European Court of Human Rights

 

 

FIFTH SECTION

CASE OF DUBAS v. UKRAINE

(Application no. 51222/20)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

9 March 2023

 

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

In the case of Dubas v. Ukraine,

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

          Carlo Ranzoni, President,
          Mattias Guyomar,
          Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 51222/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 November 2020 by a Ukrainian national, Mr Igor Vasylyovych Dubas (“the applicant”), who was born in 1979 and lives in Kyiv, and was represented by Ms I. Koval, a lawyer practising in the Kyiv Region;

the decision to give notice of the applicant’s complaint under Article 8 of the Convention concerning the non-enforcement of a judgment on contact arrangements to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms O. Davydchuk, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated in private on 9 February 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged failure of the authorities to implement a judgment given by the Kyiv Court of Appeal on 12 July 2018, setting out contact arrangements between the applicant and his daughter, who was born in 2013 and had been living separately from him since July 2016. The applicant complained of a violation of Article 8 of the Convention.

2.  The child’s mother, with whom the child had been living, failed to comply with those arrangements. For that reason, in the course of the relevant enforcement proceedings, which were initiated in August 2018 and are still ongoing, the bailiffs imposed more than fifty fines on the child’s mother, which she did not pay, and issued a seizure order, which was not enforced, in respect of her car. The bailiffs also issued an order to have her bank accounts frozen, which was set aside by the courts in March 2020 because the obligation under the judgment of 12 July 2018 was of a non-pecuniary nature. In 2018 the police initiated criminal proceedings against the child’s mother for obstructing the enforcement of the judgment. On 13 September 2019 the Holosiyivskyi District Court of Kyiv criticised the police for not taking action and ordered them to expedite the criminal proceedings. There is no information about any concrete investigative actions consequently taken by the police in the course of those proceedings, which are still ongoing.

3.  During the only meeting which the bailiffs organised between the applicant and his child in the presence of the child’s mother, her lawyer and a psychologist in September 2019, the child refused to communicate with the applicant because she was afraid of him. Subsequently, the applicant could not meet with the child because her mother repeatedly objected to any such meetings.

THE COURT’S ASSESSMENT

4.  Relying on Article 8 of the Convention, the applicant complained that the authorities had failed to enforce the contact arrangements set out in the Kyiv Court of Appeal’s judgment of 12 July 2018.

5.  The Government contended that the relevant contact arrangements had not been enforced because of the applicant’s strained relationship with the child’s mother, her refusal to comply with the judgment in question and the child’s negative attitude towards him. In the circumstances, the authorities had taken all the actions required by law for the enforcement of the judgment. The Government also argued that the applicant could have applied to the courts to grant him custody of the child.

6.  The Court finds that the present 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.

7.  The general principles concerning the State’s positive obligations with regard to the protection of the relationship between parents and their children have been summarised in, among other authorities, Vyshnyakov v. Ukraine (no. 25612/12, §§ 35-37, 24 July 2018).

8.  The Court has repeatedly found in cases against Ukraine that the inappropriate manner in which court judgments regarding children were implemented was the result of a lack of a developed legislative and administrative framework that could facilitate voluntary compliance arrangements involving family and child welfare professionals. Furthermore, the available framework did not provide for appropriate and specific measures to ensure, subject to the proportionality principle, coercive compliance with those arrangements (see Vyshnyakov, cited above, § 46; Bondar v. Ukraine [Committee], no. 7097/18, § 36, 17 December 2019; Shvets v. Ukraine [Committee], no. 22208/17, § 38, 23 July 2019; Gen and Others v. Ukraine [Committee], nos. 41596/19 and 42767/19, § 68, 10 June 2021; Spitsyn v. Ukraine [Committee], no. 52411/18, § 32, 7 October 2021; and Zhupan v. Ukraine [Committee], nos. 38882/18 and 50200/19, § 36, 7 October 2021).

9.  Those findings are equally pertinent to the present case. In particular, the authorities did not give consideration to any arrangements for voluntary compliance with the judgment in question, for example, by developing a comprehensive compliance strategy, including targeted support to the child, who apparently showed signs of being alienated from the applicant (see paragraph 3 above, and compare Gen and Others, cited above, § 66). It remains unclear to what extent the child welfare and family services could have been involved in that context and whether any family mediation could have been used (see Vyshnyakov, cited above, § 43).

10.  The coercive measures which the authorities took against the child’s mother for obstructing the relevant contact arrangements produced no results; the fines imposed on her remained unpaid, the seizure order was not enforced and the criminal proceedings lasted more than four years (see paragraph 2 above, and compare Begović v. Croatia [Committee], no. 35810/14, § 67, 13 June 2019).

11.  On the whole, the Court, being mindful of the fact that the domestic authorities’ task in the present case was rendered difficult by the strained relationship between the applicant and the child’s mother, finds that the authorities did not fulfil their positive obligation under Article 8 to enforce the contact arrangements set out in the Kyiv Court of Appeal’s judgment of 12 July 2018 (compare Begović, cited above, §§ 69-73). In these circumstances, the first applicant cannot be reproached for not applying to the courts to grant him custody of the child.

12.  Consequently, there has been a violation of Article 8.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage and EUR 4,500 for legal costs in the domestic proceedings, without providing a detailed account of the relevant expenses or itemised bills or invoices. He also requested that the Court oblige the Government to put in place the necessary legislative framework to avoid similar violations of Article 8 in the future.

14.  The Government contended that the claims were unsubstantiated.

15.  The Court awards the applicant EUR 4,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claim. Regarding the applicant’s argument pointing to the necessity of implementing a national legislative framework to prevent future violations of the Convention similar to that found in the present case, the Court has already addressed this aspect above and also in previous similar cases against Ukraine (see paragraph 8 above).

16.  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 application 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, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 9 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President