FOURTH SECTION      CASE OF SHVETS v. UKRAINE (Application no. 22208/17)             JUDGMENT    STRASBOURG 23 July 2019   This judgment is final but it may be subject to editorial revision.In the case of Shvets v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paul Lemmens, President, Carlo Ranzoni, Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,Having deliberated in private on 2 July 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 22208/17) 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 Mykola Petrovych Shvets (“the applicant”), on 14 March 2017.2. The applicant was represented by Ms I. Koval, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.3. The applicant complained under Articles 6 and 8 of the Convention that the domestic authorities had failed to ensure his access to his granddaughter.4. On 11 May 2017 notice of the application was given to the Government.5. The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government’s objection, the Court rejects it.THE FACTSTHE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1946 and lives in Cherkasy.7. The applicant is the paternal grandfather of V., who was born in 2011 and lived in Kyiv until her parents separated in late 2014. Following enquiries by him and V.’s father, they found out that V. and her mother (D.) had moved to Kherson (around 550 km from Kyiv). The applicant’s attempts to see V. in Kherson were unsuccessful.Proceedings regarding contact rights8. On 23 June 2015 the applicant applied to the Svyatoshynskyy District Court of Kyiv (“the first-instance court”) seeking an order requiring D. to allow him access to his granddaughter V. and to immediately return her to Kyiv. The applicant also requested that the court arrange a schedule of regular meetings with his granddaughter in Kyiv.9. On 18 April 2016 the first-instance court partly allowed the application. It found that under domestic law (see paragraph 23 below) the applicant had been entitled to keep contacts with his granddaughter and participate in her upbringing and the child’s mother could not prevent him from exercising that right. Having examined the facts, the court ruled that the applicant should have contact with his granddaughter from 10 until 5 p.m. on the first and third Saturday of the month. The court specified that the meetings should take place at D.’s home and in her presence. It noted that in January 2016 the court which had been dealing with disputes between the parents regarding V.’s place of residence had determined that V. should live with her mother. There were therefore no grounds to order the return of the child to Kyiv where she had been living previously.10. The applicant appealed, arguing, among other things, that even though a meetings schedule had been established, the court had failed to resolve the principal issue, which was the mother’s refusal to allow the applicant access to the child. The applicant contended that the obligation of the child’s mother not to prevent him from communicating with the child had not been determined by the first-instance court.11. On 8 June 2016 the Kyiv Court of Appeal noted that the first‑instance court had properly addressed the scope of the case given that the applicant had amended and developed his claims during the proceedings. The court of appeal then amended the first-instance court’s decision and reasoned that the meetings between the applicant and the child should not take place in the presence of the child’s mother. The court considered that the applicant and D. did not have a good relationship and that D.’s presence during the meetings would negatively affect the applicant’s communication with the child. The court added that the applicant had developed a very close connection with his granddaughter. He was well aware of her health problems and needs and could take care of her. There were therefore no obstacles preventing him from communicating with the child alone. Following the appellate court’s ruling, the decision of 18 April 2016 (see paragraph 9 above), as amended, became binding.12. The applicant appealed on points of law, arguing that the courts had failed to compel D. to allow him to have meetings with the child.13. On 14 September 2016 the Higher Specialised Court for Civil and Criminal Matters dismissed the applicant’s appeal as unfounded, having concluded that the lower courts had correctly applied the law and provided appropriate reasoning for their decisions.Further proceedings and developments14. Between October and December 2016 the applicant complained to the police, arguing that D. had committed an offence by failing to comply with the court decision on the applicant’s contact rights. An investigation into those allegations was opened in December 2016.15. On 12 April 2017 the State bailiffs refused to open enforcement proceedings in respect of the decision of 18 April 2016, noting that the law did not specify the manner in which it could be enforced.16. On 21 April 2017 the applicant applied to the first-instance court to determine the manner in which the decision of 18 April 2016 could be enforced. The applicant requested that the court formally compel D. to hand over the child to the applicant on the days of the meetings as determined by the court.17. On 16 June 2017 the first-instance court found that the decision of 18 April 2016 was binding but had not been complied with by D. It therefore ruled that D. had a duty to hand over the child to the applicant in accordance with the meeting schedule.18. D. appealed against that ruling.19. On 27 September 2017 the Kyiv Court of Appeal dismissed D.’s appeal as unfounded. The appellate court noted that D. had not complied with the court decision of 18 April 2016 and had prevented the applicant from seeing the child. Meanwhile, the bailiffs could not enforce the decision because the manner of enforcement had not been specified. It had therefore been necessary to adopt an additional court decision and rule that D. had a duty to hand over the child to the applicant in accordance with the meetings schedule.20. D. appealed on points of law. On 23 October 2017 the Higher Specialised Court for Civil and Criminal Matters suspended, without providing specific reasons, the enforcement of the decision of 16 June 2017 pending consideration of D.’s appeal on points of law. The Court has not been informed about the outcome of these proceedings.Dispute between the child’s parents regarding change of her place of residence21. On 24 May 2018, following a claim lodged by V.’s father, the first-instance court decided that the child should live with her father (the applicant’s son) in Kyiv. The court ordered immediate enforcement of that decision.22. On 30 May 2018 the State Bailiffs ensured the transfer of the child to her father. Since that time the applicant has had all the possibilities of taking part in the upbringing of the child.RELEVANT DOMESTIC LAW23. Article 257 § 1 of Family Code of 2002 provides that grandmother, grandfather, great-grandfather, great-grandmother have the right to communicate with their grandchildren, great-grandchildren and to participate in their upbringing. Article 257 § 2 of the Code provides that parents or other persons with whom the child lives should not interfere with the exercise by grandparents and great-grandparents of their rights in the education of grandchildren or great-grandchildren. The grandparents and great-grandparents have the right to apply to the court with a claim to remove obstacles in exercising such rights.24. The relevant provisions of domestic law on enforcement proceedings are summarised in the judgment in the case of Vyshnyakov v. Ukraine (no. 25612/12, § 28, 24 July 2018).THE LAWALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION25. The applicant complained under Articles 6 and 8 of the Convention that the domestic authorities had failed to ensure his access to his granddaughter.26. The Court, which is 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 and 126, 20 March 2018), will examine the complaint from the standpoint of Article 8 of the Convention alone.27. This provision 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.”Admissibility28. The Government submitted that in the domestic proceedings the applicant was majorly preoccupied with the idea of returning the child to Kyiv and not about his access to the child. The domestic courts had properly examined the applicant’s claims. If the applicant had not been satisfied with the result, he could have applied to the domestic courts once again for protection of his contact rights, seeking removal of obstacles in having contact with the granddaughter. Moreover, the bailiffs were in a position to enforce the contact arrangements after the domestic courts had determined the manner in which the relevant decision had to be enforced. In view of the above, the Government considered that the applicant’s complaint should be declared inadmissible for non-exhaustion of domestic remedies and as manifestly ill‑founded.29. The applicant disagreed. He contended that he had taken all the necessary steps to exhaust domestic remedies in relation to his complaint.30.

Outcome for Article 8: violation