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FIFTH SECTION
CASE OF SAVINY v. UKRAINE
(Application no. 39948/06)
JUDGMENT
STRASBOURG
18 December 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Saviny v.
Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39948/06) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mr Sergiy Leonidovych
Savin and Mrs Valentyna Oleksandrivna Savina (“the
applicants”), on 20 September 2006.
- The
applicants, who had been granted legal aid, were represented by Mr
D.D. Menko, a lawyer practising in Romny. The Ukrainian Government
(“the Government”) were represented by their Agent,
Mr Y. Zaytsev.
- The
applicants alleged, in particular, that the placement in public care
of their three minor children infringed their rights guaranteed by
Articles 6 § 1, 8 and 14 of the Convention.
- On
16 May 2007 the Court 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, husband and wife, were born in 1957 and 1956 respectively
and live in Romny.
A. The applicants' family circumstances and living
conditions
- Both
applicants have been blind since childhood.
- From
1990 to 2006 the first applicant was officially employed by an
enterprise run by the Ukrainian Society of the Blind (“the
USB”; Українське
товариство
сліпих),
a public organisation subsidised by the State to provide assistance
to blind people. However, as appears from his employer's statement
that between 2001 and 2006 the first applicant actually worked at
most a few days a year. In 2006 the first applicant reached
retirement age and was dismissed on redundancy. The second applicant
stopped working in the early nineties.
- Since
1997 the family have officially occupied two two-bedroom flats owned
by the State, although the applicants claim that they have used only
one of them. The flats were supplied with oven heating, but have no
drains or hot running water.
- The
applicants have given birth to seven children: O.S. born in 1991,
M.S. born in 1992, Y.S. born in 1993, P.S. born in 1995, S.S. born in
1997, K.S. born in 1998 and T.S. born in 2001.
- In
February 1998 four of the children (M.S.,Y.S., P.S. and S.S.) were
taken into public care on account of the applicants' inability to
provide them with adequate care and upbringing. The children were
initially placed in various institutions; however, it appears that
currently all of them, except P.S., who has been adopted with the
applicants' consent, reside in the Romny Boarding School (Роменська
загальноосвітня
школа-інтернат
І-ІІІ ступенів
для дітей-сиріт
і дітей, позбавлених
батьківського
піклування
ім. О.А. Деревської).
- In
1997 O.S., the eldest son, who remained in the applicants' care, was
also admitted to the Romny Boarding School. The parents took him home
for weekends and vacations. On several occasions the school
administration complained to the municipal authorities that O.S.
habitually ran away from school, wandering, collecting empty bottles
and begging. No specific details or incidents were given.
- Between
1998 and 2004 representatives of the Municipal Juvenile Service
(Служба
у справах
неповнолітніх)
and the Tutelage Board (Орган
опіки та піклування),
in cooperation with several other municipal authorities, visited the
applicants' flat on some ten occasions and drafted reports concerning
the suitability of the living conditions for the upbringing of the
children who remained in their care. According to these reports, the
conditions were grossly unsatisfactory. In particular, the premises
badly needed renovation; they were cold, dirty, full of cob-webs and
smelled of human excrement. Clothes and rags were scattered around
the floor and on the beds. Dishes were not washed. Bedding, if
present, was very dirty. The baby's mattress had rotted in the middle
because of large quantities of urine. The baby's cot was unusable. No
food was found in the kitchen. The children were dirty and dressed
unseasonably. One report also noted that T.S., the smallest child,
had a skin rash. According to another report “the children were
sick”, although no symptoms were noted. On one occasion the
children would not let the inspectors in as the parents had gone out
to buy milk and the children were alone with the oldest child, O.S.
- On
several unspecified dates between 1998 and 2004 the USB provided the
applicants with various assistance of unrecorded amounts, including
firewood, clothing, shoes and alimentary products (such as sugar,
potatoes, grain and flour). In 1998 the USB also arranged for local
student volunteers to do some renovations on the flat: in particular,
to whitewash the walls and to paint the floor and windows.
- On
an unspecified date the applicants requested the municipal
authorities to equip their household with natural gas in order to
improve their heating, ability to cook and access to hot water. On 10
January 2000 they were informed that their neighbours had strongly
objected to this, finding it dangerous in view of the applicants'
blindness and the presence of small children. Moreover, it was
technically unfeasible.
- On
22 February 2000 the applicants requested the Chief of the Municipal
Department for Social Assistance to assist them in finding a suitable
job for the first applicant. There is no information as to the
ensuing response.
- On
22 February 2000 the Juvenile Service requested the Head of the
Municipal Women's Committee to provide humanitarian assistance to the
applicants' family. There is no information as to the ensuing
response.
- On
16 February 2001 K.S. was examined by a doctor, who recorded that his
speech development was delayed and he appeared to be suffering from
first-stage anaemia. The doctor further noted that the child's
stomach was soft and not bloated; he had a normal temperature,
displayed no signs of malnutrition or skin rash, no enlargement of
the lymph nodes or the liver, no redness in the throat and no
abnormalities in urination or defecation.
- On
27 February 2001 the applicants received 150 Ukrainian hryvnyas
(UAH)
in financial assistance to pay for electricity.
- On
8 July 2003 the Municipal Committee for Social Protection and
Prevention of Juvenile Delinquency warned the applicants that they
needed to improve the conditions in which their children were being
brought up.
- On
an unidentified date the administration of the kindergarten attended
by K.S. since 2003 issued a report on his development, stating that
K.S. had attended the establishment regularly and that the parents
brought him to school and took him home on time. The second applicant
was reported to be actively interested in K.S.'s affairs and
generally responsive to remarks by teaching and medical staff. The
child was reported to be somewhat stubborn and inactive during
classes, but eager to communicate with other children. On the other
hand, K.S.'s classmates were reported to have been at times appalled
by his untidy looks and dirty clothes.
- In
December 2003 the Romny Children's Health Centre certified that O.S.
and K.S. had been fed at school and that they had also been provided
with vouchers for summer camps, as they had been recorded as having
first-stage anaemia.
- On
an unspecified date the first applicant instituted court proceedings
against his employer, seeking to collect salary arrears and various
compensatory payments, including compensation for idle time, for an
unspecified period ending on 31 November 2004. On 3 November 2004 the
Romny Court discontinued the proceedings in view of a friendly
settlement between the parties, pursuant to which the first applicant
was to be paid UAH 1,500.
On 5 January 2006 the Romny Court further awarded the first applicant
UAH 1,110
in various compensatory payments in respect of the subsequent idle
period.
B. Court proceedings for placement of O.S., K.S. and
T.S. in public care
- On
5 January 2004 the Romny Prosecutor initiated, at the request of the
Juvenile Service, court proceedings for the placement of O.S., K.S.
and T.S. in public care.
- On
2 December 2004 the court, having heard the applicants, the Juvenile
Service and the Tutelage Board, allowed the prosecutor's claim. The
relevant part of the judgment stated as follows:
“ The defendants [the applicants] do not take care
of or bring the children up properly. The children are dirty, hungry,
and often stay at home alone...
The representatives of the Juvenile Service and the
Tutelage Board supported the claim and described the horrible
(жахливі) living
conditions of the defendants' family, dirt, insufficient sanitary
arrangements (антисанітарія),
very poor financial state....
... According to a note from the children's hospital of
16 December 2003, K.S. and O.S. are registered with the health centre
due to first-stage anaemia...
The court established that the living conditions of the
children O.S., K.S. and T.S. are dangerous for their lives and health
and moral upbringing, in particular the children are dirty, hungry,
dressed unseasonably, are registered with the health centre; O.S.
wanders, picks up empty bottles and begs, thus the children should be
removed from the defendants and transferred to the Tutelage Board...”
- The
applicants appealed against this decision. They stated that the
Family Code of Ukraine contained limited grounds for removal of
children from their parents – evasion of child maintenance,
cruelty, chronic alcoholism or drug addiction of parents,
exploitation of children, involving them in begging and vagrancy.
They insisted that they had never done any such things and that there
was no proof that the conditions of their children's upbringing,
albeit basic, were in fact dangerous. The applicants further
explained that the fact that they could not provide the children with
better conditions was only due to their blindness. They claimed that
as people with a disability they were discriminated against and
underlined that the State authorities should provide their family
with the necessary support instead of removing their children. The
applicants also referred to Article 8 of the Convention.
- On
14 February 2005 the Sumy Regional Court of Appeal dismissed their
appeal. It repeated the conclusions of the first-instance court that
leaving the children with the applicants would endanger the
children's life, health and moral upbringing. It stated, inter
alia:
“The fact that the defendants were visually
handicapped had no impact on the court's conclusions. The applicants
did not prove that the State authorities created disadvantageous
conditions for their life. Quite the opposite, as it follows from the
case file, the State authorities acted within their power to help
them.
According to Article 8 of the European Convention of
Human Rights, the State can interfere with private and family life
for the protection of health or morals, or for the protection of the
rights and freedoms of others. Bearing this in mind and considering
the facts of the case, the court comes to the conclusion that there
was no violation of Article 8 of the Convention.”
- The
applicants appealed in cassation, raising essentially the same
arguments as in their previous appeal. On 22 March 2006 the Supreme
Court of Ukraine dismissed the appeal in cassation. The applicants'
children were not heard at any stage of the proceedings.
- The
judgment was enforced on 23 June 2006. Eventually, K.S. was placed in
a school in Romny, while O.S. and T.S. were placed in a school in
Sumy (some one hundred kilometres from Romny). According to
submissions by an educational social worker (соціальний
педагог)
retained by O.S.'s new school dated June 2007, O.S. continued to run
away from school, wandered, and often needed to be searched for.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
- The relevant provisions of the Constitution of Ukraine
read as follows:
Article 32
“No one shall be subject to interference in his or
her personal and family life, except in cases envisaged by the
Constitution of Ukraine...”
Article 51
“...The family, childhood, motherhood and
fatherhood are under the protection of the State.”
B. Family Code of Ukraine of 10 January 2002
- The
relevant provisions of the Family Code of Ukraine read as follows:
Article
170. Removal of the Child from the Parents without Depriving them of
Parental Rights
“1. The court may decide to remove the child from
both parents or one of them without depriving them of parental
rights, in cases referred to in Article 164, paragraph 1,
subparagraphs 2 -5, as well as in other situations if leaving the
child with them is dangerous to his or her life, health and moral
education.
In such a case, the child shall be given to the other
parent, grandmother, grandfather, other relatives upon their request
or to the Tutelage Board.
2. In exceptional situations, when the child's life or
health is seriously endangered, the Tutelage Board or the prosecutor
may order the immediate removal of the child from his or her parents.
In such a case, the Tutelage Board shall inform the
prosecutor without delay and within seven days of the date of the
decision shall lodge a claim with a court for deprivation of the
parental rights of one or both parents or for removal of the child
from his or her mother or father without depriving them of parental
rights.
The same claim can be lodged by the prosecutor.
3. Whenever the circumstances which have hampered the
proper upbringing of the child by his or her parents disappear, the
court, upon the parents' request, may order the return of the child”
C. Law of Ukraine “On Protection of Childhood”
of 26 April 2001
- The
relevant provisions of the Law read as follows:
Section
11. A child and a family
“(...) Each child has the right to live in a
family together with parents or in a family of one of the parents and
in their care”
Section
12. Rights, obligations and responsibility of parents with respect to
bringing up and development of a child
“to be brought up in a family is a fundamental
principle for development of a child”
The State shall provide parents... with support in
fulfilment of their obligations on bringing up children.., shall
protect rights of a family”
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. Ukrainian Parliament Commissioner
for Human Rights (Ombudsman)
- In
her First Annual Report the Commissioner for Human Rights (2002)
mentioned as follows:
(...) The average social pension for a disabled
person... is 41 Ukrainian hryvnas (UAH),
which is one-fifteenth of the amount allocated for a child who
attends boarding school (UAH 400-700 per month)”
III. RELEVANT INTERNATIONAL INSTRUMENTS
A. The United Nations Convention on the Rights of the
Child
- In
the Preamble to the Convention it is mentioned that a child, for the
full and harmonious development of his or her personality, should
grow up in a family environment. According to Article 9 of the
Convention, 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 such a 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. In such a case all interested
parties shall be given an opportunity to participate in the
proceedings and make their views known.
B. Committee on the Rights of the Child
- In
its Concluding Observations, adopted on 9 October 2002 upon
consideration of the second periodic report of Ukraine, the Committee
mentioned as follows:
“(...) the Committee remains concerned about the
low level of resources in general for social services, health and
education having a negative impact on the quality and accessibility
of services, especially affecting families with children living in
poverty;
(...) The Committee is concerned that the principles of
... the right to have his/ her best interest as a primary
consideration ... (is) not fully reflected in the State party's
legislation, policies and programmes at national and local levels.
(...) The Committee expresses its serious concern at the
high increase in number of children left without parental care and
regrets that its previous recommendations, to the State party, to
develop a comprehensive strategy to assist vulnerable families, has
not been followed”.
C. Council
of Europe
- The
basic principles, listed in the annex to Recommendation
Rec (2005)5 of the Committee of Ministers on the rights of children
living in residential institutions, adopted on 16 March 2005,
include, among others:
« (...) The family is the natural environment
for the growth and well-being of the child and the parents have the
primary responsibility for the upbringing and development of the
child;
– preventive measures of support for children and
families in accordance with their special needs should be provided as
far as possible;
– the placement of a child should remain the
exception and have as the primary objective the best interests of the
child (...) ;
– the decision taken about the placement of a
child and the placement itself should not be subject to
discrimination on the basis of ... disability ...or any other status
of ... his or her parents (...).»
- According
to the Recommendation Rec(2006)19 on policy to support positive
parenting, adopted on 13 December 2006, policies and measures in the
field of support for parenting should take into account the
importance of a sufficient standard of living to engage in positive
parenting. Governments should also ensure that children and parents
have access to an appropriate level and diversity of resources
(material, psychological, social and cultural). In the best interests
of the child, the rights of parents, such as entitlement to
appropriate support from public authorities in fulfilling their
parental functions, must also be given prominence. Particular
attention should be paid to difficult social and economic
circumstances, which require more specific support. It is also
essential to supplement general policies with a more targeted
approach.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the court's judgment of 2 December 2004
infringed their right to respect for their family life as provided in
Article 8 of the Convention, which reads 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.”
A. Admissibility
- The Court notes that this 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
grounds. It must therefore be declared admissible.
B. Merits
1. Parties' submissions
a. The applicants
- The
applicants accepted that their living conditions were very basic.
They did not, however, consider that the conditions were so bad as to
endanger the children's life or health and render necessary their
removal from home. In particular, there was no evidence that the
children suffered from any diseases associated with malnutrition or
dirtiness. As concerns O.S.'s and K.S.'s registration at the health
centre, that registration was pursued by the applicants upon
the doctors' advice as the best opportunity for the children to get
free vouchers in summer camps.
- The
applicants did not deny that they received some financial and other
support from the State, but submitted that it was grossly
insufficient to improve their situation. Furthermore, their requests
to the authorities for a gas supply to their flat, which would enable
them to have gas heating and hot water and therefore to create normal
sanitary conditions, remained to no avail. In their opinion the
authorities concentrated only on drafting documents concerning the
inadequacy of their conditions, instead of providing them with the
necessary counselling as to possible solutions to their situation.
The applicants further accepted that it might have been beneficial
for the children to be placed in boarding schools, but submitted that
this could be done by means other than their removal from the
parents' care, which made it practically impossible for the
applicants to spend time with the children outside the institutions,
especially regard being had to the placement of children in various
institutions. In their opinion, there was no danger in allowing the
children to visit their parents at home for short periods of time.
- The
applicants also noted that in so far as O.S.'s wandering was
concerned, they should not have been blamed for it, as they had
attempted to discipline their son. However, it was often from school
that he had run away, while being under supervision of the teachers.
- In
sum, the applicants alleged that the national authorities could have
taken a less severe measure than taking their children away from
them, and that the State could help them to raise their children
themselves by providing them with adequate conditions. They also
underlined that the children's opinion had not been taken into
account during the trial.
b. The Government
- The Government accepted that there had been
interference with the applicants' right to respect for their family
life as guaranteed by Article 8 § 1 of the
Convention. Nevertheless, they maintained that it was in accordance
with the law, namely Article 170 of the Family Code; pursued a
legitimate aim of protection of the children's interests; and was not
disproportionate.
- Having
underlined that the applicants had not been deprived of their
parental rights, the Government stated that the applicants had seldom
visited the children after their placement in residential
institutions and had failed to improve their living conditions,
thereby demonstrating that they were not interested in reuniting
their family.
- In
addition, the Government informed the Court that the applicants had
received state allowances as well as help from the state-supported
USB, which had proved not to be of assistance, as the applicants were
immature and irresponsible. In contrast, the children now lived under
public care in spacious rooms with two to three room-mates, could
attend museums and theatres and go to summer camps.
- In
conclusion, in the Government's opinion, the interference complained
of did not constitute a violation of Article 8 of the Convention.
2. The Court's assessment
a. General principles
- The Court reiterates that the mutual enjoyment by
parent and child of each other's company constitutes a fundamental
element of family life and that domestic measures hindering such
enjoyment amount to an interference with the rights protected by
Article 8 (see, inter alia, McMichael v. the United
Kingdom, 24 February 1995, § 86, Series A
no. 307 B). Such interference constitutes a violation of
this provision unless it is “in accordance with the law”,
pursues one of the legitimate aims enumerated in Article 8 § 2
and can be regarded as “necessary in a democratic society”
(see McMichael, cited above, § 87).
- In determining whether a particular interference was
“necessary in a democratic society”, the Court will
consider whether, in the light of the case as a whole, the reasons
adduced to justify it were relevant and sufficient for the purposes
of paragraph 2 of Article 8 of the Convention and whether the
requisite decision-making process was fair and such as to afford due
respect to the interests safeguarded by Article 8 (see, for example,
Kutzner v. Germany, no. 46544/99, § 65,
ECHR 2002 I, and Sommerfeld v. Germany [GC],
no. 31871/96, § 66, ECHR 2003-VIII).
- The Court further reiterates that, notwithstanding a
margin of appreciation enjoyed by the domestic authorities in
deciding on placing a child into public care, severing family ties
means cutting a child off from its roots, which can only be justified
in very exceptional circumstances (see, for example, Gnahoré
v. France, no. 40031/98, § 59, ECHR 2000-IX).
A relevant decision must therefore be supported by sufficiently sound
and weighty considerations in the interests 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
has been made (see, for example, Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, § 148, ECHR
2000 VIII).
- In particular, where the decision is explained in
terms of a need to protect the child from danger, the existence of
such a danger should be actually established (see, mutatis mutandis,
Haase v. Germany, no. 11057/02, § 99, ECHR
2004 III (extracts)). In taking a decision on removal of a
child, a variety of factors may be pertinent, such as whether by
virtue of remaining in the care of its parents the child would suffer
abuse or neglect, educational deficiencies and lack of emotional
support, or whether the child's placement in public care is
necessitated by the state of its physical or mental health (see
Wallová and Walla v. the Czech Republic, no. 23848/04,
§ 72, 26 October 2006 and Havelka and Others v. the
Czech Republic, no. 23499/06, § 57, 21 June
2007). On the other hand, the mere fact that a child could be placed
in a more beneficial environment for his or her upbringing does not
on its own justify a compulsory measure of removal (see, for example,
K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I). Neither
can this measure be justified by a mere reference to the parents'
precarious situation, which can be addressed by less radical means
than the splitting of the family, such as targeted
financial assistance and social counselling (see, for example, Moser
v. Austria, no. 12643/02, § 68, 21 September
2006; Wallová and Walla, cited above, §§ 73-76;
and Havelka and others, cited above, § 61).
- Further, in assessing the quality of a decision-making
process leading to splitting up the family, the Court will see, in
particular, whether the conclusions of the domestic authorities were
based on sufficient evidentiary basis (including, as appropriate,
statements by witnesses, reports by competent authorities,
psychological and other expert assessments and medical notes) and
whether the interested parties, in particular the parents, had
sufficient opportunity to participate in the procedure in question
(see, mutatis mutandis, Schultz v. Poland
(dec.), no. 50510/99, 8 January 2002; Remmo and
Uzunkaya v. Germany (dec.), no. 5496/04,
20 March 2007; and Polášek v. Czech
Republic (dec.), no. 31885/05 , 8 January 2007).
The Court will also have regard to whether, where appropriate, the
children themselves were able to express their views (see, for
example, Havelka and Others, cited above, § 62, and
Haase, cited above, § 97).
