Communicated on 12 January 2021 Published on 1 February 2021

FOURTH SECTION

Application no. 33654/18 Diana Spasova KOTEVA against Bulgaria lodged on 6 July 2018

STATEMENT OF FACTS

The applicant, Ms Diana Spasova Koteva , is a Bulgarian and British national, who was born in 1980 and lives in Plovdiv.

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

The applicant and her then husband, C.P., divorced in 2007 on the basis of a mutual agreement. The court decision confirming the agreement for divorce established, among other things, that the exercise of parental rights in respect of their only child born in 2004 would be given to the father and contact rights to the applicant.

According to the applicant, for a number of years thereafter she met no obstacles in respect of seeing her daughter and spending time with her. At some point, however, C.P. started preventing the applicant from meeting with her daughter or from otherwise being in contact with her. It would appear that the applicant lived in the United Kingdom for a few years, having moved there before the divorce.

In 2015 C.P. brought a claim in court seeking that the applicant be deprived of parental rights. The authorities attempted to summon the applicant once, on 25 June 2015, at the address indicated by C.P. in the court papers. As apparently no one was found at that address, the summons officer recorded that a neighbour had indicated that the applicant was abroad. Following an inquiry with the address registry office, the authorities summoned the applicant twice at another address, which featured in the authorities ’ records as being both her current and her permanent address. The summons notes, which did not contain a mention of a date and time, indicated that, according to neighbours, “the individual” did not live there.

The Sofia District Court dealing with the case for depriving the applicant of parental rights appointed a special legal representative to her, considering that she could not be found. In a judgment of 13 July 2016 the court deprived the applicant of parental rights in respect of her daughter at the end of proceedings in which the applicant did not take part.

The applicant found out about that judgment on 18 September 2017 and on the same date consulted the text of the judgment at the respective court ’ s archives. Thereafter, she sought a reopening of the proceedings under Article 303 § 1(5) of the Code of Civil Procedure. She claimed in particular that she had not been properly summoned and as a result did not know about and could not take part, either personally or via a lawyer of her choice, in the proceedings in which she had been deprived of parental rights in respect of her child.

On 25 January 2018 the Supreme Court of Cassation, ruling on the merits, rejected her request, finding that none of the legal hypotheses allowing reopening was met. The Court also noted that a legal representative had been appointed to the applicant and had represented her during those proceedings.

According to Article 132 of the Family Code 2009, a parent can be deprived of parental rights in particularly serious cases when the parent with his or her conduct represents a danger to the child, or his or her health, upbringing or property, as well as if the parent does not provide care to his or her child without a good reason for that.

According to section 90 of the Civil Registration Act 1999, every individual who is subject to civil registration has to inform the relevant local authorities in writing of his or her “permanent address” and, where applicable, “temporary address”. People also have to signal any change in their “temporary address” within 30 days of the change (section 99 of the same Act).

Under Article 38 of the Code of Civil Procedure 2007 (“the 2007 Code”), a notification is served on the person at the address indicated in the case file. When the person is not found at that address, the notification is served at that person ’ s current address or, failing that, at his or her permanent address.

Under Article 43 of the 2007 Code, a notification shall be served in person or via another person. The court may rule that this be done by enclosing the notification to the file, by posting a notification, or by a public announcement.

Under Article 44, the serving officer shall certify by his or her signature the date of serving, as well as all the actions related to the serving. He or she shall also note the capacity of the person to whom the notification has been served, requiring from him or her to identify themselves by presenting a document of identity.

Under Article 46, where the notice cannot be served personally on the addressee, it shall be served on another person, who agrees to accept it. By serving on the other person, notification shall be considered served on the addressee. The addressee may require renewal of the relevant limitation period, if he or she was absent at the address and it was not possible to learn in time about the serving.

The 2007 Code provides that an interested party can request the reopening of civil proceedings which have ended with a decision which has acquired res judicata . Reopening in such cases can be requested on the basis of specific grounds, which are exhaustively listed.

Article 303 § 1(5) of the 2007 Code stipulates in particular that a party to a case could seek a reopening when, in breach of the relevant rules, the party has been deprived of the opportunity to take part in the proceedings, has not been adequately represented, or could not appear in person or be represented before the court, for reasons beyond that party ’ s control. The Supreme Court of Cassation has allowed requests for reopening on the above ‑ indicated grounds in a number of decisions ( реш . â„– 10 от 9.02.2010 на ВКС по гр. д. â„– 973/2009 г; реш . â„– 689 от 30.12.2010 на ВКС по гр. д. â„– 1731/2009 г.; реш . â„– 418 от 13.10.2011 на ВКС по гр. д. â„– 925/2011 г.; реш . â„– 329 от 10.10.2012 на ВКС по гр. д. â„– 289/2012 г.; реш . â„– 338 от 27.12.2013 на ВКС по гр. д. â„– 5550/2013 г.; реш . â„– 231 от 15.10.2014 на ВКС по гр. д. â„– 4270/2014 г.; реш . â„– 2 от 31.01.2017 на ВКС по гр . д. â„– 4794/2016 г.).

Reopening can be requested within three months counted from the moment in which a party became aware of the facts that would serve as a ground for the reopening (Article 305 of the 2007 Code). Requests for reopening are examined by the Supreme Court of Cassation (Article 234 of the 2007 Code).

COMPLAINT

The applicant complains in particular under Article 8 of the Convention that depriving her of her parental rights in proceedings in which she did not take part, and the refusal to have those proceedings reopened, breached her right to private life.

QUESTIONS TO THE PARTIES

In the proceedings concerning the applicant ’ s parental rights, did the authorities strike a fair balance, as required under Article 8 § 2 of the Convention, between the applicant ’ s right to private life and the rights of the child and the general community to have the question about the child ’ s care decided in the child ’ s best interest? In particular, was the applicant involved in the decision-making process, seen as a whole, to a degree sufficient to provide her with the requisite protection of her interests (see, mutatis mutandis , Tsvetelin Petkov v. Bulgaria , no.2641/06, §§ 57-58, 15 July 2014)?