FOURTH SECTION      CASE OF M.R. AND D.R. v. UKRAINE (Application no. 63551/13)        JUDGMENT  STRASBOURG 22 May 2018  FINAL 22/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.R. and D.R. 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, Iulia Motoc, Carlo Ranzoni, Marko Bošnjak, Péter Paczolay, judges,and Marialena Tsirli, Section Registrar,Having deliberated in private on 10 April 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 63551/13) 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 Czech national, M. R. (“the first applicant”) and his son, D.R. (“the second applicant”), on 2 October 2013. The Vice-President of the Section decided that the applicants’ names should not be disclosed (Rule 47 § 4 of the Rules of Court).2. The applicants were represented by Mr D. Strupek, a lawyer practising in Prague. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. The applicants complained under Article 8 of the Convention that the Ukrainian authorities had failed to ensure the return of the second applicant to the first applicant, who is resident in the Czech Republic.4. On 10 December 2015 the application was communicated to the Government.5. The Czech Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The first applicant was born in 1958 and lives in Prague.7. On 17 October 2003 he married B., a Ukrainian national, in Prague. On 23 May 2004 their son, the second applicant, was born.8. Between 2004 and 2007 the applicants and B. lived together as a family at the first applicant’s residence in Prague.9. In 2007 the couple divorced. B. continued to live with the child at a different address in Prague.10. By the decision of the Prague 10 District Court adopted on 6 November 2008, which was upheld on appeal on 19 May 2009, the first applicant and B. were granted alternating custody of the second applicant (with a change of parent each week).11. On 27 June 2009 B. took the second applicant at her residence pursuant to the above alternating custody scheme. Without the consent of the first applicant, she moved to Ukraine with the second applicant and settled in Demeshkivtsi, Ivano-Frankivsk Region.12. The first applicant initiated a procedure under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) for the return of the second applicant to the Czech Republic.A. The Hague Convention proceedings in Ukraine13. In October 2009 the Ivano-Frankivsk Regional Department of Justice, acting in the interests of the first applicant, lodged a claim with the Ivano-Frankivsk Town Court for the return of the second applicant to the Czech Republic, pursuant to the Hague Convention.14. On 2 July 2010 the court granted the claim, finding that the removal of the second applicant from the Czech Republic and his retention in Ukraine had been wrongful within the meaning of Article 3 of the Hague Convention. The court ordered B. to return the child to the first applicant’s residence in the Czech Republic. The child was to be returned by B. whilst accompanied by the first applicant.15. On 14 September 2010, the Ivano-Frankivsk Regional Court of Appeal upheld the judgment on appeal, and it became enforceable on that date.16. On October 2010 B. lodged an appeal on points of law.17. On 25 February 2011 the Supreme Court of Ukraine suspended enforcement of the return order, pending the examination of the appeal on points of law.18. On 15 March 2011 the Supreme Court of Ukraine dismissed B.’s appeal on points of law, finding no proof that the lower courts had incorrectly applied the law or violated any procedural rules.B. Proceedings in the Czech Republic regarding the custody and care of the second applicant19. Further to its earlier decision granting the parents alternating custody of the second applicant, the Prague 10 District Court reconsidered the matter in the light of new developments in the case, especially the child’s abduction by B., his retention in Ukraine, and the first applicant’s lack of access to the child. On 10 November 2010 that court found that it was in the child’s best interests to live with the first applicant, who was therefore granted the sole custody of the child.20. On 28 June 2011 that decision was upheld on appeal.C. Proceedings in Ukraine regarding the determination of the child’s place of residence21. On 9 December 2013 the Halych District Court of Ivano-Frankivsk Region decided B.’s claim concerning determination of the second applicant’s place of residence. The court noted that the judgment of 2 July 2010 ordering the return of the child had not been enforced, and found that the child had in the meantime settled in a new environment in Ukraine. In that regard the court referred to the psychological and pedagogical report which concluded that the child was attached to his mother and that discussion about his father caused him feelings of fear. It also examined reports by the local childcare authorities suggesting that the child should live with his mother. The court found that the child was being given appropriate care by his mother and that it would be in his best interests to stay with his mother. It therefore ruled that the child should live with B. at her place of residence in Ukraine.22. The first applicant appealed against that decision, arguing that the Ukrainian court did not have competence to determine the child’s place of residence because the custody rights had to be determined by the Czech authorities.23. On 6 March 2014 the Ivano-Frankivsk Regional Court of Appeal upheld the decision of the first-instance court, finding that the child had settled in a new environment since his arrival in 2009 and that B. was entitled to bring that action in order to ensure the best interests of the child.24. The first applicant did not appeal on points of law against that decision.D. Enforcement of the return order issued by the Ukrainian court25. On 27 September 2010 the bailiffs of the Halych District Department of Justice started proceedings to enforce the judgment ordering the return of the child and contacted the parties to that effect. During the short period allowed for the voluntary execution of the return order, B. refused to comply with it. For that reason, on 6 October 2010 she was ordered to pay a fine of 170 Ukrainian hryvnias (UAH)[1]. Two days later, she was ordered to pay a further fine of UAH 340[2].26. On 3 November 2010 the Halych District Court of Ivano-Frankivsk Region dismissed the bailiffs’ request to put the child on the search list. The court found that there was no evidence that the bailiffs