FIFTH SECTIONCASE OF GEN AND OTHERS v. UKRAINE(Applications nos. 41596/19 and 42767/19)    JUDGMENT STRASBOURG10 June 2021    This judgment is final but it may be subject to editorial revision.In the case of Gen and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Stéphanie Mourou-Vikström, President, Jovan Ilievski, Arnfinn Bårdsen, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the applications (nos. 41596/19 and 42767/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian nationals, Mr Naum Gen (“the first applicant”), Ms Tetyana Kaluzhska (“the second applicant”), Mr Semen Gen (“the third applicant”) and Polina Gen (“the fourth applicant”) on 21 and 27 July 2019;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints concerning the non-enforcement of the court decisions on contact arrangements and to declare inadmissible the remainder of the applications;the decision to give priority to the applications (Rule 41 of the Rules of Court) and the decision to grant leave for Ms V., the mother of Ms Polina Gen, to intervene as a third party in the written proceedings before the Court (Rule 44);the parties’ observations;Having deliberated in private on 20 May 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns the non-enforcement of child contact arrangements established by the court, allegedly in breach of Article 8 of the Convention.THE FACTS2. The applicants, whose particulars are set out in the Appendix, were represented by Mr B. Fokiy, a lawyer practising in Chernivtsi. The first and the second applicants (Mr Naum Gen and Ms Tetyana Kaluzhska respectively) are the parents of the third applicant (Mr Semen Gen) and the paternal grandparents of the fourth applicant (Ms Polina Gen). The third applicant is the father of the fourth applicant.3. The Government were represented by their Agent, Mr I. Lishchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. In 2004 Mr Semen Gen (the third applicant) began cohabiting with V. in the city of Kharkiv. On 29 March 2013 their daughter, Ms Polina Gen (the fourth applicant), was born. The third applicant was registered as the child’s father, and V. was registered as the child’s mother.6. In April 2014 the third applicant and V. separated. The child continued living with V.Court proceedings regarding contact arrangements and the enforcement of the contact schedule in respect of the child’s father (MR SEMEN GEN)7. In July 2015 V. lodged a civil claim, seeking to establish a schedule in respect of the father’s meetings with the child, arguing that the father had been spending excessive amounts of time with the child. The child’s father (the third applicant) and the paternal grandparents (the first and second applicants – that is to say Mr Naum Gen and Ms Tetyana Kaluzhska) lodged counterclaims, arguing that V. had been preventing them from seeing the child.8. On 15 August 2016 the Dzerzhynskyy District Court of Kharkiv found that the father and paternal grandparents of the child had been prevented from seeing the child. The court, having examined the family situation, established a child contact schedule for the father and another child contact schedule for the paternal grandparents in order to enable them to take part in the upbringing of the child. On 12 April 2018 the Kharkiv Regional Court of Appeal amended the father’s schedule.9. On 3 May 2018, at the request of the child’s father, the State Bailiffs Service (“the bailiffs”) opened enforcement proceedings in respect of his contact arrangements.Suspension of the enforcement proceedings by the Supreme Court10. V. appealed on points of law against the court decisions establishing contact arrangements, requesting that the enforcement proceedings be suspended, arguing that the child’s contact with the third applicant would be detrimental to her well-being. The third applicant objected to the suspension, maintaining that it had been essential for the child to see her father.11. On 14 May 2018 the Supreme Court suspended the enforcement of the contact arrangements, pending the examination of the appeal lodged by V. The Supreme Court ruled that V.’s request was well-founded.12. On 16 January 2019 the Supreme Court dismissed V.’s appeal on points of law as unfounded.13. On 28 January 2019 the enforcement proceedings were resumed.14. On 25 February the bailiffs imposed a fine on V. of 3,400 Ukrainian hryvnas (UAH) on account of her failure to comply with the contact schedule; on 1 March 2019 they imposed a second fine on V. in the same amount for the same reason.Suspension of the enforcement proceedings by the first-instance court15. V. lodged an application with the Dzerzhynskyy District Court of Kharkiv, requesting that the writ of execution issued regarding the third applicant’s contact schedule not be enforced. V. argued that the writ of execution had been defective and, moreover, that the child did not wish to meet with her father. V. requested the court to suspend the enforcement proceedings pending the examination of her application.16. On 5 March 2019 the first-instance court suspended the enforcement proceedings, pending examination of V.’s application. The court ruled that the suspension order had been essential for the proper examination of the application.17. On 6 March 2019 the child’s father lodged a request with the court for the suspension order to be lifted, arguing that it had been baseless. His request was not allowed.18. On 18 July 2019 the court dismissed V.’s application as unfounded. The bailiffs resumed the enforcement proceedings.19. On 30 July, 1, 5 and 6 August, 10 September, 7, 8 and 22 October, 9 and 12 November and 3, 7, 10 and 12 December 2019 the bailiffs reported that the child had refused to see her father during the meetings scheduled for those dates.20. On 12, 15, 25 and 29 October, 4 and 26 November and 13, 17 and 24 December 2019 