Постановление ЕСПЧ от 29.03.2016 <Дело Кочеров и Сергеева (Kocherov and Sergeyeva) против России> (жалоба N 16899/13) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF KOCHEROV AND SERGEYEVA v. RUSSIA
(Application no. 16899/13)
JUDGMENT <*>

(Strasbourg, 29.III.2016)
———————————
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

I the case of Kocherov and Sergeyeva v. Russia,
Thе European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
George Nicolaou,
Helen Keller,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova,
Alena , judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 1 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

  1. The case originated in an application (no. 16899/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by two Russian nationals, Mr Vitaliy Mikhaylovich Kocherov and Ms Anna Vitalyevna Sergeyeva («the applicants»), on 17 January 2013.
  2. The applicants were represented by Mr D. Bartenev, a lawyer practising in St Petersburg. The Russian Government («the Government») were represented by Mr G. Matyshkin, Representative of the Russian Government to the European Court of Human Rights.
  3. The applicants alleged, in particular, that their right to respect for their family life had been violated on account of the first applicant’s parental authority over the second applicant being restricted, and that the restriction was discriminatory as it had been imposed because of the first applicant’s mental disability. They relied on Articles 8 and 14 of the Convention.
  4. On 9 April 2013 the application was granted priority treatment under Rule 41 of the Rules of Court. On 19 December 2013 the application was communicated to the Government.
  5. On 26 March 2014 leave was granted to four non-governmental organisations — the International Disability Alliance, the European Disability Forum, Inclusion International and Inclusion Europe — to intervene in the proceedings as third parties (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicants were born in 1966 and 2007 respectively and live in St Petersburg. The first applicant is the second applicant’s father.

 

  1. Background to the case

 

  1. The first applicant has a mild mental disability. Between 1983 and January 2012 he lived in St Petersburg Neuropsychological Care Home no. 1 («the care home»).
  2. In 2007 the first applicant married Ms N.S., a resident of the same care home, who had been deprived of her legal capacity on account of her mental disability.
  3. On 30 May 2007 Ms N.S. gave birth to the second applicant. At the time, the first applicant was not recognised as the child’s father. One week later the second applicant was admitted to hospital because of an infection she had contracted during the delivery.
  4. On 12 July 2007 the second applicant was placed in St Petersburg Children’s Home no. 3 («the children’s home») as a child without parental care.
  5. On 7 August 2007 the first applicant obtained a new birth certificate for the second applicant and was registered as her father. He subsequently gave his consent for her to stay at the children’s home until it became possible for him to take care of her. Throughout the second applicant’s stay there, the first applicant maintained regular contact with her. He would visit her regularly, spend time with her, take her for walks and buy her books, toys and clothes.
  6. By a judgment of 31 March 2008 the Dzerzhinskiy District Court of St Petersburg refused to restore Ms N.S.’s legal capacity, relying in particular on a psychiatric examination report. It stated that, inter alia, there were conflicting, aggressive and emotionally inadequate tendencies in her behaviour.
  7. On 24 September 2008 the marriage between the first applicant and Ms N.S. was declared void at the request of a public prosecutor because of Ms N.S.’s legal incapacity.
  8. Following a claim by the first applicant acting on his own behalf and on behalf of the second applicant, on 6 June 2011 the Smolninskiy District Court of St Petersburg ordered the St Petersburg City Council to provide the applicants with housing under a social tenancy agreement. In November 2011 they were provided with a flat in St Petersburg.
  9. In February 2012, on the basis of a medical assessment, the first applicant was discharged from the care home and moved into his flat. He has been living there ever since.

 

  1. Proceedings to restrict the first applicant’s parental authority

 

  1. Proceedings before the first-instance court

 

  1. In November 2011 the first applicant informed the children’s home of his intention to take the second applicant into his care once he was discharged from the care home and had moved into his flat.
  2. On an unspecified date the children’s home applied to the Frunzenskiy District Court of St Petersburg («the District Court») to have the first applicant’s parental authority over the second applicant restricted. The children’s home indicated that «the first applicant [had] never yet taken the girl from the children’s home to raise her in his family but was planning to raise the girl by himself». In the children’s home’s view, it was not advisable to let the girl be placed in her parents’ care as her mother was legally incapacitated and thus posed a danger to the girl’s life and health, while her father could not fully exercise his parental responsibilities owing to his mental disability. In addition, the children’s home submitted, referring to information provided by its staff (see paragraph 18 below), that at the time it would be very stressful for the second applicant to be transferred to her parents’ family.

