CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 septembre 2016

.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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 13 September 2016   THIRD SECTION Application no. 23608/16 Daniil Viktorovich PETROV and X against Russia lodged on 25 April 2016 STATEMENT OF FACTS The first applicant, Mr Daniil Viktorovich Petrov, is a Russian national who was born in 1975 and lives in St Petersburg. The second applicant,   X, is a Russian national who was born in 2012 and lives in Nizhniy Novgorod. The applicants are father and son. The first applicant is a lawyer. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 17 May 2012 the applicant’s wife, M, gave birth to a son, the second applicant. The family settled in St Petersburg, where the second applicant had his residence registration and his continuing paediatric and specialist care, and where he was on the waiting list for a local nursery school. On 28 April 2013 M left the first applicant and took the second applicant with her. She did not leave an address and did not answer her mobile phone. The first applicant unsuccessfully searched for her in Nizhniy Novgorod, where her parents lived, and in Moscow, where she also had some family. On 30 April 2013 the first applicant contacted the St Petersburg childcare authorities and asked for assistance in finding his son and returning him to his registered place of residence in St Petersburg. On an unspecified date the first applicant learned that M and the second applicant were in Nizhniy Novgorod and on 17 May 2013 he visited them there. Since that date M has allowed the applicant to see his son on average six days per month for two hours each time. However, she sometimes has not allowed the first applicant to see his son for weeks at a time or has taken him out of town for long periods without informing the first applicant about his son’s whereabouts. For example, on 29 December 2013 the first applicant complained to the Nizhniy Novgorod childcare authorities that M had taken the second applicant away to an unknown location and had cancelled a meeting that had been scheduled by mutual agreement for 27   December. 1.     Child residence proceedings On 30 August 2013 M instituted divorce proceedings before the Nizhegorodskiy District Court of Nizhniy Novgorod, and asked for a residence order in respect of the second applicant. She submitted, in particular, that she was on parental leave and was still breastfeeding her son. She had a share in her parents’ flat where she and her son occupied a room. She also argued that she could create better conditions for the development of the child because she had a university diploma and good references from her previous place of work and also because she was calm and loving. The first applicant asked that M’s request for a residence order be rejected and that the second applicant be returned from Nizhniy Novgorod to St Petersburg. He submitted that it would be better for the child if he and both his parents lived in St Petersburg for the following reasons. Firstly, considerable amounts of money would be spent by the first applicant travelling to Nizhniy Novgorod to visit his son. If the entire family lived in St Petersburg, that money could be better spent on the child’s needs. Secondly, living conditions in St Petersburg were better than in Nizhniy Novgorod. The first applicant had three spacious flats in St Petersburg and a dacha in the surrounding region, while in Nizhniy Novgorod M’s family possessed only a small one-bedroom flat. St Petersburg provided better development and educational opportunities having more sports centres, better schools and universities, and world-famous cultural heritage. It also had better medical services, less air pollution and a lower crime rate than Nizhniy Novgorod. Thirdly, the second applicant had been born in St   Petersburg and had lived there until his abduction by M. He had his residence registration and his continuing paediatric and specialist care there and was on the waiting list for a local nursery school. Moreover, the second applicant’s paternal grandparents and other relatives lived in St Petersburg. If M agreed to move back to St Petersburg, the first applicant proposed donating one of his three flats to her. He proposed an arrangement according to which the second applicant would live one third of every month with him and two thirds of every month with M until the age of three, and half of every month with each of the parents after that. He argued that that arrangement would ensure that the second applicant maintained family ties with both parents. In the alternative, the first applicant asked for a residence order in respect of the second applicant. He submitted that the second applicant’s young age alone could not justify his residence with his mother. He was older than one and a half years and there was no longer any need to breastfeed him. The first applicant further submitted that he had a stable income from bank ‑ deposit interest while M had no income and lived on the child maintenance that he paid her. He worked as a volunteer in a number of social NGOs and had flexible working hours and could therefore devote a lot of time to his son. Indeed, while they had lived together, he had spent as much time with the child and had been responsible for his everyday care as much as M. They had a very strong mutual attachment. Given his education and background, the first applicant could provide the child with a better upbringing. For example, he had teaching experience – in particular he had worked as a teacher in children’s summer camps. The first applicant further submitted that M had abducted the child. She had restricted the first applicant’s contact with his son and had sometimes taken him away for long periods of time without informing the first applicant of his whereabouts. He vowed that if the child were to reside with him, he would not in any way hinder his contact with his mother. Lastly, the first applicant asked that the court appoint