Communicated on 14 December 2015
FIFTH SECTION
Application no. 66997/13
Vladimira Angelova ANEVA and Mihail Antonov IVANOV
against Bulgaria
lodged on 8 October 2013
STATEMENT OF FACTS
The applicants, Ms Vladimira Angelova Aneva and Mr Mihail Antonov Ivanov, are Bulgarian nationals, who were born in 1981 and 2002 respectively and live in Sofia. They are mother and son. Both applicants are represented before the Court by Mr A. Kashamov, a lawyer practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
The first applicant married A.I. in 2001 and their son, the second applicant, was born in 2002. It is submitted that the first applicant’s husband started abusing her psychologically after the marriage and this intensified after the child was born.
2. Proceedings for interim measures
The first applicant filed for divorce in 2004, seeking also custody over the child. She applied for interim measures in the same proceedings, asking the court to grant her the exercise of parental rights while the proceedings were pending. At the time both applicants were living together in the apartment of the first applicant’s parents, both of them having been shut out of the family home by A.I.
The Sofia District Court granted the first applicant’s request for interim measures on 11 May 2005. This decision became final and enforceable on 25 May 2005.
In the meantime, in January 2005, the first applicant let the second applicant visit his father for two days. After that A.I. brought the child to his mother and insisted that they both return to live with him. When the first applicant refused, he put the child back in the car and drove away telling her that she could only see her son at his apartment.
A.I. has kept the second applicant with him ever since, hidden from the first applicant.
3. Divorce proceedings
On 23 June 2006 the first instance court pronounced the divorce between the first applicant and A.I., finding that the latter had been responsible for the failure of the marriage. It granted custody of the child to the first applicant and limited A.I.’s contact rights to two hours twice a month in the presence of the mother and another adult designated by her. This decision was confirmed on appeal and cassation and became enforceable on 1 October 2008.
4. Enforcement proceedings
(a) Enforcement of the interim measures
On 13 May 2005 the first applicant obtained a writ of enforcement on the basis of the decision on interim measures. She brought enforcement proceedings later the same month.
The bailiff scheduled the handing of the child to the first applicant for 4 September 2005. The attempt was unsuccessful as A.I. did not cooperate. On 19 September 2005 the bailiff fined A.I. with about EUR 25 for failing to comply with a judicial decision. Subsequently, she imposed several more sanctions on him for lack of cooperation, without effect.
A.I. turned up before the bailiff on 20 October 2006 and challenged her for having fined him. He then threatened her that, as soon as she left her office premises that day, he – as a police officer – would fine her for wrongfully crossing the street. As a result of this conduct A.I. was fired from the police on 17 January 2007; the order for his dismissal referred to his systematic obstruction of the enforcement of a final judicial decision as well as to his conduct having damaged the image of the police.
On 22 November 2006 the Sofia District Court ordered, on the basis of Article 71(1) of the Family Code 1985, that the child be removed from A.I.’s home and handed over to the first applicant. On 4 January 2007 the first applicant, accompanied by a lawyer and several police officers, went to the village where A.I was keeping the child and spoke both to A.I. and to the latter’s father. A.I. categorically refused to hand the child over and thus to comply either with the court order of 22 November 2006 or the decision on interim measures of May 2005.
(b) Enforcement of the final custody judgment
The first applicant obtained a writ of enforcement in October 2008 in respect of the decision pronouncing the divorce and granting custody to her.
On 14 July 2008, 5 August 2008, 20 August 2008, 11 December 2008, 5 March 2009, 2 September 2009 and 22 December 2009 the bailiff unsuccessfully attempted to hand the child over to the first applicant. On those occasions A.I. either did not turn up to the appointments or did not bring the child to them. In particular, when the bailiff and the first applicant visited his house on 11 December 2008, A.I. had left on his front door a note, addressed to the first applicant and all accompanying individuals, stating that he was firmly opposed to handing the child to her.
On 30 December 2009 the Pazardzhik District Court suspended the enforcement proceedings brought by the first applicant in relation to the final judgment of 1 October 2008. The court did so in response to A.I.’s request for interim measures (обезпечителни мерки) in the context of proceedings he had brought seeking the limitation of the first applicant’s parental rights. The court found that it was in A.I.’s interest to suspend the enforcement until the final resolution of the question concerning the exercise of paternal rights over the child. Suspending the enforcement was also in the interest of the child, the court reasoned, as handing him over repeatedly back and forth between the two parents was to his detriment. The decision indicated that it was subject to appeal within a week and that an appeal did not suspend the enforcement of the order on interim measures. It is unclear how these proceedings developed. At the time of the application the applicants continued to be separated.
Between April 2008 and April 2010, representatives of the social services, accompanied by the police and the mayor, visited repeatedly the address in the village where A.I. lived with the second applicant. They also met with the child’s teachers and his paternal grandparents, and organised multidisciplinary meetings between different professionals working with children. On 20 April 2010 the social services sent a report to the police in which they concluded that A.I. was caring appropriately for the second applicant and was providing him with emotional warmth, security and mental and physical stimulation. However, for the child’s healthy development he had to have contacts with his mother; both parents’ voluntary undertaking to cooperate was essential for achieving this.