(a) Written evidence

  1. In the proceedings before the District Court, the children’s home produced undated reports by its staff. They stated that the second applicant had difficulties in communicating with her parents and that she felt fear, anxiety and emotional stress in their presence.
  2. The first applicant relied on the following pieces of written evidence.
  3. In a certificate dated 24 December 2009 the children’s home stated that the second applicant was in their care and that the first applicant and Ms N.S. regularly visited her.
  4. In a certificate dated 26 May 2011 a municipal custody and guardianship agency confirmed that the second applicant was living temporarily at the children’s home at the first applicant’s request pending the allocation of social housing to him, and that he visited her there.
  5. A report dated 10 October 2011 by a panel of experts contained the results of a medical psychiatric examination of the first applicant that had been carried out with a view to determining whether he could be discharged from the care home and bring up his child. The report described him as a fully focused, sociable person with reduced intelligence. According to the report, the first applicant was well presented, readily engaged himself in conversation and could read, write and do arithmetic. He was able to cook and kept his room in the care home clean and orderly. The report also mentioned that he talked about his daughter with tenderness and love, proudly demonstrated her «achievements», showed clothes and toys bought for her, and regularly visited her. He was planning to take her home as soon as he was provided with social housing. The report also stated that throughout his stay at the care home the first applicant had worked there and saved money over several years; he would therefore be able to support his daughter financially. The report concluded that he could be discharged from the care home and that his state of health enabled him to fully exercise his parental authority.
  6. A report dated 8 February 2012 by the custody and guardianship authority described the living conditions in the first applicant’s flat as appropriate for his daughter. It stated, in particular, that the flat had recently been renovated, was clean and light, had all the necessary furniture and home appliances, and that there was a sleeping place for the child with clean bed linen. There were toys and books suitable for her age, and clothes appropriate for the season. There was also a separate desk equipped for the child.
  7. A letter dated 14 February 2012 issued by the care home to the District Court again confirmed that the first applicant regularly visited the second applicant at the children’s home, that he bought clothes for her and that he discussed with the management of the care home the steps he could take on his own to ensure the girl received a good upbringing, financial support, health care and an education. When concluding the social tenancy agreement for the flat allocated to him, the first applicant had himself found out which documents he would need to register the girl at kindergarten, had collected those documents and had put her on a waiting list for a place. The letter also stated that the first applicant’s medical examination had not revealed any contradictions to his upbringing of the second applicant; he was a well-organised and reliable person who had realistic life plans and a responsible attitude towards his work and obligations. His psychiatric state was stable; he did not show any signs of aggression towards others or emotional instability and did not need any medical treatment.

