FIFTH SECTION
DECISION
Application no. 33535/13
Silviya Stefanova GEE and Viktor Dobrianov PETZEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 19 June 2018 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 16 May 2013,
Having regard to the observations submitted by the respondent Government and the additional information submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Silviya Stefanova Gee and Mr Viktor Dobrianov Petzev, are Bulgarian nationals who were born in 1975 and 1997 respectively and live in the United Kingdom (“the UK”). They were represented before the Court by Mr G.K. Georgiev, a lawyer practising in Pazardzhik.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, of the Ministry of Justice.
A. The circumstances of the case
1. Background
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The first applicant lives in the UK. She has been married to a British national since 2012 with whom she owns and manages an employment agency. She has a son, the second applicant, born in 1997 from an earlier marriage with a Bulgarian citizen, D.P.
5. The first applicant and D.P. divorced in 2005 when, in a decision of 29 November 2005, the court granted the exercise of parental rights over the second applicant to the mother and contact rights to the father, the latter to be exercised every first and third weekend of each month and thirty days during the summer. The first applicant has been taking care of her son ever since.
6. After losing her job in Bulgaria in 2009, the first applicant took up a position as a physiotherapist in the UK.
7. When the first applicant left Bulgaria to work in the UK, her mother took care of the child in Bulgaria. According to the first applicant, D.P. had orally accepted to let the child go and live with her once she had settled in the UK, on condition that he no longer had to pay child maintenance. She agreed and signed a declaration to that effect.
2. Proceedings brought by the father for a change in child custody
8. On 12 November 2010 D.P. applied to the Sofia District Court seeking a change in the custody regime determined in 2005 (see paragraph 5 above). On 1 November 2011 the court allowed D.P.’s claim by granting the exercise of parental rights to him and contact rights to the first applicant.
9. The first applicant appealed against that decision before the Sofia City Court. The second-instance court noted that in a separate set of civil proceedings, the first applicant had applied to the courts to authorise unlimited travel for the child abroad (see paragraph 13 below). Those proceedings had ended with a rejection of her application, among other things, on the grounds that permission for an unlimited stay abroad would be incompatible with the child’s place of residence and with the arrangement for contacts with his father, as previously determined in court (see paragraphs 16–17 below). The court went on to note that the mother had married a British citizen in May 2012 and that she lived with her new husband in very good conditions in his home in Kent, the UK. A separate room with an en-suite bathroom and a dressing room had been prepared for the child in that house, as well as a television set with access to Bulgarian programmes. Framed pictures of the child adorned the walls in the house. The mother co-owned an employment agency with her husband and had a guaranteed income in the UK. She had undertaken, in a declaration signed before a notary, that she would organise and pay for her son to travel to Bulgaria three times a year to see his father – at Christmas, during the Spring break and for one month during the summer.
10. On 31 July 2013 the Sofia City Court overturned the Sofia District Court’s judgment of 1 November 2011. It observed in particular that the child, being 16 years-old at the time, was capable of forming his own opinion. He had expressed a strong preference for living in the UK with his mother and had stated that, even if the court were to order a change in custody, he would continue to live with his maternal grandparents and would not move in with his father. The mother was offering excellent living and educational conditions to her child in the UK. If, however, the latter were to remain living in Bulgaria, he would maintain the same type and frequency of contact with his parents as he had until then, namely seeing his father occasionally and visiting his mother when the father agreed. Furthermore, as a result of the change in circumstances caused by the mother’s living abroad, the court found that it was required to rule not only on which parent would exercise parental rights, but also to determine, proprio motu, the child’s place of residence and the contact arrangements for the parent not exercising parental rights. The court concluded that, balancing the interests of all parties concerned, namely the child and the two parents, it was in the interests of the child to live with his mother in the UK. This was because the child had a strong emotional link with 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.
11. In that decision the Sofia City Court modified the contact rights previously granted to D.P. so as to make them compatible with the second applicant’s studies in the UK. Accordingly, the court ruled that the child was to travel to Bulgaria to stay with his father for half of the Christmas and Spring holidays, and for 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.
