CASE OF N.P. AND V.P. v. BULGARIA

THIRD SECTION

CASE OF N.P. AND V.P. v. BULGARIA

(Application no. 57184/22)

JUDGMENT
 

STRASBOURG

27 May 2025

This judgment is final but it may be subject to editorial revision.

In the case of N.P. and V.P. v. Bulgaria,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Peeter Roosma, President,
 Diana Kovatcheva,
 Canòlic Mingorance Cairat, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 57184/22) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 December 2022 by two Bulgarian nationals, N.P. and V.P. (“the applicants”), who were born in 1983 and 2018 respectively, live in Sofia and were represented by Ms E. Nedeva, a lawyer practising in Plovdiv;

the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Ms M. Ilcheva, of the Ministry of Justice;

the decision not to have the applicants’ names disclosed;

the parties’ observations;

Having deliberated in private on 6 May 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged failure, under Article 8 of the Convention, of the authorities to comply with their positive obligations to enable the effective exercise of family ties between the applicants, a father (the first applicant) and his daughter (the second applicant), between February 2020 and June 2023, when they had almost no contact with each other, despite the father holding joint custody of the child with the child’s mother.

2.  The first applicant and the child’s mother lived in the United Kingdom (“the UK”) when the child was born in early 2018. In December 2019 the mother left the UK for Bulgaria, taking the child, and ceased all contact with the first applicant. Thereafter, he and the mother each pursued numerous proceedings before different courts and other authorities, both in the UK and in Bulgaria, which are reflected below insofar as relevant.

3.  On 31 December 2019 the first applicant withdrew his agreement for the child to travel with her mother outside Bulgaria.

4.  He complained to the prosecutor about the child having been put in danger by the mother and maternal grandparents; the prosecutor twice refused to open criminal proceedings, finding the dispute between the parents was of a civil nature, and once opened proceedings into the child having been taken unlawfully out of the country but suspended them subsequently. Faced with obstruction by the mother whose address he did not know, the first applicant recurrently sought police assistance with finding the child. The police repeatedly unsuccessfully attempted to locate the child and declared her a wanted person several times. When the mother reported to a police station with the child in March 2021, informed them that the child was in her care and well and gave an address at which she claimed they both lived, the police took the child off the search list. The first applicant turned to social services, asking for assistance with reestablishing contact with his daughter. A case was opened, a risk of parental alienation was established and the authorities recurrently attempted to contact the mother to work with her towards her accepting contact between the applicants; their related attempts were unsuccessful.

5.  On 4 February 2020 the first applicant brought divorce proceedings before the Varna District Court, requesting contact rights with the child. After the mother had challenged its jurisdiction, the case was sent to the Plovdiv District Court on 19 October 2020. The first applicant sought interim measures on contact, respectively in September and November 2020, and on 15 January 2021, referring to his prolonged separation from his child and parental alienation risk; the courts did not rule on those applications. On 11 November 2020 he asked for custody of the child.

6.  On 15 January 2021 the mother started proceedings before the Sofia City Court (“the City Court”) under the Hague Convention on the Civil Aspects of International Child Abduction (“the return proceedings”). She claimed the child had been unlawfully retained in Bulgaria (see paragraph 3 above) and sought a court order for her return to the UK. Social services issued reports, confirming communication between the parents had been disrupted. On 14 June 2021 the first applicant requested contact with the child, including by video or telephone and facilitated by social services, as an interim protective measure under section 22b of the Child Protection Act (under it the court could – proprio motu or upon a request, and for the duration of the return proceedings – determine an appropriate interim measure to avert danger to a child or damage to the parties). The City Court found that his request was admissible but rejected it on the merits on 9 July 2021. It held no danger existed for the child as the risk of parental alienation was only hypothetical, given that a crisis or a conflict between the applicants had not been shown to exist. Additionally, access rights more generally could not be determined in return proceedings. On 3 December 2022 the City Court terminated the return proceedings, as the mother had taken the child out of Bulgaria.

7.  In February 2021 the mother had challenged the Plovdiv District Court’s jurisdiction on the ground that she had brought divorce proceedings in the UK earlier. On 15 July 2021 the Plovdiv District Court suspended the case before it, finding that the return proceedings’ outcome (see paragraph 6 above) would be decisive for the other pending judicial proceedings between the parties regarding custody and contact rights. The Plovdiv Regional Court (“the Regional Court”) confirmed the suspension in February 2022.

8.  On 27 July 2022 the first applicant applied for interim measures on contact before the Regional Court, emphasising he had not seen his daughter for over two years despite numerous attempts.

9.  On 15 September 2022 the police informed him that his daughter was in the UK, as she had apparently been taken unlawfully out of the country by her mother and maternal grandparents in June 2022.

10.  In November 2022 a UK court granted the first applicant’s request under the Hague Convention, which he had made in the UK in August 2022, ordering the child’s return to Bulgaria. The child returned to Bulgaria in December 2022 with her maternal grandparents, who took her to an unknown location.

11.  On 12 June 2023 the police, having located the child at a dwelling of her maternal grandparents’, removed her and placed her in residential care. The first applicant collected her the same day and has lived with her ever since.

12.  On 11 August 2023 the Plovdiv District Court granted the first applicant’s latest request for interim measures (see paragraph 8 above), giving him interim custody.

13.  In October 2023 the UK court terminated the divorce and custody proceedings before it, and in June 2024 the Plovdiv District Court granted divorce and awarded custody of the child to the first applicant.

THE COURT’S ASSESSMENT

14.  The Government claimed the application was inadmissible on the following grounds.

15.  The applicants had lost victim status. This was the result of several favourable measures, which had culminated in the applicants living together since June 2023, and of the adoption of legislative provisions (in the Family Code and the Code of Private International Law) respectively in August 2023 and 2024.

16.  The first applicant had failed to exhaust domestic remedies. He had not brought proceedings under Article 126 of the Family Code, under which a court could order the return of a minor child who had left, or had been taken from, a parent’s home. He had also failed to seek deprivation of custody of the mother, and to bring tort proceedings against her.

17.  Finally, the application was manifestly ill-founded because the authorities’ actions had been neither arbitrary nor unfair.

18.  For the Court, as the complaint concerns the lack of contact between the applicants between early 2020 and June 2023, subsequent favourable measures do not suffice, in the absence of an explicit recognition of a Convention violation and adequate redress (see Ochigava v. Georgia, no. 14142/15, § 48, 16 February 2023, and, for a similar approach, Pavlovi v. Bulgaria [Committee], no. 72059/16, § 7, 1 February 2022).

19.  Since the first applicant had held joint custody with the mother at the time (who it was not alleged had abandoned the child at the grandparents’ home) and the authorities had been continually unable to locate the child in Bulgaria, a claim under Article 126 of the Family Code was not the remedy to be exhausted, in view of his numerous court requests for interim measures on contact which had addressed his essential grievance (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019). As the complaint is about the applicants’ prolonged inability to see each other, and he had modified his claim by seeking custody and not only contact rights (see paragraph 5 above), requesting the mother’s deprivation of custody was not necessary. Finally, a purely compensatory remedy, such as a tort claim, is not adequate in cases where applicants complain of a breach of their family life as a result of lack of measures to facilitate contact between them (see Macready v. the Czech Republic, nos. 4824/06 and 15512/08, § 48, 22 April 2010).

20.  The last objection (see paragraph 17 above) is so closely connected to the substance of the complaint that it should be joined to the merits. The complaint is not inadmissible on any other grounds and must therefore be declared admissible.

21.  The general principles concerning contact between children and parents have been summarized, among others, in Improta v. Italy (no. 66396/14, §§ 43-45, 4 May 2017).

22.  The complaint is about the alleged prolonged failure of the authorities to apply adequate measures to enable contact between the applicants. The first applicant and the mother both held custody over the second applicant during the period in question (2020-2023), but the mother had been effectively hiding the child from him and from the authorities. In the circumstances, a decision on contact between the applicants had to be taken by the civil courts (Articles 59 § 2 and 127 § 2 of the Family Code).

23.  The first applicant turned to the Varna District Court, seeking to be awarded contact rights, both at the end of the divorce proceedings and as an interim measure; he made two such requests for interim measures before the Plovdiv District Court (see paragraph 5 above). He also asked the City Court to order, as an interim protective measure, contact between him and his child pending the return proceedings (see paragraph 6 above) and subsequently turned to the Regional Court with a related request (see paragraph 8 above). The Court has to ascertain whether the domestic courts’ decision-making process was capable of securing the applicants’ rights under Article 8.

24.  It is not necessary to pronounce on the question at which point and in which proceedings the Bulgarian courts, seized by the first applicant with a request to rule on interim contact with his child, should have acted differently: in the context of the proceedings concerning custody and access, or of the return proceedings, given that the Plovdiv District Court had held that the latter had been decisive for any of the first applicant’s related claims (see paragraph 7 above). The return proceedings took almost two years to complete (see paragraph 6 above). In cases concerning a person’s relationship with his or her child, the procedural requirements implicit in Article 8 establish a duty to exercise exceptional diligence in view of the risk that the passage of time may result in a de facto determination of the matter (see Furman v. Slovenia and Austria, no. 16608/09, § 110, 5 February 2015). Significantly, when invited by the first applicant to rule on protective interim measures, the City Court declined in July 2021, despite the accumulation by then of a year and a half during which the applicants had had no contact with each other and the potential damaging consequences of such prolonged separation for their relationship, especially given the child’s low age. It is difficult to discern a satisfactory explanation by the City Court (see paragraph 6 above) in respect of the delay in ensuring contact rights, which was at the centre of the first applicant’s requests.

25.  Next, in July 2021 when the Plovdiv District Court stayed the proceedings on custody and access without pronouncing on interim contact between the applicants (see paragraph 7 above), the first applicant had already sought related interim measures twice before it and once before the Varna District Court which had also remained silent on the issue (see paragraph 5 above). It is striking that, even after the first applicant had made a fourth request for interim measures (see paragraph 8 above), the court took more than twelve months to rule on it (see paragraph 12 above) when the statutory time-limit was a maximum of two weeks (Article 323 of the Code of Civil Proceedings).

26.  In view of the circumstances – namely that the divorce and custody proceedings, and the return proceedings, unavoidably affected the conduct of a relationship between a parent and a minor child who had been separated for a prolonged period of time – the courts should have acted with exceptional diligence (see Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015). To protect the best interests of the child the domestic courts should have speedily and adequately responded to the specific dynamics of the situation and not waited for the conclusion of the return proceedings (see, mutatis mutandis, M.H. v. Poland, no. 73247/14, § 78, 1 December 2022). In order to prevent a situation in which the passage of time determines a matter rather than, or despite, the competent judicial authorities, a ruling on interim contact, pending the outcome of the other proceedings, should have been made much more rapidly than it was (compare M.H. v. Poland, cited above, §§ 79-80). Consequently, the domestic authorities failed to act with requisite diligence. This conclusion is not affected by the fact that the applicants were ultimately reunited and have been living together since June 2023.

27.  The Court accordingly rejects the Government’s inadmissibility objection previously joined to the merits and finds that there has been a violation of Article 8 of the Convention.

28.  The applicants also raised a complaint, under Article 13 of the Convention in conjunction with Article 8, about the lack of an effective domestic remedy. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that the effectiveness of the measures pursued by the authorities in the context of protecting the applicants’ right to family life was examined under Article 8 above. Accordingly, no separate issue arises under Article 13 (compare Aneva and Others v. Bulgaria, nos. 66997/13 and 2 others, § 128, 6 April 2017).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  The applicants each claimed 50,000 euros (EUR) in respect of non‑pecuniary damage. They jointly claimed EUR 3,537.20 in respect of costs and expenses incurred before the Court, and EUR 8,961.80 in costs and expenses incurred in the domestic proceedings.

30.  The Government disputed the above sums as excessive and unjustified.

31.  The impossibility for the applicants to maintain contact with each other over the period in question must have caused them frustration and suffering. The Court awards the applicants jointly EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to them.

32.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicants jointly EUR 3,700 covering costs under all heads, plus any tax that may be chargeable to them. This sum comprises EUR 2,500 in respect of costs and expenses incurred before the Court and EUR 1,200 incurred in the domestic proceedings.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, jointly, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 3,700 (three thousand seven hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 27 May 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Peeter Roosma
 Deputy Registrar President