Communicated on 15 June 2015
FOURTH SECTION
Application no. 33535/13
Silviya Stefanova GEE and Viktor Dobriyanov PETSEV against Bulgaria
lodged on 16 May 2013
STATEMENT OF FACTS
The applicants, Ms Silviya Stefanova Gee and Mr Viktor Dobriyanov Petsev, are Bulgarian nationals, who were born in 1975 and 1997 respectively and live in Longfield, the United Kingdom. The first applicant is the mother of the second applicant.
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 lives in the United Kingdom. She is married to a British national since 2012 with whom she owns and manages a headhunting agency. She has a child born in 1997 from her earlier marriage with a Bulgarian citizen, D.P. She and D.P. divorced in November 2005, when the court granted the exercise of parental rights to the mother and contact rights to the father, the latter to be exercised every first and third weekend of each month and 30 days during the summer. The first applicant has been taking care of the child ever since.
In 2009 the first applicant lost her job in Bulgaria, following which she took up a position as a rehabilitator in the United Kingdom.
After she left to the United Kingdom for work, the first applicant’s mother took care of the child in Bulgaria. According to the first applicant, D.P. agreed to let the child go and live with her once she settled in the United Kingdom, on condition that he no longer had to pay child maintenance. She agreed and signed a declaration to that effect in 2007.
2. Proceedings brought by the mother for allowing the child’s travel abroad in the absence of his father’s agreement
The first applicant brought court proceedings in 2010 under Article 123 of the Family Code, seeking the court’s permission for the issuing of a passport to the child and for his leaving the country without any limitation in the absence of the father’s agreement. On 15 April 2011 the Sofia District Court allowed her request finding that, in order effectively to exercise her parental rights, the mother had to be able to take the child with her abroad, given that she lived and worked there.
The Sofia City Court reversed this decision on 27 January 2012 upon an appeal by D.P. The court explicitly referred to the well-established and binding case-law of Supreme Court of Cassation on the same question, namely that 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 of the highest national court 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. This could endanger the child’s wellbeing while depriving the State of the possibility to ensure his or her protection. Such permission could be granted in respect of concrete destinations and for a limited period of time, when this was in the interest of the child. Referring to the binding Supreme Court of Cassation’s jurisprudence, the Sofia City Court found that unlimited permission for the second applicant’s travel abroad would jeopardise the contact rights of the father and could also be detrimental to the child, given the absence of a guarantee that he would be able to see his father. The court concluded that, as the first applicant had not requested permission for travel to a specific destination abroad and for a concrete period of time, unlimited permission could not be given.
The first applicant brought a cassation appeal. On 2 January 2013 the Supreme Court of Cassation declared it inadmissible for failure to clearly specify the cassation ground for appeal. That decision was final.
3. Proceedings brought by the father for a change in child custody
On an unspecified date in 2010 D.P. brought court proceedings in which he sought a change in the custody regime. In November 2011 the Sofia District Court allowed the father’s claim by granting the exercise of parental rights to him and contact rights to the mother.
On 31 July 2013 the Sofia City Court reversed that judgment on appeal by the first applicant. The second instance court found in particular that the change in circumstances caused by the mother’s living abroad necessitated it to determine not only who of the parents would exercise parental rights, but also the child’s domicile and the regime of contact rights of the parent not exercising parental rights. The court held that, balancing the interests of all parties concerned, namely the child and the two parents, it was in the interest of the child to live with his mother in the United Kingdom. This was because the child had a strong emotional link to her, he had personally expressed a preference to continue his studies in the UK and the mother had organised her life so as to have the time to attend to his needs. The court observed that, even when living in Bulgaria, the child was cared for by his maternal grandparents and saw his father only periodically.
The Sofia City Court modified the contact rights of the father so as to make them compatible with the child’s studies in England. Accordingly, the child was to travel to Bulgaria to stay with his father half of each of the Christmas and Spring holidays, and one month during the summer. In addition, the child had to speak to his father over Skype twice a week for one hour. The mother had to facilitate the above-mentioned contacts.
On 18 March 2014 the Supreme Court of Cassation declared a cassation appeal by D. P. inadmissible.
4. Other developments
It would appear that the father gave his agreement to the second applicant’s travel to the United Kingdom in the summer of 2013 when the second applicant joined his mother in the United Kingdom. The second applicant turned 18 in April 2015.
B. Relevant domestic law and practice
1. The Constitution
People have the right to move freely on the territory of Bulgaria as well as to leave the country. This right is only subject to restrictions imposed by law for the protection of national security, health and the rights of others (Article 35 (1)).
2. Family Code 2009 and Code of Civil Procedure 2007
Article 123 (2) of the Family Code provides that parental rights and obligations are exercised following an agreement between the parents. If the parents disagreed, they could bring the matter before the district court whose decision is subject to appeal. Article 127 of the Family Code provides that, if parents who do not live together disagreed on the exercise of parental rights and obligations in respect of their child, the disagreement is to be decided by the district court whose decision is subject to appeal. As of 21 December 2010, a new Article 127a introduced in the Family Code specifically provides that the questions related to a minor’s travel abroad and to the issuing 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 in the minor’s place of residence whose decision is subject to appeal before two higher judicial instances.
Article 310 of the Code of Civil Procedure provided between 5 June 2009 and 21 December 2010 that claims concerning a minor’s travel abroad in the absence of parental consent were examined by the courts in rapid proceedings.
3. Bulgarian Identity Documents Act 1998
Every Bulgarian citizen has the right to leave the country and return to it with a passport (section 33). That right is subject only to limitations as may be necessary for the protection of national security, public order, people’s health or the rights and freedoms of others.
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 (section 76(9)). In case the parents disagree, at the time the applicants brought the proceedings in the present case, the matter was to be decided in accordance with Article 123 § 2 of the Family Code 2009. As of 21 December 2010, related claims are to be decided in accordance with Article 127a of the Family Code 2009.
The application for the issuing of a passport to a minor has to be made in person and by the minor’s parents or legal guardians (section 45). The police has to issue a passport within 30 days of such an application (section 48).
4. Relevant judicial practice
The Supreme Court of Cassation has held in a number of judgments, delivered in response to claims brought under the family Code, that permission for a child’s travel abroad in the absence of both parents’ agreement, for an unlimited duration and to unspecified destination, could not be granted (see, among many others, реш. № 697 на ВКС по гр. д. № 1052/2010 от 01.11.2010 г., IV г. о.; реш. № 982/2009 на ВКС по гр. д. № 900/2009 от 15.03.2010 г.,, IV г. о.; реш. № 418 на ВКС по гр. д. № 1091/2008 от 17.07.2009 г.,, I г. о.).
COMPLAINT
The applicants complain under Article 8 of the Convention about the refusal of the domestic courts in the proceedings which ended with the decision of the Supreme Court of Cassation on 2 January 2013 to allow the second applicant’s travel abroad in the absence of his father’s agreement, and under Article 13 about the absence of an effective domestic remedy in that connection.
QUESTIONS TO THE PARTIES
1. Did the refusal of the national courts in the proceedings ending with the final decision by the Supreme Court of Cassation of 2 January 2013 to allow the second applicant’s travel abroad in the absence of his 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 an adequate proportionality analysis of the concrete circumstances of the case, striking a fair balance between the different interests involved, in good time?
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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