CASE OF KUROCHKIN v. UKRAINE
(Application no. 42276/08)
20 May 2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kurochkin v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 27 April 2010,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (no. 42276/08) 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 Vladyslav Volodymyrovych Kurochkin (“the applicant”), on 1 August 2008.
2. The applicant was represented by Mr Kostyantyn Buzadzhy, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3. The applicant alleged that annulment of the adoption of a minor boy in his case violated his rights under Articles 6 § 1, 8 and 13 of the Convention.
4. On 15 January 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3) and to give priority to the case under Rule 41 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1955 and lives in Kyiv.
6. On 26 July 2004 the applicant and his wife, Mrs K., adopted V.G., an orphan boy born in 1993.
7. From January 2005, due to conflicts between the applicant's wife on one hand and the applicant and V.G. on the other, they ceased to keep a joint household and the applicant's wife subsequently moved to their summer house.
8. In October 2006 the applicant sought annulment of his marriage with Mrs K. before the Shevchenkivskyy District Court of Kyiv (the Shevchenkivsky Court).
9. On 27 October 2006 the child welfare authority of the Vyshgorod Administration (Вишгородська районна державна адміністрація Київської області) delivered its opinion, at the request of Mrs K., on annulment of the adoption of V.G. It found that the relations between the adoptee and Mrs K. were negative, while the applicant had authority over the adoptee and positive relations with him. The report also mentioned that the boy had expressed the wish to stay with his adoptive father and that the applicant was willing to take care of the boy's upbringing. It finally recommended cancelling the adoption with respect to the applicant and his wife, as the relations between the latter had deteriorated, which had a negative effect on the boy, so that it would not serve his interests to stay in his adoptive family.
10. In November 2006 the applicant's then wife requested the Vyshgorod Court to annul the adoption of the child by her and her husband, on the grounds that the child had attacked her physically on several occasions and that her husband, who had been present during one of the incidents, had refused to stop the attacks. She supported her claim by the report of 27 October 2006.
11. In the course of the proceedings both the applicant and the child objected to Mrs K.'s request for annulment of the adoption by the applicant. The applicant did not object to the annulment of the adoption in respect of Mrs K. He also denied that he had ever witnessed Mrs K. being physically attacked by V.G.
12. Meanwhile, on 6 March 2007 the applicant and Mrs K. divorced.
13. On 20 July 2007 the applicant married Ms V.T.
14. On 9 August 2007 the Shevchenkivskyy Court allowed the request of the applicant's former wife and annulled the adoption of V.G. by her and by the applicant. In particular, referring to Article 238 § 1 (3) of the Family Code, the court held that the adoption by the applicant's former wife was to be annulled in view of the fact that relations between her and the adoptee had worsened, rendering it impossible for them to live as a family. The court based its findings on the statements of Mrs K. and medical evidence of injuries sustained by her. The court also referred to the testimonies of neighbours of the family and a report on V.G.'s personality of 9 August 2006 provided by his school that stated that he behaved aggressively, insulted and threatened the neighbours and on some occasions had beaten some of his schoolmates. The report of 9 August 2006 also mentioned that this aggressive attitude and lack of respect for others were hereditary traits and required treatment by specialists. The child welfare authority supported the claims of Mrs K. and submitted that annulment of the adoption would be to the benefit of the boy.
15. The court further held that the adoption of V.G. by the applicant was also to be annulled in the best interest of the child, regardless of the child's wish to stay with his adoptive father, which had been expressed before the court. It found that the applicant had disregarded the child's aggressive attitude towards his adoptive mother, which had caused the child to develop a negative attitude towards women and misconceptions about normal family relationships. The court ordered the child to be transferred to the child welfare authority for subsequent placement in an unspecified specialised institution. V.G. continued to reside with the applicant and has never been taken into care.
16. On 28 August 2007 the Shevchenkivskyy Court divided the flat between the applicant and Mrs K., his former wife. They received a room each within the flat while other facilities remained in common use.
17. On 17 December 2007 the Kyiv City Court of Appeal upheld the judgment of 9 August 2007. It dismissed the applicant's appeal and found that he had not adduced any evidence testifying that he was able to influence the boy positively and secure his normal personal development. According to the court of appeal the adoption was correctly annulled by the first-instance court on the basis of Article 238 § 1 (3) of the Family Code, and the mere fact of positive relations between the applicant and the child and his desire to remain the boy's adoptive father could not serve as a basis for reversal of the above judgment. The court of appeal concluded as follows:
“The court correctly took into consideration that the annulment of the adoption ... could be also regarded as a sanction imposed on the boy for his disgraceful behaviour”
18. On 27 February 2008 the Supreme Court found no grounds to review the applicant's case in cassation.
19. On 3 June 2008 the Shevchenkivskyy District State Administration of Kyiv, at the request of the applicant and V.G. and in the interest of the latter, appointed the applicant guardian (піклувальник) of V.G. As guardian the applicant was entrusted with “protection of the rights and property interest of the child” and with “financial support and constant care for the boy's upbringing and his physical growth and development”.
20. On 11 September 2008 the applicant's former wife, Mrs K., lodged a claim with the Shevchenkivskyy Court and sought annulment of the decision of the Shevchenkivskyy District State Administration of Kyiv of 3 June 2008. She alleged that that decision had been taken in contradiction to the judgment of the Shevchenkivskyy Court given on 9 August 2007 and that V.G.'s residence in the flat posed a threat to her life.
21. On 23 September 2008 the Shevchenkivskyy Court assumed jurisdiction over the proceedings in the case. The parties did not inform the Court about further developments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
“...The family, childhood, motherhood and fatherhood are under the protection of the State.”
Article 19. Participation of a child welfare authority in the protection of family rights and interests
“(...) 4. The participation of a child welfare authority is obligatory during the examination of the cases concerning ... annulment of adoption by a court.
5. The child welfare authority shall submit to the court an opinion as to settlement of the dispute. The opinion should be based on the information obtained after inspection of the living conditions of the child, parents, other persons that wish to reside with the child or to take part in its upbringing, and any other documents related to the case.
6. The court may disagree with the opinion of the child welfare authority provided it is ill-founded and does not serve the interests of the child.”
Article 150. Parents' obligations as to upbringing and development of a child
“1. Parents shall bring up their child in the spirit of respect for the rights and freedoms of others and of love for one's family, people and Motherland.
2. Parents shall take care of their child's health and well-being and of its physical, intellectual and ethical development.
3. Parents shall ensure that the child receives a full general secondary education...
4. Parents shall respect the child...
6. It shall be prohibited for parents to exploit their child.
7. It shall be prohibited for parents to apply corporal punishment to their child or any other punishment which may degrade the child's human dignity.”
Article 232. Legal consequences of adoption
“(...) 4. The adoption confers the same rights and imposes the same obligations on the adoptive parent in respect of the adoptee as the [biological] parents have in respect of their child.
5. The adoption confers the same rights and imposes the same obligations on the adoptee in respect of the adoptive parents as the [biological] child has in respect of its parents.”
Article 238. Annulment of adoption
“1. A court may order the annulment of adoption if:
1) the adoption contravenes the interests of the child, or does not ensure that the child is brought up in a family environment;
2) the child is mentally retarded, or suffers from a mental or other serious incurable illness, of which the adoptive parent was not aware and could not have been aware at the moment of adoption;
3) relations between the adoptive parent and the adoptee, independently of the adoptive parent's will, render it impossible for them to live together and for the adoptive parent to fulfil his or her parental obligations.”
Article 243. Children who may be placed under tutelage or guardianship
“1. Orphans or children deprived of parental care may be placed under tutelage or guardianship.
2. (...) guardianship is assigned in respect of a child who is between fourteen and eighteen years old.”
