Resolution CM/ ResDH (2012)153 [1] Mincheva against Bulgaria

Execution of the judgment of the European Court of Human Rights

(Application No. 21558/03, judgment of 02/09/2010, final on 02/12/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established (see document DH-DD(2012)916E );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)916E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

Case Mincheva v. Bulgaria , Application No 21558/03

Judgment of 02 September 2010, Final on 02 December 2010

1. Convention violation found

The case relates to the excessive length of civil proceedings concerning the custody of the applicant ’ s son (violation of Art. 6 § 1) and lack of effective remedy in this respect (violation of Art. 13). It concerns also the violation of the applicant ’ s right to respect for her family life due to the authorities ’ failure to take the necessary practical measures to enforce the applicant ’ s contact rights (between 1997 and 2003) which had been granted to her by a final judicial decision (violation of Art. 8).

2. Individual measures

The compensation awarded was transferred to the applicant ’ s account on 02.03.2011.

After 2003 the violation of the applicant ’ s right to family life apparently ceased as the applicant established a regular contact with her son (as noted in § 41 of the Court ’ s judgment). In any event the boy is already of age (he was born in 1990) so no measures on the part of the authorities concerning the contacts with his mother are any longer required.

No further individual measures are necessary for execution of the judgment.

3. General measures

3.1 Violation of Article 8

a) legislative measures

The violation of Article 8 resulted from the relevant legislation in force at the time (Code of Civil Procedure of 1952), which did not allow the body responsible for the execution of contact rights to take practical measures in order to overcome the refusal of one of the parents to allow the other parent to meet the child. The Code of Civil Procedure of 1952 allowed only the imposition of fines.

The legislation criticized in the European Court ’ s judgment has been repealed and replaced by a new Code of Civil Procedure which entered into force in 2008 and a new Family Code which entered into force in 2009.

The current domestic legal framework concerning execution of contact rights is provided in Articles 323, 527 and 528 of the Code of Civil Procedure, as well as in Article 59 of the Family Code and Article 23 (6) of the Law for the Protection of the Child.

According to Article 323 §1 of the new Code of Civil Procedure, parties in divorce proceedings can request temporary measures regarding the care of the children and their maintenance. The request for temporary measures shall be examined either immediately or within two weeks after the hearing at which it has been submitted. The court ’ s ruling is not subject to appeal, but it can be amended by the same court.

According to Article 528 of the new Code of Civil Procedure, the body responsible for the execution of a judgment concerning child custody or contact rights can seek the assistance of the police and the social services, in addition to imposing fines on the non-complying party.

According to Article 59, §§ 8 and 9 of the Family Code, the court in divorce proceedings can also take measures aimed at the protection of the child, such as the obligation for a parent to meet a child in the presence of the other parent or a third person or the obligation to meet the child at a particular place. Such measures can be taken also after the end of the divorce proceedings.

Finally, under Article 23 (6) of the Child Protection Act, the social services can take measures aimed at facilitating the contacts between children and parents.

b) publication and dissemination of the judgment

In addition to the above – mentioned legislative measures, a translation of the judgment will be available soon on the Ministry of Justice website at http://www.justice. g overnment.bg/

The translation of the judgment will be sent to the competent courts (first instance and Courts of appeal) through a circular letter drawing their attention on the main conclusions of the ECHR ’ s judgment.

3.2. Violations of Articles 6 § 1 and 13

The remaining violations – of Articles 6 § 1 and 13 of the Convention, concerning the length of the civil proceedings to which the applicant was a party and the lack of effective remedies in that regard, are similar to the ones examined in the Djangozov group of cases.

In their circular letter, the Bulgarian authorities will draw the domestic courts ’ attention to the necessity to conduct with particular diligence and promptness proceedings which concern child custody or contact rights, as required by the European Court ’ s case-law.

4. Conclusions

In conclusion the government considers that the general measures will prevent new similar violations and that Bulgaria have complied with its obligation under 46 §1 of the Convention. The government therefore looks forward to the Committee ’ s decision to close the examination of this case.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .