FIFTH SECTION

CASE OF DIMOVA AND PEEVA v. BULGARIA

( Application no. 20440/11 )

JUDGMENT

STRASBOURG

19 January 2017

FINAL

19/04/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dimova and Peeva v. Bulgaria ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Angelika Nußberger, President , Erik Møse, Ganna Yudkivska, André Potocki, Yonko Grozev, Carlo Ranzoni, Mārtiņš Mits, judges , and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 6 December 2016 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 20440/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 March 2011 by two Bulgarian nationals, Ms Tsveta Dimitrova Dimova , born in 1980 ( “the first applicant”) , and her daughter Ms Emma Lachezarova Peeva , born in 2005 (“the second applicant”).

2 . The applicants were represented by Ms S. Razboynikova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

3 . The applicants alleged that the refusal of the Supreme Court of Cassation of 1 November 2010 to allow the child to travel abroad with her mother without restrictions, in the absence of her father ’ s agreement, had breached both applicants ’ right to a private and family life, and that they did not have an effective remedy in this connection.

4 . On 15 June 2015 these complaints were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background

5 . The first applicant divorced the second applicant ’ s father on 22 December 2008 by means of a court-approved divorce agreement. According to the agreement, she was to exercise parental rights and the father had contact rights, the use of the family dwelling and was obliged to pay approximately 50 euros (EUR) a month in child support. The child was to live with her mother, and her father could see her on the first and third weekend of every month, for thirty days during the summer, and for a week during the winter or spring. The agreement did not make reference to a specific address, or even a town or a city where the first applicant was su pposed to live with the child.

6 . On 25 November 2009, upon a request by the child ’ s father for a change in the contact regime between him and his daughter, the first instance civil court approved anothe r agreement between the parents , which extended the duration of the father ’ s weekend contact by a few hours. The parents also agreed that th e father would collect the child from her mother ’ s home in Kazanlak, Bulgaria, and would tak e her back to the same location; the father could spend his time with the child at one of two specific addresses in Bulgaria, located in Koprivshtitsa and Srednogorovo respectively . If the mother changed her address, she had to inform the father by registered mail within ten days of such a change.

B. Proceedings before the civil courts regarding permission for the child to travel

1. First-instance proceedings before the Varna District Court

7 . On 18 March 2009 the first applicant brought a claim under Article 72 of the 1985 Family Code before the Varna District Court, seeking the court ’ s authorisation for the child to leave the country in the absence of her father ’ s agreement. She submitted that she was in a committed relationship with a Bulgarian man who lived in the United Kingdom, where he worked as a ship e ngineer. They intended to marry and she wished to settle in the United Kingdom , and live with him and her daughter. Notwithstanding the above, the first applicant specified that, in the event that the court did not grant her application for permission for the child to travel, she would remain in Bulgaria to care for her as a responsible parent.

8 . On 30 October 2009 the Varna District Court rejected the first applicant ’ s claim for the child ’ s unrestricted travel abroad with only her mother, finding that it could not be in the child ’ s interests. More specifically, the reasons given were that the mother could not show that she had a fixed place of residence abroad, or a secure income with which to ensure her daughter ’ s well-being, and that the child ’ s absence from Bulgaria would pose an obstacle to the father ’ s exercise of his contact rights.

2. Appeal proceedings before the Varna Regional Court

9 . The first applicant appealed against the refusal to the Varna Regional Court. She claimed that the father showed no interest in the child and did not pay any child support. His refusal to allow the child to leave the country for any period of time prevented her from taking her on holiday abroad and residing in Montrose in the United Kingdom, where she had a fiancé and could provide her daughter with better material conditions. She and her partner intended to marry that year, but her child ’ s inability to leave the country with her would make this impossible.

10 . The Varna Regional Court allowed her appeal on 22 February 2010. It held that she had the necessary parenting qualities, including the ability to create an emotionally comforting environment for the child and provide her with financial support. That had been decided at the time she had been granted custody of her daughter, and had not been either challenged or refuted subsequently. The first applicant ’ s parental abilities and the care she provided to her daughter would not change as a result of her crossing the national border. In view of the strained relationship between the two parents, the court considered that permission for the child to travel abroad with only her mother should be granted for the whole of the child ’ s infancy, that is, until she reached majority. The court also held that the change in the mother ’ s circumstances constituted grounds for changing the contact regime between father and child, but did not adjudicate on that matter.

