In the case of Vyshnyakov v. Ukraine (Application no. 25612/12), the European Court of Human Rights (hereinafter ECHR) recorded a violation of Article 8 of the European Convention on Human Rights (hereinafter ECHR) on 24.07.2018 for the reason that the state had failed to take effective and complete measures for the enforcement of a court decision establishing the procedure for a parent to visit their child.
According to the facts of the case, a court decision was made in favor of the applicant, establishing a visitation procedure that guaranteed the applicant's right to visit his daughter at least three times a week, including overnight stays.
Months after the court decision establishing the visitation procedure, the child and her mother moved to another location that was 600 km away from the applicant's residence. As a result, this circumstance created significant obstacles for the applicant in exercising his right to visit the child with the frequency established by the court decision, as well as for overnight stays.
Accordingly, in order to make his right to visit the child enforceable, the applicant initiated several procedures at different times, which were not properly examined by the state. Thus, the national courts found the request to return to the previous place of residence to be unfounded, and the procedure initiated regarding the enforcement of the court decision establishing the visitation was terminated on the grounds that there were no legislative provisions for the enforcement of the court decision under such factual circumstances.
The state also rejected the applicant's request to initiate criminal proceedings against the child's mother for obstructing visitation, arguing that the elements of a crime were absent in the act.
To ensure the enforcement of the court decision, the state merely reminded the child's mother of the necessity to comply with the court decision, which, however, the ECHR assessed as severely inadequate in terms of fulfilling the obligation to ensure the enforcement of the court decision.
Evaluating the measures taken by the state, the ECHR reaffirmed its previous position that mutual contact between a parent and a child is a key element of the concept of "family life" as enshrined in Article 8 of the ECHR. Referring to the inadequacy of the measures applied, the ECHR emphasized the importance of using possible measures that would facilitate the voluntary enforcement of the court decision, such as mediation among others. According to the ECHR, the application of measures of accountability against the parent obstructing visitation could also contribute to the enforcement of the court decision, which, in the context of ineffective legislative regulations, was not applied in this case.
Thus, noting that the legal relations under such factual circumstances were not fully regulated and the ineffectiveness of the measures applied by the state, the ECHR found a violation of Article 8 of the ECHR.
The conclusions expressed in this decision should, perhaps, serve as a wake-up call for the Republic of Armenia, as both domestic legal regulations and the measures taken in the enforcement proceedings of court decisions generally do not guarantee the enforcement of those court decisions in which the parent expecting visitation is separated from the child who has changed their place of residence by distance.