«Лазоріва проти України»: Межі «сімейного життя» та «приватного життя» в контексті усиновлення та встановлення опіки (ст. 6 та ст.8 Конвенції, заява № 6878/14, від 17.07.2018 р.)

Фабула судового акта: Заявниця проживає на території Росії та є опікуном доньки своєї сестри (громадянки Росії) після позбавлення останньої батьківських прав. Через декілька років сестра народила ще одну дитину – хлопчика, з яким проживала на території України. До досягнення дитиною п’ятирічного віку більше 5 разів дитину забирали до дитячого будинку у м. Чернівці, а у липні 2012 року рішенням суду матір була остаточно позбавлена батьківських прав, а хлопчика було включено до списку дітей, які можуть бути усиновлені.

Тоді ж, у липні 2012 року, племінниця заявниці поїхала до Чернівців і дізналася про те, що брат знаходиться у дитячому будинку, про що одразу ж повідомила заявницю. Заявниця вирішила стати опікуном племінника, з приводу чого повідомила службу опіки в Чернівцях, та одразу ж почала підготовку усіх необхідних документів. Однак на момент подачі документів місцевий суд уже ухвалив рішення про усиновлення хлопчика іншою сім’єю, оскільки саме усиновлення на думку суду, найкраще відповідало інтересам дитини.

Заявниця звернулася до апеляційного та касаційного судів з тим, що при прийнятті рішення про усиновлення не були повідомлені наявні близькі родичі та не було враховано їхньої пріоритетності при встановленні опіки над дитиною, а також щодо нехтування українським судом того факту, що хлопчик є громадянином Росії, а не України. Однак національні суди відмовили їй у задоволенні вимог, оскільки рішення місцевого суду щодо усиновлення не стосувалося її прав та інтересів, пов’язаних із встановленням опіки над дитиною.

У зв’язку з цим заявниця звернулась до ЄСПЛ із заявою про порушення Україною статті 8 Конвенції, яке полягало в неповазі до її сімейного життя внаслідок прийняття рішення про усиновлення та унеможливлення встановлення опіки на племінником, а також про порушення статті 6 Конвенції – доступ до суду.

У своєму рішенні Суд повторно надав визначення поняттю «сімейного життя» для цілей статті 8 Конвенції, факт наявності чи відсутності якого має встановлюватися з огляду на наявність реальних тісних зв’язків на практиці. Близькі відносини, що не підпадають під визначення "сімейне життя", як правило, відносяться до сфери "приватного життя"(див. пункт 61 рішення).

Також ЄСПЛ зазначив, що попри відсутність у статті 8 Конвенції явних процедурних вимог, її дотримання вимагає того, щоб заявник був залучений до процесу прийняття рішень (при вирішенні питання усиновлення племінника), вважаючи це цілком достатньою мірою, щоб забезпечити йому або їй необхідний захист його інтересів, передбачених цією статтею (див. пункт 63 рішення).

Аналізуючи матеріали даної справи Суд прийшов до висновку про відсутність ознак, які б визначали стосунки між заявницею та її племінником як «сімейне життя», оскільки відповідні докази на підтвердження протилежного надані не були: особи не проживали разом, а дитина пригадує лише одну зустріч із заявницею. Щодо можливості подальшої наявності сімейного життя у випадку встановлення заявницею опіки над племінником Суд наголосив, що Конвенція не гарантує самого права на створення сім’ї.

Проте ЄСПЛ вирішив, що інтерес заявниці у збереженні та розвитку її стосунків або зв'язку з її племінником відповідає визначенню "приватного життя", що є більш широким поняттям і охоплює, зокрема, право встановлювати та розвивати відносини з іншими людьми (див. пункт 66 рішення).

З огляду на це ЄСПЛ прийшов до висновку, що усиновлення племінника заявниці є втручанням у її приватне життя, оскільки воно зумовило розірвання зв’язків між заявницею та її племінником та звело нанівець її спроби стати опікуном дитини. При оцінці відповідності цього втручання вимогам статті 8 Конвенції Суд встановив, що воно не відповідає процедурним вимогам, передбаченим зазначеною статтею, і відповідно, в даній ситуації має місце порушення прав заявниці на повагу до її приватного життя.

Суд відмітив, що дана справа розкриває процесуальну дисфункцію з боку національних органів влади та судів, оскільки:

• не було належним чином розглянуто намір заявниці щодо встановлення опіки над племінником;
• судами не було надано належного обґрунтування висновку щодо того, чому в даному випадку усиновлення відповідає інтересам дитини краще, ніж встановлення опіки;
• не було враховано аргументи заявниці щодо обґрунтованих часових затримок, пов’язаних з необхідністю підготовки необхідних документів попри те, що заявниця діяла у повній відповідності до наданих органом опіки рекомендацій (див. пункт 69 рішення).

З урахуванням вищезазначеного ЄСПЛ також прийшов до висновку про наявність порушення статті 6 Конвенції.

Окрім того, заслуговує уваги окрема думка судді Юдківської, яка зазначила, що усиновлення, як правило, є пріоритетним способом догляду за покинутою дитиною - статус усиновленої дитини дозволяє дитині більше не вважатись сиротою й отримати повні права нарівні з біологічним нащадком. Суддя Де Гетано також поділяє подібну думку та зазначає, що у даній справі саме всиновлення відповідає найкраще інтересам дитини.

Аналізуйте судовий акт:

I. та U. проти Норвегії, заява № 75531/01, від 21.10.2004 року

Анайо (Anayo) проти Німеччини, заява № 20578/07, від 21.12.2010 року

N.Ts. та Інші проти Грузії, заява № 71776/12, від 02.02.2016 року

К. і Т. проти Фінляндії [GC], заява № 25702/94, від 2001 року

Знаменська проти Росії, заява № 77785/01, від 2.06.2005 року

Фернандес Мартінес проти Іспанії, заява № 56030/07, від 2014 року

Моретті та Бенедетті (Moretti and Benedetti) проти Італії, № 16318/07, від 27.04.2010 року

Harroudj проти Франції, заява № 43631/09, від 04.10.2012 року

Zampieri проти Італії, заява № 58194/00, від 03.06.2004 року

EB проти Франції, заява № 43546/02, від 22.01.2008 року

AH та інші проти Росії, заява № 6033/13 та 15 інших, від 17.012017 року.

Із перекладом тексту рішення на українську мову можна ознайомитися на офіційному веб-сайті Міністерства юстиції України за посиланням: https://minjust.gov.ua/files/general/2018/08/01/20180801151501-26.docx

FOURTH SECTION

CASE OF LAZORIVA v. UKRAINE

(Application no. 6878/14)

JUDGMENT

STRASBOURG

17 April 2018

FINAL

17/07/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Lazoriva v. Ukraine,

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

Vincent A. De Gaetano, President,
Ganna Yudkivska,
Paulo Pinto de Albuquerque,
Egidijus Kūris,
Iulia Motoc,

Carlo Ranzoni,

Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 6 March 2018,

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

PROCEDURE

1. The case originated in an application (no. 6878/14) against Ukraine 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, Ms Nataliya Olegivna Lazoriva (“the applicant”), on 16 December 2013.

2. The applicant was represented by Mr B. Fokiy, a lawyer practising in Chernivtsi. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.

3. The applicant complained, in the main, under Article 6 § 1 of the Convention that she had had no access to the proceedings concerning the adoption of her nephew, and that the impugned adoption had violated her Article 8 rights.

4. On 14 October 2015 the application was communicated to the Government. The Government and the applicant each filed observations on the application.

5. Written submissions were also received from the Government of the Russian Federation, which made use of their right to intervene in the proceedings as a third party under Article 36 § 1 of the Convention and Rule 44 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

6. The applicant was born in Chernivtsi in Ukraine in 1966. In 1984 she moved to Magadan in Russia (which is about 12,000 kilometres away from Chernivtsi), where she obtained a teaching degree and has been working as a school teacher for over twenty years.

7. Her sister, K.T.O., a Russian national, also lived in Magadan for a certain period of time. In February 1993 K.T.O. gave birth to a girl, K.L.S., who is also a Russian national. In December 1993 K.T.O. together with K.L.S. moved to Chernivtsi, where her parents (the grandparents of K.L.S.) lived. Subsequently, the grandparents raised K.L.S. for about ten years.

8. In 2004 the applicant’s parents and K.L.S. moved to Ludinovo, the Kaluga Region in Russia (which is about 1,100 km away from Chernivtsi and about 11,000 km away from Magadan). In August 2007 K.L.S. moved to Magadan and, since that time, has lived together with the applicant in her flat.

9. By a decision of 29 December 2007, the mayor of Magadan appointed the applicant as the guardian of K.L.S., on the grounds that the child’s parents did not take care of her.

10. On 20 February 2009 the Magadan Town Court allowed a claim by the applicant and deprived the parents of K.L.S. of their parental rights in respect of the child, on the grounds that they had failed to take care of her for over fifteen years. No appeal was lodged and on 11 March 2009 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.L.S. had been informed of that judgment.

B. The applicant’s attempt to become a legal tutor (a guardian for children under fourteen) of her sister’s second child

11. In March 2007 K.T.O. gave birth to a boy, K.O.S., whose nationality was disputed by the parties. According to the material submitted by the applicant, K.T.O., who was raising the child alone, failed to take care of him. For that reason, in November 2008 the Shevchenkivskyy District Court (hereafter “the Shevchenkivskyy Court”) in Chernivtsi ordered his placement in care (an orphanage). In March 2010 the same court ordered the child’s return to his mother. Subsequently, K.O.S. was taken to an orphanage on four other occasions.

12. The applicant claims that she and her parents visited K.O.S. in Chernivtsi on several occasions and maintained “a close family link” with him. In particular, she referred to her parents’ visits in April 2010 and May 2012 and her visit in August 2010. According to a copy of an undated letter from K.T.O., the applicant visited her and K.O.S. in Chernivtsi between 2010 and 2012 (no specific dates being indicated), and sent them parcels with food and clothes.

13. In March 2012 K.O.S. was taken into care as his mother had left him alone in her flat for over twenty-four hours.

14. On 5 July 2012 the Shevchenkivskyy Court deprived K.T.O. of her parental rights in respect of K.O.S., holding that she had not cared for him and had not played a part in his upbringing. No appeal was lodged and on 15 July 2012 the judgment entered into force. No information was submitted to the Court as to whether the parents of K.O.S. had been informed of that judgment.

15. On 27 July 2012 K.O.S. was put on the list of children deprived of parental care who could be adopted. On 14 August 2012 the Executive Committee of the Chernivtsi Town Council gave K.O.S. the formal status of a child deprived of parental care.

16. In the meantime, on an unspecified date in July 2012 K.L.S. had visited Chernivsti to meet K.O.S. She discovered that he had been placed in an orphanage and informed the applicant accordingly. The applicant decided to become her nephew’s legal tutor (a guardian for children under fourteen). She informed the Tutelage and Guardianship Service of Magadan of her wish to become a tutor, and started collecting documents and certificates to make a formal application. In particular, on 22 August 2012 her flat was inspected by representatives of the Magadan Public Health Service, who found that the flat had adequate hygienic and sanitary conditions for the applicant’s family to accommodate K.O.S.

17. In August and September 2012 the applicant made a number of telephone calls to the Childcare Service of Chernivtsi and to the orphanage, asking them to take into account that she wished to become K.O.S.’s legal tutor, and that she was preparing the necessary documents to make a formal application.

18. At the applicant’s request, the Tutelage and Guardianship Service of Magadan sent a letter to the Childcare Service of Chernivtsi informing them that she wished to become K.O.S.’s legal tutor and that she had fulfilled her obligations as K.L.S.’s tutor. The Tutelage and Guardianship Service of Magadan also asked the Childcare Service of Chernivtsi not to consider other candidates for the role of K.O.S.’s tutor.

19. By a letter of 17 September 2012, the Childcare Service of Chernivtsi informed the Tutelage and Guardianship Service of Magadan that they had received the information about the applicant’s wish to become K.O.S.’s legal tutor on 4 September 2012. The Childcare Service of Chernivtsi further informed the Tutelage and Guardianship Service of Magadan: that a couple wishing to adopt K.O.S. had been given permission to establish contact with him prior to that date and had already submitted all the necessary documents for his adoption (see paragraphs 22-23 below); that an opinion in favour of that adoption would be issued; and that, on the basis of such an opinion, the couple would submit an adoption application to the Pershotravnevyy District Court in Chernivtsi (hereafter “the Pershotravnevyy Court”). Lastly, the Childcare Service of Chernivtsi noted that the applicant had the right to lodge a tutelage application with the same court, and advised her to do so “as soon as possible”.

20. On 10 October 2012 the Tutelage and Guardianship Service of Magadan issued an opinion stating that, given her personal situation and qualities, the applicant could become a legal tutor or guardian.

21. On 22 October 2012 the applicant went to Chernivtsi, mainly to initiate procedures with a view to becoming K.O.S.’s tutor and to meet him there. Ultimately, this was not possible, as he had been adopted by S.S.V. and S.O.V. prior to her arrival in Ukraine (see paragraph 26 below) and the Ukrainian authorities refused to help her to meet K.O.S.

C. Adoption of K.O.S.

22. On 30 August 2012 a married couple, S.S.V. and S.O.V., who were on the list of persons wishing to adopt a child, were allowed to meet with K.O.S. at the orphanage.

23. On 6 September 2012 they informed the Childcare Service of Chernivtsi that they wished to adopt K.O.S. and asked it to issue an opinion in favour of the adoption.

24. On 19 September 2012 the Executive Committee of Chernivtsi, acting in the exercise of its childcare related functions, issued an opinion in favour of the requested adoption. According to the committee, S.S.V. and S.O.V. were physically fit and had sufficient funds and facilities to accommodate and take care of K.O.S. They had established contact and a good relationship with the child and, according to the orphanage’s psychologist, the child wished to live in their family, although he could not give written consent as “he didn’t understand what adoption was because of his age”. It was also noted: that the child had a half-sister and an aunt who lived in Magadan; that in August and September 2012 the applicant and the Magadan authorities, respectively, had informed the Childcare Service of Chernivtsi of her wish to become the child’s legal tutor; that the applicant had been informed in reply that she could lodge an application for tutelage with a district court; and that no such application had been lodged. Lastly, the opinion read that, generally, adoption was “the preferred form of [a child’s] placement”, and that, in the present case, the adoption would be appropriate and in the interests of the child.

25. On 24 September 2012 S.S.V. and S.O.V. lodged an adoption application in respect of K.O.S. with the Pershotravnevyy Court.

26. On 2 October 2012 the Pershotravnevyy Court, having examined the case at a closed hearing with the participation of S.S.V. and S.O.V. and representatives from the Childcare Service and the orphanage, delivered a judgment granting the adoption. It also ordered that K.O.S.’s surname be changed to that of the adoptive parents and that S.S.V. and S.O.V. be registered respectively as his father and mother instead of his biological parents.

27. The court essentially relied on the information contained in the opinion of the Executive Committee of Chernivtsi. The court held that the requested adoption was in the interests of the child in being raised in “stable life conditions and in [an atmosphere of] harmony”.

28. The applicant was informed of the judgment of 2 October 2012 following a delay, though she did not specify how long the delay had been.

29. On 1 February 2013 the applicant lodged an appeal with the Chernivtsi Court of Appeal against that judgment, stating that it had violated her right to become her close relative’s legal tutor and her right to submit arguments against the adoption. In particular, the applicant argued: (i) that the Pershotravnevyy Court had failed to take into account the fact that K.O.S. had close relatives, his half-sister and aunt, who had not been informed of the proceedings and had not taken part in them; (ii) that the Pershotravnevyy Court had not checked K.O.S.’s nationality; (iii) that K.O.S. was a Russian national, as his biological mother had been a Russian national at the time when he had been born in 2007; (iv) that the procedure provided for in Ukraine’s relevant international treaties in relation to the adoption of foreign nationals had not been followed; and (v) that the Pershotravnevyy Court had disregarded the fact that she had informed the Ukrainian Childcare Service of her wish to become K.O.S.’s legal tutor and the fact that she had been preparing the necessary documents for this.

