LOLOVA AND POPOVA v. BULGARIA
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Pavlina Panova;Zdravka Kalaydjieva
1. The applicants, Ms Ekaterina Atanasova Lolova and Ms Kalina Iliyanova Popova, are Bulgarian nationals, who were born in 1978 and 1998 respectively and live in Toronto. The first applicant is the mother of the second applicant. They were represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. 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. 5. 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 child, 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 child’s annual holidays. 6. 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. 7. 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. 8. On 1 September 2006 the first applicant brought proceedings before the Sofia District Court under Article 72 of the Family Code 1985. She sought a decision from the court, in the absence of the father’s consent, to allow the child to be issued with a passport and to travel abroad to join her in Canada. 9. The Sofia District Court granted her claim on 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 child’s well-being. Guided by the primary interest of the child, the court recalled the United Nations Convention on the Rights of Children, which was ratified by Bulgaria, and held that the second applicant had the right to move about freely, including to leave her country. 10. Upon an appeal by I.P., the Sofia City Court confirmed the lower court’s findings on 7 May 2009. It found that, as the first applicant had married and settled in Canada, not allowing the daughter to join her there would impede the mother’s ability to act as her primary carer. Those were the terms reached in the 2004 court agreement (see paragraph 5 above), 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 in Bulgaria by the first applicant’s parents. When the second applicant had stayed at I.P.’s house, her daily care had been carried out by the child’s aunt and grandmother. A report by the social services favoured the second applicant’s free travel with her mother and found that both mother and child 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. The decision of 7 May 2009 of the Sofia City Court was not appealed against and became enforceable on 3 July 2009. 11. 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. 12. 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 as unlawful 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. 13. I.P. appealed against the decision of 6 March 2008. On 29 September 2008 the Supreme Administrative Court upheld the findings of the Sofia City Administrative Court that the police refusal of 5 November 2007 had to be quashed as unlawful. It further noted that, on the question whether or not to issue a passport to a child, the police enjoyed decisionmaking discretion (оперативна самостоятелност) pursuant to section 76 14. In the meantime, 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 Sofia District Court’s decision of 3 June 2008 in respect of replacing the father’s agreement was not final as I.P. had appealed against it (see paragraph 10 above). 15. 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 (see paragraphs 12 and 13 above). On 30 October 2008 the police informed both the border authorities and the applicant that a procedure was underway for the refusal of a passport to the second applicant. On 4 February 2009 the police refused the applicants’ request because of the absence of written consent from the child’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 girl’s departure from Bulgaria would impede the possibility for the father effectively to exercise his access rights and that would affect his relationship with the child in an irreparable manner. The police concluded that the competent body to decide on the relationship between the father and the child was the relevant district court in accordance with Articles 72 and 106 of the Family Code 1985. 16. After the judgment giving permission to the second applicant’s travel became final (see paragraph 10 above), the police issued a passport to the child on 30 July 2009. She obtained a visa and left for Canada with her mother in December 2009. 17. In January 2009 the first applicant brought proceedings for damages under the Code of Administrative Procedure, as related to the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”), on behalf of herself and her daughter. The applicants claimed they had both suffered as a result of the unlawful refusals by the police to issue a passport despite the findings of the administrative courts which had quashed the first refusal. They also claimed damages as a result of the unlawful failure of the police to comply in good time with the final decision of the Supreme Administrative Court of 29 September 2008. 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. 18. The Sofia City Administrative Court partly upheld their claim on 1 July 2009. 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 as unlawful of the police refusal of 5 November 2007 to issue a passport to the second applicant; and (b) around EUR 500 for nonpecuniary damage to each applicant, as a result of the police unlawful failure to decide within the statutory 30-day deadline on the applicant’s request for a passport made on 28 October 2008 (see paragraph 22 below and 15 above). The court also awarded around EUR 100 to the applicants for costs and expenses, to be paid by the Sofia Directorate of the Interior. 19. On appeal by the applicants and cross-appeal by the Sofia Directorate of the Interior, on 3 May 2010 the Supreme Administrative Court (SAC) 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. Ruling on the appeal by the police, the court observed that the first condition for the application of the Act 1988 was not present, given that a court had not quashed as unlawful an administrative act as required by section 1 of the Act 1988. It then went on to say that the lower administrative court had not decided the matter in the place of the police. Instead, it 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 1988, namely a causal link between the failure by the police to decide in good time on the request for a passport and the damage suffered by the applicants, the court found that such a causal link was missing. More specifically, when deciding whether to issue passports to minors, the police did not enjoy discretion in respect of how to apply the law. Instead, the police were bound to act within the remit of “subordinate competence” (обвързана компетентност). It meant that, in their decision-making process, the police did not need to analyse the circumstances of each case, but rather only had to check whether the conditions listed in law were present or not. Consequently, the SAC concluded in its final decision of 3 May 2010, the damage caused to the applicants did not stem from the police refusal to issue a passport to the second applicant. The police had acted in application of 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. 