Постановление ЕСПЧ от 07.06.2022

<Дело С.-А.Д. и Л.-С.Д. (C.-A.D. and L.-C.D.) против России> (жалоба № 29601/20) [англ.]

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

In the case of C.-A.D. and L.-C.D. v. Russia,

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

Georgios A. Serghides, President,

Anja Seibert-Fohr,

Peeter Roosma, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 29601/20) 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 14 May 2020 by a French national, Mr C.-A. D. («the first applicant»), on behalf of himself and his son, Mr L.-C.D. («the second applicant»), a citizen of France and Russia, who were represented by Ms L.A. Yablokova, a lawyer practising in St Petersburg;

the decision to give notice of the application to the Russian Government («the Government»), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov;

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

the decision to grant the applicants anonymity ex officio (Rule 47 § 4 of the Rules of Court);

the parties' observations;

the letter from the French Government informing the Court that they do not wish to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention);

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

Having deliberated in private on 17 May 2022,

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

SUBJECT-MATTER OF THE CASE

1. The case concerns an allegation of international child abduction and the domestic courts' decisions, under Article 8 of the Convention. In 2008 the first applicant married a Russian national, Ms M.Ch., in France. On an unspecified date M.Ch. obtained French citizenship.

2. On 26 July 2012 their son, the second applicant, was born.

3. In September 2018 the first applicant informed M.Ch. of his intention to initiate divorce proceedings.

4. On 3 November 2018 when the first applicant returned from work M.Ch. and the second applicant were gone. Having discovered taxi and flight reservations, the applicant realised that M.Ch. and the second applicant left France for Russia on 2 November 2018, which was later confirmed in message exchange with M.Ch.

5. On 22 January 2019 the first applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg («the District Court»), seeking the second applicant's return to France on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction («the Hague Convention»), to which both Russia and France are parties.

6. By a judgment of 18 March 2019, the District Court granted the first applicant's request and ordered that the second applicant be returned to France immediately. The court found that the second applicant's place of habitual residence was France, that his removal from France had been wrongful as it had taken place without the first applicant's consent in violation of his custody rights, and that there had been no grounds for granting an exception to the child's immediate return under the Hague Convention. The District Court noted the absence of any objective grounds preventing M.Ch. from returning to France with the child: no criminal proceedings had been pending against her in France in connection with the child's abduction and the first applicant had no intention to initiate any such proceedings in the event of her return. Furthermore, less than one year had elapsed since the child's removal, for which reason the child's adaptation to his new environment could not be argued by the abductor parent. M.Ch.'s argument to the effect that the child had been reluctant to return could not be a ground for rejecting the first applicant's request either as it had not been based on law and the requirements of the Hague Convention.

7. Following M.Ch.'s and the prosecutor's appeal, on 4 June 2019 the St Petersburg City Court («the City Court») quashed the judgment of 18 March 2019 on appeal and rejected the first applicant's request for the second applicant's return to France. The City Court held that the second applicant's removal from France to Russia had not been wrongful. It relied in this connection on the following circumstances: (1) the absence of a final judicial decision determining the child's residence at the time of the removal; (2) the absence of a legal provision prohibiting the child, who is a Russian citizen, from entering the territory of the Russian Federation; and (3) the second applicant's adaptation into the social and family environment in Russia since November 2018.

8. The City Court further held that the circumstances of the present case fell under the exceptions to immediate return under Articles 13 (b) and 20 of the Hague Convention. The City Court stressed, in particular, that the child's return to France without his mother would be against his best interests as it created a risk of him sustaining psychological trauma (reference to the opinion of childcare authority dated 5 March 2019), whereas the respondent, a Russian citizen could not be forced to return from Russia to France. The City Court relied on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provided that a child of tender years should not, save in exceptional circumstances, be separated from his or her mother, as well as on the report by the childcare authority, stating that the child's forceful separation from his mother could affect his psychological development and mental health and would run contrary to his best interests. The City Court went on to say that «motherhood and childhood» had been distinguished into a separate independent legal concept by the Russian Constitution and that any attempt at disrupting the tie between motherhood and childhood contradicted the Russian Constitution. The priority of motherhood and childhood against all other legal forms of family life organisation, set out by Article 38 § 1 of the Russian Constitution, was one of the fundamental principles of the Russian Federation, unequivocally implying the impossibility of disrupting the relations between the mother and the child, except when it contradicted the interests of the child. The City Court noted the absence of any such contradiction in the present case.

9. On 8 August and 22 October 2019 cassation appeals by the first applicant were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation, respectively.

THE COURT'S ASSESSMENT

I. Alleged violation of Article 8 of the Convention

10. The Government submitted that the application was lodged outside the six-month time-limit under Article 35 § 1 of the Convention: the final domestic decision had been taken on 22 October 2019 (see paragraph 9 above), whereas the relevant application had been lodged with the Court as late as 14 May 2020.

