KHUSNUTDINOV AND X v. RUSSIA - 76598/12 (Judgment : Preliminary objection dismissed : Third Section) [2018] ECHR 1046 (18 December 2018)

JUDGMENT STRASBOURG 18 December 2018 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khusnutdinov and X v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President, Helen Keller, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 20 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 76598/12 ) 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") by Russian nationals, Mr Rafael Kaymanovich Khusnutdinov ("the first applicant") and X ("the second applicant"), on 16 November 2012. The Court decided of its own motion that the second applicant's name should not be disclosed (Rule 47 § 4 of the Rules of Court). 2. The applicants were represented by Ms D. Pigoleva, a lawyer practising in the Moscow Region. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicants alleged, in particular, that the domestic authorities' refusal to order the second applicant's return from her grandparents to the first applicant had violated their right to respect for their family life and that they had not had an effective remedy to protect their family life. 4. On 17 June 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1978 and lives in Washington DC, the United States of America (hereafter "the USA"). X, the second applicant, was born in 1998 and lives in Moscow. 6. The applicants are father and daughter. The first applicant lodged the application on his own behalf and on behalf of his daughter, who was underage at the material time. 7. Until 2008 the first applicant had been living in Moscow together with his wife E. and their daughter, X. 8. In June 2008 the family moved to the USA. X started to attend school there. 9. On 2 December 2008 X moved to Tashkent, Uzbekistan, to live with her maternal grandparents temporarily, as her mother had become seriously ill. 10. On 26 December 2008 E. died of cancer in the USA. 11. On 4 January 2009 the first applicant went to Tashkent for E.'s funeral. He then returned to the USA to deal with the necessary formalities, temporarily leaving X in Tashkent with her maternal grandparents, B. and S., because her state of health after her mother's death prevented her from travelling. An agreement was concluded between the first applicant and his parents-in-law that they would take X to Moscow as soon as he returned there from the USA. 12. The first applicant returned to Moscow in March 2009. However, B. and S. refused to take X to Moscow. 13. During the following months the first applicant applied to the Russian Consulate in Uzbekistan, to the Russian Embassy in Uzbekistan and to the Russian Ministry of International Affairs for assistance in recovering his daughter. 14. By letter of 29 September 2009, the Ministry of International Affairs informed the first applicant that on 18 September 2009 officials from the Russian Consulate in Uzbekistan had visited B., S. and X in their home in Tashkent. They had found that X's living conditions were excellent. She had a separate room with all necessary facilities, including a personal computer with access to the Internet. She attended a local school and numerous extracurricular activities and was an exemplary pupil. B. had told the officials that the first applicant had not visited his daughter. B. had been worried that if X returned to the first applicant, she would not be taken good care of. He had also considered that it would not be in X's best interests to move to the USA. She would be better off living in Tashkent where her mother was buried and where most of her family and friends lived. X had told the officials that she missed her father and could not understand why he had not visited her for so long. The officials had concluded that there were no obstacles preventing the first applicant from visiting his daughter in Tashkent and eventually taking her away with him. . On 9 October 2009 the Uzbek childcare authority visited X. The officials found that X's living conditions were good. X told them that she missed her father but preferred to live with her grandparents. 16. On 9 January 2010 the first applicant arrived in Tashkent. He went to X's school where he was able to talk to her. B. and S., however, prevented him from visiting X again or taking her away with him. 17. On 19 July 2010 the Tashkent childcare authority visited X and found that her living conditions were comfortable and that she was taken good care of by her grandparents. She attended school and extracurricular activities. 18. In July 2010 the first applicant complained to the prosecutor's office of the Khamzinskiy District of Tashkent that B. and S. were unlawfully retaining his daughter. By letter of 20 July 2010, the prosecutor's office replied that he was free to take his daughter away at any time. If B. and S. prevented him, he should apply to an Uzbek court. 19. On 1 September 2010 the first applicant applied to the Cheremushinskiy District Court of Moscow, seeking X's return to him. He submitted that his parents-in-law were unlawfully retaining his daughter against his will. They were preventing him from seeing X and from contacting her by telephone or via the Internet. He also submitted that there was a strong attachment between him and X and that X was suffering as a result of being separated from her father. 20. The Cheremushinskiy District Court registered the case on 3 September 2010 and invited the parties for a talk on 27 September 2010. 21. On 27 September 2010 the Cheremushinskiy District Court asked the childcare authority to prepare an opinion on the case and scheduled the first hearing for 19 October 2010. 22. The hearing of 19 October 2010 was adjourned until 19 November 2010 at the first applicant's request. 23. On 21 October 2010 the Moscow childcare authority visited the first applicant's flat in Moscow and found it comfortable. They also questioned his uncle, who stated that the first applicant lived and worked in the USA. He had a comfortable income and a spacious flat. He had bought medical insurance for X and had enrolled her in the best school in the area where he lived. He also stated that B. and S. had been preventing the first applicant from contacting X, in particular by cutting off her telephone and Internet access. . On 13 November 2010 the Moscow childcare authority visited a flat belonging to B. in Moscow and found it comfortable. On the same day the Moscow childcare authority questioned B.'s representative, who stated that the first applicant lived in the USA, often travelled for work and could not therefore take care of his daughter. He did not support her financially and did not visit her. B.'s representative also conceded that B. was preventing the first applicant from contacting his daughter. 