the bailiffs reported that the meetings scheduled for those dates had not taken place owing to the fact that the child had been ill.21. On 19 December 2019 the bailiffs issued an order for the local childcare authority to join the enforcement proceedings.22. On 26 December 2019 the Kharkiv Court of Appeal quashed the court decision of 18 July 2019 and ordered the first-instance court to hold a fresh hearing in respect of the application lodged by V. (see paragraph 15 above).23. On 27 December 2019 and 7 January 2020 the bailiffs reported that the child had refused to see her father during the meetings scheduled for those dates.24. On 10 January 2020, following a request lodged by V., the bailiffs suspended the enforcement proceedings, deeming that, after the ruling of the appellate court of 26 December 2019, the suspension order of 5 March 2019 had once more become valid. The parties did not provide further information in respect of the court proceedings relating to V.’s application (see paragraph 15 above).Enforcement of the contact schedule relating to the child’s paternal grandfather (Mr Naum Gen)25. On 7 March 2019 Mr Naum Gen (the first applicant) lodged a request with the bailiffs, asking them to enforce the court order establishing the schedule for his meetings with the child.26. On 12 and 14 March 2019 the bailiffs returned the writ of execution (regarding the first applicant’s schedule in respect of contact with the child) to the first applicant without having enforced it.27. The first applicant lodged a challenge against the bailiffs’ actions with the supervising bailiffs, who found on 11 April 2019 that there had been no grounds for returning the execution writ unenforced.28. On 16 April 2019 the bailiffs initiated enforcement proceedings.29. On 26 May 2019 the bailiffs reported that the child had refused to see her grandfather during the meeting scheduled for that date.30. On 28 May 2019 the bailiffs issued a report stating that the court decision setting the first applicant’s contact schedule had been fully enforced. They therefore closed the enforcement proceedings.31. On 26 June 2019 the enforcement proceedings were reopened at the request of the first applicant.32. On 28 July and 22 September 2019 the bailiffs reported that the child had refused to see her grandfather during the meetings scheduled for those dates.33. On 16 March 2020, following a complaint lodged by the first applicant, the first-instance court found that on 26 May 2019 the bailiffs had not taken all the measures when supervising the meeting between the grandfather and the child, given the fact that the execution of a court decision should not be thwarted by mere wishes of a child. The court held that failings on the part of the bailiffs had resulted in a violation of the child’s right to communicate with her grandfather according to the contact schedule established by the court.34. On 18 May 2020, following a complaint lodged by the first applicant, the first-instance court again found that on 22 September 2019 the bailiffs had not taken all the measures necessary when supervising the meeting between the first applicant and the child.Enforcement of the contact schedule as regards the child’s paternal grandmother (Ms Tetyana Kaluzhska)35. On 4 June 2019 Ms Tetyana Kaluzhska (the second applicant) lodged a request with the bailiffs, asking them to enforce the court order establishing the schedule for her meetings with the child.36. On 5 June 2019 the bailiffs initiated enforcement proceedings.37. On 28 July and 22 September 2019 the bailiffs reported that the child had refused to see her grandmother during the meetings scheduled for those dates.RELEVANT LEGAL FRAMEWORK38. Under the Family Code of Ukraine (2002), a child’s mother and father have equal rights and responsibilities towards that child, regardless of whether they are or have been married to each other (Article 141 § 1). Divorce between parents or the fact that one parent lives apart from the child does not affect the scope of their rights and does not release them from their obligations towards their child, save for exceptions established by the Code (Article 141 § 2).39. Other relevant provisions of domestic law can be found in Shvets v. Ukraine ([Committee] no. 22208/17, § 23, 23 July 2019) and Bondar v. Ukraine ([Committee] no. 7097/18, §§ 17 and 18, 17 December 2019).THE LAWJOINDER OF THE APPLICATIONS40. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.STANDING OF THE THIRD APPLICANT TO ACT ON BEHALF OF HIS DAUGHTER41. Mr Semen Gen (the third applicant) lodged the application on his own behalf and on behalf of his daughter (the fourth applicant).42. The Government submitted that at the domestic level the child had repeatedly refused to see her father during the scheduled contact sessions. In the Government’s opinion, in such circumstances the third applicant had acted in a manner contrary to the child’s interests in lodging the application with the Court on behalf of that child.43. 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). As regards the present case, it was not disputed that both parents exercised parental authority and that neither of them had been granted sole custody of the child. By virtue of domestic law, the mere fact that the third applicant lived separately from his child did not deprive him of his parental rights and duties in respect of that child (see paragraph 38 above).44. The Court furthermore considers that the child’s behaviour during the contact sessions – notably her refusal to communicate with her father – could not have prevented the third applicant from exercising his parental authority and from undertaking such actions, including procedural steps, as he deemed appropriate in order to protect the interests of his daughter.

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