Communicated on 15 June 2015
FOURTH SECTION
Application no. 20440/11
Tsveta Dimitrova DIMOVA and Emma Lachezarova PEEVA
against Bulgaria
lodged on 18 March 2011
STATEMENT OF FACTS
The applicants, Ms Tsveta Dimitrova Dimova and Ms Emma Lachezarova Peeva, are Bulgarian nationals, who were born in 1980 and 2005 respectively and live in Kazanlak. The first applicant is the mother of the second applicant. They are represented before the Court by Ms S. Razboynikova, 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 divorced the father of the second applicant on 22 December 2008. The court approved a divorce agreement reached by the parents according to which the mother obtained the exercise of parental rights and the father accepted contact rights, to be exercised every first and third weekend of the month, 30 days during the summer and ten days during the winter. Those rights were modified slightly in 2009 in another agreement between the parents, which stipulated that the father could only see his daughter on the territory of a town and a village specifically identified in the agreement; if he wished to take the child to another place within the country, he could do so only after giving an advance warning in writing to the mother.
2. Proceedings before the civil courts to allow the child’s travel
On 18 March 2009 the first applicant brought a claim under Article 72 of the Family Code before the Varna District Court, seeking the court’s authorisation for her child’s leaving the country in the absence of the father’s agreement. She submitted that she was in a committed relationship with a Bulgarian man who lived and worked as a ship engineer in the United Kingdom, and wished to settle down with him and her daughter there. On 30 October 2009 the court approved the father’s agreement to the issuing of a passport to the child which he had expressed during a court hearing. The second applicant was issued with a passport on 1 March 2010. The Varna District Court further rejected the first applicant’s request for the child’s unlimited travel abroad in the sole company of the mother, finding that it could not be in the interest of the child. The reasons were more specifically that, contrary to what she claimed, the mother could not show that she had a stable place of residence abroad or a secure income with which to ensure the child’s well-being, as well as that the child’s absence from Bulgaria would be an obstacle to the father exercising his contact rights.
The first applicant appealed against the refusal before the Varna Regional Court which granted her request on 22 February 2010. The court held that the mother had the necessary parenting qualities, including to create an environment of emotional comfort for the child and to provide her with financial support. That question had been decided at the time when she had been granted custody rights over her daughter and had not been refuted subsequently; moreover, the reality would not change with the applicant’s crossing the national border. In view of the strained relation between the two parents, the court considered that permission to the child’s travel abroad accompanied with her mother only should be granted for the whole period until the child reaches majority. The court also held that the contact regime between the father and the child had to be changed with a view to the child’s future residence in the United Kingdom.
Following a cassation appeal by the father, on 7 June 2010 the Supreme Court of Cassation suspended the enforcement of the second instance court’s judgment until the issue was decided definitively in the cassation proceedings. On 1 November 2010, in a final judgment, the highest national civil court refused to allow the second applicant’s travel abroad in the absence of the father’s agreement. In particular, the court relied on its well established and binding case-law according to which permission for a child’s unlimited travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interest of the child. The reasons were more specifically that there was a risk that the requesting parent could take the child to countries which were in a state of war or in which there was a high risk of natural calamities, and thus endanger the child’s well-being while depriving the State of the possibility to ensure his or her protection. Also, if the parent took the child to a country which was not a European Union member State, or with which Bulgaria had no treaty for mutual legal assistance, the authorities would not be able to ensure that the contact rights of the second parent were enforced. The court held that permission for travel abroad solely with one parent could be granted only in respect of concrete destinations and for a limited period of time, when this was in the interest of the child. The first applicant had not presented any guarantees as to where the child would be taken and how the contact rights with the father would be exercised. She claimed before the court that she intended to marry in the United Kingdom, however, this was a future uncertain event whose occurrence could not be guaranteed. The question whether it would be in the child’s interest to join her mother abroad would be entirely different and could be discussed, if the mother had been married in the United Kingdom and lived in good material conditions there. However, this was not the case in these proceedings.
B. Relevant domestic law and practice
1. The Constitution
According to Article 35, everyone shall have the right to freely choose a residence, to move within the national territory, and to leave the country. This right may be restricted solely by statute for protection of national security, public health, and the rights and freedoms of other citizens.
2. Family Code 1985 and Family Code 2009
According to Article 72 of the Family Code 1985, in force until 1 October 2009, parental rights and obligations were to be exercised by both parents together as well as separately by each parent. In case the parents disagreed, the relevant district court resolved the disagreement after hearing both parents and, if need be, the child. The court’s decision was subject to appeal. The essence of this provision was reproduced in Article 123 § 2 of the new Family Code 2009. As of 21 December 2010, a new Article 127a specifically provides that the questions related to a minor’s travel abroad and to the issuing to him or her of identity papers, are to be decided jointly by both parents. If the parents disagreed, the issue is to be settled by the district court of the minor’s place of residence.
3. Bulgarian Identity Documents Act 1998
According to section 45, as worded at the time of the events, an application for the issuing of a passport or another identity document for a minor was to be made “in person” (added in 2007) and by the minor’s parents or guardians. The police have to issue a passport within 30 days of such an application (section 48).
According to section 23(2), in force as of 2006, every Bulgarian citizen has the right to leave the country, including with an identity card, and to return crossing the borders of Bulgaria with the member States of the European Union.
According to section 33, as in force since 2004, every Bulgarian citizen has the right to leave the country and return to it with a passport. That right is subject only to such limitations as may be necessary for the protection of national security, public order, people’s health or the rights and freedoms of others.
According to section 76(9), the police may refuse to allow a minor to leave the country in the absence of a written consent for that of his or her parents.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the refusal of the Supreme Court of Cassation to allow the second applicant to leave the country only in the company of her mother breached both applicants’ right to family life. Relying further on Article 13 in conjunction with Article 8, the applicants also complain about the absence of an effective remedy in that connection.
QUESTIONS TO THE PARTIES
1. Did the refusal by the Supreme Court of Cassation on 1 November 2010 to allow the second applicant’s travel abroad in the absence of her father’s agreement breach both applicants’ right to respect for their family life under Article 8? In that connection, did the Supreme Court of Cassation carry out a proportionality analysis of the concrete circumstances of the case, striking a fair balance between the different interests involved?
2. Did the applicants have at their disposal an effective domestic remedy, as required by Article 13 of the Convention, in relation to their complaint under Article 8?
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