The ECHR judgment of March 5, 2019 in the case of the Bogonosovy v. Russia (аpplication No. 38201/16).
In 2016, the applicant was assisted in preparing the аpplication. Subsequently, the аpplication was communicated to the Russian Federation.
In the case, the аpplication was successfully examined regarding the inability for the applicant to participate in the life of his granddaughter after the adoption of the latter. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant complained of a violation of his right to maintain family relations with his granddaughter after her adoption.
QUESTIONS OF LAW
Regarding compliance with article 8 of the Convention. The parties did not dispute the fact that there was family life between the applicant and his granddaughter. She lived with the applicant for five years, and he was her guardian.
The applicant did not file a motion to determine the order of communication with the granddaughter to the court of first instance, which examined the adoption case. Accordingly, this issue was not considered by the court, and the court decision did not indicate any communication between the applicant and her granddaughter after her adoption. The applicant was aware of the adoption procedure, he gave written consent to this and asked to consider the case in his absence. Thus, it could not be assumed that the applicant was prevented from going to court or that he was unable to apply to the court to maintain the right to communicate with the granddaughter after her adoption, and also that the decision to adopt the granddaughter of the applicant was unlawful.
Subsequently, when the applicant realized the consequences of the adoption process, which consisted in the permanent breaking of family ties between him and his granddaughter, he initiated two proceedings in order to resume communication with the granddaughter. During the first proceedings, he managed to restore the procedural time limit for filing an appeal against the adoption decision, after which he filed a complaint against this decision, referring, in particular, to the deprivation of his right to communicate with his granddaughter after adoption. However, the St. Petersburg City Court dismissed the complaint, without considering whether the applicant should have retained the right to communicate with his granddaughter, and ruled that in accordance with Article 67 of the Family Code of the Russian Federation (hereinafter referred to as the ICR), the applicant had the opportunity to apply to the court with requirements for determining the order of communication with the granddaughter.
However, when the applicant appealed to the court in accordance with Article 67 of the RF CC, the courts discontinued the proceedings, recognizing that since the adoption decision did not contain any indications of maintaining family ties between the applicant and his granddaughter after the adoption, the applicant did not have the right to communicate with her.
Accordingly, the question arose whether the legislation of the Russian Federation governing communication after adoption between an adopted child and his relatives was sufficiently clear and predictable when applied in that part in which it did not expressly stipulate that the rights the relatives of the adopted child are transferred to the foster parents or otherwise terminated after adoption, if these relatives do not submit during the adoption procedure they will petition for the preservation of relations, including the possibility of communicating with the child and in the court decision on adoption, this will not be indicated.
If we assume that this is implied in the relevant provisions of the legislation of the Russian Federation, then after satisfying the applicant’s request to restore the procedural limitation period for filing a complaint about the adoption decision, the St. Petersburg City Court, which examined the applicant’s complaint, should have examined whether the applicant had the right to communicate with the granddaughter after her adoption, in particular, determining whether such communication was in the interests of the child and, if necessary, include appropriate sex zheniya in the operative part of the decision on the adoption order. Instead, the St. Petersburg City Court upheld the adoption decision and suggested that the applicant could resolve the issue of communicating with the granddaughter after her adoption after terminating the adoption procedure in the manner provided for in Article 67 of the RF IC. In reality, such a remedy was not at the disposal of the applicant, since, as the courts of the Russian Federation recognized during the proceedings, in the absence of a specific indication in the decision to adopt communication after adoption, it was impossible to submit a request to determine the procedure for communication with the granddaughter.
As a result of this interpretation and application of the relevant provisions of domestic law by the courts of the Russian Federation during the adoption process after its renewal, the applicant completely and automatically lost the right to participate in the life of his granddaughter after her adoption.
The case contained a violation of Article 8 of the Convention (unanimously adopted).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage.