21 January 2016

The need to appeal to the ECHR in the present case arose in connection with the alleged violation of the rights of the applicant and his daughter to privacy and private life (Art. 8 of the ECHR), which took place in connection with the actions (or inaction) of Russian state bodies in the execution of orders of the court in Prague, and the subsequent recognition and enforcement of the judgment. The circumstances of the dispute are as follows.
Zdenek Gromadka (Czech citizen) was married to a citizen of the Russian Federation — OG. The marriage had a daughter, Anne-Valerie — later the second applicant in the case. In 2007, OG She sued for divorce in court in Prague. However, during the proceedings, OG He traveled to Russia, taking with him a daughter.
In 2008, the Court of Prague issued a preliminary (NB!) Judgment on the basis of which the daughter was placed under the temporary custody of the applicant. Due to the fact that at the time of issuance of the preliminary decision, it was outside the Czech Republic, the applicant appealed to the St. Petersburg City Court for performance of the preliminary (NB!) Court decision in Prague. In turn, the St. Petersburg City Court refused its execution on the grounds that, according to the agreement on legal assistance between Czechoslovakia and the Soviet Union of 1982, subject to execution of final judgments only.
In further consideration of the case the court of Prague tried to notify OG, using the mechanism of delivery of court notices, the Agreement on Legal Assistance between the USSR and Czechoslovakia of 1982, however, at the time of the hearing, a report from the Russian Ministry of Justice on the implementation of the judicial order has been received, and therefore the court in Prague found it possible to render a default judgment (among other things, the court in Prague considered proper notice of the proceedings OG telephone, carried out the consul of the Czech Republic, as the relevant art. 51 CCP Czech Republic).
Subsequently, the plaintiff appealed to the St. Petersburg City Court for the performance of the default judgment in Prague. However, grant this request was refused due to the fact that there was no document confirming the delivery of the notice to the defendant, as provided for by the Treaty on legal assistance between the USSR and Czechoslovakia.
In parallel with the court proceedings the applicant also appealed to various state authorities of the Russian Federation (custody, police, etc.) to establish residence OG and his daughter, who turned out to be fruitless including the fact that the OG I did not live in any of the known addresses (This part of the decision does not apply to issues of international legal assistance, so the analysis is not included).
In connection with the situation in the applicant lodged a complaint with the ECHR, which states that:
a) The refusal of recognition and enforcement of a preliminary (NB!) the judgment of the court in Prague from 2008.;
b) refusal to recognition and enforcement of a final decision of the court in Prague from 2011.; and
c) inaction Russian administrative bodies
have led to a breach of the applicant’s right to respect for his private and family life (Art. 8 of the ECHR)
With regard to the provision of international legal assistance and respect for the rights and freedoms of the ECHR conclusion it was unexpected, if not paradoxical.

So, with regard to the non-fulfillment of the previous judgment of 2008 the ECtHR indicated that in this case the Russian Federation ought to be guided by the general principles established by the Hague Convention on the Civil Aspects of Child Abduction, 1980 (for which the Russian Federation entered into force only in 2011 the city — that is 3 years after the refusal by the preliminary judgment of the court in Prague). At the same time, according to the Court, are violations of the Russian Federation the rights of the applicant was that «avoiding the creation of the necessary legal framework capable of ensuring a rapid response to an international child abduction, in the period relating to the circumstances of the case, [RF] failed to comply with its positive obligation under Article 8 of the Convention «(para. 157 of the Decision).

In turn, with regard to the recognition and enforcement of a final decision of the court in Prague, the ECHR pointed out that in this case the execution of the decision would not be in the best interests of the child, and therefore there is no violation of Art. 8 of the Convention.

The reasoning of the ECHR that the question of recognition of a foreign court decision must be resolved on the basis of compliance (no violation), the right side of family life does not seem quite reasonable, since the agreement on legal assistance of 1982 the USSR and Czechoslovakia took over the unconditional obligation to recognize decisions national courts, establishing an exhaustive list of grounds for refusing recognition of a foreign judgment. As a consequence, due to the presence of comprehensive grounds for recognition (non-recognition), secured by an international treaty, the court has the discretion to accept and / or refuse to recognize a foreign judgment on the grounds of this agreement not provided, even if such recognition (refusal to recognize) may result in a possible violation of the rights of the family life.

Since the Agreement on Legal Assistance between the USSR and Czechoslovakia expressly provides that recognition subject only to final decisions, then, refusing to recognize a preliminary ruling from the Court of the City of Prague in 2008, the St. Petersburg City Court acted in strict accordance with the provisions of the applicable international treaty. However, the ECHR is regarded as a violation of the Convention in 1950 In short, the play of Shakespeare — «As You Like It» («As You Like It») …