Communicated on 4 December 2019
FIFTH SECTION
Application no. 1666/19
Y and Others
against Bulgaria
lodged on 21 December 2018
STATEMENT OF FACTSThe circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, a Brazilian national, is a scientific researcher who resides in Bulgaria since 2012. She is the mother of the second and third applicants (born respectively in 2010 and 2012).Divorce and custody proceedings
The first applicant and P.P. married in 2009 in the United States of America and thereafter lived together in Bulgaria.
In 2012 P.P. brought judicial proceedings for divorce seeking custody over the children. On 1 March 2013 the Sofia District Court allowed the claim for divorce, but granted custody to the first applicant and held that the children were to live with her at a concrete address in Sofia. The court also determined contact between P.P. and the two children and held that P.P. was to keep the common family dwelling and to pay alimony to the second and third applicants.
Both parties appealed. In a decision of 19 February 2015 the Sofia City Court approved a settlement reached in the meantime by the parties as regards custody and contact rights. According to the settlement, the first applicant was to keep custody of the children and P.P. was to have contact rights with the second and third applicants. Thereafter, on 14 April 2015 the Sofia City Court upheld the judgment of the Sofia District Court of 1 March 2013 in the part concerning the family dwelling and alimony. It further held that the two children were to live with the first applicant at an address in Sofia, Bulgaria.
According to the first applicant, P.P. complied with the contact regime between 2013 and October 2015, when he retained both children and thereafter refused to allow her to take the children back.Proceedings for a change of custody
On 3 September 2015 P.P. brought proceedings before the Sofia District Court, asking the court to grant custody in respect of the second and third applicants to him and to deprive the first applicant of parental rights. Shortly thereafter, P.P. collected the children from the first applicant’s address in Varna, where she had started living, and did not return them. The first applicant’s related complaint to the prosecution resulted in the opening of an investigation into her complaint. No information about the outcome of these proceedings has been provided.
On an unspecified date, P.P. asked the Kostinbrod District Court to suspend the implementation of the Sofia City Court judgment of 14 April 2015, as an interim measure aimed at securing a future claim for a change of custody which he intended to bring. On 19 May 2016 the Kostinbrod District Court suspended the enforcement of the divorce proceedings’ judgment, which suspension was later quashed as inadmissible by the Sofia Regional Court. On 20 June 2016 P.P. brought a claim for a change of custody (case no. 372/2016), asking the Kostinbrod District Court to award custody of the children to him.
On 22 December 2016 P.P. again asked the Kostinbrod District Court to suspend the enforcement of the final judgment of 14 April 2015 or, alternatively, to give temporary custody to him as an interim measure. On 6 February 2017 the Kostinbrod District Court granted P.P.’s request for interim measures and awarded temporary custody to him and contact rights to the first applicant; the court also held that the children were to live with P.P. In a judgment of 3 November 2017 (in case no. 372/2016), the Kostinbrod District Court allowed P.P.’s claim and awarded custody to him and contact rights to the first applicant.
Upon an appeal by the first applicant, on 22 June 2018 the Sofia Regional Court quashed in its entirety the decision of 3 November 2017 of the Kostinbrod District Court. The court held that there were no changes in the circumstances which could justify a change in the custody of the children and rejected P.P.’s related claim.
On 25 June 2018 the first applicant sought, as an interim measure, custody over the children, pending the end of the proceedings for a change of custody brought by P.P. On 4 October 2018 the Sofia Regional Court granted her request for interim measures and awarded temporary custody to her and contact rights to P.P.
On 5 March 2019 the Supreme Court of Cassation did not allow P.P.’s application for cassation review and so the judgment of the Sofia Regional Court of 22 June 2018 (case no. 372/2016) entered into force.Proceedings seeking judicial authorisation for the children’s leaving the country
In the meantime, in March 2014 the first applicant brought a claim under Article 127a of the Family Code, seeking the court’s authorisation for the children to leave the country with her, in the absence of the father’s agreement. She submitted that both she and the children were Brazilian citizens and they wished to visit their relatives in Brazil.
On 28 December 2015 the Sofia District Court allowed the claim for the children’s restricted travel abroad, accompanied only by their mother for the period of two months per year.
Upon an appeal by P.P., on 3 July 2018 the Sofia City Court granted permission for the children to travel abroad to Brazil with their mother only. The permission was valid for the following two years and for travel of up to one month per year.
The applicant complained before the Inspectorate of the Supreme Judicial Council (“the Inspectorate”) of the excessive length of the above proceedings. On 11 March 2019 the Inspectorate replied to her that these proceedings had lasted for four years, three months and twenty six days and that their overall duration was not excessive.
According to the first applicant, P.P. has kept the identity documents of the second and third applicants. The first applicant is likewise unable to apply for passports for them as the children’s presence is required in that procedure, and P.P. has not allowed it.Domestic violence proceedings against the first applicant
On an unspecified date P.P. brought court proceedings, alleging that the first applicant had been violent on two occasions in December 2017 towards the children and his own mother. His claim for protection against domestic violence was granted at first instance on 1 March 2018. However, the Sofia Regional Court, acting at second instance, quashed the lower court’s judgment in a final decision of 1 June 2018. The Sofia Regional Court found that no act of domestic violence had been committed by the first applicant, who had in fact been the victim of such violence herself on the contested occasions.Enforcement proceedings
The first applicant obtained a writ of enforcement on 8 July 2015 and sought the bailiff’s assistance with the implementation of the settlement on custody approved by the Sofia City Court on 19 February 2015. Different bailiffs attempted to summon P.P. to voluntarily hand the children over to the first applicant respectively in late 2015, in March 2016 and in September 2017, without success, as P.P. did not live at the address he had provided to the authorities and the children were not enrolled in kindergarten there. In November 2017 the first applicant renewed her requests to the bailiff to proceed with the enforcement. Thereafter, three bailiffs successively withdrew from the case between 21 December 2017 and 21 September 2018, following which the first applicant sought the assistance of a new bailiff.
Another writ of enforcement was issued to the first applicant on 10 March 2017 in respect of the contact rights she was granted by the Kostinbrod District Court on 6 February 2017 as an interim measure in the proceedings for a change of custody brought by P.P.
On 29 May 2017 the social services issued a mandatory instruction addressed to P.P., directing him to refrain from obstructing contact between the applicants. Upon an appeal by P.P., on 11 May 2018 the Sofia Court of Appeal quashed the instruction. The first applicant appealed and the proceedings are currently pending.
Following the issuing of another similar instruction by the social services, P.P. unsuccessfully challenged it before the Sofia Administrative Court which rejected his appeal on 23 July 2018. After a cassation appeal by P.P., on 18 December 2018 the Supreme Administrative Court upheld the lower court’s judgment.
The first applicant claims that, despite the efforts of bailiffs and social services alike, she was able to see her children only rarely since October 2015.Relevant domestic law
The relevant provisions of Bulgarian law in relation to enforcement of judgments on custody rights and criminal sanctions for failure to ensure contact with a child have been set out in the Court’s judgment in the case of Aneva and Others v. Bulgaria, nos. 66997/13 and 2 others, §§ 83-87, 6 April 2017.
According to Article 234 of the Code of Civil Procedure 2007, the court approves agreements between the parties when those are not contrary to the law and good morals. The approval represents a final judicial decision which is not subject to appeal before a higher court. When the agreement concerns only part of the dispute between the parties, the court proceeds to examine the other part falling outside the agreement.
COMPLAINTS
The applicants complain under Article 8 of the Convention about the authorities’ failure to reunite them, despite a final court decision approving an agreement giving custody in respect of the second and third applicants to the first applicant. The applicants further complain about their inability to enjoy family life together as a result of the impossibility to leave the country to visit their relatives in Brazil for over four years, as a result of the duration of the separate judicial proceedings concerning the possibility for the children to travel abroad with their mother.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention, as a result of the failure of the authorities to reunite the applicants, despite a final judicial decision approving a settlement granting custody to the first applicant?
Has Article 8 of the Convention been breached as a result of the duration of the separate judicial proceedings for allowing the children’s travel abroad with the mother only?
Full & Egal Universal Law Academy