I incorrectly predicted that there's no violation of human rights in DECREPT v. RUSSIA.

Information

• Judgment date: 2022-06-07
• Communication date: 2020-11-20
• Application number(s): 29601/20
• Country:   RUS
• Relevant ECHR article(s): 8, 8-1
• Conclusion:
  Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.573919
• Prediction: No violation

• Inconsistent

Communication text used for prediction

The applicants, Mr Charles-Arnaud Louis Michel Decrept (“the first applicant”) and Mr Louis-Charles Vsevolod Jean Decrept (“the second applicant”), who are father and son, are French nationals, who were born in 1973 and 2012 respectively.
The second applicant also holds Russian nationality.
The first applicant lives in Le Chesnay, France, and the second applicant lives in St Petersburg, Russia.
They are represented before the Court by Ms L.A. Yablokova, Ms Yu.N.
Kruglova and Ms N.A.
Shvechkova, lawyers practising in St Petersburg.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2008 the first applicant married a Russian national, Ms M.Ch., in France.
On an unspecified date M.Ch.
obtained French citizenship.
On 26 July 2012 their son, the second applicant, was born.
He is a French national by birth.
On an unspecified date M.Ch.
obtained Russian citizenship for the second applicant.
In 2018 the relations between the first applicant and M.Ch.
deteriorated, and in September 2018 he informed the latter of his intention to initiate divorce proceedings.
This further worsened the psychological climate in the family.
M.Ch.
repeatedly expressed her intention to take the second applicant with her to Russia.
However, the first applicant firmly objected.
On 3 November 2018 when the first applicant returned from work M.Ch.
and the second applicant were gone.
Having discovered taxi and flight reservations, the applicant realised that M.Ch.
and the second applicant left France for Russia on 2 November 2018, which was later confirmed in message exchange with M.Ch.
After failed attempts to persuade M.Ch.
to return to France, on 26 November 2018 the first applicant submitted with the French Central Authority an application for the second applicant’s return to France under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), to which both Russia and France are parties.
Meanwhile, on 14 November 2018 M.Ch.
applied to the Justice of the Peace of the 93rd Court Circuit of St Petersburg for divorce.
On 19 November 2018 she applied to the Krasnogvardeyskiy District Court of St Petersburg for a residence order in respect of the second applicant and child maintenance.
The outcome of those proceedings is unknown.
On 22 January 2019 the first applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the District Court”), seeking the second applicant’s return to France on the basis of the Hague Convention.
By a judgment of 18 March 2019, the District Court granted the first applicant’s request and ordered that the second applicant be returned to France immediately.
The court found that the second applicant’s place of habitual residence was France, that his removal from France had been wrongful as it had taken place without the first applicant’s consent in violation of his custody rights, and that there had been no grounds for granting an exception to the child’s immediate return under the Hague Convention.
The District Court noted the absence of any objective grounds preventing M.Ch.
from returning to France with the child: no criminal proceedings had been pending against her in France in connection with the child’s abduction and the first applicant had no intention to initiate any such proceedings in the event of her return.
Furthermore, less than one year had elapsed since the child’s removal, for which reason the child’s adaptation to his new environment could not be argued by the abductor parent.
M.Ch.’s argument to the effect that the child had been reluctant to return could not be a ground for rejecting the first applicant’s request either as it had not been based on law and the requirements of the Hague Convention.
Following M.Ch.’s and the prosecutor’s appeal, on 4 June 2019 the St Petersburg City Court (“the City Court”) quashed the judgment of 18 March 2019 on appeal and rejected the first applicant’s request for the second applicant’s return to France.
The City Court outlined the factual circumstances of the case regarding the first applicant’s and M.Ch.’s marriage in 2008, the birth of the second applicant in 2012, the family’s permanent residence in France, the second applicant’s and M.Ch.’s French and Russian nationality, M.Ch.’s residence in France for over fifteen years, her permanent employment in France and a title to the family apartment acquired with the first applicant in 2010, the removal of the second applicant to Russia in November 2018 to the first applicant’s unawares and without his consent, followed by the initiation of the proceedings for the second applicant’s return under the Hague Convention, and the conclusions reached by the District Court.
The City Court considered, however, that the second applicant’s removal from France to Russia had not been in breach of the first applicant’s custody and parental rights, that there had been no legal provision prohibiting the child, who is a Russian citizen, from entering the territory of the Russian Federation.
The City Court noted that, having been living in Russia since November 2018, the second applicant had well adapted into the social and family environment in Russia, where the necessary conditions had been put in place for his life and development.
The City Court furthermore relied on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provided that a child of tender years should not, save in exceptional circumstances, be separated from his or her mother, as well as on the report by the childcare authority, stating that the child’s forceful separation from his mother could affect his psychological development and mental health and would run contrary to his best interests.