(b) Oral submissions and witness statements

  1. At the hearing before the District Court, the first applicant’s representative contested the children’s home’s application as groundless and discriminatory as being based on the fact that the first applicant had an intellectual disability. He argued, with reference to the adduced evidence (see paragraphs 20 — 24 above), that the first applicant was fully able to exercise his parental authority and take care of his daughter. He pointed out that the first applicant had recently been discharged from the care home and lived in a separate flat, where the conditions were adequate and suitable for the second applicant to live in. The first applicant’s lawyer thus insisted that the second applicant should be transferred into his care. He argued that the transfer could be performed gradually, to enable the girl to get used to the changes in her life, while the competent social care agencies could assist the first applicant in exercising his parental authority and monitor the family and, in particular, the second applicant’s life and upbringing.
  2. Representatives of the children’s home (its director and the doctor in charge of the second applicant’s treatment) maintained the claim, arguing that it was premature to transfer the girl into the first applicant’s care. They stated, in particular, that the first applicant had a mental disability and had lived for all his life in a closed specialist institution; he would therefore be unable to ensure proper hygienic care of the girl or her adequate development, while it was impossible to entrust any such care to the second applicant’s mother as she was legally incapacitated. The representatives of the children’s home also stated that the first applicant’s attempts to communicate with the second applicant clearly showed that there was no contact between them. They added that when the second applicant had been told for the first time that she might be transferred into her father’s care, she had been stressed, scared and afraid of approaching him; later, when she had realised that she would be staying at the children’s home, her fears had disappeared. They also stated that at the time the second applicant’s fear of her parents had passed, and that she ceased fearing living with her family.
  3. A representative of the municipal custody and guardianship authority and a public prosecutor both maintained the children’s home’s application, arguing that in view of the first applicant’s diagnosis, and the fact that his partner Ms N.S. had no legal capacity, it was not safe to transfer the second applicant into their care, and that two parents with mental disabilities would be unable to ensure the girl’s harmonious development.
  4. The District Court also heard evidence from Ms O., a care home employee, who stated that whilst at the home the first applicant had lived independently in a separate room, which he had kept in order. He had bought food and cooked for himself and had been able to take prescribed medicines unsupervised if given clear instructions. He had worked part-time at the home, helping to take care of its patients, and had always been able to establish good contact with the patients and their relatives. He had been allowed to leave the care home freely and had also worked part-time outside, and at some point he and Ms N.S. had lived together at her relatives’ place for a while, and had then returned to the care home. Ms O. expressed her certainty that the first applicant would be fully able to fulfil his parental obligations and take good care of the second applicant.

(c) Judgment of 20 March 2012

  1. On 20 March 2012 the District Court examined the children’s home’s claim. It observed, in particular, that the first applicant and Ms N.S. regularly visited the second applicant at the children’s home and attempted to communicate with her in the presence of the social workers, and that the first applicant had obtained a compulsory medical insurance certificate for her. The court also referred to the report of 8 February 2012 regarding the first applicant’s living conditions and noted, more specifically, that the first applicant had carried out repairs at the flat allocated to him, had equipped a room for a child, and had registered the second applicant at the address.
  2. The District Court went on to note that if the children’s home’s application to restrict the first applicant’s parental authority were to be dismissed, the first applicant would be entitled to take his daughter into his care. However, the court considered that at the time it would be «undesirable» as it would not be in the child’s best interests. It noted, with reference to the reports by staff members of the children’s home (see paragraph 18 above) and similar statements by the representatives of the children’s home made at the hearing (see paragraph 26 above) that at present the girl felt anxious in the presence of her parents and had difficulties in communicating with them. The court therefore considered that «it would be stressful for the child to be placed with the family of her parents, who she had never lived with and had so far had no chance to get used to».
  3. The District Court further observed that since childhood, the first applicant had lived in specialist State institutions for people with mental disabilities and had no skills and experience in rearing children and taking care of them. In view of the fact that he had only left an institution and started living on his own in 2012, it considered that his intention to raise his daughter by himself was premature.
  4. The court also observed that the girl’s biological mother had free access to the first applicant’s flat and noted that at present she had no legal capacity. It then noted that it «[had] no sufficient and reliable evidence that it would be safe for the child to remain with her parents, including her legally incapacitated mother».
  5. The District Court also referred to the first applicant’s mental disability and noted that «at present there was no reliable evidence showing that it would be safe for the girl to live with him». In this connection, it noted that his medical diagnosis and category of disability would make him ineligible for applying to adopt a child.
  6. Lastly, the District Court observed that the first applicant’s monthly income was 15,000 Russian roubles (RUB), while the monthly living wage was RUB 6,910.90 for an adult and RUB 5,461.39 for a child. As the first applicant would have to pay utility bills and, from time to time, medicine, some of which could be costly, the court considered that at the time he would be unable to provide adequate financial support for his daughter.
  7. The District Court then referred to Article 73 of the Family Code and allowed the children’s home’s claim. It restricted, for the time being, the first applicant’s parental authority over the second applicant. The court added that by virtue of Article 76 of the same Code the first applicant would be able to apply to court to have the restriction of his parental authority lifted, if the reasons for the restriction being imposed ceased to exist.

