Communicated on 24 August 2015
FOURTH SECTION
Application no. 77760/14
Slaveyka Vladimirova KICHEVA
against Bulgaria
lodged on 10 December 2014
STATEMENT OF FACTS
The applicant, Ms Slaveyka Vladimirova Kicheva, is a Bulgarian national, who was born in 1972 and lives in Sofia. She is represented before the Court by Ms A.V. Kachaunova, a lawyer working in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
The applicant gave birth to a child, P.P., in July 2005. At that time she was living together with the child’s father, Kh. P. The parents split in March 2009 when the applicant moved out with the child and his two elder siblings who were not Kh. P’s children.
2. Interim measures and judgments on custody
On 1 July 2010, in the context of court proceedings to decide on custody over the child, the Sofia District Court determined interim measures, giving custody to the applicant. The decision on interim measures was final and enforceable as from the day on which it was adopted.
An expert report of 19 December 2010, delivered in the context of the same proceedings, concluded that the child was strongly attached to both of his parents and noted that he had expressed the wish to live with his mother while continuing to see his father.
On 9 May 2011 the first instance court gave custody to the applicant which the second instance court confirmed on 26 March 2013. On 29 October 2013 the Supreme Court of Cassation refused to allow cassation appeal on points of law as it found that the lower court’s decision had been sufficiently thorough and well-reasoned, and upheld the interest of the child. The decision of the Supreme Court of Cassation was final and enforceable on the day it was delivered.
3. The child’s separation from the applicant
On 5 September 2011 Kh. P. took the child from the applicant’s home and did not return him. As of that date, the applicant has seen the child on several occasions only, always in an institutional setting.
4. Attempted enforcement of the court decision granting custody to the applicant
On 13 September 2011 the applicant visited Kh. P.’s home in order to agree with him on the child’s return. Kh. P. opposed the child’s leaving with her. Instead, the applicant claims, he aggressed her physically in the child’s presence by hitting her head and shoving her body against the lift, and toppling her on the ground. The applicant submits that she contacted two private bailiffs in the following months. Neither of them undertook any action, considering that the case was difficult.
On 17 October 2012 the Sofia District Court issued a writ of enforcement to the applicant on the basis of the court’s decision on interim measures of July 2010.
The first attempt by the bailiff to hand over the child to the applicant took place on 11 December 2012. It failed as Kh. P. did not bring the child. The bailiff voiced his intention to seek police assistance for Kh. P.’s summoning to the following meeting.
The applicant met with the child on 11 January 2013 for the first time since he was taken by the father on 5 September 2011. The meeting took place in the presence of Kh. P. and a social worker. The child was reserved at the beginning but gradually warmed up to his mother, told her about his school and other activities, and allowed her to hug and kiss him.
The second meeting between the applicant and her child took place on 18 January 2013. The child arrived to the meeting in a negative disposition and was cold to his mother, refused to take the presents she had brought for him and asked to leave with his father.
The bailiff attempted to have the applicant meet with the child on five more occasions - 28 January 2013, 19 April 2013, 26 April 2013, 31 May 2013 and 28 June 2013, respectively. Kh. P. did not turn up to the first four of those meetings, despite having been summoned by the police to some of them. On 26 April and 31 May 2013 the bailiff fined him for his failure to bring the child to the appointments scheduled for those two days. The fine imposed on 31 May 2013 was subsequently quashed by a court.
When Kh. P. brought the child to meet with the applicant on 28 June 2013, the child became visibly upset and tearful at the sight of his mother. He refused to hug her or otherwise engage with her. A psychologist present at the meeting concluded that it was impossible to hand over the child at that point in time as he was in a psychological crisis and displayed clear negative attitude to his mother. As a result the bailiff postponed the handing of the child and urged both parents to actively cooperate so that the child could gradually accept his mother. The bailiff noted that the father played a key role in that process and that his constructive attitude was crucial for the restoring of the mother-child relationship.
