Professional Documents
Culture Documents
CASE OF S.M. v. RUSSIA
CASE OF S.M. v. RUSSIA
JUDGMENT
STRASBOURG
21 June 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
S.M. v. RUSSIA JUDGMENT
INTRODUCTION
1. The present case concerns the deprivation of the applicant’s parental
authority over her two daughters.
THE FACTS
2. The applicant was born in 1982 and lives in Voronezh. She was
represented by Mr I.V. Sivoldayev, a lawyer practising in Voronezh.
3. The Government were initially represented by Mr M. Galperin,
Representative of the Russian Federation to the European Court of Human
Rights, and later by his successor in this office, Mr M. Vinogradov.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
5. The applicant is the biological mother of two girls: Ye., born in 2010
from the applicant’s relationship with Mr D.B. (the latter died in 2018), and
A., born in 2014 from the applicant’s marriage with Mr S.M. At the material
1
S.M. v. RUSSIA JUDGMENT
time, the applicant, her daughters and her mother, Ms V.A., lived at her home
address in Voronezh.
6. The case file reveals that the applicant has been suffering from
polydrug addiction since 1998.
7. On 21 September 2017 the applicant was convicted of manufacture and
sale of narcotic drugs and sentenced to four years’ imprisonment. The serving
of the sentence was adjourned until the applicant’s younger child turned
fourteen years old.
8. On 16 October 2017 and 11 January 2018 the Federal Service for the
Execution of Sentences in the Voronezh Region (ФКУ УИИ УФСИН
России по Воронежской области) (“FSIN”) warned the applicant that her
failure to comply with her parental duties in respect of her minor children
could lead to the lifting of the sentence adjournment.
9. On 6 August 2018 the FSIN requested the Sovetskiy District Court of
Voronezh (“the District Court”) to lift the adjournment of the applicant’s
sentence due to her failure to perform her duties in raising and maintaining
her minor children.
10. On 10 September 2018 the District Court dismissed the request. It
observed that the applicant had committed an administrative offence of
neglecting her parental duties on two occasions, on 14 December 2017 and
5 July 2018, and had been fined in this connection. It also noted that on
11 January 2018 the applicant was warned that the sentence adjournment
could be lifted. It further noted that in August 2018 the applicant had found a
new job; Ye. and A. regularly went to school and kindergarten and they were
emotionally stable; and the applicant participated in their educational
activities. The court found that there was no evidence that the applicant had
failed to perform her parental duties and there were no grounds to annul the
adjournment of the sentence.
11. On 8 October 2018 the FSIN again warned the applicant that the
sentence adjournment could be lifted if she failed to comply with her parental
duties.
2
S.M. v. RUSSIA JUDGMENT
13. According to the report of 9 June 2018, the applicant, her children and
Ms V.A. lived in a two-room apartment. The sanitary conditions of the
apartment were unsatisfactory, with persistent unpleasant odour, personal
belongings scattered around, trash and dirt everywhere. There was
insufficient food. The pictures made during the inspection showed that the
conditions were unsuitable for children.
14. The report of 30 January 2019 stated that the flat had the necessary
furniture and domestic appliances (a refrigerator and a washing machine were
acquired), and enough food. Repair works and clean-up were required.
Children had sleeping space and a place for educational activities. The
inspection concluded that the living conditions were satisfactory.
15. According to a report of 14 February 2019, repair works were carried
out in one of the rooms. The living conditions were satisfactory.
17. On 27 February 2019 the District Court granted the action against the
applicant and her former husband. In so far as the judgment concerned the
applicant, the District Court relied on the following facts and evidence:
- the reports on inspection of the applicant’s living conditions (see
paragraphs 12-15 above);
- on 17 February 2019 the applicant acquired the furniture for the children
and provided photographs of the room which had been repaired;
- the applicant was unemployed since December 2018;
- references from the applicant’s former employer dated 6 November
2018 describing the applicant as a responsible employee;
- references given by the school and kindergarten which Ye. and A.
attended, stating that the applicant was interested in their educational progress
and attended school and kindergarten meetings and cultural events;
3
S.M. v. RUSSIA JUDGMENT
4
S.M. v. RUSSIA JUDGMENT
20. On 1 April 2019 the applicant lodged an appeal against the judgment
of 27 February 2019. She complained that the District Court had not given
proper consideration to the fact that her living conditions had recently
improved as attested by the inspection reports of 30 January and 14 February
2019. She also submitted that in March 2019 she had found a new job and
referred to positive references given by the school and kindergarten which
her daughters attended.
21. On 21 May 2019 the applicant requested the appellate court to adjourn
the examination of her appeal, relying on her intention to conclude an
agreement with human rights defender S., who was out of town until 28 May
2019. The court granted the applicant’s request and scheduled the hearing for
30 May 2019. However, S. did not appear on that date. The applicant did not
apply for a court-appointed counsel.
5
S.M. v. RUSSIA JUDGMENT
22. On 30 May 2019 the Voronezh Regional Court (“the Regional Court”)
upheld the judgment of 27 February 2019 on appeal, reiterating the findings
of the District Court. It noted, in particular, that the applicant had been taking
drugs since age fifteen, had not been receiving any treatment, had not been
taking care of the children for a long period of time despite all the efforts and
warnings of the competent domestic authorities, that her behaviour had not
met the interests of the children, endangered their physical and mental health,
moral development due to the lack of positive example in life. It concluded
that the District Court’s decision was well-reasoned and based on an adequate
assessment of all the relevant circumstances.
23. On 10 June 2019 in the context of the cassation review procedure the
applicant lodged an appeal with the Regional Court. Firstly, she complained
that the appellate court had disregarded her request and held a hearing on
30 May 2019 in the absence of her lawyer. Secondly, she submitted that the
courts had deprived her of parental authority solely on the ground that she
had changed her behaviour following the court decision of 10 September
2018 and not earlier. She complained that the courts had disregarded the
positive developments since September 2018. In the latter connection the
applicant referred to the reports of 30 January and 14 February 2019. Lastly,
she complained that the District Court had ordered her to pay maintenance
for children starting from 17 December 2018, that is for the period when they
were still living with her.
24. On 31 July 2019 the Regional Court dismissed her appeal, reiterating
the findings of the first instance and the appellate courts.
25. On 19 August 2019 the applicant lodged an appeal with the Supreme
Court of Russia. She reiterated her submissions and complained that neither
the appellate court nor the court of cassation had addressed her arguments.
26. On 12 September 2019 the Supreme Court of Russia dismissed the
applicant’s appeal and found no grounds to quash the decisions of the lower
courts.
6
S.M. v. RUSSIA JUDGMENT
considered that, taking into account the time elapsed since the deprivation of
the applicant’s parental authority, it was insufficient to evidence a persistent
change in the applicant’s behaviour towards the children in order to restore
her parental authority.
29. On 18 June 2019 the children were removed from the applicant and
placed in the Voronezh Regional Children’s Hospital No. 1 for a medical
check-up.
30. On 9 July 2019 temporary guardianship was established in respect of
the children by Ye.’s paternal grandmother, Ms G.B. Their maternal
grandmother, V.A., never applied for the establishment of the guardianship.
31. On 27 December 2019 G.B. was appointed as the children’s guardian.
32. It follows from G.B.’s submissions made to the Government in
connection with the examination of the present application that the applicant
never visited the children, did not call them, and G.B. was unaware of her
whereabouts.
7
S.M. v. RUSSIA JUDGMENT
premeditated criminal offence against the life or health of his or her children
or spouse.
37. Article 72 § 1 of the Code provides for the possibility to have one’s
parental authority restored in the event of a parent’s change of behaviour,
lifestyle and (or) attitude to child rearing.
38. Article 107 § 2 of the Code provides that child maintenance payments
are recovered from the moment of application to the court by a person entitled
to receive such payments.
39. Further relevant provisions of domestic law and practice concerning
deprivation of parental authority are summarised in Y.I. v. Russia
(no. 68868/14, §§ 51-55, 25 February 2020).
THE LAW
A. Admissibility
41. The Court notes at the outset that, by its very nature, the tie between
the applicant and her children comes within the notion of family life for the
purposes of Article 8 of the Convention (see A.K. and L. v. Croatia,
no. 37956/11, §§ 51-52, 8 January 2013, and S.S. v. Slovenia, no. 40938/16,
§ 78, 30 October 2018).
42. The Court further notes that this complaint is neither manifestly
ill-founded nor inadmissible on any other grounds listed in Article 35 of the
Convention. It must therefore be declared admissible.
B. Merits
8
S.M. v. RUSSIA JUDGMENT
9
S.M. v. RUSSIA JUDGMENT
10
S.M. v. RUSSIA JUDGMENT
11
S.M. v. RUSSIA JUDGMENT
the children’s ties with their mother had been exhausted, and corresponded to
the children’s best interest to be brought up and develop in a sound
environment. The interference with the applicant’s family life was therefore
proportionate to the legitimate aim pursued.
57. There has accordingly been no violation of Article 8 of the
Convention.
12
S.M. v. RUSSIA JUDGMENT
13