20. According to Article 72 of the Family Code 1985, 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. 21. Under the new Family Code 2009, Article 123 § 2 provides that parental rights and obligations are exercised following an agreement between the parents. If the parents disagreed, they could bring the matter before the district court whose decision is subject to appeal. Article 127 of the Family Code 2009 provides that, in cases where the parents do not live together, if they disagreed on questions related to the child, the disagreement is to be decided by the district court whose decision is subject to appeal. As of 21 December 2010, a new Article 127a specifically provides that the questions related to a minor’s travel abroad and to the issuing to him or her 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. 22. According to section 45, as worded at the time of the events, an application for the issuing of a passport or another identity document for a minor was to be made “in person” (added in 2007) and by the minor’s parents or guardians. The police have to issue a passport within 30 days of such an application (section 48). 23. 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. 24. 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 such limitations as may be necessary for the protection of national security, public order, people’s health or the rights and freedoms of others. 25. 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. If the parents disagreed, the Family Code 2009 specifically provided between 16 October 2009 and 21 December 2010 that the matter was decided in accordance with Article 123 § 2 of the Family Code 2009; as of 21 December 2010 onwards, the matter is to be decided in accordance with Article 127a of the Family Code 2009. 26. Section 11(8), adopted in 2007, provided that, in cases where the authorisation of one parent for the issuing of passport to a minor was missing, such an application had to be submitted together with one of the following documents: a judicial decision allowing the issuing of a passport which had become enforceable; a judicial decision depriving the missing parent of his or her parental rights; or, a death certificate of the parent who had not given his agreement. 27. According to Article 145 § 1, individual administrative acts are subject to judicial review as regards their lawfulness. Judicial review proceedings in respect of administrative acts are two-instance proceedings (Article 131) and they suspend the enforcement of the appealed administrative acts (Article 166 § 1). 28. According to Article 203, 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. For questions not covered by this Code, the State and Municipalities Responsibility for Damage Act 1988 (“the Act 1988”) is applied. 29. Section 1(1) of the Act 1988 provides that the State and municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. Section 4 of the Act 1988 provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts. 30. The Supreme Court of Cassation held in a 2001 decision concerning a request for the issuing of a passport to a minor (реш. № 21 от 30.01.2001 г. на ВКС по гр. д. № 717/2000 г., II г. о.) that all questions related to the exercise of parental rights had to be decided by the relevant district court if the parents could not reach an agreement. In subsequent decisions (реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.; реш. № 1200 от 19.12.2008 г. на ВКС по гр. д. № 2871/2007; опр. № 84 от 16.02.2009 на ВКС по ч. гр. д. № 66, IV г. о.) the Supreme Court of Cassation reaffirmed its findings that questions related to the travel of minors abroad had to be decided specifically by the civil courts in accordance with Article 72 of the Family Code 1985, and not by the police following the administrative procedure under section 76(9) of the Bulgarian Identity Documents Act (see paragraphs 22 and 27 above). In doing so, the highest national court referred to its constant practice in respect of questions related to the exercise of parental rights. In two of the above-mentioned decisions (see реш. от 11.11.2008 г. на ВКС по к. д. № 4252/2007, V г. о.; опр. № 396 от 18.11.2008 г. на ВКС по ч. гр. д. № 1672/2008, III г. о.) the Supreme Court of Cassation quashed the findings to the contrary of two regional courts (see paragraph 31 below). 31. Two regional courts held in 2007 and 2008 respectively that claims under Article 72 of the Family Code 1985 were inadmissible because there existed an administrative procedure which was sufficient for obtaining a passport for a minor even where one of the parents disagreed (see реш. на окр. съд Хасково от 26.04.2007 г. по гр. д. № 93/2007; and опр. № 378 от 31.07.2008 г. на окр. съд Габрово по ч. гр. д. № 220/2008). 32. In a legal column, published on 9 June 2003 in a daily newspaper with national circulation called “24 Hours”, a Sofia District Court judge advised that a claim under Article 72 of the Family Code 1985, seeking the permission for a minor’s travel abroad with one parent only, was inadmissible and the correct avenue for settling the matter was via the administrative procedure under the Bulgarian Identity Documents Act 1998. 33. The Convention is in force in respect of Bulgaria as of 1 August 2003. It provides as follows: “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.” “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.” 34. The Convention was ratified by Bulgaria on 3 June 1991. It provides as follows: “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.” “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.” “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.”