a psychological expert to examine him, M and the second applicant to assess each parent’s suitability for raising the child and each parent’s relationships with him. The first applicant’s parents asked to intervene as third parties and that the second applicant’s residence be set as St Petersburg. They submitted, in particular, that they had not seen their grandson since March 2013 because M had refused to bring him to St Petersburg for a visit. They could not visit him in Nizhniy Novgorod because the first applicant’s mother was disabled and could not travel there, a distance of more than 1,000 km. The first applicant’s father could not leave his wife alone and unassisted and could not therefore go to Nizhniy Novgorod either. The decision to set the second applicant’s residence as Nizhniy Novgorod with his mother would therefore most likely mean that they would never be able to see him again. The Nizhegorodskiy District Court dismissed their request to intervene as third parties, finding that they could lodge a separate suit. The Nizhegorodskiy District Court further rejected the first applicant’s request for a psychological expert examination. It however asked the Nizhniy Novgorod and St Petersburg childcare authorities to assess the first applicant’s and M’s living conditions and to express an opinion on the issue of the second applicant’s residence. On 20 November 2013 the Nizhegorodskiy District Court adjourned the examination of the case until 20 February 2014, enjoining the first applicant and M to attempt reconciliation. On 18 February 2014 the St Petersburg childcare authorities issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his father. It noted that M had taken the child away and had for some time concealed his whereabouts from the first applicant. She had restricted the first applicant’s communication with the child. She was unemployed and had no income except the child maintenance paid by the first applicant. Her only pecuniary asset was a share in her parents’ one ‑ bedroom flat in Nizhniy Novgorod. M’s parents lived in Moscow. By contrast, the first applicant had a stable and sufficient income from bank ‑ deposit interest and did not need to work. He could therefore spend most of his time with the child. He owned a one-bedroom flat in St   Petersburg and had shares in two other flats. The first applicant’s parents lived in St Petersburg. His mother was confined to a wheelchair, which restricted her ability to travel to Nizhniy Novgorod to see her grandson. On 31 March 2014 the Nizhniy Novgorod childcare authorities also issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his mother. It found that M had good living conditions and received child maintenance from the first applicant and financial help from her parents. She was breastfeeding and was on parental leave devoting all her time to the child. She did not wish to return to St   Petersburg. It was true that the first applicant also had good living conditions and had actively participated in the child’s upbringing and care. However, taking into account the second applicant’s young age, it was better for him to live with his mother for the time being. In reply to the applicant’s question, the Nizhniy Novgorod childcare authorities explained, in its letter of 12 May 2014, that a child was considered to be of “young age” until eighteen years old and that “for the time being” meant until a change of circumstances, for example the child’s reaching the age of ten or fourteen. On 4 April 2014 the Nizhegorodskiy District Court granted the divorce and M’s application for a residence order in respect of the second applicant. The court firstly cited the opinion of 31   March 2014 of the Nizhniy Novgorod childcare authorities. It then noted that the family had lived in St   Petersburg until M had left her husband and moved to Nizhniy Novgorod taking the child with her. Both parents had suitable living conditions, positive character references and a strong desire to take care of the child. As she was on parental leave, M continued to breastfeed the child and devoted all her time to him. Her parents helped her and the first applicant paid child maintenance to her. Given the child’s age, it was “opportune” ( целесообразно ) to grant the residence order to his mother. The first applicant had sufficient income to travel from St Petersburg to Nizhniy Novgorod to visit his son. It was irrelevant that St Petersburg had less air pollution, a lower crime rate and better local infrastructure for children than Nizhniy Novgorod. Given that the second applicant’s mother currently lived in Nizhniy Novgorod, the second applicant should live there with her. The first applicant appealed, repeating his previous arguments. He further complained that the District Court had not conducted an in-depth examination of the case. In particular, the District Court had not taken into account the opinion of 18   February 2014 of the St Petersburg childcare authorities. It had not even cited the opinion, let alone explained why it disagreed with it. The only reason advanced by the District Court for its decision to grant the residence order to the child’s mother had been the child’s age. The child’s age was only one of the criteria mentioned in Article 65 of the Family Code (see below) that the domestic courts were to take into account when deciding on a child’s residence arrangements. The District Court had not taken into account the other criteria mentioned in Article 65. Nor had it ordered a psychological expert examination to establish the child’s relationship with each parent and his best interests. Moreover, given that the second applicant had been more than one and a half years old at the time of the District Court’s decision, there had been no justification for automatically preferring residence with his mother over residence with the first applicant. Such automatic preference of the mother over the father in a case where the father could provide better living and development conditions for the child had amounted to discrimination