M.M v. BULGARIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 27496/95

                      by M. M.

                      against Bulgaria

      The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 28 March 1995 by

M. M. against Bulgaria and registered on 1 June 1995 under file

No. 27496/95;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on 22

      January 1996 and the observations in reply submitted by the

      applicant on 23 April 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Bulgarian national born in 1964, is a school

teacher residing in Sofia.  Before the Commission she is represented

by Ms. Zdravka Kalaydjieva and Ms. Anna Gavrilova-Ancheva, lawyers

practising in Sofia.

      The facts of the case as submitted by the parties may be

summarised as follows.

A.    Particular circumstances of the case

Developments leading to the divorce

      In 1989 the applicant married Mr.E.  On 14 March 1990 she gave

birth to a boy, Z.

      In 1992 the applicant and her husband became interested in the

activities of the religious society Warriors of Christ and attended its

meetings together, occasionally also with their son.

      Warriors of Christ was registered as a foundation on 20 April

1992 by the Sofia Regional Court.  The charter stated that its aim was

to engage in "dissemination of the ideas of the Bible, Christian

education and charitable activities".  The applicant submits that at

the meetings of the foundation, attended by approximately 120 - 150

participants, there was a sermon dedicated to a certain topic from the

Bible and "charismatic" church music.  After February 1994, pursuant

to an amendment in the legislation, Warriors of Christ needed a

permission from the Council of Ministers in order to renew their

registration.  On 28 June 1994 the Council of Ministers refused to give

permission for renewed registration to Warriors of Christ and 22 other

religious societies without stating the reasons for the refusal.

      In an information note, prepared by a "Committee for the

Protection of the Family and of the Individuals" and submitted by the

Government, it is explained that the fear of the devil is the basic

element in the sect's doctrine.  It is considered that the devil can

be embodied in any person and that he has to be chased out by special

spells.  On the other hand, if somebody falls ill, it is only God who

can decide whether this person should live.  Without providing details,

the information note states that in certain cases mothers have refused

to apply medicaments prescribed for their children.  The information

note also states that the average age of the sect's members is nineteen

and concludes that in the space of several months a new member of the

sect can become infantile and close-minded, preoccupied only with the

sect's activities and disinterested with the outside world.

      In 1993 Mr. E gradually lost interest in the religious

activities.  Eventually the relations between the applicant and her

husband deteriorated, Mr. E disapproving of his wife's continuing

involvement with the religious society.  In June 1993 Mr. E left the

family home.

      In June 1993 the applicant's husband brought Z. to his parents'

house in the countryside, some 500 km away from Sofia.  The applicant

complained to the prosecution authorities but she and her husband

eventually agreed that they would solve all their problems in court.

      Z. stayed with his grandparents in the countryside until

September 1993.  The applicant spent an unspecified period of time

there, returning to Sofia in September 1993.  On 23 September 1993 Z.

was back in Sofia and lived again with his mother in the family studio.

      In July 1993 the applicant's husband brought an action for

divorce before the Sofia District Court (Sofiiski raionen sad).  He

claimed that his wife had become uncaring for her family and had

neglected the elementary household obligations;  that she had become

disrespectful and rude;  that the applicant had maltreated Z. by

hitting him and shouting at him for any trivial misdemeanour;  that she

had become obsessed with the religious activities of a sect, where she

and her sister had been attending meetings until late at night;  that

the applicant wanted to involve their child with the sect;  that the

child gradually became psychologically instable and had a constant fear

of corporal punishment;  and that in general his wife did not care for

the family but only for her sect.

      In addition, the applicant's husband made a request to be granted

the parental rights over the child.

Provisional custody of Z.

      On 15 November 1993 Mr. E informed the applicant that he planned

to take the child as he had recently rented an apartment.  The

applicant refused to give her consent.

      On 24 November 1993 Mr. E took his son away from the kindergarten

and brought him to his apartment.  He declined to give his address to

the applicant and refused to allow her to have any contact with the

child.

      Thereupon the applicant submitted to judge X., before whom the

divorce proceedings were pending, a petition for provisional measures

concerning the exercise of parental rights over the child.  She stated

that her husband had unlawfully kidnapped her son; that this was in

breach of the prosecutor's instructions of July 1993;  that her husband

was incapable of taking care of a three years' old child; and that as

an army officer he would be frequently away from home, whereas she as

a school teacher was busy only half day.  The applicant requested an

injunction, which would oblige her husband to return Z. and grant her

custody of him until the matter was finally resolved.

