AS TO THE ADMISSIBILITY OF
Application no. 37614/02
by Kurbankiz ISMAILOVA
The European Court of Human Rights (First Section), sitting
31 August 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 15 October 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Kurbankiz Ismailova, is a Russian national, who was born in 1972 and lives in the town of Makhachkala. She is represented before the Court by Mr A. Leontyev and Mr R. Daniel, lawyers practising in St-Petersburg and Norfolk respectively. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events prior to custody proceedings of 2001
The applicant married in 1990. The applicant and her husband were nominal but non-practising Muslims at that time. Two children, a boy and a girl, were born to the couple in 1993 and 1997 respectively. It appears that the family lived at a house of the paternal grandparents in the village of Novomugri, Sergokalinskiy District of the Republic of Dagestan.
Being upset with various difficulties in the relations with her husband who was a seaman and frequently away at sea, in June 1999 the applicant started associating with the Jehovah’s Witnesses. In June 2000 the mounting tensions between the spouses over the applicant’s religious interests resulted in the applicant’s decision to leave the matrimonial home together with the children. The applicant and children started living with the maternal grandparents. In December 2000 the applicant was baptised as one of the Jehovah’s Witnesses.
There appears to have been only occasional contacts between the applicant’s husband and the children between June 2000 and July 2001. As the applicant’s husband failed systematically to provide financial support for the upbringing of the children, in early 2001 the applicant filed in court a request for alimony. On 26 April 2001 the court ordered the husband to pay for the support of the children.
On 1 July 2001 the children went to visit their paternal grandparents and on 26 August 2001 the grandparents refused to return the children to the applicant. The applicant submits that she has had no regular access to children since then.
2. First instance proceedings
On 17 September 2001 the father filed an application for divorce in the Leninskiy District Court of Makhachkala (“the District Court”, Ленинский районный суд г. Махачкала). He also submitted that he was ready to provide the children with better living and moral conditions than the applicant, that the applicant had taken the children to the religious meetings with a view to converting them into the faith of Jehovah’s Witnesses, that the children became irritable and did not want to return to their mother, and requested the court to grant him custody over both children.
In response, the applicant accepted that the marriage had irretrievably broken down but contested the husband’s claim for custody.
(a) Report on the case by the Custody and Guardianship Agency
At a preliminary hearing the District Court ordered a report on the issue of custody of the children to be prepared by the Custody and Guardianship Agency attached to Leninskiy District Council of the town of Makhachkala (“the Custody and Guardianship Agency”, Орган опеки и попечительства при Администрации Ленинского района г. Махачкалы). A letter of instruction dated 24 October 2001 contained a request to report on the applicant’s living conditions and to give a conclusion concerning “the possibility of leaving the children with her, having regard to the fact that [the applicant] attends the sect “Jehovah’s Witnesses”.
On 4 December 2001 official U. drew up a report on the initial investigation of [the applicant’s] living conditions. The report described the apartment in which resided the applicant, her parents and three brothers and then stated:
“... Additional information about [the applicant’s] family: [the applicant] attends [the meetings] of the organisation “Jehovah’s Witnesses”, members of the organisation sometimes meet at her home, they study the corresponding literature. [The applicant’s] parents are critical of her religion.
I deem it, in the interests of the minor children, more advisable for them to live with their father [...] in the village of Novomugri, Sergokalinskiy District.”
On an unspecified date the District Court added the report of 4 December 2001 to the case-file.
(b) Observations by the Leninskiy District Council of the town of Makhachkala
On 11 December 2001, upon the District Court’s request, the Leninskiy District Council of the Town of Makhachkala (“the District Council”, Администрация Ленинского районного г. Махачкалы) submitted to the court observations (заключение) in which it advised to grant custody of the children to their father. In particular, the District Council considered that:
“... Long before their divorce, [the applicant] began attending [the meetings of] the religious organisation ‘Jehovah’s Witnesses’. Her attendance of [these] meetings which involved travelling [to other towns] was the reason for the discord and break-up of the family. Villagers and relatives spoke out against the conduct of [the applicant].