5. Other proceedings
(a) Criminal proceedings against A.I.
The first applicant brought criminal proceedings against A.I. for obstructing the enforcement of both decisions on the exercise of parental rights, that of 2005 and that of 2008.
On 13 July 2009 the first instance court found A.I. guilty of obstructing the implementation of final judicial decisions. The court observed that A.I. demonstrated a belief that he was beyond the reach of the justice system and benefitted from impunity for his actions. The court also held that the particularly long period during which A.I. had retained the child, namely between the latter’s third and seventh year of age, was an aggravating circumstance. Nonetheless, the court absolved A.I. of criminal responsibility and fined him with about EUR 2,400 instead.
This decision was confirmed on appeal by the Pazardzhik Regional Court on 8 October 2009 in a final judgment.
(b) Domestic violence proceedings
The first applicant brought proceedings for establishing domestic violence on the part of A.I. In August 2008 the first instance court granted the request and ordered A.I. to enrol in specialised counselling programmes. On appeal, the Pazardzhik Regional Court quashed this decision in its entirety and refused the first applicant’s request for protection measures vis‑à-vis A.I.
(c) Police protection of the applicants
On 17 December 2009 the Supreme Administrative Court quashed an earlier police refusal to provide protection to the second applicant and ordered the police to determine the optimal way in which this should happen, bearing in mind that the objective was to prevent the child from being party to the offence of not complying with a final judgment. The social services assisted the police with organising such protection which was scheduled to take the form of handing over the child to the first applicant on 14 January 2010. However, this was not carried through because the child refused to go with his mother.
On 24 February 2010 a non-governmental organisation active in the field of family rights and involved in the second applicant’s case complained to the police about them not having done anything to implement the administrative court judgment on police protection of 17 December 2009.
On 10 May 2010 the social authorities reported to the police about a meeting they had organised a week earlier with representatives of several different local social protection centres working with minors. The group concluded that the second applicant’s life and health were not in danger; consequently, it was unnecessary to forcefully remove him from his father’s care. Furthermore, as the second applicant was not a child at risk, ordering police protection in respect of him would be unlawful. In addition, the related request was inadmissible as submitted by a third party and not the mother, the latter not having showed any interest in the child over the previous three years. Finally, the child had refused voluntarily to follow his mother when an attempt to hand him over to her had been made.
In view of the above, the group recommended that the child be left to live with A.I., pending a final judicial decision on a change of custody which the latter had sought. It also concluded that it was impossible to implement the administrative court judgment of 17 December 2009, given that this would involve the violent removal of the child from his father and that had to be avoided.
(d) Proceedings for limitation of the first applicant’s parental rights
A.I. brought proceedings asking the courts to limit the first applicant’s parental rights, given that she had demonstrated no interest towards the child. In dismissing A.I.’s claim, in a decision of 21 December 2011 the Pazardzhik Regional Court found that the first applicant had continually attempted all lawful means to obtain enforcement of the final judgment granting her custody rights over the child and that A.I. had consistently, and in breach of the law, obstructed all contacts between the two applicants. It is unclear how these proceedings ended.
B. Relevant domestic law
1. Enforcement of judgments
In accordance with Article 404 of the Code of Civil Procedure of 2008 (“the 2008 Code”) final judicial decisions can be subject to forced enforcement. Article 527 of the 2008 Code provides that if a debtor, who has to hand over a child pursuant to a final judicial decision relating to parental rights, fails to do so, the bailiff can impose fines on him or her for every failure to comply with the judicial decision. In addition, the bailiff may request assistance from the social services and municipal and police authorities. The bailiff can also take the child by force and hand him or her over to the entitled parent.
A creditor can appeal in court against a bailiff’s refusal to carry out an act requested by the creditor, or a bailiff’s decision to terminate or suspend the enforcement proceedings (Article 435 of the Code).
2. Criminal sanctions for failure to ensure contact with a child
Article 182(2) of the Criminal Code of 1968, in force at the time of the events, provides that a parent or another relative who prevents contact with a child or the enforcement of a court judgement on custody can be sentenced to probation, fined up to EUR 153 and, in severe cases, sentenced to up to six months’ imprisonment or to a fine of up to EUR 1,533. Under Article 193a of the same Code, in force until April 2010, criminal proceedings against the parent preventing contact could be brought at the request of the other parent or the person to whom contact has been granted.
3. Children’s residence
According to section 71(1) of the Family Code 1985, minor children must live with their parents. If this is not the case, the district court issues an order for the child’s return to his or her parents. The order can be appealed against before the regional court and an appeal does not suspend enforcement.
COMPLAINTS
The applicants complain under Articles 8 and 13 of the Convention about the authorities’ failure to enforce the different court decisions awarding the first applicant the exercise of parental rights either as interim measures or in a final judgment, as well as about the lack of effective remedies in this connection.
QUESTIONs TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
The parties are invited to provide information about the outcome of all relevant court proceedings, and in particular, the ones in which on 30 December 2009 the Pazardzhik District Court suspended enforcement of the judgment on custody rights of the first applicant, as well as the ones in which on 21 December 2011 the Pazardzhik Regional Court rejected A.I.’s request for limiting the first applicant’s parental rights.
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