European Court of Human Rights

 

 

FIFTH SECTION

CASE OF BOGDANOV v. UKRAINE

(Application no. 27380/20)

 

 

 

 

JUDGMENT

STRASBOURG

4 May 2023

 

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

In the case of Bogdanov 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. 27380/20) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 June 2020 by a Ukrainian national, Mr Vladyslav Sergiyovych Bogdanov (“the applicant”), who was born in 1983 and lives in Chernihiv, and was represented by Ms A. Vtorykh, a lawyer practising in Vyshhorod;

the decision to give notice to the Ukrainian Government (“the Government”), represented by their Agent, most recently Ms O. Davydchuk, of the Ministry of Justice, of the applicant’s complaint under Article 8 of the Convention concerning the authorities’ refusal to disclose to him the address where his minor son was residing, 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 30 March 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the allegedly unjustified refusal of the police on 12 March 2019 to disclose to the applicant the address where his minor son (born in April 2016) was living with his mother, separately from the applicant, although he also exercised parental authority. He complained of a violation of Article 8 on that account.

2.  An appeal by the applicant against that refusal was ultimately dismissed on 11 November 2019 by a decision of the Sixth Administrative Court of Appeal, which found no fault on the part of the police. In particular, the court found that the police had duly established the child’s whereabouts but that the child’s mother had not given permission, as required by the data protection regulations (section 14(2) of the Law on Personal Data Protection and section 11 of the Law on Information), to have the address where she had been living with the child disclosed. On 23 December 2019 the Supreme Court found no grounds to review the case on points of law.

3.  In the meantime, on 7 August 2019 a local child welfare authority issued a “conclusion” setting out a schedule and conditions for meetings and contact between the applicant and his child. Subsequently, the applicant met with the child on 13 September 2019 and was also informed when the child moved to another place of residence.

4.  Between December 2018 and March 2020 the applicant instituted three sets of civil proceedings seeking the return of his son to his previous place of residence, the disclosure of his son’s new place of residence and the removal of obstacles to the applicant’s communication with the child. The applicant’s claim for the return of the child was dismissed as premature in March 2021. The proceedings regarding his two other claims, which the applicant eventually withdrew after reaching an agreement with the child’s mother regarding his contact with the child, were discontinued in November 2019 and January 2022.

THE COURT’S ASSESSMENT

5.  Relying on Articles 6 and 8 of the Convention, the applicant complained about the authorities’ refusal in March 2019 to disclose to him the address where his minor son was residing, as a result of which he had been unable to have access to or contact his son for about five months.

6.  The Government contended that the applicant had abused his right of application, as he had not informed the Court of the civil proceedings which he had initiated between December 2018 and March 2020 (see paragraph 4 above). According to the Government, the issue of which he had complained in the present case had to be resolved by the civil courts in the framework of the proceedings regarding his contact arrangements with the child, a fact of which the police had repeatedly informed the applicant. When he had lodged the present application with the Court in June 2020, the proceedings concerning contact arrangements had still been ongoing and the proceedings concerning the disclosure of the child’s new place of residence had been discontinued at his request, and thus the present complaint had to be dismissed for non-exhaustion of domestic remedies.

7.  The Government added that the applicant had not been informed of the child’s address because the police had had to ensure both the child’s safety and the non-disclosure of the personal information of the child’s mother.

8.  The Court considers that the applicant’s complaint is to be examined solely under Article 8 of the Convention.

9.  There is no indication that the applicant failed to inform the Court of any essential facts relating specifically to the proceedings concerning the police’s refusal to disclose to him his son’s address in March 2019, which is the subject of the present case (see paragraphs 1 and 2 above). Even if it would have been preferable for the applicant to have informed the Court of the civil proceedings which concerned closely related matters, there is no reason to believe that his omitting to do so should be viewed as indicating an intention to mislead the Court.

10.  Even though the civil proceedings to which the Government referred were of direct relevance to the applicant’s relationship and contact with the child, they did not concern the specific action of the police of which the applicant complained in the present case - the refusal to provide him with his child’s address in March 2019 - and the lawfulness of which he duly challenged before the domestic courts (see paragraph 2 above). Thus, the present complaint cannot be dismissed for non-exhaustion of domestic remedies.

11.  The Court further finds that the 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 and the Government’s objections in this regard should be dismissed.

12.  The general principles concerning the guarantee of mutual enjoyment by parent and child of each other’s company as a fundamental element of family life protected by Article 8 have been summarised in, among other authorities, Strand Lobben and Others v. Norway ([GC], no. 37283/13, §§ 202-07, 10 September 2019) and Khusnutdinov and X v. Russia (no. 76598/12, §§ 76-80, 18 December 2018, with further references).

