore, in the Stavropol Regional Court’s view, Ms I. Kh.’s statement to the effect that the doctors of the Pyatigorsk maternity hospital had told her that her baby had been alive but had been very week and would hardly survive stood in conflict with the applicant’s allegation that the doctors had told him that his wife had had a miscarriage. The Stavropol Regional Court noted that that conflict had not been resolved by the Predgorny District Court. The Stavropol Regional Court further stated that neither Ms I. Kh. nor the applicant had taken any steps to find out the circumstances of childbirth, to apprise themselves of the state of their newborn son’s health, and to render help and support to their baby, having left him in danger several hours after his birth. In the court’s view, with necessary degree of care, the parents could and should have found out that their baby had been alive, that he had been born in term with good weight and only slight health problems. The Stavropol Regional Court went on to note that, in the absence of any proof of unlawfulness of the actions of the medical personal of the Pyatigorsk maternity hospital, the first-instance court had failed to establish what the reasons had been for the applicant’s refusal to take the baby from the maternity hospital, and how it was possible that, being the father of three children, the applicant had mistakenly believed in the unfortunate outcome of childbirth to such an extent that he had taken no actions with a view to apprising himself of his newborn son’s faith. The Stavropol Regional Court thus concluded that the applicant’s statement to the effect that he had been unaware that his son had been alive had not been corroborated by any evidence and that therefore V.’s transfer to his biological parents was not in the child’s interests. d.     Supervisory review proceedings On 28 May 2007 the Presidium of the Stavropol Regional Court (“the Presidium”) quashed the decision of 21 March 2007 by way of supervisory review, noting that the appellate court’s findings in that decision did not correspond to the circumstances of the case. In particular, the Presidium referred to the results of the check carried out by the Zheleznovodsk prosecutor’s office and the court decisions of 9 June and 23 August 2006 and stressed, that contrary to the relevant findings of the appellate court, it had been clearly established that the applicant had not been aware of the fact that his son had been born alive, that he had never given his consent to his adoption, and that as soon as he had found out that V. had been alive, the applicant had started taking steps with a view to returning the boy to his family. In the latter respect, the Presidium referred to the applicant’s numerous applications to courts and administrative bodies. It also noted that on 13 October 2006 Ms I. Kh. had revoked her consent to V.’s adoption and had officially informed the relevant Custody and Guardianship Agency thereof. The court stated that under the relevant law, she had a right to retract her consent at any moment before the adoption was confirmed by a court. The Presidium also referred to a court’s special ruling taken in respect of the Head of the Health Department of the Administration of Pyatigorsk, which had criticized the shortcomings surrounding the way in which Ms   I.   Kh.’s consent to her son’s adoption had been obtained, the shortcomings in V.’s personal file and the fact that the medical record of Ms   I. Kh.’s labour and delivery had been lost. The Presidium observed that the aforementioned ruling had not been disputed, or annulled or found illegal, whereas the circumstances established in that ruling stood in clear conflict with the relevant findings of the appellate court. The Presidium also found that the appellate court’s conclusion that V.’s transfer to the applicant’s family would not be in his interests had not, in fact, corresponded to the subject-matter of the claim in the present case, which only concerned deprivation of Ms I. Kh. and the applicant of their parental authority. The Presidium further noted that the applicant’s family had been positively characterised, both he, his wife and their three children had positive references, the relations within the family were friendly, the living conditions were good and complied with all necessary requirements, therefore V. would be safe in that family. Deprivation of the applicant and his wife of their parental authority over V. would entail a breach of his rights, interrupt the child’s kinship with his biological parents and limit his communication with them, his siblings and grandparents. The Presidium thus annulled the decision of 21 March 2007 and ordered that the first-instance judgment of 7 February 2007 should be upheld. 6.     Further developments In a letter of 20 March 2003 the Zheleznovodsk Custody and Guardianship Agency informed the applicant, in reply to his relevant request, that on 19 March 2007 Ms Ch. had been invited for an interview so that she provided time for contacts of the applicant and Ms I. Kh. with their son V. The letter further stated that Ms Ch. had refused to provide any such time. It then recommended that the applicant should obtain a court order for an access to his child. On 2 July 2007 the applicant and Ms I. Kh. lodged a written complaint to the police, stating that Ms Ch. unlawfully retained their son V. and refused to return him to their family. They sought to have criminal proceedings against Ms Ch. instituted in that connection. On 10 July 2007 the Zheleznovodsk Office of the Interior decided not to institute criminal proceedings, with reference to the absence of the constituent elements of a crime in Ms Ch.’s actions. The decision stated, in particular, that after the administrative decision revoking Ms Ch.’s guardianship in respect of V. had been confirmed by the courts at two instances, a representative of the Zheleznovodsk Custody and Guardianship Agency had visited Ms Ch.’s domicile on three occasion in an attempt to take V. away and return him to the applicant’s family, but each time Ms Ch. and V. had been absent. Mr S. had explained that his wife and son had gone “to the seaside”. At the moment, V. continued living with Mr S. and Ms Ch. The decision further referred to the civil proceeding for V.’s return to his family instituted by the applicant which were pending at the moment, and concluded that the circumstances of the case revealed no criminal actions on Ms Ch.’s part, and that the case should be resolved in a civil procedure. The applicant repeatedly sought assistance of administrative bodies in returning V. In particular, he lodged relevant requests with the Zheleznovodsk Custody and Guardianship Agency on 11 September 2006, 29 May, 4 and 22 June, 27 July 2007, 8 February 2008, and those with the Head of Zheleznovodsk on 7 November 2006, 21 January and 4 February 2008. 7.     Proceeding concerning V.’s return to the applicant’s family On 24 September 2006 the applicant brought civil proceedings before Zheleznovodsk Town Court. He sought “removal of obstacles in exercising his parental authority