KRAPIVIN v. RUSSIA - 45142/14 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 644 (12 July 2016)

In the case of Krapivin v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 21 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 45142/14) 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 a Russian national, Mr Andrey Stanislavovich Krapivin (“the applicant”), on 3 June 2014.

2. The applicant was represented by Mr V. Yurchenko, a lawyer practising in Perm. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged that his right to respect for his family life had been violated because the domestic courts had denied him the right to have contact with his son. He further complained of the failure of the domestic court to duly notify him of the hearing in his case, resulting in his not being able to attend it.

4. On 5 March 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1964 and lives in Perm.

6. The applicant’s son N. was born on 23 August 2005.

7. On 15 February 2009 the applicant killed his wife by stabbing her several times with a knife. She died on the same day. The applicant’s son, three years old at the time, witnessed the murder.

8. On 17 February 2009 the applicant was arrested.

9. On 3 April 2009 N.’s maternal grandmother V. was appointed N.’s guardian.

10. On 25 May 2010 the Dzerzhinskiy District Court of Perm found that the applicant could not be held responsible for the murder of his wife which had been committed owing to a temporary psychiatric disorder in the form of an acute reaction to stress. It ordered compulsory psychiatric treatment for the applicant in a psychiatric hospital.

11. On 3 August 2010 the Perm Regional Court (“the Regional Court”) upheld the above decision on appeal.

12. On 25 February 2011 the Ordzhonikidzevskiy District Court of Perm found that psychiatric treatment was no longer necessary and ordered the applicant’s release from the psychiatric hospital.

13. According to the certificate issued by the Perm Regional Clinical Psychiatric Hospital, the applicant remained under psychiatric supervision until March 2014.

A. Proceedings relating to the applicant’s parental responsibility

14. On 10 March 2011 the applicant applied to the Ministry of Social Development for the Perm Region (“the childcare authority”) in order to have the child returned to him.

15. On 11 May 2011 the childcare authority rejected the applicant’s request.

16. The childcare authority and V. instituted court proceedings seeking to deprive the applicant of his parental responsibility over N. The applicant brought a counterclaim, challenging the childcare authority’s refusal to return the child to him and seeking the termination of V.’s guardianship over N.

17. On 16 August 2012 the Dzerzhinskiy District Court dismissed the application by the childcare authority and V. to deprive the applicant of his parental responsibility over N. It also dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him. In taking that decision the Dzerzhinskiy District Court relied on the report of a psychological examination of the child carried out on 6 July 2010 by a municipal centre for children’s psychological, medical and social adaptation. The report stated, in particular, that N. was in the process of developing the basis of his mental and psychological health, for which he needed stability, to be provided first and foremost by constant caregiver figures and a permanent place of residence. Based on the report the court found that N. had been living with and had been brought up by V. from the age of three, that he had not seen his father for over a year, since summer 2011, that the applicant had been working on shifts and was out of town every two months out of four, that N. was going to start primary school and that V. had already chosen a school near the boy’s place of residence. The court concluded that, in view of the age of the child and his attachment to V., a change of his place of residence could be traumatic and was therefore undesirable. The court noted, however, that the applicant still had the possibility to communicate with N. and meet him.

18. On 27 March 2013 the Regional Court upheld the above judgment on appeal.

B. Proceedings relating to payment of child maintenance by the applicant

19. On 22 May 2012 the Justice of the Peace of the 5^th Court Circuit of the Dzerzhinskiy District of Perm ordered the applicant to pay child maintenance to V. in an amount that was equal to a quarter of his income, starting from 28 April 2012 until the child’s coming of age. The judgment became final on 18 September 2012. The applicant makes regular payments.

C. Proceedings relating to the applicant’s contact rights

20. On 28 May 2012 the applicant applied to the Motovilikhinskiy District Court of Perm (“the District Court”) for contact rights. He submitted that V. was preventing him from seeing N. and asked to be granted visiting rights every Saturday or Sunday for three hours in V.’s presence.