30. On 18 March 2013 K.L.S. sent a letter to the Court of Appeal stating that she and the rest of her family (notably her grandparents and the applicant) had a close connection with K.O.S. and that he wished to live with them.

31. On 4 April 2013 the Court of Appeal refused to examine the applicant’s appeal on the grounds that the judgment did not concern her right or interest in becoming the child’s legal tutor, or any obligations in that regard which in principle could be the subject matter of a separate claim.

32. The applicant appealed in cassation, mainly arguing that the Court of Appeal had failed to examine her arguments and that she had been deprived of access to a court, in violation of the procedural rules.

33. On 10 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal on the basis that it had not been demonstrated that the contested decision of the Court of Appeal was unlawful.

D. Further developments

34. According to the applicant’s submissions of 29 March 2016, on an unspecified date K.T.O. left Ukraine for Russia and she currently resides with her parents (the grandparents of K.O.S.) in Ludinovo.

35. In December 2015 the Government submitted a copy of a verbatim record of an interview with K.O.S. which had been carried out by the childcare service in the locality where he had lived with S.S.V. and S.O.V. on 19 February 2013. According to that record, the child, inter alia, expressed the wish to continue living with his adoptive parents, who were present during the interview, and said that he had no aunt or uncle. The applicant contended that this information could not be accepted, as it had not been checked with her participation and contradicted other material in the case file.

II. RELEVANT DOMESTIC LAW

A. Tutelage and guardianship

36. In so far as relevant, Article 167 of the Family Code of 2002 provides that, where a parent with custody of a child has been deprived of parental rights and the child cannot be transferred to the other parent, the child’s grandparents, siblings who have reached the age of majority and other relatives should be given preference as regards their wish to take care of the child. Where this is not possible, the child should be placed in care. In accordance with sections 16 and 24 of the Act on International Private Law of 23 June 2005, the establishment and cancellation of tutelage and guardianship involving a foreign element (for instance, where a party to the relationship is a foreign national) are governed by Ukrainian laws where the child concerned is a Ukrainian national or a national of Ukraine and another State(s) and resides in Ukraine.

37. Pursuant to Article 243 of the Family Code, a legal tutor should be appointed for children aged up to fourteen, and a guardian should be appointed for children who are between fourteen and eighteen years old. Article 60 of the Civil Code of 2003 provides for a specific situation in which such an appointment can be made by the courts – where they decide to deprive parents of their parental rights; in other situations, it is for the tutelage authorities to appoint a tutor or guardian. Under Article 63 of the Civil Code, such an appointment may only be made upon a written application from the person wishing to become that tutor or guardian. Preference should be given to members of the child’s family, having regard to their personal relationship with the child and their ability to fulfil the duties of a tutor or guardian. The child’s opinion concerning the appointment should be taken into account.

38. Under Article 247 of the Family Code and Article 62 of the Civil Code, a child under a person’s tutelage should live with the legal tutor, either at the tutor’s home or at the child’s place of residence. The tutor determines the child’s upbringing (Article 249 of the Family Code). The tutor’s consent is required for, inter alia, the child’s adoption, unless the tutelage authority gives such consent or the court decides that adoption would be in the child’s interests (Article 221 of the Family Code).

39. In accordance with the Regulations on Tutelage and Guardianship, enacted by the Cabinet of Ministers on 26 May 1999 (no. 34/166/131/88) and the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on the Protection of Children’s Rights, enacted by the Cabinet of Ministers on 24 September 2008 (no. 866), persons wishing to become a legal tutor or guardian should submit a number of specific documents demonstrating their financial situation, state of health, living conditions, capability to become a tutor or guardian, and so on. The majority of those documents should be issued by public authorities. No time-limit is set for the submission of such documents by those wishing to be become a legal tutor or guardian.

B. Adoption

40. Under Article 207 of the Family Code, an adoption must serve the child’s best interests and ensure that he or she is raised in stable life conditions and in an atmosphere of harmony. Its effect is that the adopted child attains the legal status of a child of the adoptive parents. The legal relationship of the child to his or her former relatives and the respective personal and economic rights and obligations arising out of that relationship are thereby extinguished (Article 232 of the Family Code).

41. The child should be informed of the legal consequences of adoption; his or her consent to the adoption is required, unless the child does not understand “what adoption is” (Article 218 of the Family Code).

42. The adoption may be annulled or invalidated by a court upon an application by the child if he or she has turned fourteen, his or her parents, adoptive parents, a legal tutor, a guardian, a tutelage authority, or a prosecutor (Article 240 of the Family Code). This list is exhaustive.

C. Citizenship

43. Section 7 § 4 of the Law of Ukraine on Ukrainian citizenship of 18 January 2001 provides that a child, who was born on the territory of Ukraine to foreigners lawfully residing therein, shall be a Ukrainian national if the child did not acquire one or both parents’ citizenship. According to Section 12 § 3, a child, who is a foreigner or a stateless person and is permanently residing in an orphanage in Ukraine because his or her parents were deprived of parental rights, shall become a Ukrainian national from the moment of his or her placement in care.

III. RELEVANT INTERNATIONAL TREATIES

A. The United Nations Convention on the Rights of the Child of 1989

44. The relevant provisions of the United Nations Convention on the Rights of the Child of 1989, which entered into force in respect of Ukraine on 27 September 1991, read:

Article 3

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

...”

Article 5

“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”

Article 20

“1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.”

Article 21

“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

...”

B. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993

45. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 is a multilateral treaty concluded between the States members of the Commonwealth of Independent States (signed in Minsk on 22 January 1993 and amended on 28 March 1997) which entered into force in respect of the Russian Federation on 10 December 1994 and in respect of Ukraine on 14 April 1995. It regulates a wide range of legal matters in the context of cooperation between the Contracting States in the fields of civil, family and criminal law. It also includes provisions concerning tutelage, guardianship and the adoption of children, which read, in so far as relevant, as follows:

Article 33

Guardianship and tutelage

“1. Guardianship or tutelage as regards a person shall be established and cancelled in accordance with the laws of the Contracting Party of which that person is a national.

2. The legal relationship between the legal guardian or tutor and the person under guardianship or tutelage shall be governed by the laws of the Contracting Party whose body appointed the legal guardian or tutor.

3. The duty to accept guardianship or tutelage shall be set out by the laws of the Contracting Party of which the person to be appointed as legal guardian or tutor is a national.

4. A national of the Contracting Party may be appointed as the legal guardian or tutor of a national of another Contracting Party if [the former] resides in the territory of the Contracting Party where the guardianship or tutelage will take place.”

Article 34

Jurisdiction of bodies of the Contracting Parties in guardianship and tutelage matters

“Guardianship or tutelage as regards a person shall be established and cancelled by the bodies of the Contracting Party of which that person is a national, if the present Convention does not provide otherwise...”

Article 35

Guardianship and tutelage procedures

“1. Where guardianship or tutelage is considered to be established as regards a non‑national residing, permanently or temporarily ... on the territory of another Contracting Party, the latter’s body shall inform, without delay, the body as provided for in Article 34 [of this Convention]...”

Article 37

Adoption

“1. Adoption or its annulment shall be governed by the laws of the Contracting Party of which the adoptive parent is a national...

2. If the child is a national of another Contracting Party, the adoption or its annulment shall be subject to consent of the child’s legal representative and of the relevant authority [of that Contracting Party], and also the child’s consent where the law of the Contracting Party of which the child is a national so requires.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

46. The applicant complained that the adoption of K.O.S. had adversely affected her family life and had completely blocked her attempt to become his legal tutor. Allegedly, this interference with her right to respect for her family life had been unlawful, disproportionate and arbitrary. The applicant also stated that it had not been in the child’s interests, as his links with the applicant, his half-sister and his grandparents had been essentially severed by the impugned adoption. She relied on Article 8 of the Convention, which reads, in so far as relevant, as follows:

“1. Everyone has the right to respect for his private and 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 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

47. The Court notes that this part of the case 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

(a) The Government

48. The Government contended that no “family life” relationship, within the meaning of Article 8 of the Convention, had been established between the applicant and her nephew.

49. In particular, relying on I. and U. v. Norway (no. 75531/01, 21 October 2004), the Government argued that the applicant’s mere biological kinship with her nephew, in the absence of any further legal or factual elements indicating the existence of a close personal relationship, was not sufficient to attract the protection of Article 8 of the Convention as regards the guarantee of “family life”. At the same time, the applicant’s statement that she and her family had repeatedly visited her nephew was not supported by sufficient evidence. In any event, the details of visits provided by the applicant demonstrated that she and her family members had visited her nephew only once, each of them on different dates, the applicant having seen her nephew during her visit in 2010 (see paragraphs 12 and 16 above).

50. Also, in the interview carried out by the Ukrainian childcare authorities in February 2013, the child had mentioned no ties to the applicant or her family living in Magadan, and had expressed the wish to remain with his adoptive parents (see paragraph 35 above).

51. The Government further contended that the circumstances of this case did not fall under the concept of “private life” within the meaning of Article 8 of the Convention, as there was no sufficient connection between the applicant and her nephew. Firstly, the applicant and her nephew were not close relatives biologically (such as mother and son). Secondly, the applicant had met her nephew only once (see paragraph 12 above).

52. Relying on the foregoing arguments, the Government argued that the circumstances of this case concerned no rights and interests of the applicant protected by Article 8 of the Convention.

53. The Government also argued that, according to his birth certificate, issued on the basis of an application by his biological mother, K.O.S. was a Ukrainian national. Moreover, in accordance with Ukrainian legislation, a child whose parents had been deprived of their parental rights acquired Ukrainian nationality from the moment he or she was placed in an orphanage. In the case of K.O.S., he had been placed in an orphanage in 2008, and thus had been a Ukrainian national since that time (see paragraphs 11 and 43 above).

54. The Government also noted that prior to 19 September 2012 the applicant had not made any written submissions as to her intention to become her nephew’s tutor, but had only made several telephone calls to the Ukrainian Childcare Service. As demonstrated by the letter from the Chernivtsi Childcare Service dated 17 September 2012 and the Chernivtsi Executive Committee’s opinion dated 19 September 2012, this had been duly taken into account (see paragraphs 19 and 24 above). The Ukrainian authorities had thus proceeded in accordance with the domestic rule giving priority to adoption as a form of care to be provided to orphans and children deprived of parental care.

(b) The applicant

55. The applicant contended that the Ukrainian administrative authorities and courts had failed to examine her nephew’s entire family situation and take into account all the interests at stake. According to the applicant: neither she, nor K.O.S.’s half-sister, nor his grandparents had been involved in the decision-making process; her arguments and claims had been completely ignored; K.O.S. had not been invited to express his view on his possible adoption; and the Court of Appeal had refused to review the lawfulness of his adoption following her appeal. The Ukrainian authorities had also disregarded the fact that K.O.S. had been a Russian national, and thus they had failed to follow the procedure provided for in the relevant international treaties and domestic legislation.

56. The applicant further contended that the Ukrainian authorities had failed to strike a fair balance between her interests and those of the couple wishing to adopt K.O.S. In particular, she pointed to the fact that S.S.V. and S.O.V. had first met K.O.S. on 30 August 2012, and therefore they could not have effectively established a close family link with him by the time the adoption had been granted on 2 October 2012. In contrast, the applicant had been his relative and had established family ties with him. As a result of the adoption, those ties had been severed.

(c) The Government of the Russian Federation

57. Relying on Anayo v. Germany, (no. 20578/07, 21 December 2010) and N.Ts. and Others v. Georgia (no. 71776/12, 2 February 2016), the Government of the Russian Federation stated that by October 2012 the applicant had established a family relationship with K.O.S., given that she was the child’s aunt, had raised his half-sister, and had been concerned about his health and well-being. As demonstrated by the opinion of the Magadan Tutelage and Guardianship Service of 10 October 2012, she had had a “genuine interest” in the child’s fate and had intended to raise him within her family, which included his elder sister and grandparents (see paragraph 20 above).

58. The Government of the Russian Federation argued that the refusal of the Ukrainian authorities to consider the applicant’s interest and intention to become the guardian of K.O.S., which had eventually led to the elimination of any contact between her and the child, had constituted an interference with her right to respect for private and family life.

59. According to them, the interference at issue – the Ukrainian authorities’ failure to comply with their positive obligations under Article 8 of the Convention – had not been based on law and had been arbitrary. In particular, the Ukrainian authorities had disregarded the fact that K.O.S. had been a Russian national, and consequently his adoption had been carried out in breach of the applicable procedures provided for in the relevant international treaties and national legal instruments of the Russian Federation and Ukraine. Notably, the Russian Consulate in Lviv had not been notified of the decision of 14 August 2012 (see paragraph 15 above), and consequently the Russian authorities had had no opportunity to take a decision on the child’s guardianship or tutelage, although they had had the power to take such a decision in accordance with the relevant legislation of the Russian Federation, as provided for in Articles 33 and 34 of the Minsk Convention (see paragraph 45 above).

60. The Government of the Russian Federation also stated that the judgment of 2 October 2012 had been given in violation of Article 167 of the Family Code of Ukraine (see paragraphs 36 above), and with no regard having been made to the opinion of the child’s relatives, including the applicant and his half-sister, which had led to the elimination of the child’s biological affinity with them and his existing family contacts. Essentially, there had been no adequate consideration of the child’s best interests, and the Ukrainian courts had provided no sufficient reasons to demonstrate that it had been in the child’s best interests to be adopted by a couple who had no family or personal link with him and who had met him only once, rather than to be taken into care by his relatives with whom the child had had emotional contact. Thus, the impugned interference had also not been necessary within the meaning of Article 8 of the Convention.

2. The Court’s assessment

(a) General principles

61. In accordance with the Court’s established case-law, the existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties (see, among many other authorities, K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001‑VII). Close relationships short of “family life” would generally fall within the scope of “private life” (see Znamenskaya v. Russia, no. 77785/01, § 27, 2 June 2005, with further references cited therein).

62. In any case, the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective “respect” for family and/or private life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance. In both contexts the State enjoys a certain margin of appreciation (see, among other authorities, A, B and C v. Ireland [GC], no. 25579/05, § 247, ECHR 2010, and Hämäläinen v. Finland [GC], no. 37359/09, §§ 62‑63 and 65-67, ECHR 2014).

63. Whilst Article 8 contains no explicit procedural requirements, the applicant must be involved in the decision-making process, seen as a whole, to a degree sufficient to provide him or her with the requisite protection of his interests, as safeguarded by that Article (see Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts); Elsholz v. Germany [GC], no. 25735/94, § 52, ECHR 2000‑VIII; Z.J. v. Lithuania, no. 60092/12, § 100, 29 April 2014; and W. v. the United Kingdom, 8 July 1987, § 64, Series A no. 121).

(b) Application of those principles to the present case

64. The Court considers that as regards the applicant’s complaints under Article 8, there are essentially three principal legal questions to be answered:

(i) whether the case concerns a right or interest protected by Article 8, and, in particular, whether it concerns the applicant’s “family life” or “private life”;

(ii) whether there was an interference with the applicant’s right to respect for “family life” or “private life”; and

(iii) whether the Ukrainian authorities’ and courts’ alleged failure to give due consideration to the applicant’s intention to become her nephew’s legal tutor and/or their failure to involve her in the decision-making process as regards her nephew’s adoption discloses a violation of Article 8 of the Convention.

65. As to the first question, the Court notes that the applicant’s argument that she had established a family relationship or ties with her nephew is not supported by sufficient evidence or persuasive arguments. The child had not lived with the applicant and she referred to only one visit that she had paid to him in about five years, between 2007 and 2012 (see paragraph 12 above and compare and contrast with, for instance, Moretti and Benedetti v. Italy, no. 16318/07, §§ 49-50, 27 April 2010, and Harroudj v. France, no. 43631/09, § 46, 4 October 2012; see also Boyle v. the United Kingdom, no. 16580/90, Commission report of 9 February 1993, §§ 41-47, and Zampieri v. Italie (dec.), no, 58194/00, 3 June 2004, where frequent contact between the applicants and their siblings’ children and the fact that they had spent numerous weekends and (in the case of Zampieri) part of school holidays together were taken as principal grounds for the Commission and the Court, respectively, to conclude that there were family ties between them). Thus, the applicant’s relationship or link with her nephew is not of a kind falling within the concept of “family life”. Furthermore, as regards her possible intention to establish “family life” with her nephew by becoming his legal tutor, the Court reiterates that Article 8 does not guarantee the right to found a family.

