THIRD SECTION
CASE OF MAKHMUDOVA v. RUSSIA
(Application no. 61984/17)
 
 
JUDGMENT
 
Art 8 • Respect for family life • Positive obligations • Failure of Russian authorities to ensure enforcement of order of return of the applicant’s children to Estonia under the Hague Convention after removal by father • Delays in enforcement attempts • Failure to ensure preliminary measures to prepare the children and regular contact between them and the applicant pending proceedings • Children’s unwillingness to go to the applicant • Absence of effective coordination between authorities • Enforcement measures inadequate and ineffective
 
STRASBOURG
1 December 2020
 
FINAL
 
01/03/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Makhmudova v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President,
 Georgios A. Serghides,
 Dmitry Dedov,
 Georges Ravarani,
 María Elósegui,
 Darian Pavli,
 Peeter Roosma, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 61984/17) 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”) by an Estonian national, Ms Aminat Makhmudova (“the applicant”), on 15 August 2017;
the decision to give notice of the application to the Russian Government (“the Government”);
the decision to grant the application priority under Rule 41 of the Rules of Court;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the Estonian Government, who 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,
Having deliberated in private on 10 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the failure of the Russian authorities to enforce the judgment of the Russian courts ordering the return of the applicant’s children to Estonia under the Hague Convention on the Civil Aspects of International Child Abduction. THE FACTS
2. The applicant was born in 1987 and lives in Haabneeme, Estonia. She was represented by Ms O.V. Sadchikova, a lawyer practising in Stavropol. 3. The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The circumstances of the case
A. Background of the case
5. On 12 October 2006 the applicant married a Russian national, Mr A. 6. On 27 September 2010 and 8 March 2014 she gave birth to two sons. The children hold Russian and Estonian nationality. 7. The children lived in Estonia with the applicant and visited A. in the Republic of Dagestan, Russia, during the spring and the summer. Subsequently A. was granted an Estonian residence permit and lived partly in Estonia and partly in Russia. 8. In August 2015 the applicant informed A. of her intention to divorce him. A. threatened to take the children from her. She hid the children’s passports. 9. However, at the beginning of 2016 A. obtained new passports for the children from the Estonian Department of the Police and the Border Guard Service. 10. On 4 February 2016, when the applicant was at work, A. took the elder son from home and the younger son from kindergarten and, in a vehicle driven by his brother, crossed the border of Estonia and Russia together with the children; he drove to St Petersburg and flew from there to Makhachkala, Republic of Dagestan. B. Proceedings in Estonia
11. On 9 February 2016 the applicant lodged an application with the Estonian Ministry of Justice for assistance in securing the return of the children, in accordance with the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), to which both Estonia and Russia are parties. 12. On 11 February 2016 the Harju County Court, as a first measure to legally protect the applicant, partially suspended the joint parental responsibility for the children (that is to say A. was formally deprived of the right to determine his children’s place of residence). The applicant was granted the right to determine the children’s place of residence, and A. was ordered not to take the children out of Estonia. A. was furthermore ordered to immediately return the children to Estonia. 13. On 5 July 2016 the Harju County Court dissolved the applicant’s and A.’s marriage. The children’s residence was determined as being with the applicant. A. was granted contact rights. C. Proceedings in Russia
14. On 4 March 2016 the applicant went to Dagestan to try to resolve the conflict peacefully, but without success. 15. A mediation process conducted by the Federal Institute of Mediation in Moscow did not yield any results either. 1. Proceedings for the children’s return to Estonia under the Hague Convention
16. The applicant lodged an application with the Pyatigorsk Town Court of Stavropol Region (“the Town Court”), seeking the children’s return to Estonia on the basis of the Hague Convention. 17. On 20 July 2016 the Town Court allowed the applicant’s application and ordered the children’s immediate return to the place of their habitual residence in Estonia. Under the judgment, A. was obliged to hand over the children’s Russian and Estonian passports to the applicant within a week of the judgment becoming final. 18. On 20 January 2017 the Stavropol Regional Court (“the Regional Court”) upheld the above judgment on appeal. 2. Enforcement of the return order