21. During the hearing the applicant stated that it was very important for him to resume contact with his son. He was aware that his son, who had not seen him for a long time, needed time to get used to him again. He was ready to change his place of work to be able to adapt better to his son’s schedule. He also stressed that he paid child maintenance and supported him financially. He was under psychiatric supervision and his mental health had improved.

22. V. stated that the applicant had intentionally and cruelly killed N.’s mother. He had committed the murder in front of N. and had thereby caused him profound psychological trauma. The applicant should not be allowed to see N. as it would undermine his health and psychological development. It would therefore be against N.’s interests to resume contact with his father.

23. On 5 September 2012 the District Court ordered a psychological examination of N. to establish whether it was possible to resume contact between N. and his father, and if so what form that should take, and the frequency and duration of contact. The experts were also asked to establish whether contact between N. and his father could damage N.’s health or psychological development.

24. On 11 April 2013 the applicant informed the District Court that he would be on a business trip from 4 May to 6 June 2013 and asked that no hearings be scheduled during that period.

25. On 29 April 2013 the District Court scheduled a hearing in the case for 14 May 2013.

26. According to the Government, on the same day a court clerk notified the applicant of the hearing of 14 May 2013 by calling him on his mobile telephone, and on 7 May 2013 by sending him a letter by registered mail, which was, however, returned undelivered on 23 May 2013.

27. According to the applicant, he was never informed about the hearing of 14 May 2013. He submitted a list of telephone calls, provided by his mobile operator, showing that he had received no calls from the court.

28. On 14 May 2013 the District Court held a hearing. The applicant and his counsel were absent. V. did not attend either. The record of the hearing reads as follows:

“The secretary reported on the appearance [of the parties at the hearing].

Failed to appear: plaintiff, defendant, notified. [Defendant] informed that impossible to participate at hearing owing to visit to a sanatorium with the child.

...

The possibility of examination of the case in the absence of the parties is considered.

[Representative of childcare authority]: [I] consider it possible.

The court ... held: continue examination of the case ...”

29. On the same day the District Court dismissed the applicant’s application. The District Court took the following factual elements into consideration:

- the applicant was the father of N., a minor, aged seven years old at the time;

- the child’s mother had died on 15 February 2009 from multiple stab and cut wounds inflicted on her by the child’s father, the applicant;

- pursuant to the decision of 25 May 2010 the applicant had been exempted from criminal responsibility for the murder of his wife and ordered to have compulsory psychiatric treatment in a psychiatric hospital;

- the murder had been committed in the presence of the child;

- on 25 February 2011 the compulsory psychiatric measures in respect of the applicant had been lifted;

- on 3 April 2009 the child’s maternal grandmother V. had been appointed the child’s guardian;

- the child resided with V., his housing conditions were adequate and he had been provided with the necessary clothing, a place for play and rest, as well as toys and books;

- the applicant wished to see the child on a weekly basis, on Saturdays or Sundays, by taking him out to the cinema, theatre and other places for children and by being afforded an opportunity to stay with the child at his paternal grandparents’ house;

- on 16 August 2012 the Dzerzhinskiy District Court had dismissed the claims of the childcare authority and V. to deprive the applicant of his parental responsibility over N. and had dismissed the applicant’s counterclaim to end V.’s guardianship over N. and to return N. to him;

- the applicant’s housing conditions were adequate;

- the childcare authority had expressed a view that the applicant’s claim should be dismissed as being contrary to the child’s interests;

- that according to the report of 2 May 2009 issued by the municipal centre for children’s psychological, medical and social adaptation, presented by V.:

“During the examination N. behaved restlessly, he wandered from room to room and performed chaotic movements with the keys. It can be assumed that the child is in a state of stress ... Only after a certain time ... the boy relaxed and started talking calmly, and agreed to draw a family. N. appeared stressed when drawing. On the drawing the boy depicted his mum, dad and himself. However, it is unclear why the whole family was drawn by the boy. This could reflect the child’s wish to have a full family, or it could mean that the murder of his mother has been erased from the child’s memory, which could be a defensive mechanism.