Article 244. Person eligible to act as tutor or guardian of a child
“(...) The child welfare authority takes into consideration personal qualities, ability to bring up the child, attitude to the child and the wishes of the child itself when nominating a person as a tutor or guardian...”
Article 249. Rights and duties of a tutor or guardian
“1. The tutor or guardian shall bring up the child, take care of the child's health and well-being and of its physical, mental and ethical development, and ensure that the child receives a full general secondary education (...)”
24. The relevant provisions of the Law read as follows:
Section 14. Separation of a child and family
“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”
D. Resolution No. 3 of the Plenary Supreme Court of Ukraine of 30 March 2007
25. This Resolution on judicial practice in cases related to adoption, deprivation and restoration of parental rights repeats the grounds for annulment of an adoption set out in Article 238 § 1 of the Family Code.
III. RELEVANT INTERNATIONAL INSTRUMENTS
A. Convention on the Rights of the Child of 20 November 1989
26. The relevant provisions of the Convention read as follows:
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence (...)”
B. European Convention on the Adoption of Children (Revised) of 27 November 2008 (not in force)
27. The relevant provisions of the Convention read as follows:
Article 14. Revocation and annulment of an adoption
“1. An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration.
2. An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority.”
I. SCOPE OF THE CASE
28. The Court notes that in his response to the Government's observations the applicant introduced new complaints under Article 6 § 1 and complained of a violation of Articles 6 §§ 1-3, 7 § 1 and 8 of the Convention in respect of V.G., not an applicant in the present case, referring to the same events.
29. In the Court's view, these new complaints are not an elaboration of the applicant's original complaints, on which the parties have commented. The Court therefore considers that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
30. The applicant complained that the decisions of the domestic courts to annul his adoption of V.G. were unfair, and alleged that those decisions ruined his family. He relied on Articles 6 § 1, 8 and 13 of the Convention.
31. The Court reiterates that the characterisation to be given in law to the facts of the case is a matter for itself (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), and that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Kutzner v. Germany, no. 46544/99, § 56, ECHR 2002-I).
32. The Court therefore considers that the applicant's complaints fall to be examined under Article 8 of the Convention, which provides, in so far as relevant, as follows:
“1. Everyone has the right to respect for his ... family life....
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.”
33. The Government submitted that the applicant had lost his victim status, as on 3 June 2008 the Shevchenkivskyy District State Administration of Kyiv appointed him V.G.'s guardian. The Government further maintained that V.G. was not taken into care and continued to reside with the applicant after the adoption was annulled on 9 August 2007.
34. The applicant disagreed.
35. The Court considers that the Government's objection is closely linked to the merits of the applicant's complaint. In these circumstances, it joins this objection to the merits of the applicant's complaint.
36. The Court notes that the applicant's complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.
1. Whether there has been an interference
37. The Court recalls that the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention and such a relationship, arising from a lawful and genuine adoption, may be deemed sufficient to attract such respect as may be due for family life under Article 8 of the Convention (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 140 and 148, ECHR 2004-V (extracts)).
38. The Court considers that it is not disputed by the parties to the present case, that the annulment of the adoption of V.G. by the applicant constituted an interference with the applicant's right to respect for family life as guaranteed by Article 8 § 1 of the Convention.
39. The Court further notes that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Wallová and Walla v. the Czech Republic, no. 23848/04, § 55, 26 October 2006, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V). In the present case the appointment of the applicant as V.G.'s guardian cannot be equalled to adoption, which under Article 232 of the Family Code confers and imposes on the adoptive parent and adoptee the same rights and obligations as exist in respect of biological parents and their children. The Court further observes that the respondent State has not in any way recognised that the applicant's rights have been violated and the decision of 3 June 2008 to appoint him as guardian of V.G. was not based on an alleged violation of Article 8 in respect of the applicant.
40. The Court concludes that the appointment of the applicant as V.G.'s guardian did not remedy the interference with the applicant's right for family life guaranteed by Article 8 of the Convention and did not deprive him of his victim status under Article 34 of the Convention. Thus, the Government's preliminary objection should be dismissed.
2. Whether the interference was justified
(a). The parties' submissions
41. The applicant submitted that the interference was not justified under Article 8 § 2 of the Convention. He argued that the grounds for annulment of adoption as formulated in Article 238 § 1 of the Family Code relied on by the courts could be interpreted too broadly. The applicant further submitted that the adoption was annulled as a punishment for V.G.'s behaviour and not to the benefit of the child.
42. The Government submitted that the impugned decision was based on the provisions of the Family Code (Article 238 §§ 1(1) and (3)) and was made in the best interest of the child, in particular to ensure a proper parental upbringing for V.G. They submitted that in its judgment of 9 August 2007 the domestic court had referred to various instances (see paragraph 12 above) of V.G.'s negative and aggressive behaviour towards people around him. According to the Government, this proved that the boy had wrong ideas about family and social life and that the applicant had failed to fulfil his parental duties as to the proper upbringing of V.G. and was not able to exercise any positive educational influence on the boy. They concluded that the decision to annul the adoption had sufficient and relevant reasons.
(b). The Court's assessment
43. An interference with the right to respect for family life entails a violation of Article 8 unless it is “in accordance with the law”, has an aim or aims that is or are legitimate under Article 8 § 2 and is “necessary in a democratic society” for the aforesaid aim or aims (see Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, pp. 1001-02, § 52). The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, Kutzner, cited above, § 60, and Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008).
i. In accordance with the law
44. The expression “in accordance with the law” under Article 8 § 2 requires first that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among many other authorities, Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008).
45. It is not in dispute in the present case that the impugned measure was based on Article 238 § 1 of the Family Code, which provided an exhaustive list of grounds for annulment of an adoption.
46. As to the applicant's submission that Article 238 § 1 (1) and (3) of the Family Code relied on by the courts was couched in general terms, the Court notes that the circumstances in which it may be necessary to take a child into public care and in which a care decision may fall to be implemented are so variable that it would scarcely be possible to formulate a law to cover every eventuality (see Olsson v. Sweden (no. 1), 24 March 1988, § 62, Series A no. 130, and Amanalachioai v. Romania, no. 4023/04, §§ 76-77, 26 May 2009).
47. In the present case, even though the provisions concerned, namely Article 238 § 1 (1) and (3) of the Family Code, might be regarded as formulated in rather general terms, the decision on annulment of adoption was taken by a court and was subject to further judicial review on appeal and in cassation. Thus, safeguards against arbitrary interference were provided by the fact that the exercise of nearly all the statutory powers was entrusted to the courts and was subject to judicial review at several levels. The Court considers therefore that, taking these safeguards into consideration, the scope of the discretion conferred on the authorities by the laws in question appears to the Court to be reasonable and acceptable for the purposes of Article 8 of the Convention.
48. In the light of the foregoing the Court concludes that the measure at issue applied by the authorities was in accordance with the law within the meaning of Article 8 of the Convention.
ii. Legitimate aim
49. The Court considers that the impugned decision pursued a legitimate aim of “protection of health and morals” and “of the rights and freedoms of others”.
iii. Necessary in a democratic society
50. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see, among many other authorities, Olsson, cited above, § 68, and Kutzner, cited above, § 65, and K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII; P., C. and S. v. the United Kingdom, no. 56547/00, § 114, ECHR 2002-VI; and Moser v. Austria, no. 12643/02, § 64, 21 September 2006).
51. In doing so, it is not the Court's task to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children and the rights of parents whose children have been taken into care, but rather to review under the Convention the decisions that those authorities have taken in their exercise of their power of assessment (see the above-cited cases, K. and T. v. Finland [GC], § 154; Kutzner, § 66; P., C. and S v. the United Kingdom, § 115; and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55).