- In any event, taking a child into care should normally
be regarded as a temporary measure, to be discontinued as soon as
circumstances permit. It cannot, therefore, be justified without
prior consideration of the possible alternatives (see K. and T.,
cited above, § 166; Kutzner, cited above, § 67;
and Moser, cited above, § 70) and should be viewed
in the context of the State's positive obligation to make serious and
sustained efforts to facilitate the reuniting of children with their
natural parents and until then enable regular contact between them,
including, where possible, by keeping the siblings together (see,
mutatis mutandis, Kutzner, cited above, §§ 76-77
and K. and T. v. Finland [GC], cited above, § 179).
b. Application of these principles in the
present case
- It is common ground that the decision to place O.S.,
K.S. and T.S. in public care constituted interference with the
applicants' rights guaranteed by Article 8; that this interference
was carried out in accordance with the law and pursued a legitimate
aim of protecting the interests of the children. It remains to be
examined whether this interference was “necessary in a
democratic society”.
- In this regard the Court first notes that the
applicants have generally agreed with the Government that it might
have been beneficial for their children in material terms to be
placed in special educational establishments, such as boarding
schools, in light of the limited resources available to them to meet
their daily needs. They disagreed, however, as to whether it was
necessary to do so by way of imposition of a removal order, which
restricted their ability to take children home outside school hours,
such as for vacations and weekends.
- The Court notes that the domestic authorities based
their decision on a finding that the applicants, by virtue of
insufficient financial means and personal qualities, were unable to
provide their children with proper nutrition, clothing, sanitary
environment and health care, as well as to ensure their social and
educational adaptation, thereby endangering the children's life,
health and moral upbringing. The Court finds that these reasons were
undoubtedly relevant to the taking of the requisite decision.
- In assessing, however, whether they were also
sufficient, the Court doubts the adequacy of the requisite
evidentiary basis for the finding that the children's living
conditions were in fact dangerous to their life and health. It notes,
in particular, that the custody proceedings instituted in January
2004 had not resulted in the children's removal from home until 23
June 2006, no interim measure having been sought and no actual harm
to the children during this period having been recorded. Further, a
number of specific conclusions (such as that the children lacked
proper nutrition, were dressed inappropriately and were often left
home alone) were based solely on the submissions by the municipal
authorities, drawn from their occasional inspections of the
applicants' dwelling. No other corroborating evidence, such as the
children's own views, their medical files, opinions by their
paediatricians or statements by neighbours had been examined. In
fact, the only objective evidence in support of the finding about the
children's inadequate state of health, to which the trial court
referred in its decision, was a medical certificate dated a year
earlier, attesting that O.S. and K.S. had been placed on record for
first-stage anaemia, the accuracy of which, challenged by the
applicants, was not verified. Similarly, as regards the failure of
the applicants to ensure proper educational and social adaptation of
their children, the courts referred primarily to the submissions by
the municipal authorities that O.S. had been seen wandering and
begging, but no reference to the dates, frequency, names of the
witnesses or other relevant circumstances was solicited.
- Further, there is no appearance that the judicial
authorities analysed in any depth the extent to which the purported
inadequacies of the children's upbringing were attributable to the
applicants' irremediable incapacity to provide requisite care, as
opposed to their financial difficulties and objective frustrations,
which could have been overcome by targeted financial and social
assistance and effective counselling. In connection with the
financial difficulties, it is not the Court's role to determine
whether the promotion of family unity in the case entitled the
applicants' family to a particular standard of living at public
expense. It is, however, a matter which falls to be discussed by,
initially, the relevant public authorities and, subsequently, in the
course of the judicial proceedings.
- As regards the extent to which the inadequacies in the
children's upbringing may have been prompted by the applicants'
purported irresponsibility as parents, no independent evidence (such
as an assessment by a psychologist) was sought to evaluate their
emotional or mental maturity or motivation in resolving their
household difficulties. Similarly, in the courts' reasoning, no
analysis was made of the applicants' attempts to improve their
situation, such as requests to equip their flat with access to
natural gas, recoup salary arrears or request employment assistance.