on grounds of sex. The first applicant also disputed some of the facts established by the District Court. In particular, the second applicant’s medical documents indicated that breastfeeding had stopped at the age of one. In any event, the official medical guidance recommended that breastfeeding be stopped at the age of one and a half years at the latest. Moreover, M was unemployed rather than on parental leave because she had not been in employment since 2009. In any event, M had returned to work in December 2013 and since then the second applicant had been taken care of during the day by his maternal grandmother. By contrast, the first applicant had sufficient non-work income and a flexible schedule for his social-volunteer activities and could therefore take care of the child himself. Lastly, the first applicant argued that inherent in the concept of the child’s “best interests” was the right for a child not to be removed from one of his or her parents and retained by the other (he referred to Maumousseau and Washington v. France , no.   39388/05, 6 December 2007). M. had abducted the second applicant and had restricted the number and the length of the first applicant’s visits, including during the period after the District Court’s judgment. In total, during the last nineteen months he had been allowed to see his son 122 times only. On 2 October 2014 the first applicant complained to the Nizhniy Novgorod childcare authorities that M continued to restrict his contact with his son. In particular, on several occasions she had agreed to a visit but after he had travelled from St Petersburg to Nizhniy Novgorod she had changed her mind and refused to let him see his son. On 10 March 2015 the Nizhniy Novgorod Regional Court upheld the judgment of 4 April 2014 on appeal, finding that the District Court had provided sufficient reasons for its decision to grant the residence order in respect of the second applicant to his mother. In particular, it was significant that since his parents’ separation the second applicant had lived with his mother. The first applicant’s arguments about his better financial situation or higher professional position were not decisive factors in deciding the question of the child’s residence. The issue of the child’s contact with his grandparents could be examined in separate proceedings. On 13 March 2015 the Nizhniy Novgorod childcare authorities informed the first applicant that they had had a meeting with M during which she had been told that she had to keep the child’s father informed about the child’s whereabouts and that the child was entitled to maintain contact with his grandparents and other relatives. On 12 June 2015 the first applicant’s mother died. She had not seen her grandson since April 2013. On 6 October 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal to the Presidium of that Court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. It noted, in particular, that the main reason for granting the residence order to M had been the second applicant’s young age. In such circumstances, the first applicant’s argument that it was in the child’s best interest to live with his father had been unconvincing. M’s actions in taking the child away from St Petersburg had not amounted to abduction, a criminal offence under Article 126 of the Criminal Code. M had not committed any criminal offence by moving to Nizhniy Novgorod with her son. Lastly, the judge found no evidence of discrimination. On 27 October 2015 a judge of the Supreme Court of the Russian Federation refused to refer the case for consideration by the Civil Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. 2.     Action for compensation for the excessive length of proceedings On 27 April 2015 the first applicant, acting on his own behalf and on behalf of the second applicant, lodged a claim with the Nizhniy Novgorod Regional Court seeking compensation for the non ‑ pecuniary damage sustained as a result of the excessively long examination of the child residence dispute, and costs and expenses. He submitted, in particular, that the nature of the dispute had called for particular expedition on the part of the domestic courts. Indeed, the case concerned a residence dispute in respect of a very young child who, due to the delay in examining the case, had unlawfully resided with his mother for almost two years. On 8 May 2015 a judge of the Nizhniy Novgorod Regional Court declared the claim lodged on behalf of the second applicant inadmissible. The court found that the second applicant had not been a party to the residence proceedings and could not therefore claim compensation for their alleged excessive length. The first applicant appealed, submitting that the residence proceedings had directly affected the second applicant by determining his residence arrangements. The length of the residence proceedings had therefore breached the second applicant’s rights. On 8 July 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the decision of 8 May 2015 on appeal, finding that it had been lawful, well-reasoned and justified. On 9 July 2015 the Nizhniy Novgorod Regional Court awarded the first applicant 30,000 Russian roubles (RUB – about 475 euros (EUR)) for non ‑ pecuniary damage and RUB 12,886.40 for costs and expenses against the Ministry of Finance. The court noted that the proceedings had lasted one year, six months and seven days before two instances. It found that the first applicant had not contributed to the length of proceedings. It further held that the case had been simple, no expert opinions had been requested or witnesses questioned. There had been important delays in the proceedings attributable to the District Court, in particular excessively long intervals between hearings, adjournments caused by repeated failures to inform the parties of the dates of scheduled hearings and substantial delays in serving the reasoned judgment of 4 April 2014 and the hearing record on the parties and in forwarding the parties’ statements of appeal to the Regional Court. Accordingly, the first applicant’s case had not been heard within a “reasonable time”. When deciding on the amount of compensation, the Regional Court noted that the case concerned a child residence dispute and that the delay in its examination had created a legal uncertainty as to the child’s residence and had hindered the exercise by the first applicant of his contact rights. On 19 August 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Presidium of that Court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.   