Having compared N.’s references from the nursery school dated November 2008 and the above observations of 2 May 2009, it can be noted that the child’s behaviour has changed, showing signs of acute psychological and traumatic distress. This is confirmed by the child’s grandmother, who submitted that the child is agitated ... has difficulty falling asleep, cries in his sleep and has started to show aggression ... In the [psychological centre] N. also displayed verbal aggression to other children. [The psychologist] therefore came to the conclusion that N. needed timely psychological or psychotherapeutic assistance to overcome the consequences of a psychological trauma.”

- reports from N.’s nursery school, dated November 2008, and from his current kindergarten;

- the carrying out of a psychological examination of the child, as ordered by the court on 5 September 2012, had been impossible owing to V.’s refusal to allow the experts to have access to the boy, meaning the case material was returned to the court by the expert without enforcement.

In the light of the foregoing, the District Court concluded that it was not in N.’s interests to resume contact with his father. The District Court noted, in particular, that the applicant had not submitted any information about the current state of his mental health, and he had not shown that his mental health had improved or that he did not present a danger to N. Furthermore, the District Court took into account the fact that N. had been brought up by his grandparents from the age of three, that he had an established way of life and that he had not seen his father for a long time. The applicant often left on long business trips, which would prevent weekly meetings. Lastly, both grandparents had refused to see the applicant because of their hostility towards him, which made it impossible to organise meetings between N. and the applicant.

30. In his appeal submissions the applicant complained, in particular, that a psychological examination of N. had never been performed. The finding that it was not in N.’s interest to resume contact with his father had therefore not been based on the assessment of an expert. He also complained that neither he nor his counsel had been informed of the date of the hearing of 14 May 2013. Lastly, he enclosed an expert opinion of 17 May 2013, which read as follows:

“Conclusions:

1. In view of the incompleteness of the data [failure to examine N. in view of V.’s refusal to give the experts access to N.], the experts consider that at the present time only short meetings between [the applicant] and the child are possible (not more than two hours 2-3 times per month) in public places on condition that the child has a positive or neutral attitude towards the father.

2. An assessment of whether contact between the child and his father could damage the child’s health or psychological development is impossible given the absence of any data on the child’s psychological stability, his attitude to his father at the present time, or the influence of relatives on the child’s attitude to his father.”

31. On 26 June 2013 the applicant complained to the Perm Regional Judicial Department that the judge had included a false statement in the case file that he had been informed of the date of the hearing by mobile telephone. He enclosed a list of telephone calls provided by his mobile operator showing that he had not received any calls from the court. He also complained that a letter notifying his counsel of the date of the hearing of 14 May 2013 had only been dispatched on 20 May 2013.

32. On 23 July 2013 the Perm Regional Judicial Department replied that the fact of the belated notification of the applicant’s counsel had been confirmed. Given that an appeal against the judgment of 14 May 2013 was pending, that issue would be examined during the appeal proceedings.

33. On 18 September 2013 the Regional Court held an appeal hearing. The applicant and his counsel were both present. The Regional Court upheld the judgment of 14 May 2013, finding that it had been lawful, sufficiently reasoned and justified. It noted that an expert opinion could not be obtained because V. had avoided the experts. It was impossible to take into account the expert opinion of 17 May 2013 because it had been made after the first-instance judgment. The District Court also found that a notification letter about the hearing of 14 May 2013 had been sent to the applicant’s address but had been returned to the court as undelivered. The failure to collect the notification letter from the post office had amounted to a waiver of the right to attend the hearing.

34. On 24 December 2013 a judge of the Regional Court refused to refer the applicant’s cassation appeal to the Presidium of the Regional Court for examination, finding that the judgment of 14 May 2013 had been lawful, sufficiently reasoned and justified. She noted, in particular, that the expert opinion of 17 May 2013 could not lead the court to change its findings because the experts had not been able to examine N.

35. On 13 February 2014 a judge of the Supreme Court of the Russian Federation also refused to refer the applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings.