12. On 18 March 2014 the Supreme Court of Cassation declared a cassation appeal lodged by D. P. inadmissible.
3. Proceedings brought by the first applicant for the child to be allowed to travel abroad without his father’s agreement
13. In the meantime, on 11 December 2010, the first applicant applied to the court seeking permission for the issuing of a passport to the second applicant, as well as permission for him to leave the country and live with her in the UK in the absence of his father’s agreement. On 15 April 2011 the Sofia District Court allowed the request at first instance, finding that, in order effectively to exercise her parental rights, the mother had to be able to take the child with her abroad, where she lived and worked.
14. D.P. appealed against that decision before the Sofia City Court. He pointed out that allowing his son unlimited travel abroad was incompatible with the exercise of his own contact rights, which had been determined by the court in November 2005. Furthermore, D.P. drew the court’s attention to the decision of the Sofia District Court of 1 November 2011, which, although not final at the time, had granted the exercise of parental rights to him and contact rights to the first applicant (see paragraph 8 above).
15. The Sofia City Court, acting at second instance, noted the first applicant’s request for her son to live with her in the UK and the fact that that was something to which the father was clearly opposed and which, if granted, would result in a change in the child’s place of residence. The court also acknowledged that before the first applicant had applied for the child to join her in the UK, D.P. had brought a separate set of proceedings in which he had sought the granting of parental rights to him and in which a court decision had been delivered at first instance (see paragraph 8 above).
16. On 27 January 2012 the Sofia City Court reversed the decision of 15 April 2011 in which the Sofia District Court had granted permission for unlimited travel abroad to the second applicant (see paragraph 13 above). The second-instance court referred to the well-established and binding case-law of the Supreme Court of Cassation on the same question, namely that permission for a child to spend unlimited time abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interests of the child. The reason was 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 of ensuring 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 interests of the child.
17. Thereafter, examining the concrete circumstances of this case, the Sofia City Court found that permission for the second applicant to spend unlimited time abroad would jeopardise the exercise of the father’s contact rights and would also be detrimental to the child. The reason for this was that the child had a close emotional connection with his father and it was fully in his interests to maintain it, but there were no guarantees that the two would be able to see each other if the child were to leave Bulgaria for an unlimited period of time. In order to avoid that, the court found that it was necessary for the parents to either agree on a different place of residence and a different contact regime, or to have those matters determined by the courts in the interests of the child. Given that the first-instance court had failed to pronounce on those questions and the child’s mother had not requested that the judgment be supplemented in that respect, the second‑instance court could not decide on the matter proprio motu. The court concluded that, as the mother had not requested permission for her son to travel to a specific destination abroad and for a concrete period of time, for example to visit her in the UK over the holidays, which would not have affected the contact regime previously determined in court, unlimited permission could not be given.
18. The first applicant lodged a cassation appeal. On 2 January 2013 the Supreme Court of Cassation declared it inadmissible for failure to clearly specify the cassation grounds. As a result, the Sofia City Court’s decision of 27 January 2012 became final on 2 January 2013.
4. Other developments
19. The father gave his agreement to the second applicant to go to the UK for a month in the summer of 2013. The second applicant joined his mother in the UK on 30 June 2013. The first applicant informed the Court in August of the same year that her son had no intention of returning to Bulgaria and was enrolled in a local elite school where he was to start classes on 2 September 2013. She also stated that the second applicant was well aware that until he turned 18, he would not be able to return to Bulgaria, if his father appealed against the decision of 31 July 2013 (see paragraph 10 above) and if that decision were overturned. The decision of 31 July 2013 became final on 18 March 2014 and the second applicant turned 18 in April 2015.
B. Relevant domestic law and practice
20. The relevant national and international law has been set out in the cases of Penchevi v. Bulgaria (no. 77818/12, §§ 25-39, 10 February 2015); Lolova and Popova v. Bulgaria ((dec.), no. 68053/10, 20 January 2015) and Dimova and Peeva v. Bulgaria (no. 20440/11, §§ 18–24, 19 January 2017).
COMPLAINTS
21. The applicants complained under Article 8 of the Convention that the domestic courts had refused to allow the second applicant to travel abroad in the absence of his father’s agreement. They further complained under Article 13 of the absence of an effective domestic remedy.
