ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Failure to enforce residence order concerning child abducted by his mother: violation
Facts – In 2008 the applicant’s former wife took their child from Moldova, where they lived, to Russia without the applicant’s consent. Shortly before the abduction, the applicant had filed a request before a Moldovan court for a residence order in respect of the child, which request was eventually granted in 2009. However, the child’s mother refused to comply. The applicant tried to enforce the judgment in Russia. In 2011 the Russian authorities issued a warrant of execution in respect of the Moldovan court judgment, but the bailiffs refused to enforce it. In 2012 the applicant’s former wife eventually returned to Moldova with the child, who was again living with the applicant at the time of the European Court’s judgment.
Law – Article 8: The 2009 Moldovan court’s judgment and the subsequent warrant of execution issued by the Russian authorities had shown due regard to the best interests of the child and were thus in line with the Convention. However, it had taken the Russian authorities more than a year to issue the warrant of execution. In the Court’s opinion, that delay was attributable to the authorities, who had incorrectly interpreted the applicable legislation and had considered the judgment as ‘self-executing’ with no further action needed to enforce it. In addition, as the bailiffs’ service had also wrongly interpreted the applicable legislation and refused to enforce the warrant of execution, the applicant had had to initiate another set of court proceedings in Russia, which had only ended in 2012. In this respect, the bailiffs’ refusal had not only been unlawful, but had also prejudiced the applicant’s and the child’s interests as it had prolonged their separation. As for the existence of other mechanisms in Russian law which would allegedly have facilitated the enforcement of the Moldovan court’s judgment, the Court observed that no measures had ever been taken. Thus, the applicant’s former wife had never been subject to an administrative sanction for the unlawful retention of the child and the Russian authorities had refused to consider her behaviour as criminally punishable under Russian law. Although none of these shortcomings was serious in itself, the Court nevertheless stressed that proceedings concerning child-residence matters required urgent handling. In the light of these considerations, the measures taken by the Russian authorities in order to enforce the Moldovan judgment could not be considered ‘adequate and effective’.
Conclusion: violation (unanimously).
Article 41: EUR 7,000 in respect of non-pecuniary damage.
61362/12 – Legal Summary, [2014] ECHR 1281
Bailii
European Convention on Human Rights
Human Rights, Children
Updated: 23 December 2021; Ref: scu.538933
