LOLOVA AND POPOVA v. BULGARIA

FOURTH SECTION

DECISION

Application no. 68053/10
Ekaterina Atanasova LOLOVA and Kalina Iliyanova POPOVA
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 20 January 2015 as a Chamber composed of:

Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
Pavlina Panova, ad hoc judge,
and Françoise Elens-Passos, Section Registrar,

Ms Zdravka Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Ms Pavlina Panova to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29).

Having regard to the above application lodged on 23 October 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Ekaterina Atanasova Lolova and Ms Kalina Iliyanova Popova, are Bulgarian nationals, who were born in 1978 and 1998 respectively and live in Toronto. The first applicant is the mother of the second applicant. They were represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

4. The first applicant gave birth to the second applicant in 1998 and shortly thereafter ended her relationship with the child’s father, I.P., to whom she was never married.

5. In 2004 the Sofia District Court confirmed an agreement reached between the first applicant and I.P. According to the agreement, the first applicant was to exercise the parental rights related to the upbringing and daily care of the child, and I.P. was to see his daughter under a “free access regime”, which included the right to see the child in private as often as he wished after informing the mother and not less than two weekends a month, and 30 days during the child’s annual holidays.

6. The first applicant got married to a Bulgarian-Canadian citizen in Niagara Falls, Ontario, Canada, on 5 September 2007. She left her job in Bulgaria in April 2008 with a view to joining her husband in Canada.

7. During two periods, 30 November 2007 to 29 December 2007 and 5 July 2008 to 24 December 2008, the first applicant stayed in Canada with her husband. During the rest of the time, she lived in Bulgaria with her daughter. On 26 March 2009, the first applicant settled in Canada.

2. Proceedings for court permission for the second applicant’s travel

8. On 1 September 2006 the first applicant brought proceedings before the Sofia District Court under Article 72 of the Family Code 1985. She sought a decision from the court, in the absence of the father’s consent, to allow the child to be issued with a passport and to travel abroad to join her in Canada.

9. The Sofia District Court granted her claim on 3 June 2008. The court found that the possibility for the second applicant to travel abroad would enrich her life and stimulate her personal development. It considered that I.P.’s refusal to allow her to travel was provoked by his personal interest which should not be allowed to bear negatively on the child’s rights, especially since I.P. could seek protection of his rights in separate court proceedings. Nothing in the mother’s personality and demeanour was found to represent a risk for the child’s well-being. Guided by the primary interest of the child, the court recalled the United Nations Convention on the Rights of Children, which was ratified by Bulgaria, and held that the second applicant had the right to move about freely, including to leave her country.

10. Upon an appeal by I.P., the Sofia City Court confirmed the lower court’s findings on 7 May 2009. It found that, as the first applicant had married and settled in Canada, not allowing the daughter to join her there would impede the mother’s ability to act as her primary carer. Those were the terms reached in the 2004 court agreement (see paragraph 5 above), which I.P. had not sought to amend at any time. During the periods which the mother had spent in Canada, the second applicant had been primarily cared for in Bulgaria by the first applicant’s parents. When the second applicant had stayed at I.P.’s house, her daily care had been carried out by the child’s aunt and grandmother. A report by the social services favoured the second applicant’s free travel with her mother and found that both mother and child had strong emotional ties to each other. The child had specifically asked to live with her mother in Canada and to visit her father in Bulgaria during the holidays. The decision of 7 May 2009 of the Sofia City Court was not appealed against and became enforceable on 3 July 2009.

3. Proceedings for the issuing of a passport to the second applicant

(a) First refusal to issue a passport and appeal against it

11. On 3 October 2007 the first applicant requested the police to issue a passport to her daughter. In a letter of 5 November 2007 the head of the “Bulgarian Identity Papers” section in the Sofia Police Department refused to issue a passport to the girl. He referred to the absence of a document giving the father’s consent.

12. The first applicant applied for judicial review, challenging the police refusal. On 6 March 2008, the Sofia City Administrative Court, examining the application under Article 145 of the Code of Administrative Procedure, quashed as unlawful the police refusal to issue a passport to the second applicant. The court observed that the absence of both parents’ agreement to the issuing of a passport to their child was not sufficient grounds to justify a refusal. It went on to say that the police should have carried out an in-depth analysis of the specific circumstances of the applicants’ case, being guided in their assessment primarily by the interests of the child. The court returned the case to the police with specific instructions as to how to apply the law when examining the applicant’s request.