THE LAW
Alleged violation of Articles 8 and 13 of the Convention
22. The applicants maintained their complaints under Articles 8 and 13, the relevant parts of which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”
1. The parties’ submissions
23. The Government argued that the application was inadmissible as the applicants could no longer claim to be victims of a Convention violation. The reason for this was that, in its judgment of 31 July 2013, the Sofia City Court had acknowledged, at least in substance, a violation of the Convention, namely by finding that the applicants’ right to a family life had been breached by their prolonged inability to live together. Furthermore, the court in that judgment had decided that the second applicant had to live with the first applicant, so the matter had been resolved. Lastly, referring to the Court’s decision in the case of Lolova and Popova, cited above, the Government submitted that, in view of the above, the applicants had no arguable claim for the purposes of Article 13 of the Convention.
24. As regards specifically the duration of the proceedings seeking authorisation of unlimited travel abroad for the second applicant, the Government pointed out that there had been no delays. The proceedings had been completed at first instance in about five months, and at second instance in about eight months, and that included the summer period.
25. In particular, the first applicant had applied to the first-instance court on 11 December 2010, which had also been the date of a court order suspending any action under the case on account of unpaid court fees and the failure on the part of the claimant, the first applicant, to indicate the respondent’s address. A postal receipt confirming that the court fees had been paid was received at the court on 4 January 2011. The court had then issued a new order on the same day, reiterating the need for the claimant to indicate the respondent’s address. The first applicant had complied with that requirement on 24 January 2011; on the next day the court had sent a copy of the claim to the respondent, who had submitted his reply on 26 February 2011. At a hearing on 21 March 2011 the court had postponed the case in order to allow the parties’ witnesses to appear. The first-instance court had delivered its decision on 15 April 2011. Consequently, the procedure had not comprised any procedural delays that might be considered the first-instance court’s fault.
26. The appellate proceeding were characterised by the same expeditiousness. D.P.’s appeal had been received on 4 May 2011 at the second-instance court, which had left it without examination until 18 May 2011 for failure to pay the court fees due. The parties had been summoned to court respectively on 14 July 2011 and 8 September 2011, and the court had heard the case on 27 October 2011. During that hearing, a report from the social services had been accepted as well as evidence submitted by the first applicant. On 4 and 7 November 2011 respectively the parties had made written submissions to the court, which had delivered its decision on 27 January 2012. Therefore, despite the minor delay in delivering that last decision, the procedure before the court of appeal had not breached the applicants’ rights.
27. The first applicant had brought a cassation appeal on 7 March 2012 and the court had proceeded with the case on 20 March 2012, a day after she had paid the court fee due. The first applicant had submitted evidence to the court on 4 April 2012 and the other party had replied on 17 May 2012. While the decision of the Supreme Court of Cassation refusing examination on cassation had been delivered with some delay, on 2 January 2013, it had not prevented the first applicant from requesting anew, in separate proceedings, the competent court to allow the second applicant to travel abroad, specifying the place and duration of the stay.
28. The applicants did not provide additional submissions in support of their complaints.
2. The Court’s assessment
29. Having examined all the material before it, the Court considers that, for the reasons stated below, the applicants’ complaints are inadmissible.
30. The Court observes that two separate sets of judicial proceedings were developing in parallel at the national level, namely one for a change in the custody regime, brought by D.P. in November 2010, and another seeking permission for the second applicant to leave Bulgaria for unlimited stays abroad, brought by the first applicant in December 2010.
31. In the proceedings seeking permission for the second applicant to leave Bulgaria for unlimited stay abroad, the decision of the second‑instance court included a reference to the well-established domestic case‑law at the time, according to which permission of 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 children, given that they could be taken to a place of high risk while the State is deprived of the possibility to protect them. The Court has already found this to be an overly formalistic approach and lacking in terms of assessment of the child’s best interests (see Penchevi, cited above, § 71).