 

  1. Proceedings before the appellate court

 

  1. The first applicant appealed against the judgment of 20 March 2012 to the St Petersburg City Court («the City Court»).
  2. With regard to the District Court’s first argument (see paragraph 30 above), the first applicant submitted that it would in any case be stressful for the child, who had spent four years at the children’s home, to start living anywhere else, for instance with an adoptive family. As for the children’s home’s reference to the girl’s anxiety in her parents’ presence, the first applicant argued that the reports to that end by its staff (see paragraph 18 above) were out of date and could not serve as a basis for the court’s finding, as at the hearing before the first-instance court the children’s home representatives had confirmed that the second applicant was no longer afraid of her parents or of being placed in the first applicant’s care (see paragraph 26 above).
  3. The first applicant also argued that, in so far as the District Court had relied on the fact that he had lived at the care home for a prolonged period, a parent’s past or present residence in a specialist institution, there was no such ground for restricting parental authority in the Russian Family Code. Moreover, the law did not require biological parents to prove their ability to raise children or their housekeeping skills as a prerequisite for exercising their parental authority.
  4. The first applicant further insisted, with reference to the District Court’s argument to that end, that the fact the girl’s mother was legally incapacitated was of no relevance to his case. Legal incapacity was a formal status and did not mean that the person was dangerous to others. In any case, the mental health of the child’s mother could not serve as a basis for restricting his own parental authority over his daughter. The first applicant also claimed that during the second applicant’s stay at the children’s home, her mother had been allowed to visit her.
  5. The first applicant went on to argue that there had been no evidence at the District Court’s disposal proving that he posed any danger to his daughter. On the contrary, the relevant medical report by the experts of the care home, who had observed the first applicant for many years, revealed that his mental condition had not impaired his ability to fulfil his parental responsibilities (see paragraph 22 above).
  6. Lastly, the first applicant alleged that the District Court had erred in establishing his income, which in fact exceeded the living wage in St Petersburg. Referring to the Court’s judgment in the case of Saviny v. Ukraine (no. 39948/06, 18 December 2008) and the relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities, he also submitted that his income could not be a decisive element in the decision to restrict his parental authority.
  7. In his oral submissions before the City Court, the first applicant argued that if the children’s home’s claim was rejected, the transfer of the second applicant into his care could be gradual to enable her to adapt psychologically to her new life in the family.
  8. On 17 July 2012 the City Court upheld the judgment of 20 March 2012 on appeal. It repeated the reasoning and conclusions of the District Court, stating that they were correct and accurately reflected the factual circumstances of the case. The appellate court considered that the first applicant «had not adduced convincing evidence proving the absence of a real risk to the second applicant’s life, health and adequate upbringing» if she was transferred into her father’s care. It also noted that the first applicant was not precluded from seeking an annulment of the restriction of his parental authority in the future, should the relevant circumstances change.
  9. On 31 January 2013 a St Petersburg City Court judge returned without examination a cassation appeal by the first applicant against the court decisions of 20 March and 17 July 2012, as he had failed to enclose a duly certified copy of the judgment of 20 March 2012. He did not attempt to pursue the cassation proceedings any further.

 

  1. Further developments

 