13. I.P. appealed against the decision of 6 March 2008. On 29 September 2008 the Supreme Administrative Court upheld the findings of the Sofia City Administrative Court that the police refusal of 5 November 2007 had to be quashed as unlawful. It further noted that, on the question whether or not to issue a passport to a child, the police enjoyed decision‑making discretion (оперативна самостоятелност) pursuant to section 76(9) of the Bulgarian Identity Documents Act 1998. It went on to say that the police should have carried out a thorough analysis of the concrete circumstances of the case, guided by the primary interests of the child. That decision was not subject to appeal and became final on 29 September 2008, the day it was delivered.

(b) Second refusal to issue a passport and appeal to the Supreme Administrative Court

14. In the meantime, on 6 June 2008 the first applicant again applied for a passport for her daughter. On 6 August 2008 the police refused to issue a passport, referring to the fact that the Sofia District Court’s decision of 3 June 2008 in respect of replacing the father’s agreement was not final as I.P. had appealed against it (see paragraph 10 above).

(c) Third refusal to issue a passport

15. On 28 October 2008 the first applicant asked once again that a passport be issued to her daughter, referring to the two judgments of the administrative courts (see paragraphs 12 and 13 above). On 30 October 2008 the police informed both the border authorities and the applicant that a procedure was underway for the refusal of a passport to the second applicant. On 4 February 2009 the police refused the applicants’ request because of the absence of written consent from the child’s father. In doing so, the head of the Sofia Directorate of the Interior referred to the social services’ latest conclusions that, while the first applicant spent time in Canada, the second applicant was well cared for in Bulgaria by the first applicant’s parents. In addition, he found that the girl’s departure from Bulgaria would impede the possibility for the father effectively to exercise his access rights and that would affect his relationship with the child in an irreparable manner. The police concluded that the competent body to decide on the relationship between the father and the child was the relevant district court in accordance with Articles 72 and 106 of the Family Code 1985.

(d) Passport issued

16. After the judgment giving permission to the second applicant’s travel became final (see paragraph 10 above), the police issued a passport to the child on 30 July 2009. She obtained a visa and left for Canada with her mother in December 2009.

4. Proceedings for compensation

17. In January 2009 the first applicant brought proceedings for damages under the Code of Administrative Procedure, as related to the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”), on behalf of herself and her daughter. The applicants claimed they had both suffered as a result of the unlawful refusals by the police to issue a passport despite the findings of the administrative courts which had quashed the first refusal. They also claimed damages as a result of the unlawful failure of the police to comply in good time with the final decision of the Supreme Administrative Court of 29 September 2008. The applicants invoked a breach of Article 8 of the European Convention on Human Rights in respect of them both and of Article 2 of Protocol No. 4 to the Convention in respect of the second applicant.

18. The Sofia City Administrative Court partly upheld their claim on 1 July 2009. The court found that the Sofia Directorate of the Interior had to pay: (a) around 1,500 euros (EUR) to the first applicant and around EUR 2,500 to the second applicant, for non-pecuniary damage stemming from the quashing as unlawful of the police refusal of 5 November 2007 to issue a passport to the second applicant; and (b) around EUR 500 for non‑pecuniary damage to each applicant, as a result of the police unlawful failure to decide within the statutory 30-day deadline on the applicant’s request for a passport made on 28 October 2008 (see paragraph 22 below and 15 above). The court also awarded around EUR 100 to the applicants for costs and expenses, to be paid by the Sofia Directorate of the Interior.

19. On appeal by the applicants and cross-appeal by the Sofia Directorate of the Interior, on 3 May 2010 the Supreme Administrative Court (SAC) quashed the lower court’s decision in its entirety. It found that the appeal by the applicants had been inadmissible as lodged out of time. Ruling on the appeal by the police, the court observed that the first condition for the application of the Act 1988 was not present, given that a court had not quashed as unlawful an administrative act as required by section 1 of the Act 1988. It then went on to say that the lower administrative court had not decided the matter in the place of the police. Instead, it had returned the case to the interior authorities with instructions as to how to apply the law. The head of the Sofia Directorate of the Interior had then given ample reasons for his refusal of 4 February 2009 to issue a passport. The applicants had not appealed against that refusal. As to the second condition under section 1 of the Act 1988, namely a causal link between the failure by the police to decide in good time on the request for a passport and the damage suffered by the applicants, the court found that such a causal link was missing. More specifically, when deciding whether to issue passports to minors, the police did not enjoy discretion in respect of how to apply the law. Instead, the police were bound to act within the remit of “subordinate competence” (обвързана компетентност). It meant that, in their decision-making process, the police did not need to analyse the circumstances of each case, but rather only had to check whether the conditions listed in law were present or not. Consequently, the SAC concluded in its final decision of 3 May 2010, the damage caused to the applicants did not stem from the police refusal to issue a passport to the second applicant. The police had acted in application of the law. The fact that a passport had not been issued was entirely the result of the first applicant’s failure to submit either an authorisation by the father or by the relevant district court for the second applicant’s travel, as required by law.

B. Relevant domestic law and practice

1. Family Code 1985 and Family Code 2009

20. 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.

21. Under the new Family Code 2009, Article 123 § 2 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 2009 provides that, in cases where the parents do not live together, if they disagreed on questions related to the 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 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.

2. Bulgarian Identity Documents Act 1998

22. 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).

23. 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.

24. 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.

25. 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. If the parents disagreed, the Family Code 2009 specifically provided between 16 October 2009 and 21 December 2010 that the matter was decided in accordance with Article 123 § 2 of the Family Code 2009; as of 21 December 2010 onwards, the matter is to be decided in accordance with Article 127a of the Family Code 2009.

3. Regulations for the Issuing of Bulgarian Identity Documents (repealed as of 12 February 2010)

26. Section 11(8), adopted in 2007, provided that, in cases where the authorisation of one parent for the issuing of passport to a minor was missing, such an application had to be submitted together with one of the following documents: a judicial decision allowing the issuing of a passport which had become enforceable; a judicial decision depriving the missing parent of his or her parental rights; or, a death certificate of the parent who had not given his agreement.

4. Code of Administrative Procedure

27. According to Article 145 § 1, individual administrative acts are subject to judicial review as regards their lawfulness. Judicial review proceedings in respect of administrative acts are two-instance proceedings (Article 131) and they suspend the enforcement of the appealed administrative acts (Article 166 § 1).

28. According to Article 203, individuals or legal persons may bring claims for compensation for damage caused to them by an unlawful act or failure to act by an administrative body, when that act or failure to act have been quashed by a court. For questions not covered by this Code, the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”) is applied.

5. State and Municipalities Responsibility for Damage Act 1988

29. Section 1(1) of the Act 1988 provides that the State and municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. Section 4 of the Act 1988 provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts.

6. Relevant judicial practice in respect of issuing of passports to minors

30. The Supreme Court of Cassation held in a 2001 decision concerning a request for the issuing of a passport to a minor (реш. № 21 от 30.01.2001 г. на ВКС по гр. д. № 717/2000 г., II г. о.) that all questions related to the exercise of parental rights had to be decided by the relevant district court if the parents could not reach an agreement. In subsequent decisions (реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.; реш. № 1200 от 19.12.2008 г. на ВКС по гр. д. № 2871/2007; опр. № 84 от 16.02.2009 на ВКС по ч. гр. д. № 66, IV г. о.) the Supreme Court of Cassation reaffirmed its findings that questions related to the travel of minors abroad had to be decided specifically by the civil courts in accordance with Article 72 of the Family Code 1985, and not by the police following the administrative procedure under section 76(9) of the Bulgarian Identity Documents Act (see paragraphs 22 and 27 above). In doing so, the highest national court referred to its constant practice in respect of questions related to the exercise of parental rights. In two of the above-mentioned decisions (see реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.) the Supreme Court of Cassation quashed the findings to the contrary of two regional courts (see paragraph 31 below).

31. Two regional courts held in 2007 and 2008 respectively that claims under Article 72 of the Family Code 1985 were inadmissible because there existed an administrative procedure which was sufficient for obtaining a passport for a minor even where one of the parents disagreed (see реш. на окр. съд Хасково от 26.04.2007 г. по гр. д. № 93/2007; and опр. № 378 от 31.07.2008 г. на окр. съд Габрово по ч. гр. д. № 220/2008).

7. Commentary

32. In a legal column, published on 9 June 2003 in a daily newspaper with national circulation called “24 Hours”, a Sofia District Court judge advised that a claim under Article 72 of the Family Code 1985, seeking the permission for a minor’s travel abroad with one parent only, was inadmissible and the correct avenue for settling the matter was via the administrative procedure under the Bulgarian Identity Documents Act 1998.

C. Relevant international law

1. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

33. The Convention is in force in respect of Bulgaria as of 1 August 2003. It provides as follows:

Article 1

“The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Article 3

“The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

2. United Nations Convention on the Rights of the Child

34. The Convention was ratified by Bulgaria on 3 June 1991. It provides as follows:

Article 3

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 10

“1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.”

Article 18

“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

COMPLAINTS

35. The applicants complained under Article 8 of the Convention and Article 2 of Protocol No. 4 to the Convention about the ineffectiveness of the proceedings before the civil courts and about the repeated refusals of the police to issue a passport to the second applicant. Relying on Article 13 of the Convention in conjunction with Article 2 of Protocol No. 4 to the Convention and with Article 8 of the Convention, they also claimed that they did not have an effective remedy in relation to these complaints.

36. The applicants further complained that the police failed to comply with the final administrative court decision of 29 September 2008 quashing their refusal to issue a passport to the second applicant. This was because the police issued a passport as a result of the final judgment of the civil courts giving permission to the second applicant’s travel and not as a result of the administrative court’s decision. Alternatively, if the Court were to accept that the final administrative court’s decision was complied with, the applicants claimed that that happened too late. In both cases they alleged a breach of their right under Article 6 § 1 of the Convention to have a final judicial decision in their favour complied with by the State in good time.

37. The applicants also claimed that the proceedings for compensation which they brought in 2009 (see paragraph 17 above), did not meet the requirements of a fair trial under Article 6 § 1 of the Convention for a number of reasons. In particular, the decision of the SAC which ended those proceedings was in breach of the res judicata principle, given that the SAC decided anew the question of lawfulness of the police refusal to issue a passport when that question had been decided in the judicial review proceedings in 2008 (see paragraph 13 above); that decision was also arbitrary and at odds with the constant judicial practice of the same court in respect of police refusals to issue a passport to a minor; the applicants were deprived of access to a court as the SAC decided the question of lawfulness in a final decision without having raised it first with the parties during the proceedings for compensation; and, the SAC omitted to rule on the question whether compensation was due to the applicants as a result of the prolonged police failure to issue a passport to the second applicant.

THE LAW

A. Alleged violation of Article 8 of the Convention and Article 2 of Protocol No. 4 to the Convention, and Article 13 in conjunction with both of these Articles

38. The applicants complained, in particular, about the ineffectiveness of the proceedings before the civil courts and about the repeated refusals of the police to issue a passport to the second applicant, as well as about the absence of an effective domestic remedy in that respect. They relied on Article 8 of the Convention and Article 2 of Protocol No. 4 to the Convention, and Article 13 in conjunction with both of these Articles, 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 2 of Protocol No. 4

“...

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of [this right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of 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 notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. Complaints related to the judicial proceedings before the civil courts under the Family Code

(a) The parties’ submissions

39. The applicants submitted that the proceedings under the Family Code (see paragraphs 8 to 10 above) were not an effective procedural safeguard for the exercise by both applicants of their right to family life under Article 8 and by the second applicant of her right to freedom of movement under Article 2 of Protocol No. 4 to the Convention, in particular because those proceedings lasted too long.

40. The Government claimed that the applicants had failed to exhaust domestic remedies in respect of this complaint and, in particular to seek damages under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the Act 1988.

(b) The Court’s assessment

Admissibility

41. The Court notes that the proceedings brought by the first applicant before the civil courts, seeking permission for the second applicant’s travel to Canada in the absence of the father’s agreement, lasted between 1 September 2006 and 3 July 2009 when the second instance court’s judgment became enforceable (see paragraph 10 above). While this period in itself may raise issues under Article 8 and Article 2 of Protocol No. 4 to the Convention, the Court notes that the applicants submitted their application to the Court only in October 2010; this was more than fifteen months after the proceedings before the civil courts at the national level had ended. It is noteworthy in this connection that the damages which the applicants sought domestically in the proceeding which ended on 3 May 2010 (see paragraph 19 above) related exclusively to the administrative courts’ findings in respect of the police refusal to issue a passport to the child and did not in any way concern the proceedings before the civil courts.

42. Consequently, the Court finds that the complaint concerning the proceedings before the civil courts was submitted outside the six-month’s time-limit provided for by Article 35 § 1 of the Convention and is, therefore, inadmissible.

2. Complaints regarding the police refusal to issue a passport to the second applicant

(a) The parties’ submissions

43. The applicants claimed that the repeated refusals by the police to issue a passport to the second applicant had negatively affected both applicants’ ability to live together in Canada and the child’s ability to travel to join her mother there. In addition, at the time of the events it had not been clear which procedure, the one under Article 72 of the Family Code 1985 or the one under section 45 of the Bulgarian Identity Documents Acts, was the right one if one of the parents wished to travel with his or her child abroad in the absence of the other parent’s agreement. More specifically, the applicants referred to the findings of two regional courts adopted during the relevant period (see paragraph 31 above). In those decisions the judges had found that claims under Article 72 of the Family Code 1985 were inadmissible, given that the question could be decided in accordance with the administrative procedure under the Bulgarian Identity Documents Act. The applicants also brought up the contents of a daily newspaper article published on 9 June 2003 in which, in reply to a question from a reader, a judge from the Sofia District Court advanced the position that a claim under Article 72 of the Family Code 1985, seeking permission for a minor’s travel abroad with one parent only, was inadmissible and the administrative procedure had to be followed instead. The uncertainty created by the conflicting judicial practice at the time, the applicants claimed, had made it impossible for them to foresee the outcome of either type of proceedings or even to know which proceedings were the right ones to pursue.

44. The Government submitted that the police refusals to issue a passport to the second applicant did not represent an interference with the applicants’ right to respect for their family life. This was because the issuing of a passport did not in any way replace a missing parent’s agreement to his or her child’s leaving the country. Having both parents’ agreement to their child’s travel abroad was a prerequisite for any such travel. The police had informed the first applicant that she had not submitted all necessary documents for a passport to be issued and, in particular, the documents requested under section 45 of the Bulgarian Identity Papers Act and section 11(8) of the Regulations for the Issuing of Bulgarian Identity Documents. It had been clear in the relevant law and judicial practice at the time of the events that parental consent to a minor’s travel abroad was a condition for the child’s leaving the country. In cases where the parents disagreed, a system of adversarial proceedings before three levels of civil courts for obtaining such permission had been introduced specifically for the purpose of providing a mechanism for balancing the different competing rights, namely those of the child and of the two parents. As the Supreme Court of Cassation had held in its related decisions, proceedings under Article 72 of the Family Code 1985 were the right avenue for deciding the question of a child’s leaving the country. The issuing of a passport had, therefore, no influence per se on the ability of the applicants to exercise their right to family life, or on the second applicant’s right to freedom of movement.

(b) The Court’s assessment

Admissibility

45. The Court reiterates that in order to be able to rely on the substantive provisions of the Convention, two conditions must be met: an applicant must fall into one of the categories of petitioners mentioned in Article 34 of the Convention, and he or she must be able to make out a prima facie case that he or she is the victim of a violation of the Convention (see Vatan v. Russia, no. 47978/99, § 38, 7 October 2004; Asselbourg and Others v. Luxembourg (dec.), no. 29121/95, ECHR 1999-VI). The term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue (see, among many other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 92, ECHR 2012). It is not therefore possible to claim to be a “victim” of an act which is deprived of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007‑I). In so far as relevant, Article 34 provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”

46. The Court then notes the domestic courts’ consistent practice concerning the issuing of a passport to a child whose parents could not reach an agreement about it. In particular, the Supreme Court of Cassation invariably held that the question of a minor’s travel abroad, like all questions related to the exercise of parental rights, had to be decided by the relevant district court in accordance with Article 72 of the Family Code 1985, and not by the police following the administrative procedure under section 76(9) of the Bulgarian Identity Documents Act (see paragraph 30 above). The Court notes that during the time of the facts this question was decided differently on two occasions by two regional courts (see paragraph 31 above). However, this is not sufficient to challenge the unvarying conclusion found in the decisions of the highest national court on the same question during the same period of time. It is noteworthy also that both of those regional courts’ decisions were quashed by the Supreme Court of Cassation respectively on 11 and 18 November 2008 (see paragraph 30 above). Consequently, the Court finds it clear that the correct procedure under national law for obtaining permission for a minor’s travel in the absence of parental consent was a claim before the civil courts. This was the case throughout the period in question, namely between 1 September 2006, when the first applicant took her first action aimed at obtaining permission for her daughter’s travel (see paragraph 8 above), and 3 July 2009, when the judgment allowing travel became enforceable (see paragraph 10 above).

47. In the light of the above, the Court accepts the Government’s position that a passport, while being one of the conditions for a minor’s travel outside European Union space, would not in itself have sufficed to ensure the second applicant’s lawful travel to Canada in the absence of her father’s agreement (contrast with the situation in Baumann v. France, no. 33592/96, § 63, ECHR 2001‑V (extracts), where the applicant, an adult, would have been able to leave the country and travel to any European or non-European Union country, had his passport not been taken away; see, on the other hand, mutatis mutandis to the present case, Piermont v. France, judgment of 27 April 1995, Series A no. 314, p. 20, § 49, where Article 2 of Protocol No. 4 was found not to apply because the applicant had not complied with the relevant domestic legal requirements). The second condition for travel in the absence of parental consent, in addition to the first one of holding a valid passport, was a final civil court judgment, authorising the second applicant’s travel. The applicants only obtained such a judgment on 3 July 2009 (see paragraph 10 above). Only as of that moment, therefore, did they possess all elements necessary in law for requesting a passport. Given that the above-mentioned police refusals took place before 3 July 2009, those refusals did not affect the second applicant’s ability lawfully to leave the country during the period when the applicants were not in possession of a final civil court judgment authorising travel.

48. In this connection, the Court notes that shortly after the decision of the Sofia City Court authorising travel became enforceable on 3 July 2009 the police issued a passport to the second applicant (see paragraph 16 above). That happened on 30 July 2009 which was 27 days after the applicants could claim that they had complied with the relevant legal requirements. On the one hand, the period of 27 days for issuing a passport was lawful according to domestic law (see paragraph 22 above) and, on the other hand, it was objectively not too long. Therefore, it cannot be said either that this period raises an issue under either Article 8 of the Convention or Article 2 of Protocol No. 4 to the Convention.

49. In conclusion, in view of all the above, the Court finds that the applicants cannot claim to be victims of a violation either of Article 8 or of Article 2 of Protocol No. 4 to the Convention, because the absence of a passport in the name of the child before 3 July 2009 did not affect her ability lawfully to leave the country to join her mother in Canada. Consequently, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. Alleged violation of Article 13 in conjunction with Article 8 and Article 2 of Protocol No. 4 to the Convention

50. The applicants claimed that they did not have an effective remedy in relation to their complaints above. They relied on Article 13 of the Convention in conjunction with Article 2 of Protocol No. 4 to the Convention and with Article 8 of the Convention.

51. The Government contested that argument.

52. Having declared the applicants’ complaints under Article 8 and Article 2 of Protocol No. 4 to 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; Tereshchenko v. Ukraine (dec.), no. 39213/05, 18 October 2011). 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.

B. Alleged violations of Article 6 § 1 of the Convention

1. Alleged failure to comply with a final administrative court judgment

53. The applicants first complained under Article 6 § 1 that the police failed to comply with the final administrative court decision of 29 September 2008 quashing their refusal to issue a passport to the second applicant. Article 6 § 1, in so far as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

(a) The applicants’ submissions

54. In the applicants’ view the police issued a passport to the second applicant as a result of the final judgment of the civil courts giving permission to her travel and not as a result of the administrative court’s decision. Alternatively, they claimed, if the Court were to accept that the final administrative court’s decision was complied with, that happened too late.

(b) The Government’s submissions

55. The Government considered that the SAC judgment of 29 September 2008 returned the case to the police for further consideration and a new decision and, as such, it did not need any different implementation from the follow-up given to it by the police in their decision of 4 February 2009.

(c) The Court’s assessment

Admissibility

56. The Court notes that, given that the compliance with a final judgment is to be regarded as an integral part of the trial for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II; Burdov v. Russia (no. 2), no. 33509/04, § 65, ECHR 2009), it has to establish first whether Article 6 § 1 was applicable to the judicial proceedings before the administrative courts in which the applicants challenged the police refusal to issue a passport to the second applicant. In that connection the Court observes that in those judicial proceedings: there was a genuine and serious dispute in relation to a right, namely to be issued with a passport; the outcome of the dispute was determinative for that right (distinct from the right to travel); and, the right to be issued with a passport was recognised both in domestic law and in the final judgment of the Supreme Administrative Court of 29 September 2008. It remains to be established whether the right in question was “civil” within the autonomous meaning given to it by the Convention.

57. The Court recalls that it has already held in earlier cases that the right to a passport is not a civil right, given that it is not of a pecuniary nature or otherwise of a private character (see Smirnov v. Russia (dec.), no. 14085/04, 6 July 2006; Šoć v. Croatia (dec.), no. 47863/99, 29 June 2000; Karassev and family v. Finland, no. 31414/96, Commission decision of 14 April 1998; Peltonen v. Finland, no. 19583/92, Commission decision of 20 February 1995).

58. It follows that the complaint about the failure to comply or delayed compliance by the police with the final SAC judgment is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. Alleged unfairness of the proceedings for compensation

59. The applicants claimed secondly that the proceedings for compensation which they brought in 2009 (see paragraph 17 above) did not meet the requirements of a fair trial under Article 6 § 1 of the Convention.

(a) The applicants’ submissions

60. The applicants claimed in particular that: a) the decision of the Supreme Administrative Court (SAC) which ended the proceedings for compensation was in breach of the res judicata principle, given that the SAC decided anew the question of lawfulness of the police refusal to issue a passport when that question had been decided already in the judicial review proceedings in 2008 (see paragraph 13 above); b) that that decision was also arbitrary and at odds with the constant judicial practice of the same court in respect of police refusals to issue a passport to a minor; c) that they were deprived of access to a court as the SAC decided the question of lawfulness in a final decision in the proceedings for compensation without having raised it first with the parties; and, d) that the SAC omitted to rule on the question whether compensation was due to the applicants as a result of the prolonged police failure to issue a passport to the second applicant.

(b) The Government’s submissions

61. The Government considered that the final SAC decision of 3 May 2010 was well-reasoned and the proceedings as a whole complied with the fair trial requirements under Article 6.

(c) The Court’s assessment

Admissibility

62. In respect of the first complaint, the Court recalls its findings in previous cases that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of rule of law and legal certainty, encompasses the requirement that where the courts have finally determined an issue, their ruling should not be called into question (see Brumarescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII; Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, § 61, 12 January 2006).

63. In that connection the Court observes that on 3 May 2010, in the proceedings for damages which the applicants brought in relation to the police refusal to issue a passport, the SAC held that the conditions for granting compensation have not been met. The reason according to the SAC was, in the first place, that the police refusal had not been determinative, given that the matter had been sent back to the police for a decision in accordance with the court’s instructions (see paragraph 21 above). Secondly, any damage claimed by the applicants had not been a direct consequence of the police refusal to issue a passport, but of the first applicant’s failure properly to submit her request.

64. In the present case the Court finds that, unlike in the case of Brumarescu, cited above, the decision of 3 May 2010 delivered in the compensation proceedings did not quash the final judgment of 29 September 2008 delivered in the proceedings against the police refusal to issue a passport. Neither did it set at naught the entire judicial process which had ended with the final SAC decision of 29 September 2008 (see to the contrary Kehaya, cited above, § 70). In the proceedings for compensation the SAC considered the question of the lawfulness of the police refusal as part of its examination of whether the conditions for granting compensation had been met; therefore, the SAC did not decide anew the question of lawfulness in a new judgment. Consequently, it cannot be said that the authorities acted in breach of the legal certainty principle inherent in Article 6 § 1 of the Convention.

65. Insofar as the complaints about unfairness of the proceedings under Article 6 § 1 could be understood as contesting the SAC’s assessment of the facts of the case and its application of domestic law in the proceedings for compensation, the Court recalls that it is not required under the Convention to determine the correctness of the SAC’s decision refusing to grant compensation to the applicants. The Court is not a court of appeal from the national courts (see Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)), and it is not its function to deal with errors of fact or law allegedly committed by them (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). In the present case the applicants were able to submit their arguments before the SAC which delivered a reasoned decision on 3 May 2010 addressing those submissions. Furthermore, the decisions presented by the applicants, claiming to represent a conflicting judicial practice, do not reveal “profound and long-standing differences” in the SAC’s case-law on the question of compensation for quashed refusals to issue a passport (see to the contrary, on the point of conflicting practice, Beian v. Romania (no. 1), no. 30658/05, § 38, ECHR 2007‑V (extracts)).

66. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, 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 February 2015.

Françoise Elens-PassosGuido Raimondi
RegistrarPresident

Full & Egal Universal Law Academy