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Family Law

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28 OCT 2014

Case of VP v Russia (Application no. 61362/12)

Case of VP v Russia (Application no. 61362/12)
(European Court of Human Rights, 23 October 2014)

The judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 240

Enforcement – Residence order – Moldovan court granted residence order in favour of father – Mother and child moved to Russia – 4 year delay in enforcement of order – Whether the actions of the Russian authorities had been adequate and effective or had breached the father’s Art 8 European Convention rights

The European Court of Human Rights found the father’s Art 8 European Convention rights had been breached by the Russian authorities by their lack of diligence in enforcing a residence order of the Moldovan court.

Please see attached file below for the full judgment.

The Russian father and Moldovan mother married and had a child together, now 7 years old. When the relationship came to an end the father was granted a residence order in 2009 but during the proceedings the mother and child relocated to Russia. The judgment was upheld by the Supreme Court of Justice.

The mother and child continued to live in Russia where the mother remarried and the child was enrolled in kindergarten.

The father applied for a warrant of execution from the Russian ministry of justice in relation to the order but the judge held that pursuant to the bilateral treaty between Moldova and Russia of 1993 and the Minsk Convention 1993 such judgments were self-executing and did not require further action to be enforced. The father appealed.

The Supreme Court overturned the lower court’s decision and found that it had not been in a position to consider whether the judgment did not require enforcement as a certified copy of the decision had not been included in the documents. The case was remitted for a fresh determination.

The father’s application was granted and the court ordered the enforcement in Russia of the judgment grating the father residence of the child. The mother’s appeal was successful on the basis that the father had failed to follow the procedure established by the Minsk Convention in submitting specific documents. The proceedings were adjourned, the father was given the opportunity to submit the missing documents and then the case would be remitted for fresh consideration.

In the meantime the mother had separated from her new husband and she had left with the child. The father’s application for enforcement of the judgment granting him a residence order was allowed. The court found he had submitted all the necessary documents and that the Moldovan court had jurisdiction when the residence order was made.

The execution warrant was sent to the bailiffs’ service but was returned by the legal department as it decided that the judgment was not subject to enforcement as it simply acknowledged the fact that the child was living with his father and did not require enforcement action to be taken. The father filed a complaint of the inaction of the bailiffs’ service. The court found that the order was valid and enforceable in Russia and that the decision not to start enforcement proceedings was unlawful.

In 2013 the mother and child returned to Moldova after her residence permit in Russia expired. The child was handed over to the father. Throughout the civil proceedings the father had made numerous attempts to initiate criminal proceedings against the mother but all investigations were terminated.

The father alleged an interference with his Art 8 European Convention rights based upon the Russian authorities’ failure to take adequate measures to enforce the residence order granted by the Moldovan court when the child was abducted by the mother and taken to Russia.

It was clear that the father had a family life with the child within the meaning of Art 8 and that the child’s removal and retention were wrongful. Art 8 required the Russian authorities to take action and assist the father being reunited with his child. The warrant of execution issued in 2011 was issued in the best interests of the child and ought to have been enforced.

It took the Russian authorities one year, 2 months and 25 days to issue the warrant of execution and most of that delay was attributable to a lack of diligence on the part of the Russian court system which in the circumstances was excessive. Enforcement of the warrant took a further year which again was excessive in these circumstances and prejudiced the interests of the father and child.

The ECHR found that the measures taken by the Russian authorities to enforce the judgment were not adequate and effective. There had accordingly been a violation of Art 8 of the European Convention. The father was awarded €8,000 in respect of non-pecuniary damage and costs.

CASE OF V.P. v. RUSSIA
(Application no. 61362/12)

JUDGMENT STRASBOURG 23 October 2014

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 V.P. v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President
Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Erik Møse, Ksenija Turković, Dmitry Dedov, judges
and
Søren Nielsen, Section Registrar

Having deliberated in private on 30 September 2014, Delivers the following judgment, which was adopted on that date:


PROCEDURE

Case of VP v Russia (Application no. 61362/12)
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