36. Despite the court’s decisions, the applicant resumed contact with N. over time, meeting the boy at school, and having telephone and Skype conversations with him.

D. New proceedings relating to the applicant’s parental responsibility and contact rights

37. On 23 December 2014 the applicant brought new proceedings against V., seeking to have her guardianship of N. terminated and for N. to be returned to him. V. brought a counterclaim to have the applicant’s parental responsibility restricted and to prevent the applicant’s contact with the child.

38. On 23 April 2015 the District Court dismissed the applicant’s application, having regard to the evidence below.

39. The District Court noted that N. lived with his maternal grandmother and guardian V. and that his housing conditions were adequate. During an inspection of the child’s living conditions, he had explained that he was comfortable living with V., and that they had a trusting and warm relationship. He also explained that he wished to continue living with his grandmother, but maintain contact with his father by meeting him from time-to-time and communicating with him by telephone.

40. The applicant’s housing conditions were also adequate.

41. The District Court noted the applicant’s submission to the effect that during his absences for work the child would live with his paternal grandparents. It further noted that the conditions at the paternal grandparents’ house were also suitable and that they were ready to look after N. in the applicant’s absence.

42. The District Court questioned N., who explained that he lived with his maternal grandparents and that he liked living with them. The boy also submitted that he communicated with his father, who visited him at school and had regular telephone and Skype conversations with him. His father took an interest in his health and his school results. N. expressed a wish to remain living with his grandmother because he had got used to it.

43. The District Court further found that it was clear from school reports that N. was showing good results at school, that his mental capacity was above average and that he was interested in studying. N. was being brought up by his grandmother V., who was actively engaged in N.’s school life. The applicant regularly visited N. at school. After such meetings N. only talked about computers and computer games, was less interested in studying, and became more sensitive and reserved.

44. Having therefore taken into consideration N.’s age, the fact that he had been living with V. from the age of three, was attached to her, loved her and had expressed a wish to continue living with her, and that the applicant’s working schedule required long absences, the District Court held that the child’s interests required that he continue to live with his grandmother, which would be more favourable to his development.

45. The District Court dismissed V.’s counterclaims. It held that there were no grounds to restrict the applicant’s parental responsibility or to ban his communicating with N. The applicant had positive references from work, the compulsory medical measures he had been undergoing had been lifted and he was no longer under psychiatric supervision. The applicant also cared about his son’s life and health, sought communication with him, maintained contact with him over the telephone and Internet, visited him at school, and made regular child maintenance payments. There had furthermore been no evidence that the applicant had any harmful influence on the child. The District Court emphasised that domestic law provided that a child had a right to communicate with his parents and that a guardian had no right to prevent such communication, except if it was contrary to the child’s interests.

46. On 2 September 2015 the Regional Court upheld the above judgment on appeal.

47. On 30 September 2015 the childcare authority carried out a monitoring visit at the child’s place of residence. It was established that V. did not prevent N.’s communicating with the applicant. N. submitted that he saw the applicant during breaks between classes at school and communicated with him over the telephone and by Skype.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Code of Civil Procedure of the Russian Federation

48. The Code of Civil Procedure provides that parties to proceedings are to be summoned to a court by registered mail with confirmation of receipt, by a telephone call or telegram, by fax or by any other means which will secure delivery of the summons to the recipient. Summonses must be served on the parties in such a way that they have enough time to prepare their case and appear at the hearing (Article 113 §§ 1 and 3).

49. Summonses are to be sent by mail or by a court courier. The time a summons is served on the addressee is to be recorded in a document which must be returned to the court by courier or by any other method used by the postal service (Article 115 § 1).

50. A summons is to be served on a person against signature on a copy of the document, which is to be returned to the court (Article 116 § 1).

51. A civil case is to be heard in a court session, with mandatory notification of all parties of the place and time of the court session (Article 155).

52. If a party to the case fails to appear at the hearing and there is no evidence that the party has been duly summoned, the hearing is to be adjourned (Article 167 § 2).

53. The appeal court reviews the case on the basis of the arguments set out in the appeal. It makes an assessment of the evidence presented in the case file, as well as any new evidence. New evidence is admitted if such evidence could not be presented by a party to the proceedings to the first-instance court for reasons which the appeal court finds valid. If a judgment is appealed against only in part the appeal court reviews the lawfulness and well-foundedness of the judgment in that relevant part. In the interests of justice the appeal court may review the judgment of the first-instance court in its entirety (Article 327.1 §§ 1 and 2).

B. Family Code of the Russian Federation

54. Under the Code, a child has the right to live and to be brought up in a family in so far as it is possible; the right to know his parents; the right to enjoy their care and the right to live with them, except where it is contrary to the child’s interests (Article 54 § 2).

55. A child has the right to communicate with both parents, with his grandfather and grandmother, his brothers and sisters, and other relatives (Article 55 § 1).

56. A child has the right 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 the child’s interests (Article 57).

57. The exercise of parental rights must not go against the child’s interests. Providing for the child’s interests is the principal object of the parents’ care. In exercising parental rights, the parents have no right to inflict damage on the physical and psychological well-being of the child, or on his moral development. Methods used in the child’s upbringing must exclude neglectful, cruel, rude or degrading treatment, insults or exploitation. Parents exercising parental rights to the detriment of the child’s rights and interests will be made answerable, in conformity with the procedure established by law (Article 65 § 1).

58. A parent residing separately from a child is entitled to maintain contact with the child and to participate in his upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development (Article 66 § 1).

C. Ruling no. 10 of 28 May 1998 of the Plenum of the Supreme Court of the Russian Federation

59. Section 8 of the Ruling provides that, when determining the contact rights of a parent residing apart from the child, the court must take into account the child’s age, state of health, attachment to each of the parents and to any other circumstances affecting the child’s physical and psychological well-being and moral development. In exceptional cases, when communication with the parent residing apart from the child may adversely affect the child, the court may dismiss that parent’s claim for contact rights on the basis of Article 65 § 1 of the Family Code. The reasons should be stated in the court’s decision.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

60. The applicant complained, with reference to the proceedings which ended on 13 February 2014, that his right to respect for his family life had been violated because the domestic courts had denied him the right to have contact with his son. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his ... family life ...

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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

61. The Court notes 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. The parties’ submissions

62. The Government submitted that, having regard to the broad discretion boundaries of the State in resolving family disputes and the right of a court acting in the best interests of the child to dismiss a parent’s claim for determining the order of his or her involvement in the child’s upbringing, the judgment of the District Court of 14 May 2013 had been lawful and justified. There had therefore been no violation of the applicant’s right to respect for his family life as guaranteed by Article 8 of the Convention. The applicant’s procedural rights in the proceedings at issue had also been respected. The examination of the case in the absence of the parties had been possible as their failure to appear had not been due to valid reasons. In particular, the applicant had not presented any evidence to prove that he had been out of town on a business trip. Besides, the domestic courts had repeatedly examined disputes between the same parties, studied documents and expert opinions on the mental state of the applicant and his son and had heard the parties. The District Court had therefore had all the necessary material for reaching a fair and reasonable judgment. In additional observations the Government pointed out that during the proceedings which had taken place in 2015 the domestic court, having questioned the applicant’s son and examined all other pertinent circumstances, had dismissed V.’s application for restricting the applicant’s parental responsibility and banning him having communication with the child. They further noted that during the monitoring visit carried out by the childcare authority at the child’s place of residence on 30 September 2015 it had been established that V. had not been preventing N.’s communication with the applicant. N. submitted, in particular, that he had been seeing his father during breaks between classes at school and communicating with him by telephone and Skype.

