European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF VELASCO AYRA v. RUSSIA

(Application no. 54628/19)

 

 

 

 

JUDGMENT

STRASBOURG

11 January 2022

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Velasco Ayra v. Russia,

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

          Georgios A. Serghides, President,
          Anja Seibert-Fohr,
          Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 54628/19) 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”) on 9 October 2019 by a Spanish national, Mr Miguel Angel Velasco Ayra, born in 1980 and living in Madrid (“the applicant”) who was represented by Ms S.D. Garsiya, a lawyer practising in St Petersburg;

the decision to give notice of the application to the Russian Government (“the Government”), represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

noting that the Government of Spain did not make use of their right to intervene in the proceedings (under Article 36 § 1 of the Convention);

Having deliberated in private on 30 November 2021,

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

SUBJECT-MATTER OF THE CASE

1.  The case concerns an allegation of international child abduction and the domestic courts’ decisions, under Article 8 of the Convention. In 2015 the applicant married a Russian national Ms E.Kh. The couple settled in Madrid. In 2016 E.Kh. gave birth to their son, O.A. He is a national of Spain and Russia.

2.  On 28 February 2017 E.Kh. went to visit her relatives in Russia. The applicant signed a written consent to O.A.’s travel with E.Kh. Upon her arrival to Russia E.Kh. informed the applicant that she did not intend to return to Spain and that she and the child would stay in Russia.

3.  On 6 August 2017 and 15 January 2018 the applicant lodged an application with the Ministry of Education and Science of the Russian Federation and with the Dzerzhinskiy District Court of St Petersburg (“the District Court”), respectively, for his son’s return to Spain on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

4.  On 30 March 2018 the District Court granted the applicant’s claim and ordered O.A.’s return to Spain. The District Court held that: (1)  E.Kh. had failed to disprove the fact that Spain had been the child’s (and the family’s) place of habitual residence; (2)  the applicant who had exercised his custody rights prior to the child’s retention had not consented to changing the child’s habitual place of residence; (3)  E.Kh. had not provided evidence that the applicant had not been actually exercising his custody rights and that there had been a grave risk that the child’s return to Spain would expose him to physical or psychological harm. The District Court further gave consideration to the fact that the child’s return would not lead to his separation from his mother since nothing prevented E.Kh. from going to Spain with her son. In this respect the District Court noted the absence of any pending criminal proceedings against E.Kh. in Spain in connection with the abduction of O.A. Finally, the Court considered that such circumstances as the child’s registered place of residence in St Petersburg, his being monitored by a paediatrician in St Petersburg, his placement on a waiting list for a kindergarten in St Petersburg, etc., did not have any legal value since they had occurred after the child’s removal from Spain.

5.  On 13 June 2018 the St Petersburg City Court (“the City Court”) quashed the above judgment on appeal and rejected the applicant’s claim. The City Court held that the child’s retention had not been unlawful within the meaning of Article 3 of the Hague Convention in view of the child’s permanent residence in St Petersburg since March 2017 where all conditions had been put in place for his living and development; his age at the moment of his removal from Spain - six months, when a child has both psychological and physiological need for his mother (the child was still being breastfed at the moment of the return proceedings); the defendant’s reluctance to return to Spain; and the child’s integration into the social and family environment in Russia.

6.  The City Court further arrived at the conclusion that Spain had not been the child’s habitual place of residence. It relied in this respect on the child’s registered place of residence in St Petersburg, the fact that he had been residing in Russia for over a year since February 2017, that he did not speak the Spanish language, that he was attending various medical and child-rearing facilities in St Petersburg and was permanently living in Russia since March 2017 O.A. had achieved significant integration into the Russian social and family environment.

7.  Having relied on Article 38 of the Constitution of the Russian Federation, Articles 63 § 1 and 65 § 1 of the Family Code of the Russian Federation, Principle 6 of the 1959 UN Declaration of the Rights of the Child providing, in particular, that a child of tender years shall not, save in exceptional circumstances, be separated from his mother, the City Court concluded as to the absence of any exceptional circumstances in the present case which would allow the child’s separation from his mother. The City Court dismissed the applicant’s argument to the effect that the child would not be separated from his mother in the event of his return to Spain as being of a speculative nature. It further noted in this connection that it could not impose on E.Kh. an obligation to return to Spain, the choice of the country of residence being her right.

