Judgement 53099/19

Applicant name LYAKH
Applicant type Natural person
Number of applicants 1
Country Ukraine
Application no. 53099/19
Date 04/05/2023
Judges Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation
Type of privacy Procedural privacy; relational privacy
Keywords Return, contact child; length proceedings
Facts of the caseApplicant complains under Articles 6 and 8 ECHR that the Ukrainian authorities failed to promptly examine and allow his application for the return of his two sons, born in 2004 and 2007, to Israel, where they had lived until 2013, from Ukraine, where they had been living since then, having been initially brought there by the applicant and eventually left with their grandmother.
AnalysisThe case is relevant for a number of points:
1. The applicant invoked both Article 6 and 8 ECHR, but the ECtHR only deals with the case under the latter provision, therewith relying on the procedural requirements implicit in substantive rights, rather than the right to a fair trial.
2. The Court dismisses the complains of the applicant as to the outcome of the case, finding that the national courts gave due consideration to the children’s best interests and adequately correlated them with the other interests at stake.
3. There is discussion over whether the Hague Convention on the Civil Aspects of International Child Abduction was applicable, because the children in this case were not abducted, but brought to Ukraine by the applicant himself. But because national courts had referred to the Hague Convention in their judgements, the ECtHR finds that the Hague Convention should be used as a relevant framework in this case as well.
4. This finding has consequences in particular for the acceptable length of the national proceedings, which the ECtHR finds in this case had been violated. The Court accepts that the applicant’s use of procedural rights contributed to the length of the procedures, but he did not abuse his rights. The Court is also mindful that the Ukrainian courts faced a considerable workload. Still, the domestic proceedings for the return of the applicant’s then 10- and 13-year-old sons lasted more than two years before the courts; delays attributable mainly to the authorities.
Other Article violation? No violation 6 ECHR
Damage awardedThat the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement
Documents Judgment