25. Hearings were held on 19 November and 15 December 2010. The first applicant reiterated the arguments set out in his complaint of 1 September 2010. He also stated that he permanently lived and worked in the USA, had a stable income and could provide his daughter with everything she needed. He complained that S. and B. were not only preventing him from contacting X, but were also exercising influence on her in order to set her against him. He also submitted the following documents from the USA: X's school records; X's and his own character references from the neighbours, X's teachers and the parents of her school friends; certificates from his employer confirming his income and health insurance covering himself and his daughter, and stating that his post was based in Washington, DC, and did not require frequent travel; an opinion by the doctor who had treated X's mother that, in view of an increased hereditary risk of cancer, X needed regular medical supervision in a specialised clinic; and a description of the first applicant's flat in Washington, DC, by a real-�estate agent. . B. and S. stated that they were worried that the first applicant would not have sufficient time to take care of X because he had to travel a lot for work. They were taking good care of their granddaughter and supported her financially because her father did not pay any child maintenance. X had been born in Tashkent, attended school there and had many friends. Neither her father nor her paternal grandparents, who also lived in Tashkent, visited X or showed any interest in her life. X's return to her father against her will would traumatise her. They submitted affidavits by X's teachers that when the first applicant had visited X at school in January 2010, the girl had been frightened and had asked them to call her grandparents. 27. The next hearing was scheduled for 24 January 2011. The court ordered B. and S. to bring X to testify at that hearing. 28. On 20 January 2011 the childcare authority issued its opinion on the case. It found that, given that the parents had priority rights over anyone else in raising their children, X should be returned to her father. 29. On 24 January 2011 the Cheremushinskiy District Court discontinued the civil proceedings, finding that civil proceedings between the same parties and concerning the same facts were pending before Uzbek courts. 30. On 2 February 2011 the applicant appealed against the decision to discontinue the proceedings. On 8 April 2011 the Moscow City Court quashed the decision of 24 January 2011 on appeal as unlawful. 31. On 19 April 2011 the mayor of the Mirzo-Ulugbek District of Tashkent appointed S. as X's guardian, finding that her mother had died, that her father's whereabouts were unknown and that she had been brought up by S. since 2008. 32. On 28 April 2011 the Cheremushinskiy District Court resumed the proceedings and scheduled the next hearing for 27 May 2011. 33. The hearing of 27 May 2011 was adjourned until 21 June 2011 because the first applicant and his counsel did not appear. 34. At the end of the hearing of 21 June 2011 the Cheremushinskiy District Court decided to send a request for assistance to the Uzbek courts, asking that X be questioned about the following matters: - whether her grandparents were preventing her from seeing or contacting her father; - when she had seen her father for the last time; - whether she missed her father; - whether she wanted to live with her father; and - whether she talked to her father over the telephone and, if so, on whose initiative the telephone calls were made. 35. On 20 July 2011 the Russian Ministry of Justice forwarded the request to their Uzbek colleagues. 36. On 24 October 2011 the Ulugbekskiy District Court of Tashkent questioned X. Assisted by a specialist from the childcare authorities and by her guardian, S., X stated that her grandparents did not prevent her from contacting her father. She had access to the Internet and was present on social networks. She would like to contact her father, but she did not know his telephone number or email address, and had no social network account for him. She had seen her father for the last time about two years earlier. She missed him and would like to see him more often, but she would prefer to live with her grandparents. 37. On an unspecified date the Cheremushinskiy District Court received the questioning record and scheduled the next hearing for 15 November 2011. 38. The hearings of 15 November and 22 December 2011 were adjourned because the first applicant and his counsel did not appear. The next hearing was scheduled for 1 February 2012. 39. On 31 January 2012 the first applicant asked that the hearing of 1 February 2012 be held in his absence. He submitted that he was prevented from travelling to Moscow and that his counsel was on maternity leave. They could not therefore attend the hearing. 40. The hearing of 1 February 2012 was adjourned until 27 February 2012 because the first applicant and his counsel did not appear and because the childcare authority needed additional time to prepare a new opinion on the case, taking into account the child's wishes. 41. On 27 February 2012 the childcare authority issued a new opinion on the case. It found that X should remain with her grandparents. . On 27 February 2012 the Cheremushinskiy District Court rejected the first applicant's request for X to be returned to him. Taking into account X's wishes and the opinion of the childcare authority, the court held that it would be in X's best interests to remain with her grandparents. 43. On 26 March 2012 the first applicant lodged appeal submissions. He complained, in particular, that the excessive length of the judicial proceedings had resulted in X's getting used to living with her grandparents. He also complained that X had not been questioned by the District Court. Her questioning by an Uzbek court should not be taken into account because she had been under the influence of her grandparents, who had been present during the questioning. Lastly, the first applicant argued that under Russian law he had a right to priority over any other person in raising his daughter. The District Court's judgment had legitimated X's unlawful retention by her grandparents, who hindered any contacts between him and his daughter. All telephone numbers had been changed and, despite his repeated requests, he had not been given his daughter's new telephone number. Her social network account had been inactive since January 2009. His relatives' numerous attempts to visit X had been unsuccessful, as B. and S. had refused to let them into the house. By contrast, he had had the same telephone number and email address for at least ten years and X knew them. If she had unlimited access to telephone and the Internet, as B. and S. claimed, she could have contacted him without any difficulty. The first applicant claimed that those facts could have been easily verified but the District Court had failed to do so. . Meanwhile, on 29 February 2012, the Mirzo-Ulugbek District Court of Tashkent, Uzbekistan, deprived the first applicant of parental authority over X at S.'s request. The District Court noted at the outset that it had been unable to obtain the first applicant's submissions on the case. It had sent two requests for assistance to a competent Russian court, asking it to collect the first applicant's submissions; the Russian court had however replied that it was impossible to obtain the first applicant's submissions because he did not live at his registered place of residence. The District Court then found that X had been living with her maternal grandparents since 2008. The first applicant had not taken part in her upbringing and had not supported her financially. He had visited her only once, in 2010. The District Court also took note of X's statement that she no longer remembered her father and wished to live with her grandparents. . On 18 May 2012 the Moscow City Court upheld the judgment of 27 February 2012 on appeal, finding that it had been lawful, well-reasoned and justified. 