JOINT DISSENTING OPINION OF JUDGES MØSE, O’LEARY AND ROUSSEVA

1 . The majority of the Chamber have found a violation of the Convention due to the Bulgarian authorities’ failure, pursuant to their positive obligations under Article 8 of the Convention, to arrange for the applicant’s care immediately after the arrest of her parents and during the first two days of their detention.

2 . In concluding that the Chamber should have found no violation of Article 8 in the particular circumstances of this case, we do not ignore or seek to undermine the Court’s well-established case-law regarding the nature and scope of States’ positive obligations under this Article and, in particular, their duty to protect the best interests of minors (see §§ 58 and 59 of the majority judgment).

3 . However, we do not think that the facts of this case, as clearly reflected in the decisions of the domestic courts, support the finding of a violation.

4 . Firstly, as regards the facts, it is uncontested that the parents of the applicant, the latter aged 14 at the time of their arrest on 4 December 2002, were taken from their apartment and placed in detention for two days before two separate court hearings on their prolonged detention took place on 6 December 2002. On that date questions were raised, at the initiative of the public prosecutor, regarding the provision of care for the applicant while her parents were detained. The parties disagreed regarding the manner in which the applicant’s mother responded to the judge’s question relating to care for her daughter. Her response was noted in the record of the hearing as indicating that the child (the applicant) had been taken care of (see §§ 17 and 18 of the majority judgment); a record which the parents never sought to check or subsequently rectify (see further below).

5 . It is also uncontested that when they had been initially informed by telephone by their daughter that the police had come to the family apartment to arrest them, the parents were accompanied by their lawyer and that it took some time for the party of three to return home. The lawyer, who was both a friend and a neighbour, was present during their arrest and was in contact with them between the time of the arrest and the court hearing two days later. When in court, the applicant’s parents were assisted by that same lawyer and by a court-appointed interpreter. Moreover, when in prison, before and after the key court hearing on 6 December, there is no record of the parents enquiring into the care provided for their daughter in their absence or checking the court record according to which the mother had been understood – mistakenly it is argued – to have confirmed that the applicant had been taken care of. [1]

6 . Secondly, as regards the decisions of the domestic courts, the applicant claimed that she had been left alone, without money or instructions regarding her care, during her parents’ absence. Before this Court, the Government relied on the fact that it had not been proven before the domestic courts that the applicant had been left alone, without an adult carer, during the period in question. A psychiatric and psychological report and medical reports ordered in the context of the domestic proceedings had established that the applicant was suffering from post-traumatic stress disorder but the domestic courts found themselves unable to establish the cause. The lawyer of the applicant’s parents, who had attended the hearings relating to their detention on 4 December 2002, testified in those proceedings in February 2008 that he had not known what had happened to the applicant during her parents’ arrest, nor could he remember anything about the circumstances relating to the question and answer of the mother in court.

7 . The Varna Regional Court rejected the applicant’s claim on 27 July 2009, finding that it had not been proven that she had been left alone while her parents had been detained in December 2002. The only evidence supporting the applicant’s claim was the testimony of her parents and there were no other pieces of evidence in support of it. The court accepted that the mother had replied in the affirmative to the judge’s question whether there had been someone to care for the applicant. Consequently, it concluded that it had not been incumbent on the criminal justice system to act in any other way in order to protect the applicant. Finally, the Varna Regional Court held that the applicant’s mother had never sought to check the record of the hearing and have it rectified, despite a possibility in law for her to do so (see §§ 36-38 of the majority judgment).

8 . On 10 December 2010 the Varna Court of Appeal confirmed the lower court’s decision, finding that, even if the applicant had been left alone after the arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, given that her mother had stated that “the child had someone to care for her” (see § 40 of the majority judgment). The Supreme Court of Cassation rejected an appeal on points of law by the applicant in a final decision of 18 January 2012, finding no grounds for allowing the appeal to go forward (see § 41 of the majority judgment).

9 . The legal questions raised by the instant case relate to whether, firstly, there is a positive obligation on the domestic authorities pursuant to Article 8 of the Convention to protect the situation of a child who may be at risk (specifically when his or her parents are taken into custody) and, secondly, whether such a positive obligation is activated, regardless of when, how and if the situation is brought to the attention of those authorities and, in particular, regardless of the passivity of the child’s parents or their legal counsel.

10 . In our view, the answer to the first question, relating to the existence of a positive obligation in respect of children at risk or potentially at risk must clearly be answered in the affirmative. [2]

11 . In contrast, the second question – when and in what circumstances a State may be found wanting as regards compliance with such a positive obligation – may be a more complex one, as the circumstances of the present case demonstrate.

