European Convention on Human Rights (ECHR)
The Court accepted that the 1980 Hague Convention did not directly apply to the case, because the wrongful removal happened before the Convention entered into force between the Czech Republic and Russia. The Court’s primary duty was to examine the claims against the right to respect for family life, as guaranteed by Article 8 of the European Convention on Human Rights (ECHR). It identified mutual enjoyment by parent and child of each other’s company as a fundamental element of this right. This may require States to provide “a regulatory adjudicating and enforcement machinery” to secure the right to family life, even in relations between individuals. Article 8 ECHR additionally imposes an obligation for authorities to take measures to reunite parents with their children.
The Court held that the circumstances of the mother’s moving to Russia with the second applicant amounted to wrongful removal of the child. Article 8 ECHR “required the Russian authorities to ‘take action’ and assist the applicant in being reunited with his child”. In failing to put in place a legal framework that would secure a prompt response to the abduction and effectively safeguard the interests of the applicant, the Court held that the Russian authorities breached Article 8 ECHR. Citing X v. Latvia (INCADAT Reference HC/E/1146), it stated that “in cases of international child abduction the Court has presumed, save for certain exceptions, that the best interests of the child are better served by the restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence”.
On the other hand, the Russian courts’ refusal to recognise and enforce the Czech Court’s final decision of 2 June 2011 granting the first applicant full custody did not amount to a violation of Article 8 ECHR. To order the child to return to her father’s care would not have been in her best interests, as she had settled in Russia after living there for six years, and their contact had been too limited.
Finally, the Russian authorities failed to take all measures that could reasonably have been expected to enable the applicants to maintain and develop their family life with each other. In order to facilitate this right, the authorities had to establish the whereabouts of the mother and child; the absence of this information foiled a number of other measures to re-establish contact. Among others, the Court noted that the police only visited the mother’s presumed place of residence once, despite ?strong indications” that she was living and working elsewhere, and did not satisfactorily question persons who were likely to have known her whereabouts.