When living with the children in Makhachkala, contrary to her parents’ will, she did not refrain from regularly attending the meetings of ‘Jehovah’s Witnesses’. She began actively advocating the ideas of this organisation. Sometimes her fellow believers gather together at her parents’ home and they study the corresponding literature. She would also take her children to the meetings. After attending these meetings, the children became shy and irritable, they perceived the surrounding world and natural phenomena in the way the ‘Jehovah’s Witnesses’ teaching presents it (the children were afraid of the Worldwide Flood when it would rain, they called the [applicant’s] mother-in-law ‘Satan’, they would not attend their classmates’ birthdays or other celebrations because the religion does not permit this).
The children’s father [...] was seriously concerned that the children’s associating with the mother threatened their upbringing; he was against their returning to Makhachkala.
The minor children are presently living with their father. [The son] is now getting good marks at [school...].
On the basis of the aforementioned, considering the fact that the parents must provide each child with the possibility to grow healthy, physically and spiritually, and based on the interests of the minor children, the Custody and Guardianship Agency deems it advisable for the children to reside with their father.”
(c) Judgment of 15 March 2002
On 15 March 2002 the District Court terminated the marriage between the applicant and her husband and granted custody over the children to their father. The District Court reasoned as follows:
“...In June 2000, having gone to visit her parents, [the applicant] joined the organisation of ‘Jehovah’s Witnesses’. The family began to have problems and since that time they have not been living together as husband and wife. The family has split apart. The court fixed them a period for reconciliation but the parties failed to reunite and request to terminate their marriage.
It follows that the family cannot be preserved and the marriage should be dissolved.
From the submissions of [the applicant] and her mother [...] it follows that the members of the organisation of ‘Jehovah’s Witnesses’ come to the apartment in which resides [the applicant] and her parents a few times a week to conduct their activities. Furthermore, [the applicant] weekly attends the meetings of ‘Jehovah’s Witnesses’.
[The applicant’s mother] was questioned in court and confirmed the fact that at the beginning her grandchildren had been very afraid of rain and wind and had been saying that the Worldwide Flood and earthquake would take place. That is when [the applicant’s mother] learned that [the applicant] had been taking children to the meetings of the sect of ‘Jehovah’s Witnesses’.
From the case-file documents and the parties’ submissions it follows that at present [the applicant’s husband], along with his parents, resides in the village of Novomugri in a two-story house. The household in fact belongs to him. During a few months of the year he works at sea and the same amount of time he spends at home.
The children have been living with him and his parents.
According to a certificate of a Novomugri Secondary School, [the applicant’s son] does excellent at school.
[The applicant] works as a teacher and has good references.
From a report on [her] living conditions it follows that in a three rooms flat resides the applicant, her parents and [the applicant’s] three brothers.
The members of the organisation of ‘Jehovah’s Witnesses’ associate at the same place and study the respective literature. According to a report on [the applicant’s] living conditions and the observations of the Custody and Guardianship Agency, ‘the parents are obliged to provide their children with an opportunity to grow physically and spiritually healthy; regard being had to the interests of [the children], the Custody and Guardianship Agency considers it appropriate to grant custody [of both children] to their father’.
The court, too, is of the view that, having regard to the fact that [the children] have been living with their father for more than five years and have not yet attained the age of 10, and also in the interests [of children] as defined by Sections 54-56, 61-66 of the Family Code of RF, that custody should be given to their father...”
3. Appeal proceedings
The applicant and her counsel appealed against the judgment of 15 March 2002 to the Supreme Court of the Republic of Dagestan (“the Supreme Court”, Судебная коллегия по гражданским делам Верховного суда Республики Дагестан). In her appeal brief, she argued that the first instance judgment was discriminatory on the basis of the applicant’s affiliation to Jehovah’s Witnesses, that the first instance court’s findings were perverse, unsustainable and misconstrued, that the court failed to take account of all factors which were relevant to the case according to Section 65 (3) of the Family Code (i.e. the father’s frequent absence due to his work at sea, the applicant’s demonstrated pedagogical competence as a professional school teacher, a prior and present history of both parents’ involvement into the upbringing of their children, the father’s allegedly immoral adulterous behaviour etc.) and that the court acted on the presumption of Jehovah’s Witnesses being a dangerous organisation. The applicant also cited domestic jurisprudence in child custody cases and the judgment of 23 June 1993 of the European Court of Human Rights in the case of Hoffmann v. Austria.
