Communicated on 14 December 2015
FIFTH SECTION
Application no. 50240/15
Stanimir Vasilev DRUMEV
against Bulgaria
lodged on 25 September 2015
STATEMENT OF FACTS
The applicant, Mr Stanimir Vasilev Drumev, is a Bulgarian national, who was born in 1973 and lives in Shanovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 February 2012 the applicant’s marriage was dissolved by a court decision which also determined the applicant’s contact rights with his child who was born in 2009. According to the decision, the applicant was to see the child every first and third weekend of each month, between 9 a.m. on Saturday and 6 p.m. on Sunday, and for one month during the summer holidays. After an argument between the applicant and the child’s mother on 15 June 2012 the latter started preventing contact between the child and the applicant.
The applicant brought forced enforcement proceedings in February 2013, seeking effective implementation of his contact rights. Apparently the bailiff informed him that as the meetings with the child were scheduled to take place on weekends, a period when the bailiff himself was off work, the applicant would better be accompanied to those meetings by witnesses who had to testify about the situation by signing a declaration every time when the applicant encountered difficulties seeing the child. The applicant attempted to see the child on numerous occasions but his former wife continued to pose obstacles to it; he submitted seven declarations to that effect, all drawn up in the course of 2013. The bailiff fined the mother once with about EUR 50.
The applicant turned to the Child Protection Agency a number of times; the agency urged the child’s mother to allow contact between the child and the applicant as set out in the court decision of 13 February 2012.
Notwithstanding the above, the applicant submits that he continued to be unable to see the child as a result of the obstacles erected by the mother.
In July 2013 the applicant complained to the prosecutor in this connection. In August 2013 the prosecutor refused to open criminal proceedings, finding in particular that the child’s mother had been fined earlier for impeding contact between the child and the applicant, and that it would be unlawful to sanction her twice for the same offence. On appeal the higher prosecutor returned the case for further examination. In September 2013 the district prosecutor opened criminal proceedings against the child’s mother for obstructing the implementation of the judicial decision. Following the termination of those proceedings on the basis that the child systematically refused to go and spend time alone with her father, the first instance court quashed the prosecutor’s decision terminating the proceedings and returned the case for further consideration.
On 21 November 2014 a different district prosecutor terminated the proceedings and this was confirmed by two levels of court, respectively on 17 December 2014 and 4 May 2015. The last instance court found more specifically that instead of pursuing a constructive dialogue with the child’s mother with a view to seeing the child, the applicant unsuitably resorted to forced enforcement proceedings in the context of which the child was scared to go with him as he was always accompanied by unknown adults.
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.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the authorities’ failure to act adequately and timely in order to facilitate his reunion with his child breached her family life. Relying further on Article 13 in conjunction with Article 8 he complains that he did not have an effective domestic remedy in this respect.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?
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