63. The applicant maintained his claim. He submitted that he had murdered his wife owing to a temporary psychiatric disorder in the form of an acute reaction to stress. He had caused no harm to his son. Neither the possibility of the child suffering from a psychological trauma nor his opinion on possible contact with the applicant had ever been established because V. had refused to take the child to the court-appointed experts. The applicant had always cared for his son and paid child maintenance. It was clear from the decision of 25 February 2011 that the applicant had had no psychiatric disorders requiring psychiatric assistance. Additionally, in its judgment of 16 August 2012 the Dzerzhinskiy District Court had held that “the applicant was not deprived of the possibility to communicate with N. and meet him”. The hearing of 14 May 2013 had taken place in the applicant’s absence and without him knowing of it. It had been scheduled despite his request of 11 April 2013 not to set any hearings between 4 May and 6 June 2013, when he had been due to work on his shift away from town. The domestic law did not place any obligation on him to support his request with evidence. He would have provided such evidence if the domestic court had asked him to do so.

2. The Court’s assessment

(a) General principles

64. The Court reiterates that the mutual enjoyment by a parent and child of each other’s company constitutes a fundamental element of family life, and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention. An interference with that right constitutes a violation of this provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under Article 8 § 2 of the Convention and can be regarded as “necessary in a democratic society” (see K.A. v. Finland, no. 27751/95, § 92, 14 January 2003).

65. In determining whether such a “necessity” existed in the particular circumstances at a given time the Court will consider whether the reasons adduced to justify those measures were relevant and sufficient for the purpose of Article 8 § 2 of the Convention. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the people concerned. It follows that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding 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 margin of appreciation (see, inter alia, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; Elsholz v. Germany [GC], no. 25735/94, § 48, ECHR 2000-VIII; and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII (extracts); and, more recently, Buchs v. Switzerland, no. 9929/12, § 49, 27 May 2014, and P.K. v. Poland, no. 43123/10, § 84, 10 June 2014).

66. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between a young child and one or both parents would be effectively curtailed (see Elsholz, cited above, § 49; Sommerfeld, cited above, § 63; and Görgülü v. Germany, no. 74969/01, § 42, 26 February 2004).

67. Article 8 of the Convention requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Elsholz, cited above, § 50; Hoppe v. Germany, no. 28422/95, § 49, 5 December 2002; and Görgülü, cited above, § 43).

68. The Court further notes that whilst 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 afford due respect to the interests safeguarded by Article 8. The Court cannot satisfactorily assess whether the reasons adduced by the national courts to justify these measures were “sufficient” for the purposes of Article 8 § 2 of the Convention without at the same time determining whether the parent has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see Süß v. Germany, no. 40324/98, § 89, 10 November 2005, with further references).

(b) Application of those principles to the present case

69. The Court finds, and this is common ground between the parties, that the relationship between the applicant and his son amounted to “family life” within the meaning of Article 8 § 1 of the Convention.

70. The Court further finds that the decision of 14 May 2013 denying the applicant contact rights in respect of his son undoubtedly hindered the enjoyment by the applicant and his son of each other’s company, thereby amounting to an interference with the applicant’s right under Article 8 of the Convention.

71. The Court observes that the interference in question was “in accordance with the law” and pursued a legitimate aim under Article 8 § 2 of the Convention of protecting the “health or morals” and the “rights and freedoms” of the child (see paragraphs 57 and 59 above). It remains to be examined whether the refusal of parental contact in the present case can be considered “necessary in a democratic society”.

72. The Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention.

73. In the present case, the domestic courts adduced relevant reasons to justify their decisions refusing access, namely the fact that the applicant had killed the child’s mother by inflicting multiple knife wounds on her, that he had been absolved from criminal responsibility for his actions and had undergone compulsory psychiatric treatment. He had also not provided evidence showing that his mental health had improved and that he presented no danger to the child. The domestic court further took into consideration the fact that the tragic events had taken place in the child’s presence and caused the latter profound psychological distress, that for over four years the child had been brought up and cared for by his maternal grandmother and had not seen his father for a long time, and that the latter’s working schedule required frequent absence from town (every two months out of four), which made weekly meetings impossible (see paragraph 29 above).