19. The judgment was not complied with by A. voluntarily. 20. On 17 March 2017 the applicant submitted a writ of enforcement to the Federal Bailiffs Service and communicated to the bailiffs the addresses at which the children might be found. 21. On 3 April 2017 the Inter-district Bailiffs Service for Special Enforcement Proceedings of the Directorate of the Federal Bailiffs Service for the Republic of Dagestan (“the Inter-district Bailiffs Service”) instituted enforcement proceedings. 22. On 10 April 2017 A. was served with a request to comply with the judgment of 20 July 2016 (требование об исполнении решения суда). He responded that he had not been impeding the transfer of the children to the applicant. By a letter of the same date a bailiff, M., informed the applicant that she needed to appear on 22 May 2017 in Makhachkala in order to be present at the enforcement of the above-mentioned judgment. 23. On 18 May 2017 an execution fee in the amount of 5,000 Russian roubles (RUB)[1] was imposed on A., which the latter paid. (a)  Enforcement attempt of 22 May 2017
24. On 22 May 2017 the applicant, accompanied by her lawyer, travelled from Haabneeme to Makhachkala,[2] however, the enforcement could not take place as A. had left, taking the children with him, for Rostov-on-Don.[3]
25. On 24 May 2017 the applicant lodged a complaint with the head of the Inter-district Bailiffs Service in respect of the bailiff’s actions, alleging that the enforcement proceedings had been handled inefficiently and that the bailiff and the persons participating in the attempts to enforce the judgment of 20 July 2016 had sabotaged the execution of that judgment. However, it was found that the actions of the bailiff had not breached the law. 26. On 21 June 2017 the applicant lodged a request with M. (as the bailiff in charge of the enforcement proceedings) for the recovery from A. of the expenses incurred by her in connection with the failed attempt to enforce the judgment. On 12 July 2017 her request was dismissed. 27. The applicant then lodged a claim against the Inter-district Bailiffs Service and A. for the reimbursement of the expenses that she had incurred as a result of the failed attempt on 22 May 2017 to enforce the judgment. 28. On 20 December 2017 the Kirovskiy District Court of Makhachkala dismissed the applicant’s claim. Following the communication of the present application to the Russian Government, on 13 March 2018 the Supreme Court of the Republic of Dagestan quashed the above judgment on appeal, ruled the bailiff’s decision of 12 July 2017 unlawful and obliged him to issue a lawful order granting the applicant’s claim against A. (see paragraph 27 above). The Kirovskiy District Court established the following:
“The respondent, A., who had been informed in advance of the time and the place of the enforcement [of the] handover of the two children to [the applicant] for [the purpose of their then moving to] her place of residence in Estonia, evaded participation in the enforcement action. According to the explanation [that he gave], on 22 May 2017 he left his home for Rostov-on-Don to seek [medical] treatment for the children, but no evidence confirming the need to travel to Rostov-on-Don on that day was presented. ...”
29. Meanwhile, on 18 June 2017 the bailiff informed the applicant that the children’s place of residence in Makhachkala had been identified, and enquired as to when the applicant would arrive in Makhachkala for the carrying out of the enforcement action. 30. On 19 June 2017 an administrative fine in the amount of RUB 2,500[4] was imposed on A. under Article 17.14 § 1 of the Code of Administrative Offences for his failure to comply with the judgment of 20 July 2016. 31. On 21 June 2017 the applicant lodged a request with the Inter‑district Bailiffs Service for the enforcement to be carried out without her participation and for the children to be transferred to Moscow. She undertook to cover all travel expenses for the children and two accompanying adults. The applicant’s request was dismissed on an unspecified date. 32. On 12 July 2017 the applicant lodged a complaint with the Federal Bailiffs Service regarding the undue length of time that the judgment of 20 July 2016 had gone unenforced. 33. On 27 July 2017 she lodged a request for the head of the Federal Bailiffs Service to ensure that the enforcement proceedings would be conducted by an external enforcement team (группа принудительного исполнения), with the involvement of bailiffs from the Federal Bailiffs Service. 34. On the same date the applicant lodged (with the head of the Inter‑district Bailiffs Service) a challenge against the decisions of the bailiffs of the Inter-district Bailiffs Service, who, she alleged, had been deliberately sabotaging the enforcement proceedings. (b)  Transfer of the enforcement proceedings to the Department for the Undertaking of Especially Important Enforcement Proceedings, and the enforcement attempt of 7 November 2017
35. In the meantime, on 7 September 2017 the enforcement proceedings were transferred to the Federal Bailiffs Service’s department for the Undertaking of Especially Important Enforcement proceedings (Управление по исполнению особо важных исполнительных производств при Директоре Федеральной службы судебных приставов). 36. On 8 September 2017 A. was temporarily barred from leaving the territory of the Russian Federation. 37. On 14 September 2017 various enquiries were sent to the Department of the Interior of the Republic of Dagestan, the Dagestan State Pedagogical University and the Dagestan Department for Supervision and Control in the Sphere of Education. 38. On 7 November 2017 the Inter-district Bailiffs Service made another attempt to enforce the judgment with the participation of A., the applicant and her representative, the Dagestan childcare authority and a psychologist. In the course of the enforcement action it proved impossible to hand the children over because they refused to go to the applicant. 39. According to a report drawn up by the above-mentioned psychologist following the attempt at enforcement, the children spent over two hours with the applicant but did not display any positive emotional attitude towards her. According to the report, the forcible transfer of the children could have caused them serious psychological trauma. The applicant was recommended to undergo psychological counselling aimed at finding ways of interacting and establishing contact with the children; it was also recommended that she find ways to spend time with them over a period of two months, before the next enforcement attempt was made. (c)  Subsequent attempts to enforce the judgment