On the contrary, the courts appear to have taken on trust the
submissions by the municipal authorities that the applicants had
failed to improve their living conditions and attitudes in spite of
financial and other support as well as necessary counselling. Beyond
the descriptive findings of the inspection reports, repeatedly
pointing to the same problems, such as a rotting baby's mattress, no
data was sought as regards the actual volume and sufficiency of
social assistance or the substance of specific recommendations
provided by way of counselling and explanations as to why these
recommendations had failed. The Court finds that soliciting specific
information in this regard would have been pertinent in evaluating
whether the authorities discharged their Convention obligation to
promote family unity and whether they had sufficiently explored the
effectiveness of less far-reaching alternatives before seeking to
separate the children from their parents.
- The
Court also notes that at no stage of the proceedings were the
children (including O.S., who was thirteen years of age when the
first-instance proceedings were pending in December 2004) heard by
the judges and that by way of implementation of the removal order not
only were the children separated from their family of origin, they
were also placed in different institutions. Two of them live in
another city, away from Romny where their parents and siblings
reside, which renders it difficult to maintain regular contact.
- Given
all these foregoing considerations, the Court concludes that although
the reasons given by the national authorities for removal of the
applicants' children were relevant, they were not sufficient to
justify such a serious interference with the applicants' family life.
- Therefore,
there has been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
- The
applicants complained that the custody decisions had been taken on
the ground of their status as disabled persons, and that the State
had failed to fulfil its obligation to provide them with adequate
conditions in order to preserve their family. They relied on Article
14 of the Convention taken in conjunction with Article 8. The
relevant provision reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government insisted that the children had not been removed from the
applicants on the ground of their disability. They maintained that
many other blind people raised their children themselves, providing
them with due care. In the Government's opinion, the applicants'
living conditions were the result not of their disability or income,
but of their own choices.
- The
applicants contested this argument. They stated that firstly their
family was unique among blind couples due to the number of their
children. Furthermore, none of the families registered with the USB
had such an unsuitable housing situation. Although the applicants
agreed that their living conditions were not satisfactory to raise
children, they nevertheless insisted that their very special
situation required more efforts from the State authorities to ensure
their dignity and equality with healthy people.
65. The Court notes that, although the
applicants' disability might have presented them with certain
challenges in raising their family, such as in search of a suitable
employment or arranging the house, it finds that, to
the extent that this complaint has been substantiated, there is no
appearance that the applicants were treated differently than others
in an analogous situation or similarly to others in a different
situation (see, among many other authorities, Thlimmenos
v. Greece [GC], no. 34369/97, § 44,
ECHR 2000-IV).
66. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants also complained that the judicial proceedings and the
courts' decisions in their case were unfair. They relied on Article 6
§ 1 of the Convention, which, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The Government contested these arguments.
- The Court notes that this complaint is linked to the
applicants' complaint under Article 8 and must therefore likewise be
declared admissible.
- It
further reiterates that, notwithstanding the difference in the nature
of the interests protected by Articles 6 and 8 of the Convention,
which may require separate examination of the claims lodged under
these provisions, in the instant case the lack of respect for the
applicants' family life is at the heart of their complaint.
Therefore, having regard to its above findings under Article 8 (see
paragraphs 60-61 above), the Court considers that it is not necessary
to examine the facts also under Article 6 (see Hunt v. Ukraine,
no. 31111/04, § 66, 7 December 2006).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicants claimed 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested that claim.
- The
Court accepts that the applicants have suffered damage of
a non-pecuniary nature as a result of the State's failure to
comply with its obligation relating to the applicants' right to
respect for their 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
applicants jointly EUR 5,000 in respect of non-pecuniary damage
plus any tax that may be chargeable.
B. Costs and expenses
- The
applicants also claimed EUR 1,150 for costs and expenses incurred
before the domestic courts and before the Court.
- The
Government noted that the applicants had already received a
sufficient sum under this head by way of legal aid from the Council
of Europe.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, it observes that the applicants failed
to present a legal fees agreement with their lawyer or an approved
timesheet of the legal work performed before the Court. In light of
this and regard being had to the fact that the applicants have
already been given legal aid, the Court gives no award under this
head.
C. Default interest
- 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
- Declares the complaints under Articles 8 and
6 § 1 of the Convention admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine the
complaint under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention
EUR 5,000 (five thousand euros) in respect of non-pecuniary damage
plus any tax that may be chargeable, to be converted into the
national currency of the respondent State at the rate applicable at
the date of settlement;
(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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait
Maruste
Registrar President
