Judgment 27380/20

Applicant name BOGDANOV
Applicant type Natural person
Number of applicants 1
Country Ukraine
Application no. 27380/20
Date 04/05/2023
Judges Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Negative/positive obligation
Type of privacy Procedural privacy; relational privacy
Keywords Acess child; refusal to give contact details
Facts of the caseApplicant has shared custody over his child. However, the authorities did not want to give the location details of the house where his son was growing up, because his mother did not give her consent. The applicant instituted three sets of civil proceedings seeking the return of his son to his previous place of residence, the disclosure of his son’s new place of residence and the removal of obstacles to the applicant’s communication with the child. The applicant’s
claim for the return of the child was dismissed, while the applicant eventually withdrew the two other claims after reaching an agreement with the child’s mother.
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 government stresses that the applicant had started three different civil proceedings, but did not inform the respective courts of the other proceedings. He should have done so. The ECtHR however finds that although such may have been the optimal path, the applicant did not intentionally try to mislead the courts. Thus, his claim must not be declared inadmissible.
3. The government also argues that the applicant did not exhaust all domestic remedies, a claim the ECtHR also dismisses.
4. The Court finds that because of the police’s refusal to disclose information about his son’s whereabouts to him, the applicant was unable to exercise his right of access to his child and to information about the child’s personal circumstances for about five months. Consequently, there had been an interference with Article 8 ECHR, which had a legal basis and pursued the legitimate aim of protecting the right to privacy of the child’s mother, who lived at the same address. This latter point is important, because the ECtHR does not interpret the mother’s refusal to give consent as a refusal as a parent on behalf of her child, thus protecting the best interest of the child, but as a refusal to have her own personal data processed, and thus to protect her own interests, she and the child living at the same address. Later in the judgement, the Court does not seem to exclude the possibility that the mother had refused such consent because she feared for the well-being of her child, although it stressed it found no concrete evidence supporting this suggestion. Thus, it is not absolutely clear which interest was served by the interference. In addition, this judgement does not cite the relevant parts of the national legal regime, but if it is similar to EU data protection law, consent is only one of several grounds on the basis of which data can be processed. Even without such consent, personal data can be processed, for example on the basis of a law or a court order, or if that is in the child’s best interest, which in this case seems to be true, because there was shared custody over the child and it is in the interest of the child to remain in contact with his father. Thus, to what extent there had indeed been a legal basis for refusing the provision of personal data in this case is unclear.
5. The ECtHR, however, deals with this question under the necessity requirement. It finds that the police and the courts have failed to provide sufficient reasons to justify giving precedence to the privacy rights of the child’s mother over the applicant’s parental rights and did not assess whether this would be in the child’s best interests. Thus, the decision-making process did not involve a fair balancing of the competing rights and interests. Thus, the procedural requirements implicit in Article 8 ECHR had been violated.
6. The Court leaves it explicitly in the middle whether there was a violation of a negative or a positive obligation.
Other Article violation? No violation 6 ECHR
Damage awarded that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 468 (four hundred and sixty-eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
Documents Judgment