FOURTH SECTION

Application no. 77818/12 Irena Panayotova PENCHEVA and Vladimir Vladimirov PENCHEV against Bulgaria lodged on 16 November 2012

STATEMENT OF FACTS

The applicants, Ms Irena Pana yotova Pencheva and Mr Vladimir Vladimirov Penchev , are Bulgarian nationals, who were born in 1979 and 2006 respectively and live in Würzburg , Germany and Ruse, Bulgaria. 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 applicants are a mother and her minor son. In 2009 the two applicants and V.P., the first applicant ’ s husband and the second applicant ’ s father, travelled to Germany. The reason for that travel was a nine-month paid traineeship in State institutions which the first applicant had been granted there.

On 27 February 2010 the father went to Bulgaria with the second applicant. He refused to return the child to Germany on 20 March 2010, despite having a ticket for that date and contrary to what had been agreed with the mother.

As a result, the first applicant interrupted her training and returned to Bulgaria on 25 March 2010 where she joined her husband and son.

2. Restraining order protecting the applicants from V.P.

Between 25 March 2010 and 31 March 2010 the two applicants were subjected to psychological abuse by V.P.

The first applicant brought proceedings in court seeking protection against V.P. The proceedings were suspended on an unspecified date following a joint request by the first applicant and V.P. The proceedings were later resumed after the first applicant claimed that the abuse continued.

The Ruse District Court issued, on 28 April 2011, a protection order in favour of the two applicants, prohibiting V.P. from approaching them for the next six months. The court established that, during the period between 25 March 2010 and 31 March 2010, V.P. had repeatedly insulted the mother in front of the child, had called her a bad mother, had not allowed the two applicants to have contact unsupervised by him and, for that purpose, had locked the bathroom and bedroom doors in the apartment at night. The court also found that V.P. had made the first applicant sleep on the floor, had driven at a high speed with the child on the front seat of the car, had held the child over the balcony banister pressing the child ’ s carotid (neck) artery and had threatened the first applicant that he would “rip her open from top to bottom and serve the corresponding jail time”.

As a result of the restraining order, V.P. did not have contact with his son between 12 May 2011 and 26 November 2011.

3. First applicant ’ s studies in Germany

On 31 March 2010 the two applicants left the family home and the first applicant has exercised actual custody over the second applicant ever since. The first applicant was initially granted a scholarship to study towards a master ’ s degree in Germany during the academic year 2010/2011. She was later awarded another scholarship for a doctorate degree in Germany, starting from the academic year 2012/2013. As a result, the second applicant has been living with his maternal grand-parents since the autumn of 2010.

In order to spend as much time as possible with her child, the first applicant travels frequently between Germany and Bulgaria. Thus, between March 2010 and October 2012, she spent around half of her time in Bulgaria with her son. This, she submits, has negatively affected her studies and her and her son ’ s family life: on the one hand, she needs longer overall time to complete her master ’ s programme as she is often absent from classes in order to visit her son; on the other hand, their separation causes them both to suffer and prevents her taking care of him daily.

4. Divorce proceedings

On 9 April 2010, the first applicant filed a claim for divorce.

On 8 October 2010 the district court pronounced the divorce of the first applicant and her husband, concluding it was due to V.P. ’ s fault, and awarded the exercise of parental rights to the first applicant. The father ’ s contact rights were determined with a view to the child ’ s possible residence in Germany and were as follows: one week every three months and twenty consecutive days in the summer before the second applicant starts going to school, and half of every school holiday after that.

Following an appeal by V.P., the regional court upheld the lower court ’ s findings. The Supreme Court of Cassation dismissed his subsequent cassation appeal as inadmissible. The judgment declaring the divorce entered into force on 28 February 2012.

5. Proceedings for the second applicant ’ s travel abroad

In parallel with the divorce proceedings, on 29 April 2010 the first applicant brought proceedings under Article 127a of the Family Code for a court decision dispensing with the father ’ s consent in respect of the child ’ s travel outside the country. She requested permission freely to leave the country with her son for a period of one year as of the date of entry into force of the court judgment.

The first applicant was represented in those proceedings by a lawyer of her choosing. Several court hearings were held. The applicant informed the court about her intended studies in Germany for the academic year 2010/2011, the fact that she had been granted a scholarship, that she had the financial means to take care of her son and that the boy had adapted well to the social environment in Germany. It appears that the first applicant did not formally limit her request for permission to travel with her son to Germany or to any other country.

The district court granted the first applicant ’ s request on 31 August 2010. It found in particular that there was no reason to suspect that the first applicant would permanently leave the country with the second applicant. It also held that the access rights of the father had been determined in a preliminary court decision ( определение ) of 3 August 2010 and, if the first applicant were to obstruct them, V.P. could bring separate proceedings in that connection.