had made attempts to identify the whereabouts of B. and the child. The hearing was attended by B., who submitted that the child was living with her and that she had not received any notices from the bailiffs concerning the enforcement of the return order.27. As B. continued to avoid the enforcement of the judgment, in November 2010 the bailiffs requested that criminal proceedings be initiated against her on charges of deliberate non-compliance with a court decision under Article 382 § 1 of the Criminal Code of Ukraine, which provided for a maximum penalty of three years’ imprisonment.28. On 25 January 2011 the bailiffs, accompanied by the police, a vice‑consul of the Czech Republic and the first applicant’s lawyer, visited state school no. 7 in Kalush after receiving information that the second applicant was a pupil there. There they met the second applicant, B. and B.’s lawyer. B. initially agreed to move to the Czech Republic and settle there and to bring the second applicant to live with her. Several days later B. informed the other parties that she had changed her mind.29. As B. and the child could not be found at their residence and the child’s whereabouts were unknown, the bailiffs requested that the court put the child on the search list and place him temporarily in care. On 23 August 2011 the Halych District Court granted the requests. However, on 29 September 2011 the Ivano-Frankivsk Regional Court of Appeal examined an appeal lodged by B. and partly quashed that decision as regards the temporary placement of the child in care, considering – in view of the submissions by the local childcare authority – that such a measure would be excessive and detrimental to the child.30. On 21 November 2011 B. informed the bailiffs that she and the child were living at their home in Demeshkivtsi. However, when the bailiffs attempted to enter the house on 28 November 2011, B. refused to open the door.31. As B. and the child were not present at their address when the bailiffs made further visits, the bailiffs applied to the court to have them put on the search list and to have the child placed in temporary care. On 5 March 2012 the Ivano-Frankivsk Town Court refused to grant the requests, holding that the bailiffs had not taken sufficient steps to identify the whereabouts of B. and that the child was living in suitable conditions which made it unnecessary to place him in temporary care. The court heard B., who was present for the hearing and who informed the court that she and the child were living in Kalush in a flat of suitable quality and that the child was still attending school no. 7 in that town. The court also examined submissions from the local childcare authorities to that effect.32. On 26 March 2012 the bailiffs discovered that the child – who by now was almost eight years old − had stopped attending school and was being instructed at home by a teacher from the Kalush school.33. On 5 July 2012 the Ivano-Frankivsk Town Court refused to grant the bailiffs’ requests to put B. and the child on the search list and to place the child in temporary care. That decision was appealed against and on 4 October 2012 the Ivano-Frankivsk Regional Court of Appeal granted their requests. However, B. lodged an appeal on points of law and on 26 December 2012 the Higher Specialised Court on Civil and Criminal Matters upheld the first-instance court’s ruling and dismissed the bailiffs’ requests. It found that the judgment of 2 July 2010 to return the child to Czech Republic did not include the requirement to remove the child from B., who was “the debtor” in the enforcement proceedings. The court held that the bailiffs had the power to impose fines on B. and to request other measures of legal liability. However, if the judgment could not be executed without the “debtor”, the bailiffs would have to terminate the enforcement proceedings.34. On 7 February 2013 the bailiffs discontinued the enforcement proceedings, noting that B. had been subjected to fines in those proceedings and that on 18 May 2011 she had been convicted of the crime of non‑compliance with a court decision and had been punished with a fine of UAH 1,000[3]. On 5 September 2013 the Ivano-Frankivsk Regional Court of Appeal reversed the bailiffs’ decision, finding that the enforcement measures had been insufficient.35. On 20 June 2014 the bailiffs once again discontinued the enforcement proceedings. On 22 August 2014 the Ivano-Frankivsk Town Court reversed the bailiff’s decision as unfounded. However, in response to an appeal lodged by B., on 16 December 2014 the Ivano-Frankivsk Regional Court of Appeal quashed the decision of 22 August 2014 and ordered a fresh hearing in the first-instance court. On 23 February 2015 the first-instance court upheld the bailiffs’ decision to discontinue the enforcement proceedings. On 9 April 2015 the Court of Appeal quashed the bailiffs’ decision and ordered further enforcement proceedings.II. RELEVANT DOMESTIC LAWA. The Criminal Code36. Article 382 § 1 of the Code provides:“1. Wilful failure to comply with a court sentence, judgment, ruling or resolution which has entered into force, or hindrance of the enforcement thereof, shall be punishable by a fine of between 500 and 1,000 times the statutory tax-free monthly income, or by deprivation of liberty for a term of up to three years.”B. The legislation on enforcement proceedings37. The relevant legislation on enforcement proceedings is cited in the judgment of Chabrowski v. Ukraine (no. 61680/10, § 82, 17 January 2013).III. RELEVANT INTERNATIONAL LAW38. The relevant provisions of the Hague Convention (which entered into force in respect of Ukraine on 1 September 2006), state as follows: Article 5“For the purposes of this Convention –a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”Article 11“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”Article 16“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”Article 17“The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”THE LAWI. STANDING OF THE FIRST APPLICANT TO ACT ON BEHALF OF HIS SON39. The first applicant lodged the present application on his own behalf and on behalf of his son, designating him as the second applicant.40. The Court reiterates that in cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests (see Moog v. Germany, nos. 23280/08 and 2334/10, § 41, 6 October 2016). The first applicant was granted sole custody of the child (see paragraphs 19 and 20 above).

Article of the Convention at issue: Article 8
Outcome: violation