40. On 22 May and 18 June 2019 the applicant again travelled to Makhachkala to attend enforcement proceedings, which again yielded no result, as the children refused to go to the applicant. According to the applicant, on the first occasion the applicant and her representative were subjected to “violent actions” by local officials. 41. To date the judgment of 20 July 2016 remains unenforced. 3. Subsequent developments
42. In 2019 the applicant lodged a request with the Town Court for the modification of the method of enforcement prescribed by the judgment of 20 July 2016. She noted that A. had not voluntarily complied with the judgment in question for over three and a half years and had prevented all contact between her and the children, aside from a few brief meetings with the children during the attempts to enforce the judgment and a few telephone conversations arranged with the help of relatives. She furthermore noted that the attempts by the bailiffs to enforce the judgment of 20 July 2016 had been fruitless: either A. had hidden the children or the latter had refused to go to the applicant. Accordingly, she lodged a request with the Town Court, asking it to oblige the bailiffs to arrange for (i) the safe removal of the children and their documents from A., regardless of the children’s wishes, not later than 1 August 2019, (ii) the children’s transportation from Makhachkala to St Petersburg with an accompanying adult and their handover to the applicant, (iii) the provision to the applicant and the children of three weeks’ psychological family adaptation counselling at a health resort in St Petersburg, (iv) A. to have contact with the children during their stay in St Petersburg on either Saturday or Sunday each week for four hours from 2 p.m. until 6 p.m. in the presence of the applicant, (v) the applicant and the children to leave for Estonia on 23 August 2019. 43. On 9 August 2019 the Town Court refused the applicant’s request. The Town Court considered that A. had not been inactive in the enforcement proceedings. It noted in that respect that (i) enforcement actions had been carried out on 22 May and 7 November 2017 and 22 May and 18 June 2019, with the participation of the applicant, A., the childcare authority, a psychologist and a paediatrician; (ii) A. had appeared at the time and the place of the enforcement action with the children; (iii) A. had not exercised any pressure on either the applicant or the children; and (iv) the children had refused to go to the applicant. The Court furthermore noted the report prepared by the psychologist who had participated in the enforcement action on 7 November 2017, which stated that, at the material time, the forcible transfer of the children to the applicant would have caused serious psychological trauma to the former (see paragraph 39 above). The Town Court furthermore deemed that the applicant’s request had been prompted by her dissatisfaction with the non-enforcement of the judgment of 20 July 2016 and had been aimed at altering the judgment itself, which was not permitted by law. Lastly, it noted that the children had spent over three and a half years in Russia since their removal from Estonia, which exceeded the one-year time-limit provided by Article 12 of the Hague Convention for children’s adaptation to and integration into a new environment, as well as the reasonable time-limits for the enforcement of a judgment ordering the returning of a child to his or her home. 44. The applicant appealed, challenging the Town Court’s conclusion that A. had not been inactive in the enforcement proceedings. She relied, in particular, on the fact that on 18 May 2017 an execution fee in the amount of RUB 5,000 had been imposed on A. by M., the bailiff, for his failure to comply with the judgment of 20 July 2016, as well as on the fact that on 18 June 2019 K., the psychologist who had participated in the enforcement action on that date had noted in her report that A. had been preventing the applicant from communicating with the children. The applicant furthermore argued that the Town Court’s decision had amounted to the nullification of the judgment of 20 July 2016 and the legalisation of A.’s failure to comply with it. 45. On 5 December 2020 the Regional Court dismissed the applicant’s appeal, upholding the Town Court’s 9 August 2019 judgment, and endorsing its reasoning
  RELEVANT LEGAL FRAMEWORK
A. International law
1.  1980 Hague Convention on the Civil Aspects of International Child Abduction
46. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction entered into force between Russia and Estonia on 1 December 2011. For the relevant provisions of the Hague Convention see Rinau v. Lithuania (no. 10926/09, §§ 145‑49, 14 January 2020).