The regional court upheld that judgment on 7 January 2011. The court observed that the second applicant ’ s right to freedom of movement was protected under the United Nations Convention for the Rights of the Child, the Constitution of Republic of Bulgaria, the Child Protection Act and the Bulgarian Identity Documents Act. The right to freedom of movement could only be limited in exceptional situations, namely in order to protect national security, public order, public health and morals or the rights and freedoms of others. None of those exceptions had been established or even claimed in the applicants ’ case. The court observed that the first applicant offered good material conditions to the child in Germany, that the boy had adapted rather well during his stay there before March 2010, that the first applicant was going to specialise in European law in the Würzburg University and that the second applicant enjoyed a lot of care and attention from his mother. The court also held that V.P. ’ s arguments related to his access rights were unrelated to the present proceedings; those arguments had to do with the enforcement of a future court decision in which the exercise of the parental rights in respect of the second applicant were to be definitively determined. The court concluded that it was in the interest of the second applicant to have a passport issued and to travel with the first applicant abroad.

Upon an appeal by V.P., the Supreme Court of Cassation refused the first applicant ’ s request in a final judgment of 26 June 2012. The court relied on its well established and binding case-law according to which permission for children ’ s unlimited travel abroad with one parent cannot be granted. Such permission could be granted, when that is in the interest of the child, to concrete destinations and for a limited period of time. Finally, the court rejected the first applicant ’ s request that the court define of its own motion concrete boundaries within which travel could be permitted, stating that it was bound by the formulation presented in the applicant ’ s request.

6. Further proceedings for the second applicant ’ s travel abroad

On 9 July 2012 the first applicant lodged a new request for permission to travel with her son to Germany and the European Union countries for a period of three years without the father ’ s consent. The Court has not been informed of the outcome, if any, of these proceedings.

B. Relevant domestic and international law and practice

1. 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 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. 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.”

4. 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 refusal of the authorities to allow the second applicant to leave the country only accompanied by his mother breached his right to freedom of movement under Article 2 § 2 o f Protocol No. 4 to the Convention and both applicants ’ right to respect for family life under Article 8. They submit that the breaches stemmed from a blanket and arbitrary refusal by the Supreme Court of Cassation in its final judgment of 26 June 2012, which failed to carry out a proportionality analysis as to whether the refusal in the concrete circumstances of the case was in the interest of the second applicant. Relying further on Article 13 in conjunction with Article 8, the applicants also complain about the absence of an effective remedy in that connection.

The applicants also complain under Article 2 § 2 of Protocol No. 4 to the Convention about the lack of proportionality in the Bulgarian legislation insofar as it contains a blanket requirement for the parent exercising primary care to receive court permission for the child ’ s travel in the absence of the other parent ’ s consent, irrespective of whether it concerns travel of short duration or permanent settling abroad. The applicants submit in that connection that the parent awarded custody of the child should be able to freely decide on the child ’ s travel, just as he or she is allowed in law to decide on the child ’ s place of residence, schooling or medication.

Finally, the first applicant complains under Article 6 of the Convention about the absence of a fair trial in that the final judgment of 26 June 2012 of the Supreme Court of Cassation was not reasoned contrary to the requirements of a fair trial under that Article.

QUESTIONS TO THE PARTIES

1. Have the proceedings brought by the first applicant on 9 July 2012 for permission to travel with her son reached a conclusion? If so, the Government is requested to provide the text of the related court decision(s).

2. Did the refusal by the Supreme Court of Cassation of 26 June 2012 to allow permission for the second applicant ’ s travel abroad accompanied by his mother breach the minor ’ s right to respect for his family life under Article 8 and his right to freedom of movement under Article 2 of P rotocol No. 4 to the Convention, as well as the right of the first applicant to respect for her family life under Article 8? In that connection, did the Supreme Court of Cassation carry out a proportionality analysis of the concrete circumstances of the case striking a fair balance between the different interests involved, in good time?

3. Is the requirement in Bulgarian law to have both parents ’ consent in order for their minor child to travel, irrespective of the reasons for or duration of travel, or of who of the parents is the primary carer of the child, compatible with the proportionality requirement under Article 2 of Protocol No. 4 to the Convention?

4 . Did the applicants have at their disposal an effective domestic remedy, as required by Article 13 of the Convention, in relation to their complaint under Article 8?

5 . Did the proceedings before the Supreme Court of Cassation ending with the decision of 26 June 2012 meet the requirements of a fair trial as protected under Article 6 § 1 of the Convention? In particular, was the decision sufficiently reasoned and did the court take into account all the relevant and decisive elements presented before it in those proceedings?