32. However, the Court observes that the courts in those proceedings carried out an examination of the particular circumstances of the case and considered the various interests involved (compare with Dimova and Peeva, cited above, §§ 39-40, and contrast with Penchevi, cited above, § 69). In particular, the courts observed that allowing the second applicant unlimited stays abroad risked severing the emotional ties between him and his father, and that this was not in the former’s interest, considering that he was close to his father. Furthermore, unlimited stays abroad would have been incompatible with the child’s place of residence previously determined by the courts. Although the first-instance court had omitted to pronounce on that question, the first applicant had not sought to have the judgment supplemented in that respect (see paragraph 17 above). In view of all this, the Court finds that it cannot be said that the domestic courts decided the matter about the child’s stays abroad arbitrarily or in a formalistic manner by relying solely on previous case-law and having failed to examine the applicants’ specific situation.
33. As regards the proceedings for a change in custody, which developed in parallel with those seeking permission for unlimited travel, the appeal court carried out a comprehensive examination of both applicants’ circumstances and weighed the different interests at stake (see paragraph 10 above). Having assessed the situation of all parties involved, the appeal court concluded that it was in the best interests of the child, the second applicant, to live in the UK with his mother, the first applicant, who should also continue to exercise her parental rights. The court accordingly modified the contact rights of D.P. to make them compatible with the second applicant’s living and studying in the UK (see paragraph 11 above).
34. In view of the above, the Court finds that although the proceedings for a change of custody were not formally concerned with the second applicant’s travel abroad, in essence the court seized with them on appeal decided proprio motu the question of his place of residence, which was determinative for both applicants’ ability to exercise their right to family and private life. The court reached that decision after carrying out a comprehensive analysis of all the circumstances and an in‑depth consideration of the best interests of the child. The decision resulted in the second applicant being able to lawfully join his mother in the UK and to live and study there as the two applicants had wished, and as requested by the first applicant in the other set of court proceedings.
35. A final issue concerns the duration of the different sets of proceedings and whether it had the effect of negating the applicants’ exercise of their Article 8 rights. While noting that the applicants’ complaints related to the proceedings concerning the second applicant’s travel abroad, in view of the fact that the proceedings for a change of custody were decisive for the central question of relevance for the applicants’ Article 8 rights, the Court will examine the duration of both sets of proceedings.
36. As regards in particular the duration of the proceedings in which the first applicant had sought unlimited permission for her son to leave Bulgaria, the Court takes note of the Government’s explanations on that point (see paragraphs 24 to 27 above) and accepts them in their entirety.
37. In respect of the other set of proceedings, namely the ones which started in November 2010 and ended with a final decision in March 2014 determining the second applicant’s place of residence, the Court observes that, although they lasted in all three years and four months, this fact did not deprive them of a meaningful effect. The reasons for this were that: the first applicant had not initiated those proceedings (they had been brought by her former husband) but the applicants had ultimately benefitted from their findings; they had been formally concerned with a change in the custody of the second applicant and not with the determination of his place of residence, the latter being decisive for both applicants’ effective exercise of their right to family life and not explicitly sought by the mother; and, it had been the second-instance court that had pronounced proprio motu in respect of the child’s place of residence, ruling that it had to be in the UK together with his mother. Consequently, the just over two and a half years it took for those proceedings to be completed at two judicial levels cannot be considered to have been excessive and thus violating the applicants’ Article 8 rights. In addition, the Court notes that the second applicant effectively joined his mother, the first applicant, in the summer of 2013 and apparently started school in the UK without awaiting the end of the proceedings in respect of his place of residence (see paragraph 19 above). Consequently, it cannot be said that the seven and a half further months it took for the July 2013 court decision to become final had an excessive bearing on the applicants’ situation.
38. In light of the above considerations, the Court concludes that the facts of the present case do not disclose any appearance of a violation of Article 8 of the Convention in respect of either of the two applicants. Their related complaint must therefore be declared inadmissible as manifestly ill‑founded and rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
39. Having declared the applicants’ complaints under Article 8 of the Convention inadmissible, the Court concludes that the applicants have no arguable claim for the purposes of Article 13 of the Convention (see, for the same approach, Valeriy Fuklev v. Ukraine, no. 6318/03, § 98, 16 January 2014 and Lolova and Popova (dec.), cited above). It follows that the applicants’ complaint under Article 13 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 July 2018.
Milan BlaškoGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident
Full & Egal Universal Law Academy