European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF E.D. v. RUSSIA

(Application no. 34176/18)

 

 

 

 

JUDGMENT

 

STRASBOURG

11 January 2022

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of E.D. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Georgios A. Serghides, President,
          Anja Seibert-Fohr,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 34176/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 June 2018 by E.D., holding Israeli and Russian citizenship, born in 1987 and living in Haifa (“the applicant”) who was represented by Mr D.N. Trunin, a lawyer practising in Odintsovo;

the decision to give notice of the complaint under Article 8 of the Convention to the Russian Government (“the Government”), represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the observations submitted by the respondent Government and the observations in reply submitted by the applicant;

the comments submitted by Ms M.K., who was granted leave to intervene by the President of the Section;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 30 November 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The case concerns allegation of international child abduction and the domestic courts’ decisions, under Article 8 of the Convention. The applicant and his former wife M.K. have two sons, the first one born in 2011 in Russia and the second one, B.I., born in 2013 in Israel, where the family moved earlier in 2013. All four are nationals of Russia and Israel. In 2015 the couple divorced. Both former spouses exercised custody rights in respect of the children.

2.  In August 2016, with the applicant’s consent, M.K. and the younger son went to Russia to spend a month of holidays there. Before going, M.K. signed a notarised declaration in which she undertook to travel with B.I. outside Israel from 2 August to 31 August 2016 and return the child to Israel on the latter date. She confirmed to have been aware of the fact that the non‑return of the child on the mentioned date would amount to abduction contrary to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

3.  Meanwhile, on 21 August 2016 the Family Court in Haifa issued an interim custody order in respect of the children in favour of M.K.

4.  On the agreed date M.K. failed to return B.I. to Israel.

5.  In September 2016 the applicant applied to the Russian Ministry of Education and Science, through the Israeli State Attorney’s Office, with a request to have B.I. returned to Israel, in accordance with the Hague Convention, to which both Russia and Israel were parties and which entered into force between Russia and Israel on 1 March 2012.

6.  In March 2017 he lodged an application with the Tverskoy District Court of Moscow (“the District Court”), seeking the child’s return to Israel on the basis of the Hague Convention.

7.  M.K. objected arguing that the child suffered from retarded speech development and emotional problems and that his return to Israel would expose him to a grave risk of psychological harm. M.K. supported her objections with reports by medical specialists confirming the child’s condition and showing its positive dynamics between August 2016 and March 2017 as a result of the treatment underway in Russia. The child was attending a centre of medical pedagogy since October 2016 and a Montessori kindergarten since December 2016, where he was monitored by a speech therapist. The latter considered that a change in the child’s language environment would affect the rhythm of his speech development and his overall psycho-emotional state. Pursuant to the conclusion of a psychologist (April 2017), any change in the child’s environment, separation from significant close people, first of all the mother, any rough change in the child’s routine, alteration of cultural or educational environment could affect the child’s emotional state. The psychologist therefore recommended to preserve the stability of the child’s usual environment and, in particular, considered that the child should continue living in the family of his mother, M.K. with whom the child had close emotional bonds.

8.  On 24 April 2017 the District Court noted that the child had Russian nationality, that his removal from Israel and retention in Russia had not been wrongful, that the applicant agreed to the child’s departure to Russia, that M.K. had created all the necessary conditions for the child’s life and development in Russia, and that the child was undergoing treatment in Russia and, with reference to Article 13 of the Hague Convention, rejected the applicant’s claim for the child’s return to Israel.

9.  On 12 July 2017 the Moscow City Court (“the City Court”) upheld the above judgment on appeal. The City Court agreed with the District Court’s conclusion that, in the absence of a judicial act limiting M.K.’s right to leave Israel with the child or determining the child’s residence as being with the applicant and requiring the latter’s consent for the child’s leaving the territory of Israel, there had been no grounds to believe that the child’s removal from Israel had been wrongful.

10.  On 25 September 2017 and 28 February 2018 the applicant’s cassation appeals were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation, respectively.

11.  The applicant complained under Article 8 of the Convention that the refusal of his application for the return of his son to Israel amounted to a violation of his right to respect for his family life under Article 8 of the Convention.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

12.  The Court notes that this complaint 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.

13.  The general principles emerging from the Court’s case-law on the issue of international abduction of children have been summarized in X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013), and Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 131-40, ECHR 2010).

14.  The examination of whether the applicant’s son was to be returned to Israel depended on whether his retention in Russia by his mother M.K. was wrongful within the meaning of Article 3 of the Hague Convention. This required the ascertaining of the following circumstances: (1)  the child’s habitual residence immediately before his retention; (2)  whether the applicant had custody rights in respect of the child immediately before the retention; and (3)  whether the applicant actually exercised his custody rights in respect of the child at the time of the retention. Without giving any consideration to the above circumstances, the domestic courts reached a conclusion that the child’s retention had not been wrongful. Regardless of this conclusion, however, they acted as though the duty to return the child under the Hague Convention had been triggered: having relied on the child’s medical reports and Article 13 of the Hague Convention, they dismissed the return request. No direct mention or assessment of any grave risk of physical or psychological harm to the child, or otherwise intolerable situation upon his return, was made by the domestic courts. In so far as they may be understood to have implied the existence of such a risk under Article 13 (b) of the Hague Convention due to the child’s retarded speech development and behavioural difficulties for which he was undergoing specialist treatment in Russia (see paragraph 7 above), no assessment was made of the availability of the equivalent treatment in Israel, as well as of whether the child’s return would necessarily entail separation from his mother (compare to Vladimir Ushakov v. Russia, no. 15122/17, §§ 84-105, 18 June 2019).

15.  The interpretation and application of the provisions of the Hague Convention by the domestic courts failed, therefore, to secure the guarantees of Article 8 of the Convention and the respondent State failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life.

16.  There has accordingly been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  The applicant claimed 65,522.43 euros (EUR) in respect of pecuniary damage, EUR 100,000 in respect of non-pecuniary damage and EUR 2,351.75 in respect of costs and expenses incurred before the domestic courts and the Court.

18.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 12,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

19.  Having regard to the documents in its possession, the Court awards the applicant EUR 1,250 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

20.  The Court further considers it appropriate that 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,

1.      Declares the complaint under Article 8 of the Convention admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,250 (one thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                           Georgios A. Serghides
          Deputy Registrar                                                      President