On 17 April 2002 the Supreme Court, sitting in a composition of three professional judges, examined the applicant’s appeal and by two votes to one rejected it as unfounded. In particular, the majority established the following:
“... In making the decision that the father should have custody of the children, the trial came to the sound conclusion that this is in the best interests of the children. The court decision is based on the conclusion of the Custody and Guardianship Agency and the case circumstances established in court.
Thus, the court established that the children’s mother [...] who is a member of the organisation of Jehovah’s Witnesses, took the children with her to the sect meetings, and involved them in associating with the sect members at their homes. She thereby violated the requirements of Article 28 of the Constitution of the Russian Federation, according to which, everyone is guaranteed freedom of conscience and religion. According to Article 17 (2) of the Constitution, fundamental human rights are unalienable and belong to everyone at birth. The [court] finds irrelevant [the applicant’s] arguments that the court, by its decision, has deprived her of the right to train her children because of her religion and membership in the organisation of Jehovah’s Witnesses. According to Article 17 (3) of the Constitution and Article 65 (1) of the Family Code, [the applicant’s] exercise of her constitutional rights, including the right to practice any religion and her parental rights, must not infringe upon the rights and freedoms of others or conflict with the interests of the children. The right of a parent to train his child from whom he is living separately, is guaranteed by Section 66 of the Family Code, which defines the procedure for a parent to exercise his parental rights.
The court also established that [the applicant’s husband] financial status and housing conditions are better than those of [the applicant]. [The applicant’s husband] is employed, lives with his parents, and owns a two-storey house with the necessary living conditions for the children. [The paternal grandparents] do not object to their grandchildren living with them. [The applicant] works as a history teacher in [a school] in Makhachkala. She lives in her parents’ 48 square meters, three-bedroom apartment, along with her father, mother and three brothers, born in 1977, 1983, and 1985.
The Custody and Guardianship Agency concluded that it was in the best interests of the children that they remain in custody of their father [...]. [The applicant’s] argument stated in her appeal that the giving of custody to the father will have negative repercussions on the children’s emotional state in the future, were not proven. The argument that the religious organisation of Jehovah’s Witnesses has state registration, benefits society, and so forth, cannot be taken into consideration since it is irrelevant to the matter being examined by the court. There are no reasons in [the applicant’s] appeal to reverse [the first instance judgment] handed down in the case...”
The dissenting judge filed the following opinion:
“... I hold that the decision handed down by the first instance court was subject to reversal due to the failure to investigate the circumstances specified in Section 65 (3) of the Family Code of the RF.”
The applicant’s subsequent attempts to review the decisions in her case by way of supervisory review were unsuccessful. All her respective requests were turned down as unfounded. The latest decision in this respect was taken by the Supreme Court of the Republic of Dagestan on 28 November 2003.
4. Events subsequent to custody proceedings
The applicant alleges that her former husband re-married and his new wife has not attempted to assume the role or responsibilities of step-mother. In the absence of the father who is frequently away at sea, the paternal grandmother has become the effective sole carer. The applicant further alleges that she is allowed to visit her children only occasionally and can never remain together with them alone.
4. Introduction of the application
On 16 October 2002 Mr A. Leontyev faxed a completed application form filled in on behalf of the applicant to this Court and dated 15 October 2002. The application form was signed by Mr A. Leontyev.
On 7 November 2002 the Registry of the Court received a letter from the applicant containing an authority form dated 4 November 2002 authorising Mr A. Leontyev and Mr R. Daniel to act on the applicant’s behalf in the proceedings before this Court and referring to the application form introduced on 15 October 2002. The authority form was duly signed by the applicant but lacked signatures of the counsel.
By letter of 1 September 2004 the Registry requested the applicant to submit an authority form signed by both the applicant and her counsel.