52. The Court recognises that while the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, the Court must still be satisfied in the particular case that there are circumstances which justify the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking the child into public care, is carried out prior to the implementation of such a measure (see above-cited cases Moser, § 66; P., C. and S. v. the United Kingdom, § 116; and K. and T. v. Finland [GC], § 166).
53. The Court further notes that where the existence of a family tie has been established the State must in principle act in a manner calculated to enable that tie to be developed (see Kutzner, cited above, § 61). It is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII).
54. Turning to the facts of the present case, the Court observes that, unlike in most childcare cases, the reason for annulment of adoption by the applicant and the decision to take the child into care did not lie in the applicant's incapacity to care for the boy on account of any physical or mental illness or on account of any violent or abusive conduct (see, in contrast, the above-cited cases Scozzari and Giunta, §§ 149-50; K. and T. v. Finland, § 173, and P., C. and S. v. the United Kingdom [GC], § 134). It was based on the domestic courts' consideration that the applicant lacked authority over V.G. and had failed to show that he was able to ensure the child's proper upbringing.
55. In support of their conclusion on annulment of adoption and on the applicant's failure to exercise his parental duties, the domestic courts referred to V.G.'s assault on his adoptive mother, statements by the neighbours and his school report, all of which testified to V.G.'s aggressive behaviour. Based on these considerations the courts found that it was impossible for Mrs K. and V.G. to live as one family. As of the date of the court's judgment on annulment of adoption the applicant and Mrs K. were divorced and no longer constituted a family (see paragraphs 12 and 14 above). It appears therefore that the annulment of adoption by Mrs K. did not necessitate separation of the applicant and the boy.
56. Moreover, the domestic courts stated that annulment of the adoption could also be considered a sanction for V.G.'s disgraceful behaviour (see paragraph 17 above), which does not appear to be a relevant reason to apply a measure such as splitting up an established family unit.
57. The facts of the case do not indicate that the domestic authorities carried out a careful assessment of the impact which the annulment of the adoption might have had on future well-being of the orphan child or explored any other less far-reaching alternatives which could have overcome the alleged deficiency in V.G.'s upbringing and development and would be in line with the State's obligation to promote family unity. Instead, they laid the burden of proof on the applicant and required him to show the ability to influence and bring up the child properly in order for the adoption not to be annulled, regardless of the fact that both the applicant and the boy wished to remain a family (see paragraphs 15 and 17 above).
58. The Court further observes that after the annulment of the adoption and the order to take the child into care, the boy continued to live with the applicant. Several months after the annulment of the adoption the child welfare authority appointed the applicant V.G.'s guardian and entrusted the applicant with “protection of the rights and property interests of the child” and with “financial support and constant care for the boy's upbringing and his physical growth and development” (see paragraph 19 above). These subsequent actions do not appear to support the domestic courts' findings on the applicant's inability to ensure V.G.'s upbringing in a family environment.
59. In the light of the foregoing, in the Court's opinion the findings of the domestic courts on the annulment of the adoption of V.G. by the applicant were not supported by relevant and sufficient reasons to justify such interference in the applicant's family life. Notwithstanding the domestic authorities' margin of appreciation, the interference was therefore not proportionate to the legitimate aim pursued and cannot be considered “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.
60. Consequently, there has been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
61. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
62. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
63. The Government contested this claim as groundless.
64. The Court accepts that the applicant has suffered damage of a non-pecuniary nature as a result of the State's failure to comply with its obligation relating to the applicant's right to respect for his family. It finds that this non-pecuniary damage is not sufficiently compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Default interest
65. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to the merits the Government's preliminary objection as to the applicant's victim status and rejects it;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 8 of the Convention;
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicant on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
KUROCHKIN v. UKRAINE JUDGMENT
KUROCHKIN v. UKRAINE JUDGMENT