Resolution CM/ResDH(2012)162[1]
Bevacqua against Bulgaria
Execution of the judgment of the European Court of Human Rights
(Application No. 71127/01, judgment of 12 June 2008, final on 12 September 2008)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established (see document DH-DD(2012)922E);
Recalling that the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;
Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)922E);
Having satisfied itself that all the measures required by Article 46§1 have been adopted;
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Action report
Case of Bevacqua and S v. Bulgaria, application no. 71127/01, judgment of
12 June 2008, final on 12 September 2008
The applicants in this case are mother and son. The case concerns the authorities’ failure to take appropriate action in the context of the first applicant’s divorce proceedings in 2000‑2002, and in particular their failure to decide rapidly on interim custody measures concerning the second applicant, a minor at the time, and to impose sanctions or otherwise react adequately to the father’s unlawful and violent behaviour. The European Court concluded that the authorities had failed to ensure respect for the private and family life of the two applicants, in violation of Article 8 of the Convention.
1) INDIVIDUAL MEASURES
-The European Court awarded jointly to the two applicants EUR 4,000 for non‑pecuniary damage, which the Government paid on 5 December 2008.
-The divorce proceedings between the first applicant and her former husband ended in 2002 and the first applicant obtained custody of the child (§ 37 of the judgment). At the time of the judgment both applicants (mother and son) were already living abroad.
The Government is of the view that no further individual measures are necessary to erase the consequences of the violation of the applicants’ rights.
2) GENERAL MEASURES
The violation of Article 8 found by the Court resulted from imperfect legislation, which did not took into account the need to take special measures to protects persons in a vulnerable position like the applicants’. Since the time of the relevant events (2000-2002) new legislation has been enacted, providing for the necessary care.
-Concerning interim custody measures: At the relevant time, interim measures in divorce proceedings were regulated by the Code of Civil Procedure of 1952, in force until 2008, which did not provide for any special time-limits for examining requests for such measures. At present, the matter is regulated by the new Code of Civil Procedure of 2008, in which special care has been taken to ensure speedy decisions in the matter, Article 323 § 2 of the Code providing now that the courts are to decide on these measures at the same hearing where the respective measure has been requested. In cases where it is necessary to gather additional evidence, the courts are to schedule a new hearing within two weeks. The decision on interim measures is not amenable to appeal but can, at a request by the parties, be modified by the court which has given it – this can be the first-instance or the appellate court.
-Concerning protection from conjugal violence: The Protection Against Domestic Violence Act was adopted in 2005 and provides for administrative and policing measures in cases of physical, psychological or sexual violence in the home. In particular, it provides that the courts may issue injunctions or take other measures to remove the perpetrator from the common home, ban them from approaching the victim’s home, workplace or place of social contacts, temporarily remove the child from the custody of the perpetrator, or impose compulsory education programs. The courts can also fine the perpetrator. Failure to comply with measures imposed on the perpetrator may result in arrest and prosecution. The courts are to take the measures provided for in a speedy manner. In urgent cases they can order interim measures, which are to be decided on within 24 hours. The Act also provides for measures of prevention and rehabilitation of the victims, and for co-operation of the authorities with non-governmental organisations. In the Government’s view, this legislation is compatible with Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe (§§ 49-50 of the judgment), in so far as it relates to the problems identified in the present case. Since the Act’s adoption the measures provided therein have often been sought and applied by the national courts, which have developed significant jurisprudence in that regard.
In addition, the Child Protection Act of 2000 created a State Child Protection Agency and regional Social Care Offices, which are competent, inter alia, to take protection measures in respect of children in danger. They are empowered to act immediately and under an obligation to work in the best interests of the child.
The Government is thus of the view that no further general measures are necessary in the case.
[1] Adopted by the Committee of Ministers on 6 December 2012 at the 1157th Meeting of the Ministers’ Deputies.
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