74. When it comes to the assessment of the sufficiency of the reasons advanced by the domestic courts to substantiate their decision to deny the applicant contact with his son, the Court observes that the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests. The applicant’s absence from the hearing of 14 May 2013 was remedied during the examination of the case by the appeal court with its broad scope of review (see paragraph 53 above), and where both the applicant himself and his counsel were present and made oral submissions. The applicant was therefore in a position to put forward all the arguments in favour of obtaining a contact arrangement and had access to all the relevant information upon which the courts had relied.

75. The evidential basis for the domestic courts’ decisions included submissions by the applicant and the child’s guardian, documents from the applicant’s criminal file, results of the inspections of living conditions, the opinion of the childcare authority, the report on the child’s psychological examination by the municipal centre for the psychological, medical and social adaptation of children, letters from the child’s nursery school and kindergarten, medical documents attesting to the applicant’s being under psychiatric supervision and references from the applicant’s employer. Having regard to that body of evidence, and having the benefit of direct contact with all the people concerned, the domestic courts concluded that it was not in the child’s interests to resume contact with the applicant for the reasons set out above (see paragraph 73 above). Owing to the guardian’s refusal to take the child to the experts, no court-appointed psychological examination of N. could be conducted in order to establish the possibility of the resumption of his contact with the applicant without the risk of damage to the child’s health or psychological development. However, the Court considers that the domestic court had before it sufficient evidence for an assessment of the child’s best interests in the present case.

76. Having regard to the foregoing and to the respondent State’s margin of appreciation, the Court is satisfied that the domestic courts’ procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of access in the case at hand. The Court thus finds that the interference was “necessary in a democratic society” within the meaning of Article 8 of the Convention (compare with Rytchenko v. Russia, no. 22266/04, §§ 36-45, 20 January 2011, and Dmitriy Ryabov v. Russia, no. 33774/08, §§ 56-62, 1 August 2013).

77. The Court notes, furthermore, that subsequently, in the course of the new proceedings relating to the applicant’s parental responsibility and contact rights, the domestic court reassessed the issue of the applicant’s contact with his son in the light of the new developments. In particular, they took into account the child’s age (by then almost ten years old), the fact that the applicant and the child had de facto established regular contact, that the child had expressed a wish to continue communication with the applicant, that the latter was no longer under psychiatric supervision and that there was no evidence that the existing contact with the applicant had in any way been harmful to the child (see paragraphs 37-46 above).

78. The Court concludes, therefore, that there has been no violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

79. The applicant complained that the failure of the domestic court to duly notify him of the hearing of his case on 14 May 2013, resulting in his not being able to attend it, had amounted to a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, which reads in its relevant part as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

80. The Government contested that argument. They submitted that the applicant’s request not to schedule any hearings in his case between 4 May and 6 June 2013 had not been supported with any evidence (orders, travel documents, or tickets). The applicant was duly informed about the date of the hearing, yet he had failed to appear and had not given any valid reasons. The applicant’s allegation as to the falsification of the telephone notification of the hearing on 29 April 2013 had not been confirmed during checks by the service. There had been no obligation on the domestic authorities to notify the applicant’s counsel separately, the latter not being a party to the proceedings. The defendant V. had also been absent from the hearing. In view of the above circumstances, the Government considered that the examination of the case on 14 May 2013 in the applicant’s absence had not amounted to a violation of his right to a fair trial.

81. The applicant maintained his complaint.

82. The Court notes that the applicant was indeed absent from the hearing in his case on 14 May 2013. However, he was present during the examination of the case on appeal and, being assisted by counsel, made oral submissions. Having regard to the broad scope of review of the first-instance court judgments by the appeal courts provided by the Russian Code of Civil Procedure (see paragraph 53 above), the Court is satisfied that any breach of the fair trial guarantees enshrined in Article 6 of the Convention caused by the applicant’s absence from the hearing of his case on 14 May 2013 was remedied during the examination of the applicant’s case on appeal on 18 September 2013.

83. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 8 of the Convention admissible and the complaint under Article 6 § 1 of the Convention inadmissible;

2. Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Luis López Guerra
Deputy Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KRAPIVIN v. RUSSIA - 45142/14 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 644 (12 July 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/644.html Cite as: [2016] ECHR 644