2.  1989 Convention on the Rights of the Child
47. For the relevant provisions of the Convention on the Rights of the Child of 20 November 1989 see X v. Latvia ([GC], no. 27853/09, §§ 37-40, ECHR 2013). B. Domestic law
1. The Federal Law On Enforcement Proceedings of 2 October 2007 (“the Enforcement Proceedings Act”)
48. Section 109.3 of the Enforcement Proceedings Act provides as follows:
“1. The removal of a child and his or her [subsequent] transfer must be carried out with the participation of the childcare authority, as well as of the person to whom the child is to be transferred. If necessary, the bailiff shall also arrange for the participation in the enforcement proceedings of a representative of the local department of the Interior, a child psychologist, a doctor, a teacher, an interpreter and other specialists.
... 3. Compliance with the requirement of an enforcement order [that, inter alia,] sets out child contact arrangements shall require the bailiff to secure unhindered contact between the [person in whose favour the judgment was made] and the child, in accordance with the schedule determined by the court. 4. When executing an enforcement order [that, inter alia], specifies child contact arrangements, the bailiff must establish that the respondent is not hindering contact between [the person in whose favour the judgment was made] and the child. After establishing that there is no such hindrance, the bailiff shall terminate the enforcement proceedings, in accordance with Section 47(1)(1) of this Federal Law. In the event that it is necessary to repeat the enforcement action and to apply coercive measures, the decision of the bailiff to terminate the enforcement proceedings shall be set aside, at the request of [the person in whose favour the judgment was made], by the senior bailiff or his deputy. 5. The provisions of this section apply to the execution of enforcement documents ordering the return of a child unlawfully removed to or retained in the Russian Federation or ensuring the exercise of access rights in respect of such a child on the basis of an international treaty [to which] the Russian Federation [is a signatory]. The bailiff shall keep the central authority [that has been assigned with responsibility for securing compliance by the State with obligations under an international treaty] informed of the progress of the enforcement proceedings by sending copies of decisions issued within the framework of the enforcement proceedings within a day of the delivery of such decisions.”
49. If a respondent fails to fulfil the obligations contained in the writ of execution within the time-limit established for doing so voluntarily, the bailiff shall recover an execution fee from the respondent and establish a new time-limit for the execution of those obligations (Section 105 (1)). 50. If the respondent does not fulfil the obligations within the newly established time-limit, the bailiff shall draw up an administrative-offence report, in accordance with the Code of Administrative Offences, and set a new time-limit for the respondent to fulfil the obligations contained in the writ of execution (Section 105 (2)). 51. In the event of a breach by the respondent of the law on enforcement proceedings, the respondent shall, under Russian law, be held administratively or criminally liable (Section 113). 2. The Code of Administrative Offences of the Russian Federation (which took effect on 4 May 2011)
52. The Code of Administrative Offences establishes penalties in respect of a parent who prevents a minor from communicating with his or her other parent (provided that such communication is not contrary to the interests of the child) or deliberately conceals a minor’s whereabouts, or fails to comply with a court judgment determining a minor’s place of residence. Such behaviour may be punished by an administrative fine ranging from RUB 2,000 to 3,000 and up to RUB 5,000 or by administrative arrest for up to five days in the event of a repeated offence (Article 5.35 §§ 2 and 3). 53. The failure of a respondent to comply with an obligation in kind within the time-limit set by a bailiff after the imposition of an obligation to pay an execution fee may be punished by the imposition of an administrative fine of between RUB 1,000 and 2,000 (Article 17.15 § 1). 3. Family Code of the Russian Federation
54. Judgments in cases involving the issue of the upbringing of children are enforced by a bailiff in accordance with the procedure laid down by the civil procedural legislation. If one of the parents (or another person in whose charge the child is) obstructs the enforcement of the court judgment, the measures stipulated by the civil procedural legislation will be applied to him or her (Article 79 § 1). 55. Where compulsory enforcement of a judgment involves taking away a child and placing him or her in the charge of another person, the relevant childcare authority and the person(s) into whose charge the child is placed must be involved. If necessary, a representative of the department of the interior, a child psychologist, a doctor, a teacher, an interpreter and other specialists can also be involved. In the event that it is impossible to enforce a judgment ordering the transfer of a child without infringing upon the child’s interests, the latter may be temporarily placed, on the basis of a judicial order, in an institution for orphans and children left without parental care (Article 79 § 2). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
56. The applicant complained that the failure of the Russian authorities to secure the enforcement of the judgment of 20 July 2016 ordering the return of her children to Estonia had violated her right to respect for her family life provided by Article 8 of the Convention, which reads as follows:
Article 8
“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.”
Admissibility
57. The Government considered that the application was manifestly ill‑founded, for the reasons set out below (see paragraph 60 below). 58. The Court considers that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

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