FIFTH SECTIONCASE OF SPITSYN v. UKRAINE (Application no. 52411/18)      JUDGMENT   STRASBOURG7 October 2021      This judgment is final but it may be subject to editorial revision.In the case of Spitsyn 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 application (no. 52411/18) 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 Ukrainian national, Mr Borys Ivanovych Spitsyn (“the applicant”), on 29 October 2018;the decision to give notice to the Ukrainian Government (“the Government”) of the complaint concerning non-enforcement of child contact arrangements and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 7 October 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns the non-enforcement of child contact arrangements, allegedly in breach of Article 8 of the Convention.THE FACTS2. The applicant was born in 1965 and lives in Sumy.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 2005 the applicant started to live with S. On 7 October 2012 their daughter was born. In 2015 the couple separated. The child continued to live with S, who is the mother of the child.6. On 22 June 2016 the Kovpakivskyy District Court of Sumy instructed S. not to prevent the applicant from seeing the child and established a schedule for regular meetings of the applicant with the child. That judgment became final on 2 August 2016.7. Enforcement proceedings were opened at the request of the applicant. However, they were closed on 12 September 2016.8. On 21 October 2016 the applicant requested criminal prosecution of S. for her failure to comply with the above-mentioned court judgment. According to the information available to the Court, those proceedings were pending at the time of the exchange of observations.9. In February 2017 the applicant initiated civil proceedings to establish new contact arrangements with his daughter.10. On 3 August 2017 the Kovpakivskyy District Court of Sumy again instructed S. not to prevent the applicant from seeing the child and ordered that the applicant should have regular meetings with the child every Tuesday and Thursday from 4 p.m. to 8 p.m. and every Saturday from 10 a.m. to 8 p.m. The child’s state of health and her willingness to see the applicant had to be taken into consideration at the time of the meetings, which were to be held in the presence of the child’s mother and in a place agreed upon by the parents.11. On 28 September 2017 and 14 June 2018 the Sumy Regional Court of Appeal and the Supreme Court, respectively, upheld that judgment.12. Following the applicant’s request of 21 August 2018, on 3 September 2018 the State Bailiffs Service (“the bailiffs”) initiated enforcement proceedings in respect of the court decision of 3 August 2017.13. On 18 September 2018 the bailiffs read to S. the operative part of the judgment of 3 August 2017. On 20 September 2018 they closed the enforcement proceedings.14. At the applicant’s request, on 26 September 2018 the bailiffs resumed the enforcement proceedings in order to ensure forthcoming meetings between the applicant and his daughter. On 9 October 2018 the child refused to stay with the applicant. On 13 October 2018 the child was sick and could not meet with the applicant. On 8 January 2019 the bailiffs terminated the enforcement proceedings.RELEVANT LEGAL FRAMEWORK15. The relevant provisions of domestic law can be found in Bondar v. Ukraine ([Committee] no. 7097/18, §§ 17 and 18, 17 December 2019).16. The Enforcement Proceedings Act of 2 June 2016, with the amendments introduced on 3 July 2018, provides that if an applicant is prevented from seeing the child by the other party after the termination of the enforcement proceedings, that applicant may apply to the bailiffs seeking resumption of the enforcement proceedings (section 64-1 § 6).THE LAWALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION17. The applicant complained under Article 8 of the Convention that the child contact arrangements established by the court decision of 3 August 2017 had not been effectively implemented by the authorities.18. Article 8 reads as follows:“1. Everyone has the right to respect for his private and family life, his home and his correspondence.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.”Admissibility19. The Government submitted that the applicant had not exhausted domestic remedies because he had failed to request any further measures after the bailiffs terminated the enforcement proceedings on 8 January 2019.20. The Government further submitted that the applicant had abused his right of application to the Court because he had only pursued his own interests without due respect to those of his child and he had not presented a full picture of all the events, apparently in order to mislead the Court.21. Lastly, the Government submitted that the complaint was manifestly ill-founded because the applicant had access to effective procedures and the national authorities had taken all measures to ensure the applicant’s right to contact with his daughter.22. The applicant disagreed.23. The Court considers that the Government’s objection of non‑exhaustion of domestic remedies is closely linked to the substance of the applicant’s complaint. In these circumstances, it joins the objection to the merits.24. The Court further finds no indication of abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. Moreover, this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits25. The applicant maintained his complaint.26. The Government submitted that the bailiffs took all possible action in order to enforce the court decision of 3 August 2017.27. The Court reiterates that mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001‑VII). The general principles concerning the State’s positive obligations with regard to the protection of the relationship between parents and their children are set out in Vyshnyakov v. Ukraine (no. 25612/12, §§ 35-37, 24 July 2018, with further references).28. Bearing in mind that the positive obligation in this area is not one of result, but one of means (see Vyshnyakov, cited above, § 36), the Court must determine whether the domestic authorities took sufficient steps to enforce the court decision of 3 August 2017 establishing child contact arrangements.29.

Outcome for Article 8: violation