66. However, the applicant’s interest in maintaining and developing her relationship or link with her nephew arguably falls within the scope of “private life”, which is a broader concept and encompasses, inter alia, the right to establish and develop relationships with other human beings (see E.B. v. France [GC], no. 43546/02, § 43, 22 January 2008; Paradiso and Campanelli v. Italy [GC], no. 25358/12, §§ 161-65, ECHR 2017 (extracts); and A.H. and Others v. Russia, nos. 6033/13 and 15 others, § 383, 17 January 2017). The interest in question was not without a factual and legal basis, having regard to the following considerations:

(i) the child was the applicant’s relative;

(ii) she had contact with him, though not of a permanent or regular nature (see paragraph 12 above);

(iii) the applicant’s intention to become his legal tutor was genuine – she wished to care for him once she found out that his mother was unable to do so. She informed the authorities of her intention to become his tutor and started collecting documents in order to submit a formal application, the fact that she had previously become a tutor for the child’s half-sister was also of relevance (see paragraphs 9, 16, 17, 18 and 20 above); and

(iv) the domestic law gives preference to relatives where a question of care arises because of parents’ inability to exercise their duties vis-à-vis their child (see paragraphs 36-37 above), and neither the domestic authorities nor the Government argued that those provisions were inapplicable in the applicant’s case. Nor did the domestic authorities or the Government argue that, having regard to the relevant provisions of the Minsk Convention (see paragraph 45 above), in the circumstances the applicant could not be appointed as her nephew’s tutor in principle.

67. All the foregoing considerations being taken cumulatively, the Court finds that the present case concerns the applicant’s “private life”, rather than her “family life”, within the meaning of Article 8 § 1 of the Convention.

68. Turning to the second question, the Court notes that the adoption of the applicant’s nephew constituted an interference with her right to respect for her private life. It had the effect of (i) breaking the link between the applicant and her nephew, and (ii) defeating her attempt to become her nephew’s legal tutor (see paragraphs 40 and 42 above).

69. As to the question of whether the interference in the present case was in compliance with the requirements of Article 8, the Court considers that the case discloses a procedural dysfunction or fault on the part of the Ukrainian authorities and courts. In particular, when deciding on the child’s adoption, the authorities and the courts acknowledged the applicant’s intention to become her nephew’s tutor, but did not give any meaningful consideration to it. The courts failed to clarify why the adoption of K.O.S. better served his interests as opposed to the tutelage which his aunt intended to establish, while this was arguably relevant to an assessment of what constituted the child’s best interests, that is, the principal question in the impugned adoption proceedings (see paragraphs 26, 27, 40 and 44 above). Even assuming that the authorities’ and the courts’ reluctance to deal with the matter could be explained by the fact that the applicant had not submitted a formal tutelage application by the time the contested decisions were taken, and bearing in mind that she had acted diligently in line with the advice she had been given by the Childcare Service, the Court notes that her argument as to time constraints was completely ignored (see paragraphs 16‑19, 21, 24-27 and 39 above).

70. The foregoing considerations are sufficient for the Court to conclude that the interference with the applicant’s private life was not in compliance with the procedural requirements implicit in Article 8 of the Convention, and that accordingly there has been a violation of that provision. Those considerations also obviate the need to examine the other arguments submitted by the parties in the context of this part of the case.

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

71. The applicant complained of a lack of access to a court as regards her appeal against the judgment of 2 October 2012. In particular, she argued that the decision rejecting her appeal had been arbitrary and had been taken in violation of domestic law. She relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

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

72. The Government contested the applicant’s complaint.

73. The Government of the Russian Federation stated that there had been a violation of Article 6 § 1 of the Convention.

74. The Court notes that this complaint is linked to those examined above under Article 8 of the Contention, and must therefore likewise be declared admissible.

75. Having regard to its findings relating to Article 8 (see paragraphs 69‑70 above), the Court considers that it is not necessary to examine separately whether there has also been a violation of Article 6 § 1 of the Convention in this case (see, mutatis mutandis, Vujica v. Croatia, no. 56163/12, §§ 108‑09, 8 October 2015).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

77. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

78. The Government contested the claim, stating that it was unsubstantiated and exorbitant.

79. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage the applicant may have sustained in the present case.

B. Costs and expenses

80. The applicant also claimed different sums for costs and expenses incurred in the domestic proceedings and before the Court. Those included 1,962 Russian roubles (RUB – the equivalent of about EUR 45 at the material time) for travel expenses incurred in October 2012 (see paragraph 21 above), 3,360 Ukrainian hryvnias (UAH – the equivalent of about EUR 105 at the material time) for translation of the applicant’s submissions to the Court after the communication of the case, RUB 5,000 (the equivalent of about EUR 60 at the material time) for having the applicant’s power of attorney for her representation before the domestic authorities and the Court certified by a notary in January 2016, and UAH 151.60 (the equivalent of about EUR 5 at the material time) for postal and printing costs.

81. The Government contended that the applicant’s claims for legal and travel expenses were not related to the present case, whereas the claim for translation had not been supported by the necessary details – notably, no pay rate had been indicated. Thus, those claims had to be rejected in full. As to the postal and printing costs, the Government left the matter to the Court’s discretion.

82. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 215 covering costs under all heads.

C. Default interest

83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there is no need to examine separately the complaint under Article 6 § 1 of the Convention;

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

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 215 (two hundred and fifteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 17 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliVincent A. De Gaetano
RegistrarPresident

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) Concurring opinion of Judge De Gaetano;

(b) Concurring opinion of Judge Yudkivska.

V.D.G.
M.T.

CONCURRING OPINION OF JUDGE DE GAETANO

I voted with the majority for a procedural violation of Article 8 in this case. I wish, however, to underline the very narrow grounds on which this decision is based, and its irrelevance to the outcome of the child’s ultimate placement.

There is no doubt that the applicant, as K.O.S.’s aunt, was entitled to have her views, and her offer to become the boy’s tutor, meaningfully considered by the court, which ultimately decided on the boy’s adoption by third parties, and not swept aside, as they were, on spurious grounds. To that extent, her right to “private life” was infringed (see paragraphs 66 and 67). That said, however, there is no doubt that in this case adoption was in the best interests of the child. It is inconceivable, in the particular circumstances of the case, that the domestic courts could or would have come to any different conclusion even if they had given full and ample consideration to the applicant’s views and had allowed her time to file the appropriate formal request for tutelage.

In other words, this is a case of a procedural flaw which nonetheless led to the right outcome as far as the child was concerned.

CONCURRING OPINION OF JUDGE YUDKIVSKA

I voted with the majority for finding a violation of Article 8 in this case, even though I believe that the courts acted not only in the best interests of the child in question, but also in accordance with the applicable legislation. Strikingly enough they were completely silent, not to say ignorant, on these two crucial points in their judgments.

The failure to provide motivated decisions is a clear violation of the principles of procedural justice set out in this Court’s case-law. The Court being “a watchdog of procedural justice in human rights matters at the domestic level” could not but find a violation: “a lack of procedural justice, whether administered by ... the courts, or administrative authorities, constitutes harm in itself”[1].

1. Best interests of the child

The applicant, as an aunt of K.O.S. – apparently the closest relative capable of taking care of the child, was clearly entitled to do so. It is important to mention, however, that she at no stage offered to adopt the child. Had the applicant done so, given that she has also been raising K.O.S.’s sister, the situation would look rather different.

Regardless of any good reasons which she might have had for proposing tutelage rather than adoption, it is important to note that adoption is normally the priority mode of caring for an abandoned child – only adopted child status allows an orphan no longer to be considered as an orphan and to obtain full rights on a par with biological offspring.

The UN Convention on the Right of the Child deliberately left the notion of “best interests of child” undefined, so that its interpretation could take account of context and circumstances[2]. It remains undisputable, however, that among all the possible measures of protection of a child left without parental care, the most desirable one is adoption, i.e. placing him/her in a new parental care thus offering all the benefits of a permanent family.

Whilst permanent care in a form of tutelage by the applicant – a member of K.O.S.’s extended family – would be an excellent opportunity for him to maintain contacts with his family of origin, it would not provide him with the major advantages of being a family member. Given the very limited relations between the applicant and K.O.S. prior to the adoption (see paragraph 12), the latter’s adoption by a family, which would bring him up in manner appropriately replacing actual biological ties, fully served his best interests.

2. Legislative framework at the material time

There is little doubt that K.O.S. was a Ukrainian national, regardless of the applicant’s and the Russian Government’s insistence that he had been a Russian national. K.O.S. was born in Ukraine to a Russian mother lawfully residing there, and by virtue of section 7 § 4 of the Law on Ukrainian citizenship (see paragraph 43), since he had not acquired his mother’s citizenship, automatically became a Ukrainian national. In any case, since his mother was deprived of parental rights, at least as of July 2012 his Ukrainian nationality is unquestionable (ibid., section 12 § 3).

As noted in paragraph 36, in accordance with sections 16 and 24 of the Act on International Private Law, if the child concerned is a Ukrainian national the establishment and cancellation of tutelage and guardianship involving a foreign element are governed by Ukrainian laws.

The Family Code of Ukraine, whilst being quite a detailed on adoption by foreigners, does not provide any guidance when it comes to tutelage by a foreigner.

Article 33 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 is, however, more precise: apparently the applicant, a Russian national, could be appointed the legal guardian or tutor of K.O.S., a Ukrainian national, only if she resided in Ukraine (see paragraph 45). The purpose of the limitation is clear – to guarantee the effectiveness of tutelage or guardianship. It is incumbent on the relevant Custody and Care Authority to supervise the conditions in which a child is maintained and educated; and it would seem very difficult, indeed impossible, to conduct such supervision abroad, periodically reviewing the conditions of the child’s placement.

Since the applicant did not intend to move to Ukraine (at least such an intention does not transpire from the case materials submitted to the Court), the authorities ought to have assessed those specific provisions of national legislation and international treaties and explained them to the applicant. Instead, they gave her quite misleading advice, and the courts failed to clarify the applicant’s factual and legal situation, leaving this Court with the sole option of finding a procedural violation of Article 8.

In the present case the applicant’s evident benevolent intentions deserved high praise - she wanted to bring up her niece and nephew, who had been abandoned by their mother (her sister) and provide them with family care. Whatever good reasons the authorities had for not granting her request, such ignorance on their part was unacceptable. “No more humiliating reply than a contemptuous silence” as Michel de Montaigne would have it. Contemptuous silence from judicial authorities dealing with private interests of the utmost importance is in itself a violation of the Convention.

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