46. On 8 October 2012 a judge of the Moscow City Court refused to refer a cassation appeal lodged by the first applicant to the Presidium of that Court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. 47. In June 2015 X moved to Moscow with her grandparents. II. RELEVANT DOMESTIC LAW 48. The Family Code provides that parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of the children's health and their physical, psychological and moral development. Parents have a right to priority over any other person in raising and educating their children (Article 63). 49. Parents are entitled to require the return of their child from any person who retains him/her without a legal basis. In the event of a dispute, parents are entitled to apply to a court. A court may reject the application, taking into account the child's opinion, if it is established that the return of the child to the parent is contrary to his/her interests (Article 68 § 1). . Parents act on their child's behalf and defend the child's rights and interests in any relations with persons or legal entities. They act ex officio as the child's legal representative in court proceedings (Article 64 § 1). Parents cannot act on their child's behalf if the childcare authorities have established that there is a conflict between the interests of the parents and those of the child. If there is a disagreement between the parents and the child, the childcare authorities must appoint a representative to defend the child's rights and interests (Articles 64 § 2). Unless otherwise provided for by federal law, a child's parents forfeit their rights and obligations to defend the child's rights and interests as soon as a guardian is appointed (Article 148.1 § 2). 51. A child is entitled to express his opinion on all family matters concerning him, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his/her interests (Article 57). THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The first applicant complained, on behalf of himself and of the second applicant, that the authorities' refusal to order the second applicant's return from her grandparents to him had violated their right to respect for their family life. He relied on Article 8 of the Convention, which reads as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." A. Admissibility 1. Incompatibility ratione personae 53. The Government submitted that the second applicant had never applied to the Court, either in person or through a representative. They argued that the first applicant could not lodge an application on her behalf, as she had never given him written authority to do so. Moreover, she had stated clearly in the domestic proceedings that she did not want to live with him. 54. The first applicant submitted that under Russian law he was entitled to act on behalf of his minor daughter and to act ex officio as her legal representative in any judicial proceedings (see paragraph 50 above). He also submitted that it would have been impossible to obtain the relevant written authorisation from his daughter, as he had been unable to contact her for many years. 55. The Court reiterates that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions, both procedural and substantive, be interpreted and applied so as to render its safeguards both practical and effective. In this context, the position of children under Article 34 deserves careful consideration, as they must generally rely on other persons to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense. A restrictive or technical approach in this area is therefore to be avoided and the key consideration in such cases is that any serious issues concerning respect for a child's rights should be examined (see Hromadka and Hromadkova v. Russia , no. 22909/10 , § 118, 11 December 2014, with further references). . Whether a natural parent has standing to act on his child's behalf in proceedings before the Court is dependent on whether the party who opposes the natural parent and is entitled to represent the child under domestic law can be deemed to be effectively protecting the child's Convention rights (see Siebert v. Germany (dec.), no. 59008/00 , 9 June 2005). The Court has found in previous cases that in the event of a conflict over a minor's interests between a natural parent and a person appointed by the authorities to act as the child's guardian, there is a danger that some of those interests will never be brought to the Court's attention and that the minor will be deprived of effective protection of his rights under the Convention. Consequently, even where the parent has been deprived of parental rights, his or her standing as the natural parent suffices to afford him or her the necessary power to apply to the Court on the child's behalf too, in order to protect his or her interests (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98 , § 138, ECHR 2000-�VIII, where the mother who had been deprived of parental rights acted on behalf of her children who had been placed under the guardianship of a foster family; P., C. and S. v. the United Kingdom (dec.), no. 56547/00 , 11 December 2001, where the natural parents acted on behalf of their daughter who had been adopted by another family; and Siebert, cited above, where the natural father who had never had parental rights in respect of his daughter born out of wedlock acted on her behalf even though she was under the guardianship of her aunt). 57. The Court does not see any reason to reach a different conclusion in the present case. The first applicant is X's only surviving natural parent; he is in conflict with his mother-in-law, who has refused to return his daughter to him after a temporary stay and who has been subsequently appointed the girl's guardian by the Uzbek authorities. It is not clear from the case file whether the first applicant is still entitled to act on X's behalf in Russia since her grandmother has been appointed her guardian in Uzbekistan and since he has been deprived of parental authority by an Uzbek court, given that those decisions have never been officially recognised in Russia. Be that as it may, the decisive factor is that there is a conflict between a natural parent and a State-appointed guardian over a minor's interests, as in the cases cited in paragraph 56 above. Consequently, even though the first applicant was deprived of parental authority, his standing as the natural father suffices to afford him the necessary power to apply to the Court on his daughter's behalf, in order to protect her interests which otherwise risk not being brought to the Court's attention (see, for similar reasoning, Scozzari and Giunta, cited above, § 138). 58. Lastly, as regards the Government's argument that X had stated in the domestic proceedings that she did not want to live with the first applicant, the Court considers that this argument is so closely linked to the substance of the applicants' complaint that it falls to be examined on the merits under Article 8 of the Convention. 59. In these circumstances, the first applicant has standing to act on his daughter's behalf. The Government's objection must accordingly be dismissed. 