8.  The City Court decided, therefore, to refuse the applicant’s claim with reference to the exceptions from the general rule of immediate return provided for by Articles 13 (b) and 20 of the Hague Convention as the child’s return without his mother would run contrary to the child’s interests.

9.  On 5 October 2018 and 9 April 2019, respectively, the St Petersburg City Court and the Supreme Court of Russia refused to accept the applicant’s case for examination in cassation proceedings.

10.  The Russian courts had subsequently, in separate proceedings, granted E.Kh.’s claim for divorce and child residence and dismissed the applicant’s counter-claim.

11.  The applicant complained under Article 8 of the Convention about the refusal of his application for the return of his son to Spain and subsequent determination of his residence with his mother in Russia.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

12.  The applicant’s complaint is twofold: it concerns the refusal to return his son to Spain and subsequent determination of the latter’s residence with his mother in Russia.

13.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

14.  The general principles emerging from the Court’s case-law on the issue of international abduction of children have been summarized in X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013), and Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 131-40, ECHR 2010).

15.  The City Court considered that Spain had not been the country of the child’s habitual residence with reference to the child’s experience after his retention in Russia, rather than his experience immediately preceding such retention. No assessment was made of the remaining two circumstances central for determination of whether the child’s retention in Russia was wrongful within the meaning of Article 3 of the Hague Convention: whether the applicant had custody rights in respect of the child and whether he actually exercised those rights immediately before his retention. Instead, the City Court relied on the child’s permanent residence in St Petersburg since March 2017, his age at the moment of his removal from Spain, the defendant’s reluctance to return to Spain and the child’s integration into the social and family environment in Russia - factors irrelevant for the assessment of the wrongfulness of the removal under the criteria of the Hague Convention.

16.  Regardless of its conclusion that the child’s retention in Russia had not been wrongful, the City Court acted as though the duty to return the child under the Hague Convention had been triggered: it examined whether the child’s return would correspond to his interests and, relying on the child’s mother’s unwillingness to return to Spain and the child’s interest, in view of his young age, in not being separated from the latter, dismissed the return request with reference to Articles 13 (b) and 20 of the Hague Convention.

17.  The exceptions to return under the Hague Convention must be interpreted strictly and the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test. Nothing in the circumstances unveiled before the domestic courts objectively ruled out the possibility of the mother’s return together with the child. It was not implied that E.Kh. did not have access to Spanish territory, that she would have faced criminal sanctions upon her return, or that the applicant might actively prevent her from seeing the child in Spain or deprive her of parental rights or custody. Allowing the return mechanism to be automatically deactivated on the sole basis of a refusal by the abducting parent to return would subject the system designed by the Hague Convention to the unilateral will of that parent. The City Court’s reliance on Principle 6 of the United Nations 1959 Declaration in the assessment of the “grave risk” exception under Article 13 (b) of the Hague Convention despite the fact that the child had been wrongfully removed by his mother and in disregard of other international instruments, such as the European Convention, the Convention on the Rights of the Child and the Hague Convention, was unacceptable. This approach was tantamount to a finding by the domestic courts that the option of returning very young children who have been abducted by their mothers is not necessarily envisaged under the Hague Convention, a conclusion that is contrary to the letter and spirit of that Convention (see Thompson v. Russia, no. 36048/17, §§ 54-74, 30 March 2021).

18.  The interpretation and application of the provisions of the Hague Convention by the City Court failed, therefore, to secure the guarantees of Article 8 of the Convention and the respondent State failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life. There has accordingly been a violation of Article 8 of the Convention on account of the refusal to return the applicant’s son to Spain.

19.  Having regard to its findings above, the Court sees no need to examine the merits of the remaining part of the applicant’s complaint under Article 8 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant claimed 16,250 euros (EUR) in respect of non‑pecuniary damage and EUR 5,924.51 in respect of costs and expenses incurred before the domestic courts and before the Court.

21.  The Court awards the applicant EUR 12,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.

22.  Having regard to the documents in its possession, the Court awards the applicant EUR 4,250 covering costs under all heads, plus any tax that may be chargeable to the applicant.

23.  The Court further 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 on account of the refusal to return the applicant’s son to Spain;

3.      Holds that there is no need to examine separately the merits of the remaining part of the applicant’s complaint under Article 8 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,250 (four thousand two hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

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

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                           Georgios A. Serghides
          Deputy Registrar                                                      President