CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 septembre 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 14 September 2020 Published on 5 October 2020   FIFTH SECTION Application no. 4669/20 M.M. and Z.M. against Ukraine lodged on 30 December 2019 STATEMENT OF FACTS The applicants, Ms M.M. (“the first applicant”) and Mr Z.M. (“the second applicant”), are Ukrainian nationals, who were born in 1983 and 2015 respectively and live in Kyiv. They are represented before the Court by Ms   O.V.   Domanchuk, a lawyer practising in Kyiv. The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant and R., her unregistered partner, separated in March 2017. Their sons Z.M. (born in 2015, who is the second applicant) and S. (born in 2017) continued to live with the first applicant. They maintained contact with their father. On several occasions after the separation, R. attempted to take the boys away without the first applicant’s consent. He allegedly threatened to kill her, set her flat on fire and kidnap the boys. In addition, he allegedly battered her before and after the separation. On numerous occasions the first applicant reported R.’s behaviour to the police. The first applicant’s complaints to the police against R. On 21 July 2017 the first applicant complained to the Pechersk District Police in Kyiv about R., arguing that the latter had been hammering at the entrance door, threatening her with setting her flat on fire and trying to take the children. On 18   August 2017 the police drew up a report, they noted that R. had not replied when the police tried to contact him and the neighbours had not seen the incident. The police found that the matter did not require any criminal investigation. On 1 April 2018 the first applicant complained to the Dniprovskyy District Police in Kyiv about R., arguing that her former partner had taken the second applicant for a weekend, but failed to return the child home. As a result, the first applicant had had to go to the dwelling of her former partner and take the child back. On 27 April 2018 the police drew up a report, they noted that they had tried to call R. but his mobile telephone had been switched off. They found that the matter did not require any criminal investigation. On 6 April 2018 the first applicant called the Dniprovskyy District Police in Kyiv seeking protection from R. who had arrived at her flat and had battered her and forced her and the children to sit in his car. On 13   April 2018 the police drew up a report, they noted that by the time they had arrived the dispute had been over and no further investigation was required. On 14 April 2018 the first applicant complained to the Dniprovskyy District Police in Kyiv about R., claiming that the latter had tried to take their younger child from the babysitter while they were walking in the street. The first applicant also contended that R. came to her flat every day, hammered at the entrance door and demanded that she return to live with him or give him the children. On 10 May 2018 the police drew up a report noting that R. could not be reached by telephone. They suggested that the matter had to be resolved by the parties in the civil courts and no further investigation was required. Removal of the second applicant by R. On 25 April 2018 R. took Z. for a walk and did not return him to the first applicant. According to the first applicant, at that time Z.M. was still supposed to be breastfed. On the same day the first applicant complained to the Dniprovskyy District Police in Kyiv. The police drew up a report considering that the matter did not require any criminal investigation. The police noted that they tried to call R. but he did not answer the telephone. They suggested that the dispute be resolved in the civil courts. On 21 May 2018 the first applicant lodged a lawsuit seeking to obtain official physical custody of Z.M. and S. She also lodged a request for an interim order to return Z.M. to her care. In her request for the interim measure the first applicant referred to R.’s violent conduct and insisted that keeping Z.M. away from her would put his well-being at risk, and that he still required breastfeeding. In support of her allegations, the first applicant relied on the written statements of witnesses and numerous reports and letters from the police in connection with her complaints concerning R. On 9, 18 and 26 June 2018 the first applicant complained to the police about R., arguing that she had not had access to the second applicant and that R. had threatened to take the second applicant abroad. On 25   June 2018 the police questioned R. who denied the first applicant’s allegations and submitted that he was duly taking care of the second applicant, who stayed with him, and the first applicant had been free to come and see their son. On 13 July 2018 the Pecherskiy District Court of Kyiv ordered, by way of an interim measure, that Z.M. should be given immediately to the first applicant pending the outcome of the dispute. R. objected to the interim order and lodged an appeal. On 5 September 2018 the first applicant had Z.M. removed from R. with the assistance of the Bailiffs Service. On 19 June 2019 the Kyiv Court of Appeal heard R.’s appeal and quashed the interim measure, finding that it had in fact pre-determined the custody dispute; the interim measure had been excessive and there had been no evidence in the file to show that such a measure had been necessary to ensure effective protection of the rights at issue. The first applicant appealed on points of law to the Supreme Court. On 30 July 2019 the Supreme Court dismissed the appeal as unfounded. Relevant domestic law The Criminal Code (2002) Article 125 of the Code, in so far as relevant, reads as follows: Article   125.     Intentional minor physical injury “1.     Intentional minor physical injury shall be punishable by a fine of up to fifty times the non-taxable minimum income for citizens, or up to two hundred hours of community service, or correctional labour for up to one year. ...” The Code of Administrative Offences (1984) The relevant provision of the Code, Article 173-2 read as follows: Article   173-2.     Act of domestic violence or gender based violence, a failure to abide by an urgent injunctive police order or a failure of the same person to inform the police about his or her whereabouts “The commission of an act of domestic violence or gender based violence, that is, the intentional commission of any acts of a physical, psychological or economic nature (the use of physical force which does not result in physical pain and does not cause physical injuries; threats; insults; stalking; depriving a victim of his or her dwelling, food, clothes, other effects or funds to which he or she is entitled by law; and so on) which results in or could result in harm being caused to the victim’s physical or psychological health, as well as a person’s failure to abide by an urgent injunctive police order issued in respect of him or her, [and] that person’s failure to inform police about his or her whereabouts shall be punishable by a fine from ten to twenty tax free monthly incomes or thirty to forty hours of community service, or administrative detention for up to seven days. ...” Law of Ukraine “On the prevention [of] and combatting domestic violence” no.   № 2229-VIII of 7   December   2017 (entered into force on 7   January   2018) The Act provides, inter alia , for a series of “special measures on combatting domestic violence” to address victims’ complaints. These measures include, in particular: urgent injunctive police order; restraining court order; placement of the offender on the preventive measures record; and placement of the offender into the special corrective programme (Sections   24 – 28). Relevant International Material Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia , that Member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention thereof. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services. COMPLAINTS The applicants complain under Articles 6, 8 and 13 of the Convention that the domestic courts failed to properly examine the request for the interim measure aimed at protecting the well-being of the child. The first applicant complains under Article 13 that the domestic authorities failed to protect them against R.’s aggressive behaviour. QUESTIONS TO THE PARTIES 1.     Did the authorities discharge their positive obligations under the Convention in reaction to the first applicant’s repeated complaints regarding the behaviour of her former partner? In particular:   (a)     With regard to the interim measure proceedings: has there been a violation of Articles 6 and 8 of the Convention? Did the courts examine the request with the requisite promptness? Did they comply with their duty to give reasons for their findings? What were the consequences of the appellate court judgment of 19 June 2019?   (b)     With regard to the applicants’ allegations of domestic violence: did the authorities comply with their positive obligations under Articles 3 and 8 of the Convention to ensure the applicants’ protection from the risk of nuisance, harassment and violent acts by R.?