2. Exhaustion of domestic remedies 60. The Government submitted that the first applicant had failed to exhaust domestic remedies. Firstly, he had not lodged a cassation appeal against the refusal to order his daughter's return with the Supreme Court of Russia. They relied on Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13 , 12 May 2015). Secondly, he had not appealed against the Uzbek authorities' decisions to appoint X's grandmother as her guardian and to deprive him of parental authority. Thirdly, he had not applied to either the Russian or the Uzbek courts for contact rights. Lastly, in their further submissions, the Government argued for the first time that the first applicant had not lodged a civil claim for compensation for the allegedly excessive length of the proceedings. 61. The applicants submitted that the admissibility of a cassation appeal would be decided by a single judge, who could either dismiss it or decide to transfer it to the cassation instance for examination on the merits. They argued that they should not have to exhaust remedies which depended on State officials' discretionary powers. They further submitted that cassation courts had no competence to evaluate evidence or establish facts; only the first-instance and appellate courts could do that. Given that the thrust of their complaint was an arbitrary and superficial assessment of the facts by the domestic courts and the lack of diligence in dealing with their urgent situation, a cassation appeal would have had no prospects of success in their particular case. 62. As regards the Government's argument that the first applicant had not appealed against the Uzbek authorities' decisions to appoint X's grandmother as her guardian and to deprive him of parental authority, the Court notes that the Uzbek authorities' decisions are outside the scope of the present case. The Government's objection is therefore misconceived. 63. The Government's submission that the first applicant had not applied for contact rights is also misconceived. The applicants' complaint to the Court is limited to the Russian authorities' refusal to order X's return to her father and the delays in the proceedings leading to that decision. The applicants did not complain that the Russian authorities had failed in their obligation to enable contact between them to be maintained pending the domestic proceedings or afterwards; that matter is therefore also outside the scope of the present case. 64. In so far as the Government argued that the first applicant had not lodged a civil claim for compensation for the allegedly excessive length of the proceedings, the Court notes that the Government did not raise that objection in their initial observations on the admissibility and merits, and the question of the first applicant's failure to lodge a civil claim for compensation was raised only in their additional observations and submissions on just satisfaction. The Government did not indicate any impediment by which they had been prevented from referring, in their initial observations on the admissibility and merits of the case, to a failure by the first applicant to lodge a civil claim. It follows that the Government are estopped from relying on a failure to exhaust domestic remedies for the allegedly excessive length of proceedings (see Khlaifia and Others v. Italy [GC], no. 16483/12 , §§ 51-54, 15 December 2016). 65. Lastly, as regards the Government's argument that the first applicant had not lodged a cassation appeal against the refusal to order his daughter's return with the Supreme Court of Russia, the Court has already rejected similar objections by the Russian Government in many cases where the applicants had lodged their applications before the Court had pronounced its judgment in the case of Abramyan and Others (cited above, §§ 76-96, where the Court recognised the recently reformed two-tier cassation appeal procedure as an effective remedy; see, for example, Novruk and Others v. Russia , nos. 31039/11 and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva v. Russia, no. 16899/13 , §§ 64-69, 29 March 2016; McIlwrath v. Russia , no. 60393/13 , §§ 85-95, 18 July 2017; and Elita Magomadova v. Russia , no. 77546/14 , §§ 40-44, 10 April 2018). 66. The Court does not see any reason to reach a different conclusion in the present case. The applicants lodged their application with the Court on 16 November 2012, that is before the Court pronounced its judgment in the case of Abramyan and Others (cited above). They can no longer avail themselves of the remedy in question, as the time-limit for using it has expired. Accordingly, the Court rejects the Government's objection as to the non-exhaustion of domestic remedies. 3. Conclusion 67. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicants 68. The applicants submitted that the failure of the Russian authorities to take prompt and decisive measures to assist the first applicant in recovering the second applicant had resulted in a de facto determination of the matter. The first applicant had lodged many requests for assistance with the Russian authorities, such as the Russian Consulate in Uzbekistan, the Russian Embassy in Uzbekistan, the Russian Ministry of International Affairs and others. Those authorities had confirmed that the first applicant had been entitled to take his daughter away from her grandparents but they had failed to assist him in recovering her. Their replies had been confusing and misleading, and had made the first applicant lose more than a year before applying to a court, as he had counted on their assistance. When he had ultimately applied to a court, it had taken the Russian courts more than two years to examine the case, even though the domestic law required them to do so within forty-two days. The first applicant argued that the judicial proceedings had been flawed by delays attributable to the authorities. Thus, it had taken five months to decide whether the Russian courts had territorial jurisdiction over the case, taking into account similar proceedings pending in Uzbekistan. It had then taken several more months to obtain the assistance of the Uzbek authorities in questioning X. The delays attributable to his absences had been negligible compared with the above-�mentioned delays attributable to the authorities. The first applicant had unsuccessfully complained about the delays to various authorities, including to the appellate court in his appeal submissions. 69. The applicants also submitted that the delays in the proceedings had been all the more prejudicial to their relationship as they had had no contact during all that time. The first applicant had informed the domestic courts that X's grandparents had been preventing any contact between them. That fact had been confirmed by the grandparents' representative (see paragraph 24 above). Despite being aware of the prolonged lack of contact between the applicants and of the consequent urgency of the situation, the Russian authorities had failed to display special diligence in dealing with it. As a result, the passage of time, combined with the lack of contact, had directly influenced the outcome of the proceedings. In particular, the childcare authorities had changed their opinion on the case in view of the length of time X had spent with her grandparents and away from her father. X herself had become unwilling to change the way of life she had meanwhile established in Tashkent. The authorities' failure to display exceptional diligence had therefore resulted in a de facto determination of the case. 