In September 2004 the applicant submitted two authority forms, one signed by the applicant and Mr A. Leontyev and the other signed by the applicant and Mr R. Daniel. The former authority form was produced in the town of Makhachkala on 20 September 2004, whilst the latter did not have the location and the date of its production.
B. Relevant domestic law
Article 28 of the Russian Constitution of 12 December 1993 reads:
“Every person shall be guaranteed the right to freedom of conscience, freedom of religion, including the right to profess, either alone or in community with others, any or no religion, to freely choose, have and disseminate religious or other convictions and to act according to them.”
Section 65 (on the exercise of parental rights) of the Family Code of the Russian Federation provides as follows:
“3. The place of the children’s residence, in case the parents live apart, shall be established by an agreement between the parents.
In the absence of an agreement, the dispute between the parents shall be resolved in court, proceeding from the children’s interests and taking into account the children’s opinion. In doing so, the court shall take into account the child’s affection for each of his parents and for his brothers and sisters, the child’s age, the moral and other personal features of the parents, the relations existing between each of the parents and the child, and the possibility to create optimal conditions for the child’s upbringing and development (the parent’s kind of activity and work regime, their material situation and family status, etc.).”
Section 66 (on the exercise of parental rights by the parent, residing separately from the child) of the Code provides as follows:
“1. The parent, residing separately from the child, shall have the right to communicate with the child, to take part in his upbringing and in resolving the issue of the child’s receiving an education.
The parent, with whom the child lives, shall not prevent the child’s communication with the other parent, unless such communication damages the child’s physical and mental health or his moral development.
2. The parents shall have the right to conclude a written agreement on the way the parent, residing apart from the child, may exercise his parental duties.
If the parents cannot reach an agreement, the dispute shall be resolved in court with the participation of the guardianship and trusteeship body, upon the claim of the parents (or one of them).
3. In the case of the failure to abide by the court decision, the measures, stipulated by the civil procedural legislation, shall be applied to the respective parent. In the case of the persistent failure to comply with the court decision, the court shall have the right, upon the claim of the parent, residing separately from the child, to take a decision on passing the child over to him, proceeding from the child’s interests and taking into account the child’s opinion.
4. The parent, residing separately from the child, shall have the right to get information on his child from the educational establishments and medical centres, from the institutions for the social protection of the population and also from other similar institutions. The information may be refused, only if the parent presents a threat to the child’s life and health. The refusal to provide information may be disputed in court.”
1. The applicant complained that she had been deprived of the custody of her two children on the ground of her religious convictions. She relied on her right to respect for her family life (Article 8 of the Convention) and her right to freedom of religion (Article 9 of the Convention). She further claimed that the refusal of custody had been discriminatory (Article 14 of the Convention).
2. The applicant further complained under Articles 6 and 13 of the Convention that she did not have a fair hearing in the case. In particular, she alleged that there had been breaches of the domestic procedure at first instance, that the factual findings had been perverse and unsustainable, that the courts had endorsed a general negative assessment of Jehovah’s Witnesses, that they had ignored the needs and interests of the children and that they had made her religion the dominant consideration in their decisions.
1. The applicant complained that the decision to deprive her of the custody of her two children on the ground of her religious convictions had been in breach of Articles 8 and 9 of the Convention, taken alone and in conjunction with Article 14. These Convention provisions, insofar as relevant, provide 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.”
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as [...] religion [...] or other status.”
1. The parties’ submissions
The Government submitted that the date of introduction of the application to the Court had been 16 October 2002 and not 15 October 2002, that the authority form received by the Court on 16 October 2002 had been signed by Mr A. Leontyev who at that time lacked legal capacity to act on behalf of the applicant as his authority form was issued only after 16 October 2002. The Government also contested the authority form of Mr R. Daniel as it lacked the date and place of its production and argued that the application was therefore submitted out of time. On the substance, the Government argued that the decision to grant custody of the children to their father was lawful, reasonable and taken in the best interests of the children, that the children would have been far worse off living with the applicant not only because of Jehovah’s Witnesses’ meetings and strangers visiting the applicant’s flat, but also because the applicant had insufficient financial possibilities. They argued that the father’s income and living conditions were much better than those of the mother and that the children did not want to live with their mother. Overall, the Government argued that there was no interference with the applicant’s Articles 8 and 9 rights as a result of the decision in question and that, in any event, any interference was justified under the second paragraph of that Convention provision. The Government also submitted that the applicant could have applied under Section 66 of the Family Code for an order of her participation in the upbringing of the children. The applicant failed to do so and therefore the case is also inadmissible for her failure to exhaust domestic remedies. In addition, the Government submitted that according to the information received from the head of a local council at the place of residence of the applicant’s former husband, the children live and study at their father’s home in very good conditions.
