FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58077/00 
by Aleksandr Vitalyevich CHEPELEV 
against Russia

The European Court of Human Rights (First Section), sitting on 10 November 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr S.E. Jebens, judges 
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 19 November 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Aleksandr Vitalyevich Chepelev, is a Russian national, who was born in 1972 and lives in Uglich, Russia. The respondent 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.

On 22 December 1993 the applicant’s wife gave birth to a daughter A.

In October 1995 the applicant moved from the city of Murmansk to Uglich in the Yaroslav Region to live with his parents.

In May 1996 the applicant’s wife, still residing in Murmansk, began living together with another man, S.A., and in September 1996 brought divorce proceedings against the applicant.

On 12 November 1996 the competent court dissolved the marriage and awarded custody of their daughter to the mother.

On 21 February 1997 the applicant’s former wife married S.A. On 14 December 1998 they got a child together.

At the end of 1998 or in the beginning of 1999 S.A. instituted proceedings before the Lenin District Court of the City of Murmansk (Ленинский районный суд г. Мурманска) seeking adoption of A. The court invited the applicant to join the proceedings as a third party and to submit his views on the matter.

In his reply to the adoption request, filed on 8 January 1999, the applicant stated that he was strongly opposed to the adoption. The child already had a father whom she knew. On three occasions he had sent money to support her and telegrams for holidays. Due to the distance of Uglich from Murmansk, as well as financial problems, he could not travel often to Murmansk to visit his daughter. After he had left Murmansk, he had seen her in January 1996. Furthermore, his former wife and mother-in-law had expressed their displeasure at his contacts with his daughter.

By a judgment of 9 March 1999 the District Court, having also considered the opinion of a local authority in support of the adoption as being in the best interest of the child, allowed S.A.’s application. The court relied on Articles 124 and 130 of the Family Code according to which adoption was allowed in respect of minors only if it was in the best interest of the child and parental consent for adoption was not required if, for more than six months for insufficient reasons, the parents had not been living together with their child and had failed to take care and support him or her.

The court established that S.A. had been taking care of A. and had been financially supporting her from the time when he had begun living together with the applicant’s wife, i.e. from May 1996. A. considered S.A. to be his father and called him so. She did not know her natural father.

The court noted that the applicant had been living away from his daughter since September 1995. The three transfers of money totalling 3,250 roubles in more than 3 years had not constituted adequate support for his daughter. Furthermore, there had been no obstacles which would have prevented the applicant from visiting his daughter more often than once. If the mother had indeed placed obstacles in the way of his contacts with their daughter, the applicant had had the possibility to defend his parental rights in court. As the applicant had failed, without good reasons, to be involved in the upbringing of his daughter for more than six months, his consent for adoption was not necessary.

The court found that S.A. was fit to become the adoptive father of the applicant’s daughter, having regard to his living conditions, his personal qualities and salary.

The judgment was upheld by the Murmansk Regional Court (Мурманский областной суд) on 19 May 1999.

On 22 March 2000 a judge of the Supreme Court rejected the applicant’s request for leave to file an extraordinary appeal.

B.  Relevant domestic law

According to Article 124(2) of the Family Code, adoption is allowed in respect of minors and only if it is in the best interest of the child, taking into account the possibilities to secure the child’s full physical, mental, spiritual and moral development.

Article 130 of the Family Code provides that parental consent for adoption is not necessary if, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her.

COMPLAINTS

1.  The applicant complained under Article 8 of the Convention that the adoption of his child without his consent had violated his right to respect for his family life.

2.  The applicant further complained that the adoption order had violated his right to enjoy the equality of spouses under Article 5 of Protocol No. 7 to the Convention as he had been deprived of all contacts with his daughter.

3.  Finally, the applicant complained that the courts had interpreted the laws incorrectly and that their decisions had been unlawful. The composition of the second instance court had been unlawful and the refusal of the Supreme Court to accept his extraordinary appeal had been issued by an official who had not been authorised to do so. He invoked Articles 6 and 13 of the Convention.

THE LAW

1.  The applicant complained that the adoption of his child without his consent had violated his right to respect for his family life. He invoked Article 8 of the Convention, which 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.”

The Government submitted that the adoption of the applicant’s daughter by S.A. had been carried out in accordance with pertinent provisions of the Family Code. The applicant had not been involved in the upbringing of his daughter; he had, of his own will, moved far away from her. Thus, he had himself created the circumstances under which his consent for adoption had not been necessary. S.A. had been supporting and taking care of the applicant’s daughter for about three years by the time the court rendered its judgment allowing adoption. A close relationship had been developed between S.A. and A., the latter thinking of S.A. as of her own father. The severance of these ties would have lead to a violation of their right to respect for family life, guaranteed by Article 8 of the Convention. The adoption had been in the best interest of the child. In the Government’s submission the courts had legitimately given priority to the child’s interests over the interests of the applicant.

The applicant submitted that his departure from Murmansk had been based on a common decision taken by him and his former wife. The wife had been meaning to follow him after he had settled in in Uglich. Article 130 of the Family Code should not have been applied in the case, since he had not left the child for inadequate reasons. Furthermore, he had not been at fault for the severance of his marital ties, since his wife had started cohabiting with S.A. and avoiding the applicant less than seven months after he had left Murmansk. The applicant acknowledged that his former wife had established a new family after divorce and that within this family his daughter had developed close personal ties with S.A. However, he was of the opinion that on the basis of this fact he should not have been deprived of his rights towards the child.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant complained that the adoption order had violated his right to the equality of spouses. He invoked Article 5 of Protocol No. 7 to the Convention, which reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

The Government were of the opinion that the domestic authorities had taken all the measures necessary for the protection of the child’s interests and that the applicant’s rights guaranteed under this provision had not been violated.

The applicant maintained that Article 5 of Protocol No. 7 to the Convention had been violated, since he had been deprived of all contacts with his daughter.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court

by a majority

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the adoption of his child without his consent and his right to enjoy the equality of spouses as he had been deprived of all contacts with his daughter;

unanimously

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

CHEPELEV v. RUSSIA DECISION


CHEPELEV v. RUSSIA DECISION