70. Furthermore, the applicants submitted that the domestic decisions had not been based on relevant and sufficient reasons. They argued that the domestic courts should not have established X's best interests on the basis of her opinion alone. Indeed, X had been separated from her father for a long time and had been under the influence of her grandparents, who had set her against her father. Moreover, she had been questioned in the presence of her grandmother, who could have influenced her statements. The first applicant and his representative had not been informed about the date of the questioning and had therefore been absent. It followed from the transcript that X's replies had been monosyllabic and it was therefore impossible to be sure that they had been given freely and after a thorough reflection. In the first applicant's opinion, the domestic courts should therefore have treated X's statements with caution and appointed an expert psychologist to establish her psychological state during the questioning and whether she had been subjected to psychological influence. Moreover, the domestic courts had disregarded many facts relevant for establishing X's best interests, such as (i) the fact that before her mother's death X had always lived with her parents, first in Russia and then in the USA, and had been attached to her father; (ii) the fact that her father was able to provide her with better education and, most importantly, better medical care, which was necessary in view of her increased risk of cancer due to hereditary factors; and (iii) the fact that X's grandparents had prevented any contact between her and her father and her paternal family, thereby destroying her family ties. The applicants also submitted that the domestic courts had accepted the childcare authority's opinion of 27 February 2012 despite its low quality. Indeed, the text of that opinion had been virtually identical to the text of the opinion of 20 January 2011. The only difference between the two texts had been the opposite conclusions, apparently made on the basis of the same facts. In the applicants' opinion, that showed the superficial and negligent attitude of the domestic authorities towards the case. 71. Lastly, the applicants submitted that the Russian authorities had not had the benefit of direct contact with all the persons concerned, as they had never heard X, who had been questioned by the Uzbek authorities. The principle of the wide margin of appreciation was therefore not applicable given that in the particular circumstances of the present case, the Russian courts were not better placed than the Court to establish X's best interests. (b) The Government 72. The Government submitted that the domestic authorities had a wide margin of appreciation in determining what was in the best interests of the child as they had the benefit of direct contact with all the persons concerned. The refusal to order X's return from her grandparents had been within the authorities' wide margin of appreciation and based on the best interests of the child, as established by the childcare authority. The domestic authorities had taken into account X's wishes to live with her grandparents, her strong attachment to them and her feeling that their home was her own. The present case was therefore similar to the case of Hokkanen v. Finland (23 September 1994, Series A no. 299-�A), where the Court had found that the domestic authorities' decision to transfer custody over the applicant's daughter to the girl's grandparents had not breached Article 8 of the Convention. The present case was also similar to the case of Yousef v. the Netherlands (no. 33711/96 , ECHR 2002-�VIII), where the Court had accepted the domestic authorities' decision that the child's interest were best served by allowing her to remain with her grandmother, with whom she had been placed after her mother's death, in accordance with the latter's express wishes, and where she received the care needed, rather than by giving custody to her father. 73. The Government further submitted that the present case was different from the case of Görgülü v. Germany , (no. 74969/01 , 26 February 2004), where the Court had found a violation of Article 8 of the Convention, because by contrast to the Görgülü case, the child in the present case was older than ten years of age and the first applicant had not been prevented from maintaining contact with her. Indeed, X had stated in the domestic proceedings that her grandparents had not prevented her from communicating with her father, but that her father had never attempted to contact her. In any event, the first applicant had never applied for contact rights. There was also evidence in the case file that X had been traumatised by the only contact she had had with her father, in January 2010 (see paragraph 26 above). 74. In reply to the first applicant's complaint that the Russian authorities had failed to assist him in recovering his daughter from Uzbekistan, the Government submitted that the consular authorities had visited X in Tashkent in September 2009 and had found that there had been no obstacles preventing the first applicant from seeing her or taking her away with him. However, it had not been until January 2010 that the first applicant had visited his daughter for the first time. By that time, X had already been living with her grandparents for a year and no longer wanted to live with her father. There was no evidence that during that first year of X's stay at her grandparents' home, the first applicant had ever attempted to contact his daughter or to take her away with him and had been prevented from doing so. He had never applied to the competent Uzbek authorities for assistance in recovering his daughter. It had not been until September 2010, when he had lodged an application with a Russian court, that the Russian authorities had become aware of his alleged difficulties in maintaining contact with his daughter. 75. Lastly, the Government submitted that the judicial proceedings had lasted two years, one month and twenty-six days. The fact that both parties lived outside Russia had affected their length. In particular, the domestic courts had had to send requests for assistance to the Uzbek authorities, which had prolonged the proceedings through no fault of the Russian authorities. Moreover, the first applicant had contributed to the length of the proceedings by failing to attend hearings and by asking for adjournments. Despite those delays, which were not be attributable to the authorities, the length of the proceedings had been shorter than in other cases examined by the Court (they referred to Ribić v. Croatia , no. 27148/12 , 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v. Bulgaria , no. 35978/02 , 12 January 2006, where the proceedings had lasted for about two and a half years and where the Court had found no violation of Article 8; Ahrens v. Germany , no. 45071/09 , 22 March 2012, where the proceedings had lasted for three years and seven months and where the Court had not found a violation of Article 8 either; and Diamante and Pelliccioni v. San Marino , no. 32250/08 , 27 September 2011, where the proceedings had lasted for three years). Moreover, the present case was different from Ribić , where the applicant had seen his son only three times during the proceedings, by the end of which his son had reached the age of majority. In the present case the applicant had not been prevented from maintaining contact with his daughter. 