3. Proceedings at last instance before the Supreme Court of Cassation

11 . Following a cassation appeal by the father, in June 2010 the Supreme Court of Cassation suspended enforcement of the second-instance court ’ s judgment while the issue was pending before it. On 1 November 2010, in a final judgment, it refused to allow the second applicant to travel abroad in the absence of her father ’ s agreement.

12 . The court first observed that there was conflicting domestic jurisprudence on the question of granting unlimited permission for a minor ’ s travel abroad in the absence of both parents ’ agreement. Some courts (including the second instance one in the present case) found that when a parent who had been granted custody ( упражняване на родителските права ) had the necessary parental skills, such permission could not be refused. Other courts considered that when a parental consensus was missing, granting permission for unlimited travel abroad was only going to cause further disturbance and resentment in the relationship between the parents , which was likely to result in additional disputes between them , and this was not in the interests of the child.

13 . Examining the present case, the court relied in particular on its well ‑ established and binding case-law, according to which permission for a child ’ s unrestricted travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interests of the child. More specifically, there was a risk that a parent applying for such permission could take the child to countries which were in a state of war or where there was a high risk of natural disasters, thus endangering the child ’ s well-being and depriving the State of the opportunity to ensure his or her protection. Also, if the parent took the child to a country which was not a member of the European Union, or with which Bulgaria had no reciprocal agreement regarding legal assistance, the authorities would not be able to ensure that the contact rights of the other parent were enforced.

14 . The court held that permission to travel abroad with only one parent could be granted only in respect of fixed destinations and for a limited period of time, and when this was in the interests of the child.

15 . Turning to the specific case, the court held that the first applicant had not presented any guarantees as to where the child would be taken or how the father ’ s contact rights would be exercised. Importantly, the first applicant had not sought in court a change in the regime for contact between the child and the father with a view to her and the child moving their primary place of residence to the United Kingdom. In any event, the first applicant had presented in the proceedings before the court only her personal assertions in respect of her future in the United Kingdom, but no evidence to demonstrate the facts she claimed. She purported that she would get married; howev er, this wa s an uncertain future occurrence which did not depend solely on her will. The situation would have be en entirely different , if she had been married and had settled in good material conditions in another country. In such a case, the question of whether it would be in the child ’ s interest to join her mother abroad would be open for discussion. However, as this was not the case, in view of the young age of the child, the court found that it was not in her interest for her mother to be granted permission to take her abroad at any time, for an unlimited duration and to unknown destinations throughout the period before the child reached majority .

C. Further developments

16 . On 18 December 2011, a little over a year after the final judgment of the Supreme Court of Cassation on the issue of the child ’ s travel, the first applicant and her partner, who was still living in the UK, married in Bulgaria. Several days earlier, on 1 December 2011, the second applicant ’ s father had explicitly agreed to her leaving the country with her mother. He signed an initial declaration for the period between 5 January 2012 and 15 June 2012, and has apparently been signing such declarations authorising year-long periods ever since. As a result, the applicants have been able to travel to, live and study in the United Kingdom, where they were at the time of their last correspondence with the Court.

17 . Since leaving Bulgaria in January 2012, the child has been in regular contact with her father over the phone and Skype, and has spent time with him every summer.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW

19 . Following the delivery of the Penchevi judgment by the Court, and in view of its findings, on 1 March 2016 the President of the Bulgarian Supreme Court of Cassation initiated a procedure for the adoption of an interpretative decision in respect of minors ’ travel abroad in the absence of parental consent. The case was registered as interpretative case no. 1/2016 in the Civil Chamber of the court, and its conclusion is pending ( Тълкувателно дело № 1/ 2016 г. ОСГК – Родителски права ) .

20 . A draft bill for the amendment of the Family Code, posted on the website of the Bulgarian Ministry of Justice on 29 August 2016, envisages repeal ing Article 127a of the 2009 Family Code . This provision has, since 21 December 2010, specifically provided that the questions related to a minor ’ s travel abroad and to the issuing of identity papers were to be decided jointly by both parents. If the parents disagreed, the issue has to be settled by the district court in the minor ’ s plac e of residence whose decision i s subject to appeal before two higher judicial instances.

21 . In addition to the legal provisions set out in Penchevi , cited above, the following provisions are of relevance in the instant case. Under Article 72 of the 1985 Family Code, parental rights and obligations were to be exercised by both parents together, as well as separately by each parent. In the event that the parents disagreed, the relevant district court would decide on the exercise of parental rights after hearing both parents and, if need be, the child. The court ’ s decision was open to appeal before two levels of court.

22 . According to section 76(9) of the Bulgarian Identity Documents Act 1998, the police could refuse to allow a minor to leave the country in the absence of written consent to such travel from both of his or her parents.

23 . Articles 528 and 529 of the Code of Civil Procedure 2007 regulate enforcement of the obligation to surrender a child. If an individual against whom a judgment or an order is being enforced fails to surrender a child, the bailiff can fine him or her and seek assistance from the Social Assistance Directorate, including by asking the directorate to take appropriate measures under the Child Protection Act. If an individual fails to comply voluntarily, the bailiff, acting with the assistance of the police and the mayor, can seize the child in question and hand him or her over to the party in whose favour a judgment has been made. If an individual obstructs enforcement, the police can place him or her under arrest, notifying the prosecuting authorities immediately.

Preamble

“(1) The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market.

...

(4) On 3 July 2000 France presented an initiative for a Council Regulation on the mutual enforcement of judgments on rights of access to children.

(5) In order to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding.

... ”

Article 21 – Recognition of a judgment

“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

... ”

Article 26 – Non-review as to substance

“Under no circumstances may a judgment be reviewed as to its substance.”

Article 41 – Rights of access

“1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.

Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.

... ”

Article 72 – Entry into force

“This Regulation shall enter into force on 1 August 2004.

...

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.”

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 AND OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

25 . The applicants complained that the refusal of the Supreme Court of Cassation to allow the second applicant to travel abroad had breached their right to respect for their private and family life, as provided for in Article 8 of the Convention, and that they did not have an effective remedy in this respect. The relevant parts of Articles 8 and 13 read :

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”

26 . The Government contested that argument.

A. Admissibility

27 . The Government submitted that the first applicant had failed to exhaust domestic remedies, as she had not sought to change the contact regime between the father and the child prior to bringing the application for permission for the child to travel. Furthermore, the applicants could not claim to be victims of a violation of the Convention, given that shortly after the final judgment of the Supreme Court of Cassation the child had been able to leave the country.

28 . The applicants contested the above arguments. They submitted that a change of the contact regime had not been a prerequisite with regard to seeking permission for travel, and neither was it a guarantee that the national court would have decided differently. Furthermore, the second applicant had been able to travel with her mother not because the national authorities had acknowledged a violation of the Convention and given redress, but purely because the child ’ s father had changed his mind.

29 . The Court agrees with both of the applicants ’ arguments as to admissibility. In particular, it finds that their complaint cannot be rejected for a failure t o exhaust domestic remedies, as a change in contact rights was not a legal prerequisite for seeking authorisation for a child to travel. Furthermore, the applicants could still claim to be victims of a Convention violation, given that the authorities had neither acknowledged such a breach nor provided redress.

30 . The Court further notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

31 . The Government submitted that, in the final judgment on the first applicant ’ s application for the child ’ s unrestricted travel abroad with only her mother, the national court had carried out an adequate proportionality analysis of the circumstances of the case. The court had examined all relevant factors and taken its decision in the light of those factors. The first applicant had brought about the outcome in her case herself, as she had failed to seek a new contact regime for the father prior to applying for the permission to travel. A new regime would have been compatible with a situation whereby she and the child were living in the United Kingdom, and she could have bro ught such a claim under Article 127(1) of the 2009 Family Code. Lastly, the Government emphasised that well - established national judicial practice had unequivocally recognised that, in the absence of both parents ’ agreement, it was unacceptable for courts to approve a minor ’ s travel abroad for an unlimited period of time to an unspecific destination, as that was never in the child ’ s best interests.

32 . The applicants pointed out that it was only the new Family Code, the one in force since 1 October 2009, which required a child ’ s place of residence to be determined separately from the question of which parent would be granted parental rights. In March 2009, at the time the first applicant had made her application for the child to travel (see paragraph 7 above), the old 1985 Family Code had been in force. According to its provisions, in the absence of parental consent regarding the issue of which parent a child should live with, as opposed to the issue of where this should be, a first-instance civil court determined the issue under Article 71(2) of the 1985 Code (see paragraph 18 above, second sentence ). In the first applicant ’ s case, the court which had ruled on her divorce had also decided that the child would live with her, without specifying where she would live (see paragraph 5 above). The first applicant submitted that she had complied with all the applicable legal requirements at the time she had made her application for permission to travel, and referred to the fact that her claim had been granted in 2010 follow ing her appeal (see paragraphs 9-10 above). She also believed that she had not been required to initiate new sets of proceedings to determine a matter which, in her opinion, had already been covered by the initial judgment granting her parental rights.

2. The Court ’ s assessment

33 . The relevant general principles have been outlined in the first case in which the Court examined a situation concerning judicial proceedings determining a minor ’ s travel abroad in the absence of the parents ’ consensus , namely Penchevi v. Bulgaria (cited above , §§ 53-58) . In accordance with those principles, it is not for the Court to substitute itself for the competent domestic authorities in regulating disputes related to contact, residence or travel; it has to rather review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. In particular, the Court is called upon to review whether the domestic courts conducted a thorough examination of the entire situation and a series of factors – particularly those of a factual, emotional, psychological, material and medical nature – and whether they made a balanced and reasonable assessment of each person ’ s respective interests, always bearing in mind the best interests of the child.

34 . The Court observes that in the present case the Supreme Court of Cassation ’ s refusal on 1 November 2010 to allow the child to travel made it impossible for the second applicant to leave Bulgaria for the United Kingdom, where the first applicant wished to exercise her Article 8 rights by living together with her partner and her child. However, u nlike the situation in Penchevi ( cited above, § 61) , the Court finds that in the present case the impossibility for the child to f ollow her mother to the United K ingdom represented an interference only with her mother ’ s Article 8 rights . The reasons was that in Penchevi the travel refusal prevented both applicants from being together while the first applicant pursued her studies in Germany and the second applicant remained in the care of his maternal grandparents (see Penchevi , cited above, § 13), while in the instant case the first applicant remained in Bulgaria with her daughter throughout the relevant period.

35 . The Court observes that the interference with the first applicant ’ s Article 8 rights was provided for in law: initially Article 71 of the 1985 Family Code and subsequently Article 123 § 2 of the 2009 Family Code in conjunction with section 76(9) of the Bulgarian Identity Document s Act 1998 (see paragraphs 18 and 22 above , in addition to § 26 in Penchevi , cited above ). As to the law ’ s quality, the Court notes that the two Family Codes explicitly required both parents ’ agreement in respect of issues relating to their child ’ s travel abroad. In addition, section 76(9) of the Bulgarian Identity Documents Act specifically entitled the police to prevent a minor from travelling in the absence of the relevant parental consent. Consequently, the applicable law was sufficiently clear and accessible, and the consequences of its application were foreseeable. Therefore, the interference can be said to have been “in accordance with the law” .

36 . The Court finds that the interference pursued the legitimate aim of protecting the rights of others: in this case, the second applicant ’ s father.

37 . It remains for the Court to determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. Necessity implies that an interference corresponds to a pressing social need, and, in particular, is proportionate to the legitimate aim pursued (see W. v. the United Kingdom , 8 July 1987, § 60, Series A no. 121). Therefore, the Court has to establish whether , on the one hand, the Supreme Court of Cassation considered all the competing rights involved by scrutinising the different interests in the light of the individual circumstances of the case and, on the other hand, whether it struck a fair balance. The interests in question were those of the child and those of each parent, given that the parents were separated.

39 . The Court then observes that , in a final decision, the last instance court refused to allow the child ’ s travel in the absence of the father ’ s agreement . The Court finds it crucial that , unlike the situation in the case of Penchevi , cited above, where the Supreme Court of C assation relied almost exclusively o n its well established case-law according to which permission for a child ’ s unlimited travel abroad in the absence of both parents ’ agreement could not be granted as a matter of principle, the highest civil court in the instant case carried out an examination of the particular circumstances of the case and considered the various interests involved.

40 . More specifically, t he court was guided in its considerations by the primary interes t of the child (see paragraphs 14-15 above). Unlike in the case of Penchevi , the court in the instant case examined the request in the light of the concrete information in the file concerning the child ’ s and her parent s ’ situation. It observed in the first place that the request had clearly indicated that it did not concern a one-off trip or several such of a short duration, but was made instead in respect of travel which was unlimited in time and place. This was explained by t he first applicant ’ s intentio n to move her and the child ’ s residence to the United Kingdom. In Penchevi , the Court criticis ed the domestic courts for having overlooked a number of elements in the file showing that: (1) the child had adapted we ll to a kindergarten in Germany; (2) his mother had the financial means to offer him ad equate living conditions there; (3) the father had been imposed a restraining order in the past; and that (4) the latter ’ s access rights had been determined in a manner compatible with the child ’ s living with his mother in Germany. In the present case, however, this type of circumstances is precisely what the domestic court looked into. In particular , the court observed that the first applicant intended to move to another country together with the child but had not shown that she could provide adequate material conditions to her daughter there or any certainty of ensuring even temporary stability . I n fact, there was nothing to demonstrate that she had either settled in the United Kingdom or at the very least had a source of income with which to cater for the child ’ s need s , independently of the presence or absence of good will of a third unrelated party who was the person she claimed she intended to marry . It was expressly after examining the specific situa tion of the child and the first applicant that the court formed m isgivings about the former ’ s well ‑ being in case she were relocated to the United Kingdom in the above ‑ described circumstances . The court perceived that there was a real risk for the well-being of the child and this is was what led it to refuse permission for her unlimited travel. It cannot be said therefore that the last instance domestic court decided the matter solely relying on its earlier mandatory case-law and not examining the situation in the light of the particular circumstances of the case.

41 . The Court finds that a further significant difference between the present case and the situation in Penchevi is that , contrary to the case of Penchevi where the contact regime had been changed with a view to the child ’ s living in Germany, the first applicant here had omitted to seek determination of the contact rights between the child and her father in a manner compatible with the child ’ s primary residence being the United Kingdom. The first applicant argued on this point that , at the time she had brought the proceedings for the child ’ s travel , the applicable law had not required that the place of residence of the child be determined explicitly; it sufficed for the court to determine with whom of the parents the child had to live and the child then followed that parent (see paragraph 18 above ). She pointed out that only as of October 2009 did the Family Code necessitate that the place of residence of the child following disagreement between the parents be determined specifically. As she had brought the proceedings for travel in March 2009, the developments in the Code were not relevant to those proceedings.

42 . The Court observes that, following the above-described changes in the Family Code, on 25 November 2009 the first applicant signed a court ‑ approved agreement with the child ’ s father , specifically determining addresses from which the child was to be collected and returned, and at which she were to stay with her father. A move of the child ’ s residence to the United Kingdom would have made this court-approved arrangement impossible to comply with . However, no attempt was made by the first applicant to seek a solution whereby her and her child ’ s relocation abroad would allo w for continued contact between daughter and father , despite that she had had the possibility of seek ing such a change in the same judicial proceedings deciding on the child ’ s unlimited travel. The Court considers in this connection that , if the S tate were called upon to ensure a fair balance between the competing interests at stake (see paragraph 37 above ) , it is difficult to say that the place where the child lives and how or whether contact rights are exercised is irrelevant. Given that there was no consent between the two parents on the matter of relocating the child to the United Kingdom , and that such a move would have affected the family life of both child and father, the issue had to be decided by the courts which , however, were never asked to do that.

43 . In addition, the first applicant submitted in that connection that if she had started proceedings for a change in the contact regime after October 2009 , this would not have been satisfactory becau s e she and the child would have remained in Bulgaria throughout the duration of those proceedings, given that there was no possibility for interim measures under the applicable law . The Court reiterates in that connection that it has to confine itself, as far as possible, to an examination of the concrete case before it, as its task is not to review national law in abstracto , but to determine whether the manner in which it was applied gave rise to a Convention violation (see Olsson v. Sweden (no. 1) , 24 March 1988, § 54, Series A no. 130; see also Penchevi , cited above, § 63 ).

44 . T he C ourt has repeatedly held that it is not for it to substitute itself for the competent domestic authorities but to review their decisions taken within the margin of appreciation that they have on those issues. In view of all of the above, the Court finds that the Supreme Court of Cassation complied with its obligation under Article 8 of the Convention to decide on questions affecting the exercise of the rights protected under that provision by assess ing the individual circumstances in the case through the prism of the best interest of the child . While the analysis of the Supreme Court of Cassation i n the present case i s admittedly not detailed , the Court considers that it has examined the concrete situation and has taken a decision which cannot be said to be arbitrary .

45 . Finally, t he Court observes that neither the applicant s complained about nor the Government dealt with the issue of the length of the proceedings for deciding on the child ’ s travel, which the Court had found was a relevant aspect in its assessment of the proportionality of the decision to refuse travel (see P enchevi , cited above, § 72-74 ). In the c ircumstances, t he Court does n ot consider it should examine t his question of its own motion .

46 . The foregoing considerations are sufficient to enable the Court to conclude that t here has accordingly be en no violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares , unanimously, the application admissible;

2 . Holds , by six votes to one, that there has been no violation of Article 8 of the Convention;

3. Holds , unanimously, that no separate issue arises under Article 13 of the Convention.

Done in English, and notified in writing on 19 January 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger Deputy Registrar President