In June 2013 the social services directed the applicant, Kh. P. and the child to benefit from social counselling support during a six-month period which was to come to an end on 16 December 2013. During the counselling sessions the father disapproved of psychologists working with his son, insisted that such sessions were a form of exploitation of the child and said that the mere mentioning of the child’s mother caused his son headaches which impeded his ability to play football. Kh. P. did not allow the child to see his mother. He informed the psychologists that he and the child shared the same bed at night and avoided their attempts at discussing the child’s psychological development; Kh. P. emphasised instead his own financial capacity and stability.
A psychologist met with the child once in the context of the six-month counselling period. The child refused to speak about his mother and only referred to her as “M”. The psychologist concluded that the child’s speech was full of inconsistent statements which showed that his attitude to her was being manipulated. The child missed having contact with his mother, yet that was something he could not say openly for fear of his father’s disapproval. The child suffered from the syndrome of parental alienation and there was a risk to his emotional and psychological development. On 28 August 2013 the social centre interrupted work with the child because of lack of cooperation by Kh. P. who did not ensure the child’s attendance of the appointments.
A new attempt to voluntarily hand over the child to his mother took place on 10 June 2014. It failed because the father did not bring the child and asked that the meeting be postponed as the child was taking part in a sports activity in another town. Kh. P. also handed in an expert report according to which the father had to be present during the meetings between the child and his mother. In the presence of the bailiff, the applicant agreed to this as well as to the future meetings taking place at the premises of the social services. The bailiff postponed the enforcement.
The following day, 11 June 2014, the child, Kh. P. and the applicant met at the social centre. The father stated that he would not allow future meetings. No more meetings between the applicant and her child took place as of that day.
An expert report was drawn up on 17 June 2014. It found that “the two parents were at war with each other”, that the father continuously demeaned the mother’s qualities and personality – highly likely also in the presence of the child – and that this was a risk factor for the child’s stable psycho‑emotional development.
On 11 July 2014 the applicant asked the bailiff to schedule a new date for implementing the court decision and not to suspend the enforcement. She also asked the bailiff to direct the child to attend mandatory sessions with a psychologist and a psychiatrist before his actual handing over to her, given that he needed specialised assistance in order to overcome his alienation from his mother.
On 22 July 2014 the applicant asked the social services to provide her child with psychological counselling and support. On 8 August 2014 she complained to the Minister of Justice about the bailiff’s inability to enforce the court decision granting custody to her. The Ministry replied on 21 April 2015 that, according to the available information, the bailiff had done nothing wrong in the exercise of her function.
On 5 September 2014 the applicant sent to the bailiff documents issued by the social services directing the child to attend psychological counselling and support with a view to re-establishing contact with his mother. On 3 September 2014 she asked the bailiff to order weekly meetings between her and the child at the premises of the social services, emphasising that this which was something to which Kh. P. had agreed but had not respected. The applicant also stressed that the child’s health and well-being was the most important aspect in the process and asked the bailiff to coordinate all actions related to the child’s attendance of counselling sessions.
The applicant subsequently received a letter from the State Agency for Child Protection which directed her to seek counselling from the social services.
On 22 October 2014 the applicant again asked the social services to provide counselling to her child, given that their attempt of 5 August 2014 had failed as the child had not turned up. The social services replied on 29 October 2014 that they had organised new sessions for the child and had apprised the father accordingly. They also informed the applicant that the bailiff had ordered the child to report to the social centre every Thursday at 16h00 in order to meet with his mother. The first meeting was set for 30 October 2014. No such meeting ever took place as Kh. P. did not bring the child.
On 28 November 2014 the applicant wrote to the bailiff, copying social services, and expressed her concern about the child’s well-being. She asked that the judicial decision granting custody to her be enforced, pointing out that the child’s well-being was of paramount importance and had to be considered in any related actions.
The bailiff scheduled another meeting for 23 April 2015 in order to hand over the child to the applicant. Kh. P. did not bring the child; instead, he brought a letter from the school confirming that the child was at a school camp between 20 and 24 April 2015. The bailiff postponed the enforcement for an unspecified date. The applicant signed the protocol drawn by the bailiff, expressing her discontent at the bailiff’s inability to enforce the judicial decision.
5. Complaint to the prosecutor
On 8 October 2012 the applicant complained to the prosecutor under Article 182 (2) of the Criminal Code about Kh. P.’s active obstruction of the enforcement of the judicial decision granting custody to her. The prosecutor opened criminal proceedings into this complaint and informed the applicant about it on 19 April 2013.
A complex psychological expert report in respect of the child was drawn up on 2 February 2014 in the context of those proceedings upon the initiative of the police. The report’s conclusion was that the child should not be forced to see his mother at that point in time. What was needed was systematic good-faith efforts by the father aimed at improving the child’s attitude towards his mother. Pressure by public institutions for the child to see his mother was likely to have a negative impact on him; therefore, his developing a relationship with his mother had to happen gradually. The report emphasised that, if the child were to receive his father’s support, in all likelihood he would open up to his mother and would develop a close relationship with her.
On 4 September 2014 the applicant complained to the Minister of Justice about the pre-trial criminal proceedings lasting excessively long. She stated more specifically that neither the prosecution service nor the bailiff had acted adequately in order to enforce the final judicial decision granting custody to her. As a result of their failure her child had been “labelled” as a “child at risk suffering from an aggravated syndrome of parental alienation”.
On 10 November 2014 the prosecutor asked the court to impose an administrative punishment on Kh. P. and lift his criminal responsibility.
6. Proceedings for domestic violence
On 26 July 2013, the child, represented by Kh. P., brought court proceedings against the applicant, alleging domestic violence on her part. The child claimed that he was under constant psychological pressure by his mother as a result of which his sleep was disturbed and he was restless and scared that she could appear at any time in the street and kidnap him. He claimed that during the latest attempt to have him reunite with her on 28 June 2013 he developed a headache, felt sick and even vomited. Experts heard in the context of these proceedings found that the child “tended to identify himself with the aggressor” and his active denial of his mother was damaging for him. The experts concluded that it was imperative for the child’s well-being to provide him with urgent psychological therapy.
On 20 December 2013 the first instance court rejected the request for a restraining order in respect of the applicant. In particular the court found ill‑founded the complaint about psychological violence as it was based on the mother’s repeated attempts to have the bailiff hand over the child to her in accordance with the court’s decision. The court held that the applicant was right to seek effective enforcement of the decision granting custody to her, just as Kh. P. was obliged to comply with that decision. The court concluded that the child’s well-being was at risk as a result of the ongoing open animosity between the parents and ruled that a copy of this judgment had to be transmitted to the social services with a view to them taking appropriate measures.
7. Proceedings for change in custody
On an unspecified date in the first half of 2014 Kh. P. brought court proceedings for change in the custody regime. The first hearing was scheduled for 26 January 2015.
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 could impose fines on him or her for every failure to comply with the judicial decision. In addition to imposing a fine, the bailiff may request the assistance of 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 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. The Criminal Code
Article 182(2) of the Criminal Code of 1968 provides that a parent or another relative who prevents contact with a child or the enforcement of a court judgement for custody can be sentenced to probation, fined up to BGN 300 (EUR 153) and, in severe cases, sentenced to up to six months’ imprisonment or to a fine of up to BGN 3,000 (EUR 1,533). Under Article 193a of the same Code, in force until April 2010, criminal proceedings against the parent preventing contact may be instituted 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 relevant authorities’ failure to act adequately and timely in order to facilitate her reunion with her child breached her family life. Relying further on Article 13 in conjunction with Article 8 she complains that she 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 her family life, contrary to Article 8 of the Convention?
2. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 8, as required by Article 13 of the Convention?
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