2. The Court's assessment (a) General principles 76. The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained. The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary , no. 71099/01 , § 70, 5 April 2005, and K. and T. v. Finland [GC], no. 25702/94 , § 151, ECHR 2001-�VII). 77. Moreover, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective "respect" for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights and the implementation, where appropriate, of specific steps (see Glaser v. the United Kingdom , no. 32346/96 , § 63, 19 September 2000). 78. In relation to the State's obligation to implement positive measures, the Court has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children's family (see Manic v. Lithuania, no. 46600/11 , § 101, 13 January 2015, with further references). 79. In the context of both its negative and its positive obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole; in both contexts, the State enjoys a certain margin of appreciation (see Glaser, cited above, § 63). Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96 , § 66, ECHR 2003-�VIII, and Płaza v. Poland , no. 18830/07 , § 71, 25 January 2011). 80. It follows that the national authorities' obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with other persons may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned is always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen , cited above, § 58; Ignaccolo-Zenide v. Romania , no. 31679/96 , § 94, ECHR 2000-�I; and Kosmopoulou v. Greece , no. 60457/00 , § 45, 5 February 2004). 81. It must be borne in mind that generally the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin, cited above, § 64; Sommerfeld v. Germany [GC], no. 31871/96 , § 62, ECHR 2003-�VIII (extracts); C. v. Finland , no. 18249/02 , § 52, 9 May 2006; and Z. J. v. Lithuania, no. 60092/12 , § 96, 29 April 2014). To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, in particular factors of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07 , § 139, ECHR 2010, and Antonyuk v. Russia , no. 47721/10 , § 134, 1 August 2013). 82. Furthermore, while Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, an applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z. J. v. Lithuania , cited above, § 100, with further references). 83. Lastly, the Court considers that in conducting its review in the context of Article 8, it may also have regard to the length of the local authority's decision-making process and of any related judicial proceedings. In cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. Effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (see W. v. the United Kingdom , 8 July 1987, § 65, Series A no. 121; Sylvester v. Austria , nos. 36812/97 and 40104/98 , § 69, 24 April 2003; and Z. J. v. Lithuania, cited above , § 100). (b) Application to the present case 84. The Court notes, firstly, that it was common ground between the parties that the tie between the applicants amounted to "family life" within the meaning of Article 8. That being so, it must be determined whether there has been a failure to respect the applicants' family life. 85. The Court observes that X had lived with the first applicant and her mother from her birth in 1998 until - immediately before her mother's death in December 2008 - she was handed over, as a temporary arrangement, to her maternal grandparents who lived in Uzbekistan. Ever since March 2009 when the grandparents refused to return X to her father, he has continuously sought to have her returned to him, although he visited her only once during that time, in January 2010. In September 2010 he applied to a court in Russia, which rendered a judgment in February 2012, upheld on appeal in May 2012, refusing X's return to him by reference to her wish to remain living with her grandparents. 86. Having examined the domestic courts' decisions at issue, the Court finds no reason to doubt that they were based on the best interests of the child. In particular, the domestic courts took into account that X had expressed a clear wish to remain living with her grandparents. The Court notes that X was thirteen years old at the time and thus already able to form her own opinion on the matter and to understand its consequences (see, for similar reasoning, Gobec v. Slovenia , no. 7233/04 , § 138, 3 October 2013). The Court has previously found that as soon as children become mature and able to formulate their own opinion on their relationship with their parents, the courts should give due weight to their views and feelings and to their right to respect for their private life (see Płaza , cited above, § 71, and Gobec , cited above, § 133). 87. In so far as the first applicant alleged that X could have been influenced by her grandmother and that her statements should therefore have been treated with caution and an expert opinion should have been sought to establish X's true wishes, the Court observes that as a general rule it is for the national courts to assess the evidence before them, including the means to ascertain the relevant facts. It would be going too far to say that domestic courts are always required to involve a psychological expert in disputes involving children, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld , cited above, § 71). There is no evidence in the case file that the first applicant ever asked for a psychological expert examination of X. She was thirteen years old when she was heard by an Uzbek court on the question of her return to her father and was assisted by a specialist from the childcare authorities. In such circumstances, the domestic courts could reasonably consider that her statements reflected her true wishes. The Court is therefore not persuaded that the failure to obtain a psychological expert opinion constituted a flaw in the proceedings. . As regards the first applicant's argument that the allegedly excessive length of the proceedings had resulted in a de facto determination of the case, the Court notes, firstly, that the applicant chose to apply to a Russian court despite the fact that X lived with her grandparents in Uzbekistan, while he himself lived in the USA. That choice inevitably affected the length of the proceedings, making it necessary to adapt the hearing schedule to enable the parties to travel from Uzbekistan and the USA to Moscow where the hearings were held and, most importantly, to send international requests for assistance to the Uzbek authorities to help establish relevant facts, in particular to take a statement from X. It is true that there were also several delays in the proceedings which were attributable to Russian authorities (in particular, a three-month delay due to a discontinuation of the proceedings which was later found to be unlawful by a higher court). However, the Court considers that overall, the domestic courts appear to have dealt with the proceedings, which lasted slightly more than one year and eight months at two levels of jurisdiction, with the requisite diligence. 