CASE OF PENCHEVI v. BULGARIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva
6. The applicants were born in 1979 and 2006 respectively and live in Würzburg, Germany. 7. In 2009 the two applicants and V.P., the first applicant’s husband and the second applicant’s father, travelled to Germany, to take up a nine-month paid traineeship in State institutions which the first applicant had been granted there. 8. 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 the child’s having a ticket for that date and contrary to what had been agreed with the mother. 9. As a result, the first applicant interrupted her training and returned to Bulgaria on 25 March 2010 where she joined V.P. and their child. 10. The first applicant brought judicial proceedings 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. 11. 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 subjected the two applicants to psychological abuse. In particular, he had repeatedly insulted the mother in front of the child, had called her a bad mother, had not allowed the two of them 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”. 12. As a result of the restraining order V.P. did not have contact with the child between 12 May 2011 and 26 November 2011. 13. 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 for a master’s degree in Germany during the academic year 2010/2011. The father did not give his consent to the child’s travel to Germany. As a result, the second applicant lived with his maternal grand-parents from the autumn of 2010 onwards. 14. In order to spend as much time as possible with her child, the first applicant traveled frequently between Germany and Bulgaria. She submitted that between March 2010 and October 2012 she spent around half her time in Bulgaria with her child. This negatively affected her studies: because she was often absent from classes in order to visit her child, she needed longer overall time to complete her master’s programme, namely two years instead of one year. She was awarded another scholarship for a doctorate degree in Germany, starting in the academic year 2012/2013. 15. On 9 April 2010, the first applicant filed a claim for divorce. 16. On 8 October 2010 the district court pronounced the divorce of the first applicant and her husband as being due to V.P.’s fault, and granted 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 started school, and half of every school holiday after that. 17. 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 final became enforceable on 28 February 2012. 18. In parallel with the divorce proceedings, on 29 April 2010 the first applicant brought proceedings before the district court under Article 123 § 2 of the Family Code (see paragraph 26 below). She sought to obtain a court decision dispensing with the father’s consent to the child’s travel outside the country. More specifically, 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. 19. 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 he had adapted well to the social environment in Germany. She did not specifically invoke a provision under the Convention; instead, she expressed her wish to live with and care for her child while she was pursuing her studies in Germany. However, it appears that she did not formally limit in writing her request for permission to travel with her child to Germany or to any other country. 20. 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 she would permanently leave the country with the second applicant. It also held that the father’s access rights 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. 21. After an appeal by V.P. 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 on the Rights of the Child, the Constitution of Republic of Bulgaria and the Bulgarian Identity Documents Act (see paragraphs 25, 28 and 32 below). 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 child had adapted well during his stay there before March 2010, that the first applicant was going to specialise in European law in the Wurtzburg University and that the second applicant enjoyed considerable care and attention from his mother. The court also held that V.P.’s arguments about 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. 22. Upon a cassation 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 a child’s unlimited travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interest of the child. The reasons were more specifically that there was a risk that the requesting parent could take the child to countries which were in a state of war or in which there was a high risk of natural calamities, and thus endanger the child’s well-being while depriving the State of the possibility to ensure his or her protection. Such permission could be granted, when that was in the interest of the child, in respect of 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. 23. On 9 July 2012 the first applicant brought a new request for permission of the second applicant’s travel with his mother to Germany and the other European Union countries for a period of three years without the father’s consent. This time she brought her claim under Article 127a of the Family Code 2009, which provision was adopted in the meantime and which governs specifically the question of minors’ travel abroad and the issuing of identity documents for that purpose (see paragraph 26 below). She pointed out that she had consistently facilitated V.P.’s access to the child in accordance with his contact rights determined in the divorce proceedings. She submitted that, because she could not take the second applicant with her to Germany while she was pursuing her studies there, both her child and she were deprived of personal contact with each other. She claimed this negatively affected their family life as she was practically deprived of the possibility to raise her child while the exercise of parental rights had been granted to her. She submitted that her doctoral studies in Germany, which were to last three years as of the fall of 2012, would give her the flexibility necessary for her taking care of her child, given that she could do most of her work from home. Finally, she pointed out that the second applicant continuously asked to be with his mother at all times as he is very attached to her. 24. In a decision of 6 December 2012, the Ruse District Court allowed the second applicant’s travel to Germany and within the European Union, for the period of three years, accompanied by his mother. The decision was not appealed against and became enforceable on 29 December 2012.