13.  In the instant case, because of the police’s refusal to disclose information about his son’s whereabouts to him, the applicant was unable to exercise his right of access to his child and to information about the child’s personal circumstances for about five months (see paragraphs 2 and 3 above), which is sufficiently serious to raise an issue under Article 8 in so far as it concerns the applicant’s right to respect for his family life (see Süss v. Germany (dec.), no. 63309/00, 13 October 2005, and also, mutatis mutandis, Anayo v. Germany, no. 20578/07, § 62, 21 December 2010; Schneider v. Germany, no. 17080/07, § 90, 15 September 2011; and Fröhlich v. Germany, no. 16112/15, § 57, 26 July 2018, in which essentially similar issues were raised). In those circumstances, it is unnecessary to decide whether the contested non-disclosure amounted to an interference with the relevant rights under that provision, as the Court found in Süss, Anayo, and Schneider (all cited above), or whether this matter should be examined in the light of the State’s positive obligation to take measures to facilitate contact by a non-custodial parent with his child (see, for instance, Glaser v. the United Kingdom, no. 32346/96, § 66, 19 September 2000). The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition; the applicable principles are nonetheless similar (see, among other authorities, I.S. v. Germany, no. 31021/08, § 70, 5 June 2014). In the present case, the Court will ultimately have to decide whether the necessary fair balance was struck between the competing interests at stake in the domestic decision-making process and whether that process provided the requisite protection of the applicant’s rights as safeguarded by Article 8 (see Glaser, §§ 63 and 76; Süss; and I.S. v. Germany, § 71, all cited above).

14.  Having regard to the domestic courts’ reasoning (see paragraph 2 above), the Court finds it appropriate to proceed on the assumption that the contested decision of 12 March 2019 by the police had a sufficient legal basis and pursued the legitimate aim of protecting the right to privacy of the child’s mother, who lived at the same address.

15.  However, the relevant domestic decisions contained no assessment of the negative practical implications of the contested non-disclosure for the applicant’s parental rights, of which he was not formally deprived or restricted (see paragraph 1 above), including the right to have access to his child and to information about him. Nor did the authorities assess the related rights and interests of the child.

16.  It remains unclear whether the police and the courts had any indication that disclosing the child’s address to the applicant would have led to negative consequences for the safety or well-being of the child or his mother or to a serious intrusion into the latter’s private life, seeing that the applicant’s request concerned the disclosure of the address to him alone. No information pointing to such consequences has been provided to the Court.

17.  On the whole, the police and the courts appear to have failed to provide sufficient reasons to justify giving precedence to the privacy rights of the child’s mother over the applicant’s parental rights and did not assess whether this would be in the child’s best interests. Thus, the decision-making process did not involve a fair balancing of the competing rights and interests (contrast Süss, cited above, and Glesmann v. Germany, no. 25706/03, §§ 95, 110 and 111, 10 January 2008, in which the Court found that the domestic authorities’ refusal to disclose the children’s address to their parents had been in the children’s best interests and that the relevant decision-making process had duly taken into account the applicants’ interests, and compare, mutatis mutandis, Anayo, cited above, §§ 71-72).

18.  The above considerations are sufficient for the Court to find that there has been a violation of Article 8 of the Convention on account of the above‑mentioned shortcomings in the domestic decision-making process, which did not provide the requisite protection of the applicant’s right of access to his child and to information about the child’s personal circumstances, notwithstanding the fact that eventually - about five months later - the authorities set out contact arrangements for the applicant and his son and the applicant was then informed of his son’s whereabouts (see paragraph 3 above).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicant claimed 12,000 euros (EUR) in respect of non‑pecuniary damage and 15,000 Ukrainian hryvnias (UAH - equivalent to approximately EUR 450) and UAH 608.50 (equivalent to approximately EUR 18) respectively for legal fees and postal costs incurred in the proceedings before the Court. In support of the latter claim, he submitted copies of relevant contracts, invoices and receipts and a detailed account of the work performed by his representative (twenty-five hours at an hourly rate of UAH 600 (equivalent to approximately EUR 18)).

20.  The Government contended that the claims were unsubstantiated and excessive.

21.  The Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of the claim under this head. The Court also awards the applicant EUR 468 for costs and expenses.

22.  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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 468 (four hundred and sixty-eight 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 4 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                    Carlo Ranzoni
          Deputy Registrar                                                      President