12 . As mentioned in the Chamber judgment (see §§ 44-46) there were relevant domestic legal provisions in place designed to protect children in need of care but the majority assume, without more, that an obligation of protection arose from the moment the applicant’s parents were taken into custody (§ 62), regardless of the circumstances of the arrest, those present or the behaviour of the parents then and subsequently. Crucially, in this case, the parties differed on the question whether the applicant had actually fallen into the category of a child in need, namely whether she had been effectively left unattended in her parents’ absence so as to require (automatic or immediate) protection by the authorities. Despite extensive judicial proceedings at the domestic level, it was not proven that the applicant had indeed been left alone and without care during her parents’ detention. There is, it must be conceded, no proof that the police notified the relevant competent authorities at the time of the arrest of the applicant’s parents, alerting those authorities to the presence of a minor. However, neither is there anything in the file to suggest that her parents raised with the police the issue of her being left alone at the time of their arrest, that they brought up the question of her care in the immediate aftermath, or that they instructed their lawyer, who was present during the arrest and subsequently accessible to them, to do so. We note, in particular, that under domestic law the record of the hearing carries evidential force of the circumstances recorded therein. When answering that question at the hearing the applicant’s mother had been legally represented and assisted by an interpreter. Moreover, it is noteworthy that from the first hearing on 6 December 2002 until 17 December 2002, the date of the appellate hearing and the release of the applicant’s parents, neither of them signalled to any authority that there might have been a problem with the applicant’s care or that they were worried about their daughter’s well-being in their absence.

13 . Detained persons can be considered, to some degree at least, to be in a vulnerable position. However, the applicant’s parents were educated persons of prominent background, with high-level professional experience, of apparent means, did not lack skills and they cared for their daughter (see § 65 of the majority judgment). In addition, they were legally represented by counsel who had been with them when informed by their daughter of the possibility of their arrest and during their arrest and who had continued to represent the parents throughout their subsequent detention.

14 . In these circumstances, we consider that, faced with what would appear to be the parents’ and indeed their legal representative’s passivity in relation to the situation of the applicant prior to and following the arrest and detention, the competent authorities had no reason to assume that the applicant had been left alone and that she was unprovided for during her parents’ absence. The domestic courts did not find that the applicant had discharged the evidentiary burden incumbent on her relating to events during and following her parents’ arrest. It was not established that she had been left alone and the authorities had thus not been found to have failed to fulfil their obligations pursuant to domestic law in the circumstances of the present case.

15 . It is also noteworthy that the majority judgment refers to no precedent in support of the activation in the manner suggested and in circumstances similar to the present case of the State’s positive obligations under Article 8. The authorities mentioned in the recapitulation of the general principles (see § 58 of the majority judgment) are clearly distinguishable. [3] For instance, reference is made to a recent judgment of another chamber of the Court – Ioan Pop v. Romania . In that case, a majority of 6 to 1 found that the failure to ensure that a twelve-year-old child was looked after by an adult while his parents were held in police custody for approximately 9 to 12 hours constituted inhuman and degrading treatment contrary to Article 3 of the Convention. [4] However, even if one were to consider that judgment a binding and persuasive precedent, several points distinguish the Ioan Pop case from the present one. The child, aged twelve at the time of the arrest of his parents, had witnessed scenes of considerable violence during the latter, including the forced sedation of his father; the Article 3 threshold was found to have been met because the competent domestic authorities had not taken measures to entrust the third applicant to an adult while his parents were at the police station or to explain to him his situation or that of his parents; and crucially, while the Court had also been confronted by divergent accounts of what had happened to the child after the arrest, it found that the domestic courts had not examined his complaint or established the relevant facts. In these circumstances and faced with diverging accounts, the Court found it sufficiently established that the applicant child had been left alone for several hours without adult supervision and it therefore went on to examine the authorities’ positive obligations under Article 3 of the Convention, finding a violation of the latter. [5] However, as pointed out previously, in the present case the majority appear to reverse this sequence of reasoning ‒ finding a violation of Article 8 of the Convention due to the authorities’ failure to respect their positive obligation towards the applicant despite the domestic courts’ extensive examination of the facts alleged by her and its rejection of her version of events between the day of the arrest and the court hearing.

16 . Given the circumstances of this case and the extensive and careful findings of the domestic courts we are unable to concur with the majority that the domestic authorities failed in the present case to discharge their positive obligations under Article 8 of the Convention. While we recognise the distress which the applicant must have felt at the time of the arrest and thereafter, we do not consider that it is appropriate for an international court which adheres to the principle of subsidiarity to interfere with or ignore, in the manner just described, the facts as established by the domestic courts. We also see no basis, in the Court’s own jurisprudence, for finding a violation of Article 8 in the circumstances of the present case.

[1] Note that, on appeal by the applicant’s parents, the detention orders were lifted in two separate decisions of 17 December 2002, following which the applicant’s parents were released on bail and returned home the same day. The request for their extradition to Turkmenistan was refused on 22 May 2003 in proceedings before the Varna Regional Court at which they were represented by the same lawyer.

[2] See, for example, Eremia v. the Republic of Moldova , no. 3564/11, 28 May 2013 ( f ailure of authorities to take adequate measures to protect daughters traumati s ed as a result of witnessing their father’s violent assaults on their mother).

[3] One illustration provided is the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , n o. 13178/03, ECHR 2006-XI (a case involving the detention, alone, of a five - year - old girl in Belgium following her illegal entry into the country , where the Court found, inter alia , violations of Articles 3 and 8 of the Convention) . The circumstances of the present case are markedly different.

[4] N o. 52920/09, 6 December 2016.

[5] See Ioan Pop , cited above, §§ 31-34 and §§ 56-60. See, however, the dissent by Judge Sajó , who, correctly in our view, highlights the fact that the chamber judgment even in that case sho wed a distinct disregard for the facts which had been established by the domestic courts.