      The father referred to the child's alleged irrational bursts of

laughter, sleeping problems and neurotic tics.  The Court held two

hearings on the matter, heard several witnesses and appointed a medical

expert.

      In his report, based on the child's medical record and an

examination, the expert stated that the child was healthy and no

aberrations were observed except for a short blinking tic.   As regards

the irrational bursts of laughter, reported by the father, they could

be indicative of a rare type of "temporal epilepsy" which, however,

could not have any link with the alleged ill-treatment of the child.

At a hearing held on 25 January 1994, asked whether attendance at

meetings of "sects" in general was harmful for children of an early

age, the expert stated that as far as he knew such attendance when it

lasted for hours could be abnormal and could make a child nervous.

      On the same day the Court delivered its order on the issue of a

provisional grant of parental rights.  The Court stated  that it had

been established that the applicant had attended meetings of the "sect

Warriors of Christ" and that in all likelihood the child had been

brought to such meetings on several occasions;  that  "people from

Warriors of Christ" had visited the applicant in her home;  that the

medical expert had confirmed the negative mental development of the

child and namely the existence of tics, nervousness and irrational

bursts of laughter; that the expert had expressed the opinion that "the

atmosphere during attendance at sects lasting for several hours

[was]abnormal for a four years' old child as this would make it nervous

and neurotic"; and that the father has recently rented an apartment,

which would be a suitable place for the child to live in.

      The Court stated further:

     "... the Court finds that the interests of the child

require, for the child to be raised correctly, that the father,

who could guarantee tranquillity and everything necessary for

his son, should take care of his bringing up and should obtain

the parental rights."

      The Court dismissed the applicant's petition and provisionally

granted the parental rights to the father.  The applicant was allowed

to spend with her child every second Sunday and one month during the

summer.

      The applicant then submitted a petition to the President of the

Sofia District Court requesting the removal of judge X., who had not

hidden her open hostility towards the applicant's religious beliefs.

Thus, judge X. had made remarks such as "Bulgaria is an orthodox

country" and "we all know what the sects did to our children".

Furthermore judge X. had deliberately used the words "the sect" when

describing the religious society Warriors of Christ and had also called

its meetings "séances", which implied a negative meaning.  As a whole

it was obvious that judge X. had a hostile opinion towards non-orthodox

religious beliefs based merely on general information from newspapers.

      On 9 March 1994 the President of the Sofia District Court replied

that a request for the removal of a judge had to be addressed to the

chamber before which the case was pending.

Decision of the Sofia District Court of 2 June 1994

      The divorce proceedings were then conducted by a chamber of the

Sofia District Court without the participation of judge X.  On 11 May

1994 the medical expert presented an additional report, stating that

he had been told by the father that the child did not have sleeping

problems and was not nervous any longer.  The child was in good health.

However, short tics of blinking were observed again.  Also, it could

be concluded that the child continued to suffer from "temporal

epilepsy" with unknown etiology.  In this respect the treatment

undertaken so far had been correct and had to be continued.

      On an unspecified date an information note of the Committee for

the Protection of the Family and of the Individuals concerning Warriors

of Christ was submitted to the Court (see above Developments leading

to the divorce).  However, it was not admitted in evidence as it did

not meet the pertinent procedural requirements.  Neither the parties,

nor the court ex officio, sought any other evidence as regards the

activities of Warriors of Christ.

      On 2 June 1994 the Court divorced the applicant and her husband.

In its judgment the Court stated that the applicant had not committed

matrimonial offences.  The allegation that the applicant had beaten her

child in order to force him to accept her religious beliefs was

unsubstantiated and unproven.  It was also untrue that the applicant

had refused to seek medical help when the child had been ill.  The

witness who had testified on this issue had never had close relations

with the family.  Furthermore this witness had clearly expressed her

prejudice towards "non-traditional" religions.  At the same time the

statements of other witnesses, who testified that the applicant

hadalways been "a normal mother" and her apartment had always been

clean and tidy, appeared credible as they were neighbours of the family

and did not have any interest in the case.  The Court also discarded

the allegations that the applicant had abandoned the care for her

family because of her involvement with the religious society.