11. Indeed, in the normal course of events the six-month period would have expired six calendar months after the decision of 22 October 2019, on 22 April 2019. However, in view of the global health crisis declared by the World Health Organisation on 11 March 2020 in connection with the outbreak of COVID-19, on 16 March and 9 April 2020 the President of the Court announced a number of exceptional measures to allow applicants, High Contracting Parties and the Court to handle the difficulties to which the global pandemic and widespread lockdown gave rise. One effect of those measures was that the Registry of the Court, when registering newly received applications, was to add three months in total to the method of calculation of the six-month rule under Article 35 § 1 of the Convention whenever a calendar six-month period either started to run or was due to expire at any time between 16 March and 15 June 2020.

12. On 1 March 2022, the Court addressed the COVID-related extension of the six-month period and concluded that it should be exceptionally considered to have been suspended for three calendar months in total (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46 — 59).

13. In the present case the calendar six month expired on 22 April 2020 and the latter date fell within the time frame indicated above. Therefore, the applicant had an additional three months — until and including 22 July 2020 — to lodge his application before the Court. Since the application was introduced on 14 May 2020, the application cannot be considered to have been lodged out of time, within the meaning of Article 35 § 1 of the Convention, in the very exceptional circumstances outlined above.

14. The Court further notes that the application 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.

15. 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, with further references).

16. The determination of whether the second applicant was to be returned to France depended on whether his removal from France by his mother M.Ch. was wrongful within the meaning of Article 3 of the Hague Convention. This required the ascertaining of the following circumstances: (1) the State of the child's habitual residence immediately before the removal; (2) whether the first applicant had custody rights in respect of the child under the law of that State immediately before the removal; and, if so, (3) whether the first applicant actually exercised his custody rights in respect of the child at the time of the removal.

17. Without giving any consideration to the above circumstances, the City Court reached a conclusion that the child's removal had not been wrongful, relying on circumstances irrelevant for the assessment of the wrongfulness of the removal under the criteria of the Hague Convention: the absence of a final judicial decision determining the child's residence at the time of the removal, the absence of a legal provision prohibiting the child, who had Russian citizenship, from entering the territory of the Russian Federation, and the child's integration into the social and family environment in Russia after his removal (see paragraphs 7 — 8 above).

18. Regardless of its conclusion that the child's retention in Russia had not been wrongful, the City Court acted, however, as though the duty to return the child under the Hague Convention had been triggered. Having relied on the child's interest, in view of his young age, in not being separated from his mother, the City Court dismissed the return request with reference to Articles 13 (b) and 20 of the Hague Convention.

19. The exceptions to return under the Hague Convention must be interpreted strictly and the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Nothing in the circumstances unveiled before the domestic courts objectively ruled out the possibility of the mother's return together with the child. It was not implied that M.Ch. did not have access to French territory, that she would have faced criminal sanctions upon her return, or that the first applicant might actively prevent her from seeing the second applicant in France or deprive her of parental rights or custody. Allowing the return mechanism to be automatically deactivated on the sole basis of a refusal by the abducting parent to return would subject the system designed by the Hague Convention to the unilateral will of that parent. The City Court's reliance on Principle 6 of the United Nations 1959 Declaration in the assessment of the «grave risk» exception under Article 13 (b) of the Hague Convention and in disregard of other international instruments, such as the European Convention, the Convention on the Rights of the Child and the Hague Convention, was unacceptable. This approach was tantamount to a finding by the domestic courts that the option of returning very young children who have been abducted by their mothers is not necessarily envisaged under the Hague Convention, a conclusion that is contrary to the letter and spirit of that Convention (see Thompson v. Russia, no. 36048/17, §§ 54 — 74, 30 March 2021, with further references).

20. 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 applicants their right to respect for their family life. There has accordingly been a violation of Article 8 of the Convention on account of the refusal to return the second applicant to France.

II. Alleged violation of Article 14 of the Convention

21. The first applicant also complained under Article 14 of the Convention, in conjunction with Article 8, that, having relied on Principle 6 of the 1959 Declaration of the Rights of the Child as one of the reasons for rejecting his request for the return of the second applicant to France, the City Court had discriminated against him on the ground of gender. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that there is no need to give a separate ruling on the first applicant's complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22. The applicants claimed compensation for non-pecuniary damage in an amount to be determined by the Court. The first applicant further claimed EUR 8,000 euros (EUR) (750,000 Russian roubles (RUB)) in respect of costs and expenses incurred before the domestic courts and the Court. He further claimed EUR 1,300 (EUR 864 and RUB 43,956) for travel and accommodation expenses, accordingly, incurred during the examination of the case by the Russian courts between February and June 2019.

23. The Court awards the first applicant EUR 12,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. The finding of a violation will constitute sufficient just satisfaction in respect of the second applicant.

24. Having regard to the documents in its possession, the Court considers it reasonable to award the first applicant EUR 6,700 covering costs under all heads, plus any tax that may be chargeable to him.

25. 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 that there is no need to examine the admissibility and merits of the complaint under Article 14 of the Convention;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the second applicant;

5. Holds

(a) that the respondent State is to pay the first applicant, within three months, the following amounts:

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

(ii) EUR 6,700 (six thousand seven hundred euros), plus any tax that may be chargeable to the first 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;

6. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 7 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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