  1. After the present application was communicated to the respondent Government, they submitted information on factual developments in the case.
  2. In particular, by a judgment of 20 September 2012, the Zelenogorskiy District Court of St Petersburg restored, with reference to a psychiatric report, Ms N.S.’s legal capacity. The judgment entered into force on 25 October 2012.
  3. On 15 November 2012 the first applicant remarried Ms N.S.
  4. By an order of 9 January 2013 the children’s home established rules concerning the admission of visitors. According to the Government, on the basis of that order the first applicant regularly and without any limitations visited the second applicant there.
  5. On an unspecified date the first applicant brought civil proceedings against the children’s home in the District Court of St Petersburg, seeking to have the restriction of his parental authority over the second applicant lifted. He argued, in particular, that one of the grounds for imposing that restriction had been the second applicant’s anxiety and fear she had felt in his presence and her unwillingness to live with him. He pointed out that at present the second applicant had no fear of her parents, that she had developed an affective attitude towards him, considered him as her father and was ready to live with him. He also pointed out that since February 2012 he had been living on his own and maintaining a household and that he was employed and had a stable income. He also submitted that the legal capacity of the second applicant’s mother, Ms N.S., had recently been restored. In the first applicant’s view, therefore, there was no reason to continue to restrict his parental authority over the second applicant which prevented him from taking her from the children’s home.
  6. A representative of the children’s home confirmed in court that the first applicant regularly visited the second applicant, that close emotional ties had formed between them and that the girl missed her father when he left. He was therefore of the opinion that it would be in the second applicant’s interests to lift the restriction on the first applicant’s parental authority and transfer her into his care. Representatives of two district custody and guardianship agencies and a public prosecutor supported the first applicant’s application.
  7. On 8 April 2013 the District Court gave its judgment. It took into account the parties’ arguments and observed, as had been submitted by a representative of the children’s home, that the first and second applicants had developed close emotional ties, that at present the girl felt comfortable and calm in her father’s presence and that she missed him whenever he left the children’s home. It also observed that from February 2012 onwards the first applicant had been living independently in a separate flat, where the second applicant was also registered. The court noted that the conditions were good and suitable for the second applicant to live in. It also had regard to the fact that the first applicant was employed and had received positive references from his place of work and place of residence.
  8. The District Court further noted that the first applicant had a stable monthly income of approximately RUB 19,000. The living wage being RUB 7,352 for a working adult and RUB 5,802.50 for a child, the court considered that he was fully able to ensure the second applicant had adequate financial support. The court went on to note that the legal capacity of Ms N.S., who freely visited the first applicant’s flat, had by that time been restored and that the first applicant had himself submitted a medical report dated 5 March 2013 which confirmed that he was fully able to take care of his child.
  9. The District Court therefore concluded that the restriction of the first applicant’s parental authority was no longer justified, as the reasons it had relied on in its previous judgment of 12 March 2012 were no longer valid. With reference to Article 76 of the Russian Family Code, the court thus allowed the first applicant’s application and ordered that the restriction of his parental authority over the second applicant be lifted and that she be transferred into his care. The judgment was not appealed against and entered into force on 17 May 2013.
  10. On 20 May 2013 the first applicant took the second applicant from the children’s home to his home address, where she has been living ever since.

 

  1. Relevant domestic law

 

  1. On 9 December 2010 the relevant parts of the Russian Code of Civil Procedure concerning the review of judgments delivered by the courts of first instance were amended by Federal Law no. 353-FZ, with effect from 1 January 2012. Article 376 of the Code of Civil Procedure provides that judgments delivered by the courts of general jurisdiction may be challenged in cassation appeal proceedings within six months of the date on which they become legally binding.
  2. The relevant parts of the Russian Family Code of 1995 provide as follows:

Article 73: Restriction of Parental Authority

«1. A court may, in the interests of the child, decide to remove [him or her] from his [or her] parents (or one of them) without depriving them of their parental authority (a restriction of parental authority).

  1. A restriction of parental authority is allowed when leaving the child with his [or her] parents (or one of them) is dangerous for the child due to circumstances beyond the parents’ control (or one of them) such as mental illness or other chronic disease, a combination of difficult circumstances, and others.

A restriction of parental authority is also possible in cases where leaving a child with his or her parents (or one of them) is dangerous for the child on account of their behaviour, but sufficient grounds for depriving the parents (or one of them) of their parental authority have not been established. If the parents (or one of them) do not change their behaviour, the custody and guardianship authority is under an obligation to apply for the parents to be deprived of their parental authority within six months of the court decision restricting the parental authority. Acting in the interests of the child, the authority may lodge the application before that deadline…»

Article 74: Consequences of a Restriction of Parental Authority

«1. Parents whose parental authority has been restricted by a court shall lose the right to bring up the child themselves, and the right to the privileges and State allowances granted to citizens with children.