89. It is also significant in this connection that although it became clear already in March 2009 that his parents-in-law had no intention of returning X to him, it was not until September 2010 that the first applicant applied to a court. Indeed, he remained passive during the first year and a half after his separation from X. He visited her only once during all that time, in January 2010, even though her whereabouts were known to him at all times. There is no evidence in the case file that he made other attempts to visit X and was prevented from doing so by her grandparents. Nor did he apply to the competent Uzbek authorities, in particular the courts, for assistance in recovering his daughter, although that course of action seemed to be the most logical one, given that X was in Uzbekistan, that is under the jurisdiction of the Uzbek authorities. The first applicant did not give any explanation for that omission. 90. It follows that, apart from lodging several complaints with the Russian consular authorities, the first applicant did not take any meaningful action to try and recover his daughter during the first year and a half of their separation. He therefore placed the task on the Russian consular authorities, which manifestly lacked power to influence the situation in Uzbekistan, instead of being proactive himself (see, for similar reasoning, G. B. v. Lithuania , no. 36137/13 , § 95, 19 January 2016). This initial period turned out to be crucial for his relationship with his daughter. Indeed, already in October 2009, that is almost a year before the first applicant's application to a Russian court, X started to say that she preferred to remain living with her grandparents (see paragraph 15 above). The Court is therefore not convinced that the alleged delays in the domestic proceedings resulted in the de facto determination of the case, as X's opinion had apparently already been formed by the time those proceedings began. It was the first applicant's passivity during the crucial initial period of separation that seemed to influence the outcome of the case by weakening the bond between the applicants and by making X used to living with her grandparents and unwilling to change that arrangement. 91. In such circumstances, the domestic courts' decision to follow X's wishes and to refuse her forcible and immediate return to the first applicant can be taken to have been made in the interests of the child, having regard to the length of the girl's stay with the grandparents, her attachment to them and her feeling that their home was her own (see, for similar reasoning, Hokkanen , cited above, § 64; and Yousef, cited above, § 72; see also, by contrast, C. v. Finland , cited above, §§ 55-59). It is also relevant in this connection that it was open to the first applicant to apply for a contact order and, through regular contact, to gradually re-establish the bond with his daughter and to convince her to move back with him. However, the first applicant has never applied for a contact order to the Russian or Uzbek courts. 92. The Court further notes that the decision at issue was reached following adversarial proceedings in which the first applicant was placed in a position enabling him to put forward all arguments in support of his application for X's return to him and he also had access to all relevant information that was relied on by the courts. 93. The Court concludes from the above that the decision-making process was fair in so far as it allowed the first applicant to present his case fully and the second applicant's opinion to be heard and taken into account as much as possible in a situation where the proceedings took place in Russia while she resided in Uzbekistan. The reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by refusing to order X's return to her father, the domestic courts did not overstep their wide margin of appreciation. 94. There has therefore been no violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 95. The applicants also complained of a violation of Article 13 of the Convention, which reads as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 96. The applicants submitted that they had not had an effective remedy to protect their family life. The excessive length of the judicial proceedings had undermined their effectiveness, as the passage of time had resulted in a de facto determination of the case. Moreover, given that similar proceedings had been pending in Uzbekistan, a delay in the Russian proceedings could have resulted in the determination of the case by the Uzbek courts and a consequent denial of protection from the Russian courts. 97. The Government submitted, firstly, that the first applicant had had an effective remedy for his complaint under Article 8 of the Convention. In particular, he could have lodged a cassation appeal with the Supreme Court of Russia. The Government further submitted that the Russian authorities had given all possible diplomatic assistance to the first applicant in recovering his daughter from Uzbekistan. However, they had been unable to influence the judicial proceedings there. The first applicant had not appealed against the Uzbek authorities' decisions to appoint X's grandmother as her guardian and to deprive him of parental authority. Nor had he applied to the Russian courts with a request to restore his parental authority. 98. The Court reiterates that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as "arguable" in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations under Article 13 (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96 , § 96, ECHR 2000-�XI). The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96 , § 157, ECHR 2000-�XI). 99. It has not been disputed between the parties that the applicants had an arguable claim under Article 8 within the meaning of the Court's case-�law, and were thus entitled to a remedy satisfying the requirements of Article 13. 100. The Court notes that the applicants were able to avail themselves of a remedy under the national law: the first applicant lodged a judicial application for the second applicant's return to him. The first applicant was able to present his arguments, and the judicial authorities examined them. It is undisputed that the courts had the power to make the return order he sought. The fact that his application was rejected does not indicate, as such, that the remedy in question was ineffective . As regards the applicants' argument about the allegedly excessive length of the proceedings, the Court has already found that the domestic courts dealt with the proceedings with the requisite diligence (see paragraph 88 above). 101. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. FOR THESE REASONS, THE COURT, 1. Declares , unanimously, the complaints concerning the refusal to order the second applicant's return to the first applicant admissible and the remainder of the application inadmissible; 2. Holds , by five votes to two, that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips Vincent A. De Gaetano Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) Partly concurring opinion of Judge Schukking; (b) Joint partly dissenting opinion of Judges Keller and Pastor Vilanova. V. D. G. J. S. P. PARTLY CONCURRING OPINION OF JUDGE SCHUKKING 1. I voted with the majority in finding no violation of Article 8 of the Convention in this case. I fully support the reasoning and the conclusions reflected in paragraphs 84-94 of the judgment. 2. My concern relates to the second applicant's representation before the Court, a topic that is also raised by Judges Keller and Pastor Vilanova in their partly dissenting opinion. 