In view of such factors, the City Court concluded that the circumstances of the present case fell under exceptions to immediate return under Articles 13 (b) and 20 of the Hague Convention and that there had been, therefore, no grounds for granting the first applicant’s request for the second applicant’s return to France.
The City Court stressed that the child’s return to France without his mother would be against his best interests, whereas the respondent, a Russian citizen, had been free to choose residing in Russia and could not be forced to return to France.
The City Court went on to say that “motherhood and childhood” had been distinguished into a separate independent legal concept by the Russian Constitution and that any attempt at disrupting the tie between motherhood and childhood contradicted the Russian Constitution.
The priority of motherhood and childhood against all other legal forms of family life organisation, set out by Article 38 § 1 of the Russian Constitution, was one of the fundamental principles of the Russian Federation, unequivocally implying the impossibility of disrupting the relations between the mother and the child, except when it contradicted the interests of the child.
The City Court noted the absence of any such contradiction in the present case.
Lastly, the City Court noted that in the hearing before the District Court the second applicant submitted that he had friends in Russia, that he had been interested in his new friendships, that he had been bullied by his peers in France and had kept negative memories of this, that he had been reluctant to speak French and wanted to live in Russia.
On 8 August and 22 October 2019 cassation appeals by the first applicant were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation, respectively.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and France on 1 January 2012.
For the relevant provisions of the Hague Convention seeatvia [GC], no.
27853/09, § 34, ECHR 2013.
In the present context reference is made to the following provisions of the Hague Convention: Article 3 “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
...” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 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.
...” Article 7 “1.
The child shall be registered immediately after birth and shall have the right from birth ... to know and be cared for by his or her parents.
...” Article 9 “1.
States Parties shall ensure that a child shall not be separated from his or her parents against their will.
...” Article 18 “1.
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child.
The best interests of the child will be their basic concern.
...” Principle 6 “The child, for the full and harmonious development of his personality, needs love and understanding.
He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.
...” The generally recognised principles and norms of international law and the international treaties to which the Russian Federation is a party are an integral part of its legal system.
If an international treaty to which the Russian Federation is a party establishes other rules than those provided for by law, the rules of the international treaty must apply (Article 15 § 4).
The rights and freedoms of human beings and citizens in conformity with the generally recognised principles and norms of international law are recognized and guaranteed by the Russian Federation and under the Constitution (Article 17 § 1).
Maternity and childhood and the family shall be protected by the State (Article 38 § 1).
The parents’ right to bring up their children has precedence over any other person’s right to do so (Article 63 § 1).
The exercise of parental rights must not contravene the children’s interests.
Providing for the children’s interests is the principal object of the parents’ care.
Parents who exercise parental rights to the detriment of the rights and interests of the children are answerable under procedures established by law (Article 65 § 1).
The procedure for the examination of requests for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with the international treaty of the Russian Federation, is governed by Chapter 22.2 of the Code.
The Code provides that the return request is to be submitted to a court by a parent or other individual who believes that his/her custody or access rights have been violated, or by a prosecutor (Article 244.11).
The return request must be examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of its receipt, including the time for the preparation of the hearing and the drawing up of the judgment (Article 244.15).
The judgment handed down in a case concerning the return of a child unlawfully removed to, or retained in, Russia must contain the reasons why the child must be returned to the State of his/her habitual residence ‒ in accordance with the international treaty of the Russian Federation ‒ or the reasons for refusing the request for return in accordance with the international treaty of the Russian Federation (Article 244.16).
An appeal may be lodged against the judgment within ten days.
The appeal must be examined within one month of its receipt by the appeal court (Article 244.17).
COMPLAINTS 1.
The first applicant complains, on behalf of himself and the second applicant, that the refusal of his application for the return of the second applicant to France amounted to a violation of his and his son’s right to respect for their family life under Article 8 of the Convention.
He argues, in particular, that the City Court misinterpreted and misapplied the Hague Convention, that it substituted the interests of the child’s mother not to return to France for the best interests of the child and failed therefore to strike a fair balance between the interests at stake.
2.
The first applicant further complains under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention, that, having relied on Principle 6 of the 1959 Declaration of the Rights of the Child as one of the reasons for rejecting his request for the return of the second applicant to France, the City Court had discriminated against him on the ground of gender.