      In respect of the parental rights over the child, the Court

stated that both parties had the necessary qualities and would be

equally good in bringing up the child.  In these circumstances, since

the boy had spent the last several months with his father and in view

of the fact that new changes could perhaps bring again the traumatising

effect of the quarrels between the parents, it was in the interest of

Z. to stay with his father.  For these reasons the Court granted the

parental rights to the father.

      The Court further granted to the applicant the right to spend

with her son every second Saturday and up to twenty days every summer,

as the child needed a personal contact with his mother.  The attitude

of the father, who did not abide by the request of the Court to

disclose his address, was blameworthy.

Proceedings before the Sofia Regional Court

      The applicant appealed against this decision to the Sofia

Regional Court (Sofiiski gradski sad), requesting modification of the

judgment insofar as it had granted the parental rights to the father.

      On 8 October 1994 the Regional Court dismissed the applicant's

appeal.  The Court stated inter alia that, as it transpired from the

applicant's personal notes, she had been engaged with her religious

activities two or three times per week and almost every Saturday and

Sunday.  Further on, the judgment stated:

     "It had been established [by the District Court] that [the

father] had better qualities as a parent and educator, and to

take care for the child daily.  He surrounded the child with

love and attention.  Having in mind how harmful for our young

generation are the various sects and religious movements in this

country, it is in the interest of the child to stay under the

custody and the control of the parent of a sounder mind.  It had

been established that the mother was bringing the child to the

meetings of  her spiritual brothers and sisters, where he

assisted at their various religious rituals, and at the

meditations of his mother and aunt, which doubtlessly could

fatally affect the fragile mind of a child.  This could have

harmed the child's health even more as it suffered from temporal

epilepsy.  After the spouses separated and the atmosphere at

home calmed, the child started improving.

     ...

     The request of the father to be present during the meetings

of the child with his mother is ill-founded.  There had been no

indication of a behaviour of the mother which would endanger the

life or the health of the child.  Therefore it is not necessary

to deprive her of the possibility to meet the child in private."

Proceedings before the Supreme Court

       The applicant submitted a petition for review (pregled po reda

na nadzora) before the Supreme Court, stating that the Sofia Regional

Court had not addressed any of her arguments.  Instead, the Court had

completely replaced the reasoning of the first instance judgment

bymaking arbitrary conclusions of fact without examining any fresh

evidence, but by merely twisting the findings of the first instance

court.  Furthermore, without any evidence having been collected on the

issue, the Court had drawn general conclusions concerning certain

religious movements.  In some parts the judgment resembled a newspaper

article and not a well-founded conclusion of a court.

      On 22 February 1995 the Supreme Court dismissed the applicant's

petition for review.  The decision stated, inter alia:

     "The decision is lawful and in the interest of the minor

child Z.  The conclusion of the [Regional] Court that both

parents had been taking care of the child was based on the

evidence in the case.  However, as a decisive criterion the

Court has considered their capabilities to bring up the child.

It had been established beyond any doubt, based exclusively on

the confessions of the [applicant], that she had fallen under

the influence of Warriors of Christ, a sect which is not duly

registered.  Several times per week she attends the sermons and

the meetings of this sect and has neglected the care for her

child.  Her behaviour is dangerous for the interests of the

child, who is only four years old.  The [applicant] does not

deny that she had been bringing the four year old Z. to the

meetings of the sect.  There could be no doubt that the presence

of the child at such a public place is harmful to his mind and

to his health in general.

     The Court had granted the parental rights to the father who

is the better parent and educator.  He is an army officer and

the command of his unit has exempted him from trips and work on

duty in view of his obligation to take care of the child.  He

copes successfully in bringing up the child.  The medical report

showed that in the last months, when he looked after the child

on his own, the health of Z. had improved."

Subsequent developments

      Since November 1993, when her former husband took Z., the

applicant has seen the child only a few times.  The father has refused

to give his address.

      On an unspecified date in 1994 the applicant filed a petition for

the institution of enforcement proceedings concerning Mr. E's

obligation to allow contact with the child every second Saturday.

However, Mr. E did not appear when summoned by the enforcement

authority.  In a "certificate" dated 5 October 1995 and addressed to

the military prosecution authorities, the enforcement judge stated that

the "numerous summons" sent to Mr. E had not been received by him.

Upon the order of the enforcement judge the police provided information

about the address at which Mr. E was registered. However, the summons

sent to this address were returned with a note that the addressee had

left.  The summons sent to the military unit where Mr. E worked were

also returned unsigned.  The applicant also sent to Mr. E, through a

notary, a formal letter inviting him to discuss the contact

arrangements.  No response was received.

      On 22 March 1995 the applicant filed a complaint with the

Regional Military Prosecutor's Office (Okrazhna voenna prokuratura) in

Sofia requesting the institution of criminal proceedings against her

former husband for having disobeyed the judicial order concerning the

contact with her son, an alleged crime under Section 182 of the

Criminal Code (Nakazatelen kodeks).  The Regional Prosecutor apparently

instructed Mr. E to bring the child to meetings with the applicant at

a hotel parking in Sofia.  However, Mr. E and the child appeared only

once, on 25 May 1995, the applicant having waited for them in vain on

several occasions.

      On 21 September 1995 the Regional Prosecutor refused to institute

criminal proceedings stating that Mr. E could be criminally liable for

failure to comply with the judicial order only in case the enforcement

judge had not succeeded in implementing it.

      On 16 October 1995 the applicant appealed against this decision

to the General Military Prosecution (Prokuratura na vaorazhenite sili).

The applicant stated that the criminal liability of the father arose

from the very fact of his refusal to comply with the contact order;

that the father was hiding his address; that the summons sent to the

military unit where he worked were returned; and that the efforts of

the enforcement judge to obtain execution had been fruitless.

      On 6 December 1995 the appeal was dismissed.  The decision stated

that the conclusions of the Regional Prosecutor had been correct.

B.    Relevant domestic law and practice

a.    The relevant provision of the Family Code of 1985 (Semeen kodeks)

concerning the custody of children following divorce reads as follows:

Section 106

"...

(2)  The Court grants the parental rights after considering all

circumstances in the light of the children's interest...

...

(5)  Upon a parent's request or ex officio the court can modify

or replace the measures [concerning the exercise of the parental

rights] if there has been a change of the circumstances".

      Interpretative Decision of the Supreme Court No. 1 of 1974 (PPVS

No. 1/1974), which was applied by the courts in the applicant's case,

lists inter alia the criteria which should govern the courts when

deciding on the custody of a child following a divorce.  Apart from the

criteria concerning the physical and moral aptitude of the parents, the

Decision states that account should be taken of the sex and the age of

the child.  As regards children of the male sex the father and the

mother should be considered as equally apt to look after them.  On the

other hand the mother should have priority in cases of babies and

children in their first years unless it is established that she has

abandoned the child, that she is in poor health or that she is morally

inapt.

b.    The relevant provision of the Civil Procedure Code (Grazhdanski

protsesualen kodeks), which governs the enforcement of certain type of

judgments, reads as follows:

Section 421

     "Where the act [provided for in the judgment] cannot be

performed by another person, but is exclusively dependent on the

will of the debtor, the enforcement judge, upon the creditor's

request, shall compel the debtor to perform the act by imposinga

fine of up to 20 leva.  In case the debtor again does not

perform the act, the enforcement judge shall impose subsequent

fines of up to 20 leva, but not more than 200 leva altogether."

c.    Section 182 para. 2 of the Criminal Code provides as follows:

     "A parent or another relative [of a child], who fails to

comply with, or in any other manner prevents the enforcement of,

a judicial order concerning the exercise of parental rights or

the contact with [the] child, shall be punished with

correctional labour or a fine of up to 3,000 leva and, in very

serious cases, with imprisonment of up to six months or a fine

of up to 10,000 leva."

      Interpretative decision No. 3 of 8 December 1983 of the Penal

Plenary of the Supreme Court (TR na OSNK) states inter alia that

"criminal liability under Section 182 para. 2 of the Criminal Code

arises regardless of the fact whether civil enforcement proceedings had

been instituted".

d.    Under the Penal Procedure Code (Nakazatelno-protsesualen kodeks)

the refusal of a prosecutor to institute criminal proceedings can be

appealed against to the higher prosecutor.

COMPLAINTS

1.    The applicant complains under Article 8 of the Convention that

the deprivation of her parental rights was unlawful and not necessary

as it was based solely on the fact that she belonged to a certain

religious society.

      The applicant submits that the conclusions of the courts were

arbitrary and contradictory.  The custody of the child was

provisionally granted to the father on the basis of presumptions about

the allegedly harmful effect of "sects", adopted without the

examination of a single piece of evidence on that issue.  The District

Court explicitly dismissed all allegations that the applicant's

behaviour had been or could have been harmful for the child.  The

Regional Court, without any fresh findings of fact and merely on the

basis of an unconcealed prejudice, upheld the custody measures again

reestablishing the reason that "sects" in general were harmful for

children.

2.    The applicant also complains under Article 8 of the Convention

that she has been deprived of any contact with her child as her former

husband is allegedly hiding the child from her and as it is impossible

for her to enforce the order allowing contacts every second Saturday.

She instituted enforcement proceedings, but under the relevant

provisions, which have not been amended for many years, the only

measure which could be imposed on a non-abiding parent was a maximum

fine of 200 leva, a nominal amount of money.  She also requested the

institution of criminal proceedings against her former husband for not

abiding by the court order, but even if successful, such proceedings

would concern the father's behaviour for a past period of time and not

the execution of his obligations in the future.

3.    The applicant complains under Article 9 of the Convention that

the judicial decisions in her case constituted an indirect coercion on

her to change her religious beliefs and not to manifest them.  In their

judgments the courts stated that her reluctance "to overcome

herobsession" had been a matrimonial offence and as a whole expressed

an openly hostile attitude towards her convictions.  Furthermore, the

only possibility for the applicant under Bulgarian law to regain the

custody of the child would be an action for modification of the custody

measures, which was possible only if there were fresh relevant

circumstances.  As the courts had clearly indicated that her

involvement with a certain religious society had been the relevant fact

motivating their decisions, they were in fact compelling the applicant

to give up her beliefs if she wanted her child back.

4.    The applicant complains under Article 14 in conjunction with

Article 8 of the Convention that the courts distinguished between her

and her former husband on the basis of their religious beliefs.  The

courts found that her former husband was "of a sounder mind", that it

would be better for the child to be brought up by him and, accordingly,

deprived her of parental rights, on the sole ground that the father was

not involved in an untraditional religious society, whereas she was.

      The applicant complains under Article 14 in conjunction with

Article 9 of the Convention  that the coercion as regards her religious

beliefs was discriminatory as it distinguished between her and her

former husband on the basis of their religious beliefs.

5.    The applicant complains under Article 6 para. 1 of the Convention

of the alleged bias of the courts.  Thus judge X. during the hearings

made remarks demonstrating her prejudice.  The Regional and the Supreme

Courts also clearly expressed their partiality in the reasoning of

their judgments.  The courts deliberately used terms like "sect",

"meditation", "to indulge in rituals" and others, which were a striking

expression of prejudice.

      The applicant further complains under Article 6 para. 1 that the

judicial decisions were arbitrary.  Thus the Regional Court stated that

the lower court had correctly considered the father as the better

parent, whereas in fact the District Court had clearly stated that both

spouses were equally good as parents.  Similar arbitrary statements

concerned the alleged harmful effect to the child of the activities of

the religious society as the courts did not examine any evidence on

this issue.  They allegedly based their decisions on general attitudes

created by the media.  Also, the courts interpreted in a distorted

manner the medical reports and other evidence before them.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 28 March 1995 and registered

on 1 June 1995.

      On 18 October 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

      The Government's written observations were submitted on

22 January 1996 after an extension of the time-limit fixed for that

purpose.  The applicant replied on 23 April 1996, also after an

extension of the time-limit.

THE LAW

1.    The applicant complains under Articles 6, 8, 9 and 14

(Art. 6, 8, 9, 14) of the Convention of the judicial decisions in her

divorce proceedings and of the alleged impossibility to obtain the

enforcement of the order allowing contact with her child.   The

Government raise a preliminary objection that the application is an

abuse of the right of petition.  Thus, the applicant's allegation that

the judicial decisions in her case amounted to pressure on her to

change her religious beliefs is groundless and misrepresents the real

situation in Bulgaria, where religious freedom is guaranteed.  Also,

the applicant raises complaints without having employed all remedies

available to her in the country.  Moreover, the applicant is citing

isolated phrases from the decisions in an attempt to mislead the

Commission.

      The Government also submit that the applicant is not originally

from Sofia, that she has no real property there and that her income is

low.  In the light of these facts the Government note that often in

divorce proceedings the real motive behind a request to obtain the

custody of a child is in fact the desire to secure the right to use the

family lodging, usually attributed to the custodial parent.  The

Government also submit that the applicant insists on her freedom of

conscience and individual liberties in a speculative manner which, in

their view, is not characteristic of a good mother who is concerned

above all with the well-being of her child.

      The applicant responds that the allegations of the Government are

unfounded.

      The Commission considers that the Government's objection could

only be accepted if it were clear that the application was based on

untrue facts.  However, this is far from clear in the present case.

The Commission, therefore, considers that the application cannot be

rejected as constituting an abuse of the right of petition within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention (No.

8317/78, Dec. 15.5.80, D.R. 20, p. 44; No. 21987/93, Dec. 19.10.94,

D.R. 79, p. 60).

2.    The applicant complains under Article 8 (Art. 8) taken alone and

in conjunction with Article 14 (Art. 8+14) of the Convention that the

courts in her divorce proceedings attributed her child to his father

on discriminatory grounds.

      Article 8 (Art. 8) of the Convention, insofar as relevant,

provides as follows.

           "1.   Everyone has the right to respect for his ...

      family life ...

           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 14 (Art. 14) provides as follows.

           "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any ground

      such as sex, race, colour, language, religion, political or other

      opinion, national or social origin, association with a national

      minority, property, birth or other status."

      The Government submit that there has been no State interference

with the applicant's rights under Articles 8 and 14 (Art. 8, 14) of the

Convention as the case concerns divorce proceedings between two

individuals.

      In case it is considered that there has been an interference, the

Government submit that it was lawful and necessary in a democratic

society.  The Government submit that the interest of the child was the

paramount and only basis of the judicial decisions.  The decisions were

not based on the fact that the applicant had untraditional religious

beliefs but on the finding that her behaviour influenced adversely the

child's health.  The courts relied on the evidence given by witnesses

and by the applicant herself and found that she was attending meetings

of her religious community several times per week, sometimes together

with the child.  The courts credited the father who stated that the

applicant had lost any interest in her family as a result of her

involvement with the sect.  The courts also relied on the conclusions

of the medical expert who stated that attendance at meetings of sects

might be abnormal for children.

      The Government further submit that the present case has to be

distinguished from the Hoffmann case (Eur. Court H.R., Hoffmann

judgment of 23 June 1993, Series A, no. 255-C) in that Warriors of

Christ is a religious society which was initially registered by the

Bulgarian courts but, following an amendment in the law which required

renewed registration, was refused permission to re-register by decision

of the Council of Ministers of 28 June 1994.  As a result Warriors of

Christ is an unlawful association since June 1994.  For this reason the

Bulgarian courts did not find it necessary to examine the activities

of Warriors of Christ as they relied on the assessment of the Council

of Ministers.

      The applicant replies that a custody order in divorce proceedings

is an inevitable State interference with one of the parent's rights

under the Convention, but that in her case the interference was not

justified under the second paragraph of Article 8 (Art. 8) of the

Convention as it was based on discrimination.

      This was so because the judicial decisions determining the

custody of her child, with the exception of the decision of 2 June

1994, were all based on her religious beliefs.  They expressed strong

disproval of her involvement with Warriors of Christ, employing

inadmissible language; considered that the fact of her belonging to an

untraditional religious society was sufficient to make her less

suitable to bring up a child; and stated that the father was of "a

sounder mind" because he was not involved with such untraditional

religion.

      The applicant submits that the judicial decisions referred to her

behaviour only to state that on several occasions she had brought her

child to the meetings of Warriors of Christ.  Moreover, when the courts

stated that this was harmful for the child's health, this was not a

finding of fact.  The courts never collected any evidence as regards

the activities or the meetings of Warriors of Christ, but simply

declared that sects were dangerous.  The medical expert in the case

expressly stated that the health problems of the applicant's child

could not be linked to the allegations as regards the applicant's

behaviour.  The reasoning used by the courts was such that in effect

it could apply to every person who attended meetings of an

untraditional religious character.  On the other hand, it was clear

that no such reasoning would have been used if the applicant was

attending, for example, driving lessons.

      The applicant also submits that decisions attributing the custody

of a four years' old child to the father are extremely rare in the

Bulgarian judicial practice and could be seen only in cases of a

serious inaptitude of the mother to take care of her child.

      Having examined the applicant's complaint concerning the custody

of her child, the Commission finds that it raises serious questions of

fact and law which are of such complexity that their determination

should depend on an examination of the merits.  This part of the

application cannot, therefore, be regarded as manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,

and no other grounds for declaring it inadmissible have been

established.

3.    The applicant also complains, invoking Articles 8 and 14

(Art. 8, 14) of the Convention, of the alleged impossibility to obtain

the execution of the judicial order allowing contact with her child.

      The Government submit that the applicant has not exhausted all

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention.  Thus, under Section 106 para. 5 of the Family Code the

applicant is free to request a modification of the custody measures

whenever there exists a change in the relevant circumstances.

Referring to two decisions of the Supreme Court of 1969 and 1971 (2464-

71-II and 1456-69-II) the Government submit that non-compliance, by the

custodial parent, with contact arrangements can be sufficient to

warrant a modification of the custody measures.

      The Government submit that the execution of contact orders is

governed by an interpretative decision of the Supreme Court of 1962 and

not by Sections 421 - 422 of the Civil Procedure Code.  The Government

have not provided further detail on this decision of the Supreme Court.

      The applicant replies that the Supreme Court's Interpretative

Decision No. 4 of 1962 concerns the physical handing over, with the

assistance of an enforcement judge, of a child living with one parent

and attributed to the other parent.  In her view this decision is not,

and could not, be applicable as regards the execution of an order

providing for regular visits and meetings between a child and a parent.

The applicant submits that the only measures for the execution of a

contact order are contained in Sections 421 - 422 of the Civil

Procedure Code and they are inefficient.

      The applicant submits that she has exhausted all domestic

remedies and have resorted to all possible means to obtain execution

of the contact order.  Thus, she has instituted enforcement proceedings

but the enforcement judge was unable to compel the father even to

appear before him.  The fines which the enforcement judge could impose

were ridiculously low and would never bring a solution.  Furthermore,

she has attempted to institute criminal proceedings against her former

husband under Section 182 of the Criminal Code but this was refused

unlawfully and with arguments which contradict the judicial practice.

      As regards the possibility to bring an action under Section 106

para. 5 of the Family Code the applicant submits that such an action

does not concern the execution of the contact order but the delivery

of a fresh custody or contact order, the execution of which would be

again a question to be resolved.  The applicant submits that a

successful outcome of a such an action is highly unlikely in her case.

The refusal of the father to give his address and to cooperate were

noted as early as in the course of the first instance proceedings, but

this did not lead to a custody order in the applicant's favour.  All

institutions had complete disregard for the applicant's right to see

her child, as they were burdened with prejudices against untraditional

religious groups.

      Examining the Government's objection under Article 26 (Art. 26)

of the Convention, the Commission recalls that this provision requires

that the applicant makes a normal use of the remedies which are

available and sufficient and relate to the breaches alleged.  It falls

to the respondent State to establish that these conditions are

satisfied (cf. No. 11889/85, Dec. 10.3.89, D.R. 59, p. 95; Eur. Court

HR, Brozicek v. Italy judgment of 19 December 1989, Series A no. 167,

p. 16, para. 32).

      The Commission notes that Section 106 para. 5 of the Family Code

concerns the adjustment of custody measures to fresh developments and

not the execution of a contact order.  The applicant should not be

normally expected to resort to indirect legal tools only to put

pressure on the father to observe the contact arrangements.

Furthermore, it appears unlikely that the courts would alter the

custody order after a significant amount of time spent by the boy with

his father on the sole ground that the father does not allow the

meetings provided for in the contact order.  The Commission notes in

this respect that the District Court in its judgment of 2 June 1994

observed the lack of cooperation of the father, who had refused to give

his address, but nevertheless granted him the custody of Z. as the boy

had lived with his father for seven months.

      The Commission also notes that Interpretative Decision No. 4 of

1962 of the Supreme Court apparently concerns the measures to be taken

in cases of reattribution of the custody of a child.  In any event, the

applicant instituted enforcement proceedings and thus put the matter

in the hands of the enforcement judge.  The Commission also notes that

the applicant has submitted petitions seeking the institution of

criminal proceedings against her former husband, and that these were

rejected.

      In these circumstances the Commission finds that the applicant

has exhausted the domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

      The Commission, having examined this complaint, finds that it

raises serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

This part of the application cannot, therefore, be regarded as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and no other grounds for declaring it

inadmissible have been established.

4.    The applicant complains under Article 9 (Art. 9) taken alone and

in conjunction with Article 14 (Art. 9+14) of the Convention that the

judicial decisions in her case constituted an indirect coercion on her

to change her religious beliefs.

      Article 9 (Art. 9) of the Convention, insofar as relevant

provides as follows.

           "1.   Everyone has the right to freedom of ... religion;

      this right includes freedom to change his religion or belief and

      freedom, either alone or in community with others and in public

      or in private, to manifest his religion or belief, in worship,

      teaching, practice and observance.

           2.    Freedom to manifest one's religion or beliefs shall be

      subject only to such limitations as are prescribed by law and are

      necessary in a democratic society in the interests of public

      safety, for the protection of public order, health or morals, or

      for the protection of the rights and freedoms of others."

      The Government submit that the courts have not based their

decisions on the applicant's religious beliefs as they were irrelevant.

Therefore the contention that the applicant has to change her beliefs

in order to obtain the custody of her child is groundless.  The

applicant is free to submit an action under Section 106 para. 5 of the

Family Code to obtain the custody of the child if there are new

relevant circumstances.  Such circumstances could concern, for example,

the father's behaviour in general and the relations between him and his

son.  A change of religious beliefs could not constitute a relevant new

fact.  The Government state that nothing prevents the applicant from

manifesting her religious beliefs, the freedom of religion being

protected in Bulgaria.

      The applicant replies that the judicial decisions in her case

were based on the arbitrary and prejudiced view of the courts that a

mother with untraditional religious beliefs was dangerous for her

child.  Therefore, the only possibility for her to obtain the custody

of the child by bringing an action under Section 106 para. 5 of the

Family Code was to show that she has abandoned the sect and returned

to "normality".  This constitutes an indirect pressure on her to change

her beliefs or at least to suppress or hide their manifestation.

      The Commission, having examined the complaint under Articles 9

and 14 (Art. 9, 14) of the Convention, finds that it raises serious

questions of fact and law which are of such complexity that their

determination should depend on an examination of the merits.  This part

of the application cannot, therefore, be regarded as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other grounds for declaring it inadmissible have

been established.

5.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the courts in her case were partial and that the

decisions of the Regional and of the Supreme Courts were based on

arbitrary  conclusions.

      Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows.

           "In the determination of his civil rights and obligations

      ... everyone is entitled to a fair ... hearing ... by an ...

      impartial tribunal ..."

      The Government submit that the courts were not partial.  They

referred to the applicant's religious activity only insofar as its

impact on her family and her child was concerned.

      In the Government's view the courts correctly assessed the

evidence before them and provided all safeguards of a fair trial.  The

contention that there is a contradiction between the District Court's

judgment of 2 June 1994 and the Regional Court's judgment of 8 October

1994 is unfounded.  The Regional Court, when examining the District

Court's judgment and the evidence in the case, was free to reach its

own conclusions.

      The applicant replies that the language and the arguments of the

courts were clearly indicative of a prejudiced opinion.  The courts are

free in the assessment of the case, but the principle of a fair trial

requires that this assessment be based on the evidence duly admitted

in the course of the proceedings.  Instead, in the applicant's view,

the provisional custody order and the Regional and the Supreme Court's

decisions relied exclusively on a presumption that sects are dangerous.

      The Commission, having examined the complaint under Article 6

(Art. 6) of the Convention, finds that it raises serious questions of

fact and law which are of such complexity that their determination

should depend on an examination of the merits.  This part of the

application cannot, therefore, be regarded as manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,

and no other grounds for declaring it inadmissible have been

established.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber

 

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