On 30 September 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the judgment of 9 July 2015 on appeal, finding that it had been lawful, well-reasoned and justified. On 27 November 2015 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, for consideration by the Administrative Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. B.     Relevant domestic law The Family Code provides that parents are entitled to the return of their child from any person who retains him or her without any legal basis. In a case of a dispute, parents are entitled to apply to a court. A court may reject the application after taking into account the child’s opinion, if it has established that the return of the child to the parent is contrary to his or her interests (Article 68 § 1). In a case of parental separation, the child’s residence arrangements are fixed by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are fixed by a court order, having regard to the child’s best interests and his or her opinion on the matter. In particular, the court must take into account the child’s attachment to each of the parents and his or her siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating good conditions for the child’s upbringing and development (such as each parent’s occupation, employment schedule, financial and family situation, and so forth) (Article 65). A parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development (Article 66 § 1). A child is entitled to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives. A child’s parents’ divorce or separation or the annulment of their marriage has no bearing on his or her rights. In particular, where the parents reside separately, the child is entitled to maintain contact with both of them (Article 55 § 1). Grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, the childcare authorities may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authorities order, the relative concerned or the childcare authorities may apply to a court for a contact order. The court must take a decision in the child’s interests and must take the child’s opinion into account. If the parents do not comply with the contact order issued by a court, they may be held liable in accordance with the law (Article 67). A child is entitled to express his or her 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 of age must be taken into account, except where it is contrary to his or her interests (Article 57). Parents act on their child’s behalf and defend their child’s rights and interests in any relations with persons or legal entities. They act ex officio as the child’s legal representatives in court proceedings (Article 64 § 1). COMPLAINTS The applicants complain under Articles 6 § 1 and 8 of the Convention and Article 14 of the Convention taken in conjunction with Article 8 about the refusal to grant the first applicant a residence order in respect of the second applicant. They allege, in particular, that by granting the residence order to the second applicant’s mother despite her lower income, worse living conditions and other factors disadvantaging her as compared to the first applicant, and in disregard of the fact that she had abducted the second applicant and restricted his contact with the first applicant and his family, the domestic courts violated the applicants’ right to respect for their family life and moreover discriminated against the first applicant on grounds of sex. They claim that the domestic courts granted a residence order to M because of the prevailing belief that a small child should be raised by his or her mother rather than by the father. They also complain about the excessive length of the proceedings, claiming that the nature of the dispute called for particular expedition on the part of the domestic courts. QUESTIONS TO THE PARTIES 1.     Did the refusal to grant to the first applicant a residence order in respect of the second applicant violate their right to respect for their family life, guaranteed by Article 8 of the Convention? In particular:   –     Did the the domestic courts assess the particular family situation and the best interest of the child with sufficient thoroughness? Was the second applicant’s mother permitted to benefit from her own wrong by being able to legalise a factual situation brought about by the wrongful removal of the second applicant from the family’s place of residence without the first applicant’s consent (see Hromadka and Hromadkova v. Russia , no.   22909/10, § 152, 11 December 2014, with further references)?   –     Having regard to the fact that the second applicant was examined by experts or “heard” in any other way, was the decision-making process compatible with the requirements of Article 8 (see Antonyuk v.   Russia , no.   47721/10, 1 August 2013)?   –     Did the domestic courts exercise exceptional diligence when examining the applicant’s application for the annulment of the guardianship order and the return of his son, in view of the risk that the passage of time might result in a de facto determination of the matter (see Ribić v. Croatia , no.   27148/12, § 92, 2 April 2015, with further references)?   2.     Did the decision to grant a residence order to the second applicant’s mother rather than to the first applicant on the grounds of their second applicant’s young age, and irrespective of the parents’ individual circumstances and character, amount to discrimination against the first applicant on grounds of sex, contrary to Article   14 of the Convention read in conjunction with Article 8?