The applicant responded that there was no strict legal requirement in Rules 36 or 45 of the Rules of Court as to when the authority should be provided. According to her, there appears to be no prohibition on an authority being supplied ex post facto and therefore a valid application was filed within the six-month time-limit and the Court should proceed to rule on the admissibility and on the merits. She further argued that the Government’s reliance on events or facts subsequent to the proceedings in question is incorrect as these events are irrelevant to the issues of the present case. The applicant submitted that the court decisions in the custody proceedings were in breach of Article 65 § 3 of the Family Code and therefore unlawful. She also argued that the decisions were unreasonable, baseless and clearly discriminatory.
2. The Court’s assessment
As regards the Government’s argument concerning the date of introduction of the application, the Court observes that a completed application form filled in on behalf of the applicant, signed by Mr A Leontyev and dated 15 October 2002 was faxed to the Court on 16 October 2002. The Court finds nothing in the case-file or the parties’ submissions to doubt that the application was indeed produced by the counsel on 15 October 2002 and it therefore accepts that date as the date of introduction of the application.
As regards the Government’s argument concerning Mr A. Leontyev’s lack of authority on the date of introduction of the application and the resulting failure to comply with the six-month time-limit, the Court notes that Rule 36 of the Rules of Court sets no formal requirements concerning the authority of representatives when they initially present applications under Article 34 of the Convention. It only states that the representative acting on behalf of an applicant should be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them. In the present case it seems undisputed that Mr Leontyev was such an advocate and the Court has no reason to doubt his authority at the date of introduction of the application as on 7 November 2002 he submitted the authority of form dated 4 November 2002, signed by the applicant and authorising Mr A. Leontyev and Mr R. Daniel to act on the applicant’s behalf in the proceedings before this Court and referring to the application form introduced on 15 October 2002. The Court therefore rejects the Government’s argument and accordingly finds that the application was filed within the six-month time-limit, as required by Article 35 § 1 of the Convention and that the applicant is properly represented in the proceedings before the Court.
As regards the Government’s argument as to the applicant’s alleged failure to exhaust the domestic remedies in her case by applying to a court under Section 66 of the Family Code, the Court observes that this argument relates in fact to the procedure for determination of the right of a parent living separately from the child to communicate with the child and to participate in his upbringing. However, the applicant’s complaint to the Court was not, as such, against the inability to take part in her children’s upbringing but rather against the decision determining the place of her children’s residence at their father’s home. Thus, whilst the procedure referred to by the Government might have had some incidence on the applicant’s relations with her children, it could not have had remedied her personal situation and brought relief in respect of her claims. The Court therefore rejects this objection.
As to the substance of the case and in the light of the parties’ submissions on the complaints made, the Court finds that they raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.
2. The applicant also complained, under Articles 6 and 13 of the Convention, that she did not have a fair hearing. She alleged, in particular, numerous breaches of the domestic procedure at first instance and disagreed with the factual findings of the courts and their alleged endorsement of a general negative assessment of Jehovah’s Witnesses.
The Court observes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that the applicant, personally and through her counsel, was able to present her arguments as she wished, and the judicial authorities gave them due consideration. Having regard to the facts, as submitted by the applicant, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.
Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint that she was deprived of the custody of her two children in contravention of Articles 8 and 9 of the Convention, taken alone and in conjunction with Article 14;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
ISMAILOVA v. RUSSIA DECISION
ISMAILOVA v. RUSSIA DECISION