3. As is pointed out in their opinion under points 2 to 4, it is a matter of fact that the second applicant, the daughter of the first applicant, was 14 years old when the application - submitted also on her behalf - was lodged with the Court, that she turned 18 two years ago and that she is now 20, at the time when the Court is deciding on the admissibility and the merits of the case. 4. It is true that when the application was lodged the first applicant acted ex officio as his child's legal representative, on the basis of Article 64 § 1 of the Family Code of the Russian Federation. The power of attorney issued to his lawyer therefore authorised the latter to represent both the first applicant and his daughter in the proceedings before the Court. The question, however, arises whether this power of attorney remains valid in respect of the daughter as of the point where she reached the age of majority. In my view the answer to that question should be regarded as relevant information in relation to the Court proceedings. 5. Although the Rules of Court do not contain a provision stipulating expressly that applicants' representatives are required to provide information as regards their powers of attorney on behalf of minors who have become adults in the course of the proceedings before the Court, it is within the Court's competence to request representatives to submit such information before it decides on the admissibility and merits of a case. 6. In order to do so, the representative would have to contact the now adult child, thereby drawing his or her attention to the fact that an application has been lodged with the Court on his or her behalf, which may not necessarily be known to that person. The person concerned would thus have the option either to withdraw from the pending proceedings or to take a well-informed decision on remaining a party. Such a procedure would avoid the unfortunate position of an adult child being confronted with a judgment of the Court in which he or she features as a party without being aware of that fact. 7. Given the majority's conclusion that there was no violation of Article 8, the point is not crucial to the outcome of even part of this judgment. My preference, however, would have been for the Court to proceed in this way in the present case. JOINT PARTLY DISSENTING OPINION OF JUDGES KELLER AND PASTOR VILANOVA (Translation) 1. Our dissenting opinion, at first sight, concerns the representation of the second applicant during the proceedings. However, this aspect has an impact on the substance of the case and necessarily affects the first applicant. These reasons prompted us to vote with the majority as regards point 1 of the operative provisions, which makes no distinction between the two applicants (father and daughter), but subsequently to vote against the finding that there had been no violation of Article 8 (point 2 of the operative provisions, which also concerns both applicants). We will now elaborate on our joint position. 2. When the first applicant lodged his application his daughter was fourteen years old. It is unquestionable that she did not have legal capacity at that time. For that reason she was initially represented by her father, who in turn authorised his own lawyer to defend the rights of his minor daughter. 3. That situation changed when the second applicant reached full age, approximately two years ago. From that point onwards, her father could no longer represent her. As regards their joint lawyer, it should be pointed out that legal representation cannot be presumed and that there is nothing in the present case to suggest that the second applicant was at any stage aware of the proceedings before our Court. 4. The second applicant is now twenty years old. She is personally affected by the proceedings and, accordingly, should have the right to take whatever decisions she deems necessary regarding a case that was brought six years ago on her behalf, for instance by requesting that the proceedings be continued, agreeing to a friendly settlement or withdrawing from the proceedings. That is why it would have been wise to stay the proceedings in order to ascertain whether the lawyer still had authority to act for her. The respondent Government were unable to raise this procedural objection for the simple reason that the second applicant did not reach full age until after their last observations were submitted, on 30 May 2016. It follows that the parties should not be penalised because of the lengthy period (two and a half years) that elapsed between that date and the Court's judgment. 5. Not having been informed of an express wish on the second applicant's part to continue the proceedings initially brought on her behalf, the majority, with all due respect, disregarded her basic right to be heard before her case was determined, a right enshrined in particular in Article 38 of the Convention, which requires the Court to examine the case together with the representatives of the parties. Moreover, the question of rigorous observance of the principle of equality of arms was stressed again in the recent Grand Chamber case of Radomilja and Others v. Croatia (nos. 37685/10 and 22768/12 , § 123, 20 March 2018). Compliance with the basic rules of procedure remains vital, as they constitute first and foremost a means of guaranteeing effective exercise of fundamental rights and freedoms. We should not forget that the proceedings belong primarily to the parties, in accordance with the party initiative or adversarial principle which prevails in the procedure before our Court. 6. The fact that the second applicant was actually absent from the proceedings is not necessarily without consequences for the substantive issues. We cannot speculate as to what arguments she might have advanced in support of or against the position taken by her father. Nevertheless, the fact cannot be overlooked that, during the proceedings brought by the first applicant against the maternal grandparents concerning the second applicant's return, the second applicant (then aged thirteen) was not heard by the competent court but through the intermediary of a different court (see paragraph 36 of the judgment) and, most importantly, in the presence of the grandparents but not of the first applicant. Furthermore, the second applicant was not the subject of any independent psychological expert assessment, although the first applicant had claimed that his daughter was under the influence of her grandparents (see paragraph 43 of the judgment). There would appear to be a clear conflict of interests here. The presence of the second applicant might conceivably have shed new light on this complex case and resulted in a finding of a violation of Article 8, with regard to both her and her father. It is clear to us that the second applicant's lack of participation in the proceedings prevented the Court from obtaining an overall view and does not allow it simply to find no violation of her right to family life. We were therefore obliged to vote against the conclusion of the majority. 7. The most unfortunate aspect of this case is the fact that the second applicant is now confronted with a judgment in which she had no opportunity to intervene. It would be desirable in the interests of justice for the judgment to be served on her so that, should she so wish, she can take whatever action she deems necessary. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII