FOURTH SECTION

Application no. 68053/10 Ekaterina Atanasova LOLOVA and Kalina Iliyanova POPOVA against Bulgaria lodged on 23 October 2010

STATEMENT OF FACTS

The applicants, Ms Ek aterina Atanasova Lolova and Ms Kal ina Iliyanova Popova, are Bulgarian nationals, who were born in 1978 and 1998 respectively and live in Toronto. They are represented before the Court by Ms S. Razboynikova , a lawyer practising in Sofia.

A. The circumstances of the case

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

1. Background

The first applicant gave birth to the second applicant in 1998 and shortly thereafter ended her relationship with the child ’ s father, I.P., to whom she was never married.

In 2004 the Sofia District Court confirmed an agreement reached between the first applicant and I.P. According to the agreement, the first applicant was to exercise the parental rights related to the upbringing and daily care of the second applicant, and I.P. was to see his daughter under a “free access regime”, which included the right to see the child in private as often as he wished after informing the mother, and not less than two weekends a month and 30 days during the second applicant ’ s annual holidays.

The first applicant got married to a Bulgarian-Canadian citizen in Niagara Falls, Ontario, Canada, on 5 September 2007. She left her job in Bulgaria in April 2008 with a view to joining her husband in Canada.

During two periods, 30 November 2007 to 29 December 2007 and 5 July 2008 to 24 December 2008, the first applicant stayed in Canada with her husband. During the rest of the time, she lived in Bulgaria with her daughter. On 26 March 2009, the first applicant settled in Canada.

2. Proceedings for court permission for the second applicant ’ s travel

In 2006 the first applicant brought proceedings before the Sofia District Court, seeking a decision in the absence of the father ’ s consent, to allow the second applicant to be issued with a passport and to travel abroad to join her in Canada.

The Sofia District Court granted her claim in a decision of 3 June 2008. The court found that the possibility for the second applicant to travel abroad would enrich her life and stimulate her personal development. It considered that I.P. ’ s refusal to allow her to travel was provoked by his personal interest which should not be allowed to bear negatively on the child ’ s rights, especially since I.P. could seek protection of his rights in separate court proceedings. Nothing in the mother ’ s personality and demeanour was found to represent a risk for the second applicant ’ s well-being. Guided by the primary interest of the child, the court recalled the United Nations Convention on the Rights of Children, ratified by Bulgaria, and held that, in line with it, the second applicant had the right to move about freely, including to leave her country.

Upon an appeal by I.P., the Sofia City Court confirmed the lower court ’ s findings in a decision of 7 May 2009. It found that, as the first applicant had married and settled in Canada, not allowing the second applicant to join her there would impede the mother ’ s ability to act as primary carer for her daughter as expected pursuant to the 2004 court agreement, which I.P. had not sought to amend at any time. During the periods which the mother had spent in Canada, the second applicant had been primarily cared for by the first applicant ’ s parents. On the occasions when the second applicant had stayed at I.P. ’ s house, to allow him contact with his daughter, her daily care had been carried out by the second applicant ’ s aunt and grandmother. A report by the social services favoured the second applicant ’ s free travel with her mother and found that both had strong emotional ties to each other. The child had specifically asked to live with her mother in Canada and to visit her father in Bulgaria during the holidays. All circumstances taken together, the court upheld the lower court ’ s decision. The decision of the Sofia City Court was not appealed against and entered into force on 3 July 2009.

3. Proceedings for the issuing of a passport to the second applicant

(a) First refusal to issue a passport and appeal against it

On 3 October 2007 the first applicant requested the police to issue a passport to her daughter. In a letter of 5 November 2007, the head of the “Bulgarian identity papers” section in the Sofia Police Department refused to issue a passport to the girl. He referred to the absence of a document giving the father ’ s consent.

The first applicant applied for judicial review, challenging the police refusal. On 6 March 2008, the Sofia City Administrative Court, examining the application under Article 145 of the Code of Administrative Procedure, quashed the police refusal to issue a passport to the second applicant. The court observed that the absence of both parents ’ agreement to the issuing of a passport to their child was not sufficient grounds to justify a refusal. It went on to say that the police should have carried out an in-depth analysis of the specific circumstances of the applicants ’ case, being guided in their assessment primarily by the interests of the child. The court returned the case to the police with specific instructions as to how to apply the law when examining the applicant ’ s request.

(b) Second refusal to issue a passport and appeal to the Supreme Administrative Court

On 6 June 2008 the first applicant again applied for a passport for her daughter. On 6 August 2008 the police refused to issue a passport, referring to the fact that the decision of 3 June 2008 of the Sofia District Court in respect of replacing the father ’ s authorisation was not final as I.P. had appealed against it.

In the meantime, I.P. appealed also against the decision of 6 March 2008 by the Sofia City Administrative Court. The Supreme Administrative Court upheld the findings of the Sofia City Administrative Court in a decision of 29 September 2008. In particular it noted that, on the question whether or not to issue a passport to a child, the police enjoyed decision-making discretion (“ оперативна самостоятелност ”) pursuant to Section 76 (9) of the Bulgarian Identity Documents Act 1998. It went on to say that the police should have carried out a thorough analysis of the concrete circumstances of the case, guided by the primary interests of the child. That decision was not subject to appeal and became final on the day it was delivered.

(c) Third refusal to issue a passport

On 28 October 2008 the first applicant asked once again that a passport be issued to her daughter, referring to the two judgments of the administrative courts. On 30 October 2008 the police informed both the border authorities and the applicant that a procedure was underway for the issuing of a refusal of a passport for the second applicant. On 4 February 2009 the police refused the applicants ’ request because of the absence of written consent from the second applicant ’ s father. In doing so, the head of the Sofia Directorate of the Interior referred to the social services ’ latest conclusions that, while the first applicant spent time in Canada, the second applicant was well cared for in Bulgaria by the first applicant ’ s parents. In addition, he found that the second applicant ’ s departure from Bulgaria would impede the possibility for the father effectively to exercise his access rights and the absence of contact between I.P. and the second applicant would affect their relationship in an irreparable manner. The police concluded that the competent body to pronounce itself on the relationship between the father and the second applicant was the relevant district court in accordance with Articles 72 and 106 of the Family Code.

(d) Passport issued

The police issued a passport to the second applicant on 30 July 2009. She obtained a visa and left for Canada with her mother in December 2009.

4. Proceedings for compensation

In January 2009 the first applicant brought proceedings for damages under the Code of Administrative Procedure, as related to the State Responsibility for Damage Act 1998, on behalf of herself and her daughter. The first applicant claimed they had both suffered as a result of the unlawful decisions of the police to refuse to issue a passport, which had been quashed by the administrative courts, and as a result of the unlawful failure of the police to comply with the mandatory decision in this connection of the Supreme Administrative Court. The applicants invoked a breach of Article 8 of the European Convention on Human Rights in respect of them both and of Article 2 of Protocol No. 4 to the Convention in respect of the second applicant.

In a decision of 1 July 2009 the Sofia City Administrative Court partly upheld their claim. The court found that the Sofia Directorate of the Interior had to pay: (a) around 1,500 euros (EUR) to the first applicant and around EUR 2,500 to the second applicant, for non-pecuniary damage stemming from the quashing of the police refusal of 5 November 2007 to issue a passport to the second applicant; and (b) around EUR 500 for non-pecuniary damage to each applicant, as a result of the police unlawful failure to issue a passport, counted as from 27 January 2009. The court also awarded around EUR 100 to the applicants for costs and expenses, to be paid by the Sofia Directorate of the Interior.

On appeal by the applicants and cross-appeal by the Sofia Directorate of the Interior, on 3 May 2010 the Supreme Administrative Court quashed the lower court ’ s decision in its entirety.

It found that the appeal by the applicants had been inadmissible as lodged out of time. Pronouncing itself on the appeal by the police, the court observed that the first condition for the application of the Act was not present, given that there was no quashing by a court of an unlawful administrative act as required by section 1 of the Act. In particular, the administrative courts, ruling on the police refusal to issue a passport, had not decided the matter in the place of the police. Instead, those courts had returned the case to the interior authorities with instructions as to how to apply the law. The head of the Sofia Directorate of the Interior had then given ample reasons for his refusal of 4 February 2009 to issue a passport. The applicants had not appealed against that refusal.

As to the second condition under section 1 of the Act, namely the unlawful failure by the administration to act, the court found that the police, when deciding on whether to issue passports to minors, did not enjoy discretion as to how to apply the law. Instead, the police were bound to act within the remit of “subordinate competence” (“ обвързана компетентност ”). That meant that, in their decision-making process, the police did not need to analyse the circumstances of each case, but rather had only to check whether the conditions listed in law were present or not.

Consequently, the court concluded, the damage caused to the applicants did not stem from the police decision to refuse the issuing of a passport to the second applicant. The police had acted by applying the law. The fact that a passport had not been issued was entirely the result of the first applicant ’ s failure to submit either an authorisation by the father or by the relevant district court for the second applicant ’ s travel, as required by law.

B. Relevant domestic and international law and practice

1. Family Code 1985

According to Article 72, in force until 1 October 2009, parental rights and obligations were to be exercised by both parents together as well as separately by each parent. In case the parents disagreed, the relevant district court resolved the disagreement after hearing both parents and, if need be, the child. The court ’ s decision was subject to appeal.

Under the new Family Code 2009, Article 127 provides that if the parents disagree on questions related to the child, the disagreement is to be decided by the regional court, whose decision is subject to appeal . As of 21 December 2010, a new Article127a provides that the questions related to a minor ’ s travel abroad and to the issuing of identity papers, are to be decided jointly by both parents. If the parents disagreed, the issue is to be settled by the district court of the minor ’ s place of residence.

2. Bulgarian Identity Documents Act 1998

According to section 45 at the time of the events, an application for the issuing of a passport or another identity document for minors was to be made (“in person and”, added in 2007) by the minor ’ s parents or guardians.

According to section 23 (2), in force as of 2006, every Bulgarian citizen has the right to leave the country, including with an identity card, and to return crossing the borders of Bulgaria with the member States of the European Union.

According to section 33, as in force since 2004, every Bulgarian citizen has the right to leave the country and return to it with a passport. That right is subject only to limitations as may be necessary for the protection of national security, public order, people ’ s health or the rights and freedoms of others.

According to section 76 (9), the police may refuse to allow a minor to leave the country in the absence of a written consent for that of his or her parents. In case the parents disagree, the matter is to be decided in accordance with Article 127a of the Family Code.

3. Regulations for the application of the Bulgarian Identity Documents Act (repealed as of 12 February 2010)

Section 11 (8), adopted in 2007, provided that an application for a passport, when the authorisation of one parent is missing, had to be submitted together with a judicial decision allowing the issuing of a passport which has entered into force, a judicial decision depriving the missing parent of his or her parental rights, or a death certificate of the missing parent.

4. Code of Administrative Procedure

According to Article 145 (1), individual administrative acts are subject to judicial review as regards their lawfulness.

According to Article 203 and next, individuals or legal persons may bring claims for compensation for damage caused to them by an unlawful act or failure to act by an administrative body, when that act or failure to act have been quashed by a court. The State Responsibility for Damage Act 1998 is applied in respect of questions related to pecuniary damages and not covered by the Code of Administrative Procedure.

5. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (in force in respect of Bulgaria as of 1 August 2003)

Article 1

“The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Article 3

“The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

6. UN Convention on the Rights of the Child ( ratified by Bulgaria on 3 June 1991)

Article 3

“ 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ”

Article 10

“ 1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order ( ordre public ), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention. ”

Article 18

“ 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ”

COMPLAINTS

The applicants complain that the domestic legislation governing freedom of movement was unclear and thus in breach of the second applicant ’ s right under Article 2 § 2 of Protocol No. 4 to the Convention.

They also complain under the above mentioned provision about the time it had taken the courts, in the proceedings under the Family Code, to give permission for the second applicant ’ s travel.

Furthermore, the applicants complain under the same Article that the refusal of the police to issue a passport to the second applicant placed the applicants in a situation of legal uncertainty and breached the second applicant ’ s right to freedom of movement; finally, under Article 13 in conjunction with Article 2 of Protocol No. 4 to the Convention, the applicants complained that they had no remedy to provide compensation for the breaches.

The applicants also complain under Article 8, and under Article 13 in conjunction with Article 8, that their right to respect for family life was breached as a result of the impossibility to travel to and live together in Canada, and under Article 6 that the proceedings in which they sought compensation were unfair.

QUESTIONS TO THE PARTIES

1. The Government are invited to: (a) provide all relevant information about the domestic legislation governing travel abroad by a minor accompanied by one parent only; as well as (b) reply to the question whether that legislation was clear and accessible, and the consequences of its application foreseeable, as required under Article 2 § 3 of Protocol No. 4 to the Convention.

2 . Did the police refusal of 4 February 2009 to issue a passport to the second applicant so that she could join her mother in Canada, following the final decision of the Supreme Administrative Court of 29 September 2008, constitute a breach of both applicants ’ right to respect for their family life as protected under Article 8 of the Convention?

3 . Did the above-mentioned police refusal breach the second applicant ’ s right to freedom of movement as protected under Article 2 of Protocol No. 4 to the Convention? In particular, would the second applicant have been able to travel to Canada, had she been issued with a passport prior to the Sofia City Court ’ s decision, in force as of 3 July 2009, allowing the second applicant ’ s travel in the proceedings under the Family Code?

4 . Did the delay of 10 months, which the police took to issue the second applicant with a passport after the final decision of 29 September 2008 of the Supreme Administrative Court, constitute a breach of the obligation under Article 6 § 1 of the Convention to enforce final judicial decisions?

5. Did the proceedings, which the applicants brought on 3 October 2007 for the issuing of a passport to the second applicant, comply with the requirement of a reasonable time under Article 6 § 1 of the Convention?

6 . Did the applicants have an effective remedy at their disposal, as required under Article 13 of the Convention in conjunction with Article 8 and/or Article 2 of Protocol No. 4 to the Convention, in order to challenge the refusal and/or delay in issuing a passport to the second applicant?

7. In the light of the applicants ’ claims that the proceedings brought by the first applicant in 2006 under the Family Code lasted too long, did those proceedings meet the admissibility criteria in Article 35 of the Convention and, if yes, did they meet the requirements of a reasonable time under Article 6 § 1 of the Convention?

8 . Did the proceedings for compensation meet the requirements of a fair trial in accordance with Article 6 § 1?