  1. A restriction of parental authority shall not relieve parents of their duty to maintain the child.
  2. A child whose parents’ parental authority (or that of one of them) are restricted shall retain ownership of any accommodation or the right to use [it], and also property rights based on his [or her] kinship with his [or her] parents and other relatives, including inheritance rights.
  3. If the parental authority of both parents has been restricted, the child shall be placed in the care of the custody and guardianship authority.»

Article 75: The Child’s Contact with Parents whose Parental Authority Has Been Restricted by a Court

«Parents whose parental authority has been restricted by a court may maintain contact with the child if it has no harmful impact on [him or her]. Contact is permitted with the consent of the custody and guardianship authority, the child’s guardian (trustee), his [or her] foster parents or the authorities of the institution in whose care the child is placed.»

Article 76: Lifting a Restriction of Parental Authority

«1. If the grounds on which one or both parents’ parental authority has been restricted cease to exist, the court may, on the application of the parents (or one of them) decide to return the child to one or both parents and lift the restrictions stipulated in Article 74 of this Code.

  1. The court may, taking into account the child’s opinion on the matter, refuse to allow the application if the child’s return to one or both parents is not in his [or her] interests…»

 

III. International law instruments

 

  1. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)

 

  1. The convention came into force on 3 May 2008. It was ratified by Russia on 25 September 2012. In its relevant part, the convention provides as follows:

Article 5 — Equality and non-discrimination

«1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

  1. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
  2. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
  3. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.»

Article 23 — Respect for home and the family

«1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:

  1. The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;
  2. The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;
  3. Persons with disabilities, including children, retain their fertility on an equal basis with others.
  4. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.

  1. 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 separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.

…»

 

  1. Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (Resolution 44/25)

 

  1. The relevant parts of the convention read as follows:

Article 3

«1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

…»

Article 9

«1. 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 separation is necessary for the best interests of the child…

  1. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

…»

 

THE LAW

 

  1. The Court will deal with the preliminary matters in the case before considering the applicants’ complaints concerning the allegedly unjustified and discriminatory restriction of the first applicant’s parental authority over the second applicant.

 

  1. The Government’s objections on the admissibility of the application

 

  1. Compliance with the six-month rule

 

  1. The Government argued that the present application had been lodged outside the six-month period set forth in Article 35 § 1 of the Convention. They submitted that the final decision in the applicants’ case had been taken by the St Petersburg City Court on 17 July 2012, and it was from that date that time had started running. By lodging their application on 17 January 2013, the applicants had missed the time-limit by one day.
  2. The applicants disagreed with the Government. They argued that under the Court’s well-established case-law, the six-month period ran from the day following the date on which the final decision was pronounced in public or on which the applicant or his representative were informed thereof. In view of the fact that the final decision had been pronounced by the St Petersburg City Court on 17 July 2012, the period for lodging the application had started to run on 18 July 2012 and had expired on 17 January 2013, the date on which the present application had been sent. The applicants therefore insisted that they had complied with the six-month rule.
  3. The Court observes that for the purposes of calculating the six-month period, both parties relied on the decision of the St Petersburg City Court of 17 July 2012 as being «final», within the meaning of Article 35 § 1 of the Convention. They disagreed, however, as to the exact date on which that period started running. The Court reiterates in this connection that the date on which the final domestic decision is pronounced is not counted in the six-month period referred to in Article 35 § 1 of the Convention. Time starts to run the day following the date on which the final decision has been pronounced orally in public, or on which the applicant or his representative were informed thereof, and expires six calendar months later, regardless of the actual duration of those calendar months (see, among other authorities, Nelson v. the United Kingdom, no. 74961/01, §§ 12 — 13, 1 April 2008; Otto v. Germany (dec.), no. 21425/06, 10 November 2009; and Bajsultanov v. Austria, no. 54131/10, §§ 53 — 54, 12 June 2012). The Court thus accepts the applicants’ argument that the six-month period in the present case started running on 18 July 2012 and expired on 17 January 2013, the date on which the present application was sent.
  4. The Court is satisfied that the application was lodged with the Court within the six-month period. The Government’s relevant objection should therefore be dismissed.

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