FIFTH SECTIONCASE OF BONDAR v. UKRAINE(Application no. 7097/18)      JUDGMENT STRASBOURG17 December 2019 This judgment is final but it may be subject to editorial revision.In the case of Bondar v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President, Ganna Yudkivska, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar.Having deliberated in private on 26 November 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 7097/18) 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 Andriy Volodymyrovych Bondar (“the applicant”), on 31 January 2018.2. The applicant was represented by Ms S. Aminova, a lawyer practising in Kherson. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.3. The applicant complained that the domestic authorities had failed to ensure the effective enforcement of the contact arrangements between him and his minor daughter. On 12 June 2018 the Government were given notice of the complaints concerning the non-enforcement of the court decision on contact rights and the lack of an effective remedy in that regard; the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.THE FACTSTHE CIRCUMSTANCES OF THE CASE4. The applicant was born in 1986 and lives in Kherson. In 2010 he married V. On 12 June 2013 their daughter M. was born. On 15 July 2014 the couple divorced. On 16 January 2015 the court determined that the child should live with her mother.5. The applicant instituted civil proceedings, claiming that V. had prevented him from having contact with his daughter. He asked the court to establish arrangements for regular contact with his child.6. By the first-instance court’s judgment of 3 December 2015, as amended on 1 March 2016 by the Kherson Regional Court of Appeal, V. was instructed not to prevent the applicant from seeing the child and participating in her upbringing. The courts put in place the following contact arrangements. During the first two months the meetings between the applicant and his child would be held every Thursday for one hour in the presence of the child’s mother; during the third, fourth and fifth months the meetings would be extended to two hours; thereafter, the two-hour meetings would take place each Sunday and Thursday, as well as the day after New Year’s Day, Christmas Day, Easter, International Women’s Day, Independence Day and the child’s birthday.7. On 7 September 2016 the Higher Specialised Court on Civil and Criminal Matters quashed the judgment of 1 March 2016 and remitted the case to the Court of Appeal for fresh consideration, finding that in determining the contact arrangements it had not properly examined all the relevant circumstances, notably the daily schedule of the child, who had to attend a childcare centre for specific treatment.8. On 26 October 2016 the Kherson Regional Court of Appeal, having assessed all the circumstances, decided that the applicant should be granted two-hour meetings with his daughter every Sunday in the presence of the child’s mother. That judgment was upheld by the Higher Specialised Court on Civil and Criminal Matters on 22 June 2017.9. On 16 February 2017 bailiffs initiated enforcement proceedings in respect of the judgment of 26 October 2016.10. On 19 February 2017 the bailiff reported that the meeting between the applicant and child scheduled for that day had not taken place because the mother had refused to open the door.11. On 21 February 2017 the bailiff decided to impose a fine on V. of 1700 hryvnias (UAH) on account of her failure to comply with the contact arrangements. V. challenged this decision, and the proceedings are still pending.12. Between March 2017 and October 2018 the applicant regularly informed the bailiffs and the other authorities that the child’s mother was preventing him from seeing the child, in breach of the contact order. He contended that on 19 February, 12 March, 14 May, 2 and 16 July, 6 and 13 August, 10 September, 15 and 22 October, 19 and 26 November, 24 December 2017, 7 January, 4, 11 and 25 February, 4 March, 8 April, 6, 13, 20 and 27 May, 3 and 24 June, 8 and 22 July, 12 August, 21 October 2018 he could not see his child, despite his attempts. Some of the meetings that had actually taken place had been shortened by the child’s mother up to twenty minutes, instead of two hours prescribed by the court. In his letters the applicant requested that further measures be taken to ensure enforcement of the judgment.13. On 27 June 2018 the bailiff served an official document on V. requesting her to comply with the contact schedule.14. On 19 July 2018 the bailiff found that on numerous occasions in 2017 and 2018 the applicant could not meet his daughter without objective reasons and that V. did not always comply with the contact arrangements. V. was warned that she could face a fine and criminal punishment.15. On 20 July 2018 the bailiff decided to impose a fine on V. of UAH 3,400 on account of her failure to comply with the contact schedule. She challenged this decision, and the proceedings are still pending.16. On 8 August 2018 the applicant unsuccessfully asked the bailiff to arrange for a psychologist to assist in the enforcement proceedings.RELEVANT DOMESTIC LAW17. Section 63 of the Enforcement Proceedings Act of 2 June 2016 (in force since 5 October 2016) sets out the general conditions for the enforcement of judgments on prohibiting or abstaining from certain actions. The procedure provides that bailiffs may impose financial sanctions on persons against whom a judgment has been made and request the initiation of criminal proceedings against them in the event of non-compliance. Section 63(4) also provides that during the enforcement of a judgment of this kind bailiffs should notify the person against whom it has been made of the operative part and prepare a report to that effect; after the preparation of the report, the bailiff should terminate the enforcement proceedings.18. On 3 July 2018 a new section 641 was introduced into the Enforcement Proceedings Act, dealing with the enforcement of judgments on child contact arrangements. Under this section, bailiffs may impose financial sanctions on persons against whom a judgment has been made and request the initiation of criminal proceedings against them in the event of non-compliance, as well as seek a temporary ban on them leaving Ukraine or impose a temporary driving ban.THE LAWALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION19. The applicant complained that the domestic authorities had failed to ensure the effective enforcement of the contact arrangements between him and his minor daughter. He relied on Articles 8 and 13 of the Convention.20. The Court, master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018 and Vyshnyakov v. Ukraine, no. 25612/12, §§ 29 and 30, 24 July 2018), will examine the complaint from the standpoint of Article 8 of the Convention alone. 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.”AdmissibilityThe parties’ submissions21. The Government submitted that the application should be declared inadmissible as the applicant had failed to exhaust domestic remedies. Notably, he should have challenged in court the actions and omissions of the bailiffs in charge of the enforcement of the contact arrangements.22. The Government further submitted that the applicant had abused his right of application to the Court in that he had not presented a full picture of the enforcement proceedings, notably the measures taken by the bailiffs, in his application, apparently to mislead the Court.23. The applicant contended that the child’s mother had frequently failed to comply with the weekly contact arrangements. He had required a prompt response on the part of the authorities, while any court action would have taken a considerable amount of time and would not have been effective. Moreover, he had complained about the bailiffs’ inactivity forty-seven times to the bailiffs’ superior without any tangible results.

Outcome for Article 8: violation