CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 12 October 2018   FIFTH SECTION Application no. 23763/18 X and Y against Bulgaria lodged on 11 May 2018 STATEMENT OF FACTS The applicants, Ms “X” (“the first applicant”) and Mr “Y” (“the second applicant”), are Bulgarian nationals, who were born in 1978 and 2010 respectively and live in Pleven. They are represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 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 and second applicants are mother and son. The first applicant and V.D., a well-known local businessman, lived as a couple since 2009. In 2010 the second applicant was born from their union. In 2012 the couple had a second child. Several months later the first applicant moved out of the family flat, according to her after V.D. had physically thrown her out on one occasion. She went to live with her parents, taking the younger child with her. V.D. did not allow her to take the second applicant. Ever since V.D. has systematically put obstacles to the two applicants spending time together. 2.     Custody proceedings In 2013 the first applicant brought judicial proceedings seeking custody over the second applicant. In September 2013 the Pleven District Court granted her request for interim measures by awarding temporary custody to her while the proceedings were pending. The court admitted two reports during the proceedings: a forensic psychological expert report finding that the second applicant displayed closer ties with his father and was in the process of alienation from the mother, and a report finding that the child was emotionally close to his father but the mother’s involvement was of crucial importance as a balancing factor and that the child was comfortable and calm also in his mother’s household. It also considered V.D.’s submissions that he was not opposed to contact between the applicants and that he had repeatedly urged the first applicant to return to live with him. V.D. likewise brought a counter-claim in the same proceedings, seeking custody over the second applicant. On 27 December 2013 the Pleven District Court granted custody to the first applicant and determined extensive contacts between the second applicant and V.D., with whom the child was to spend two weeks every month. The court also determined that V.D. had to pay alimony to the first applicant for the second applicant’s upkeep. Upon an appeal by both the first applicant and V.D., on 30 May 2014 the Pleven Regional Court upheld the lower court’s judgment as regards custody, yet it limited the contact rights of V.D. to two weekends a month, two hours every Wednesday afternoon and one month during the summer. The court ordered and considered a new report by the social services in respect of whether there was a change in the living conditions offered by each parent as well as in their demonstrated respective parental skills, and also whether the difficulties associated with the handing over of the child to the mother had been overcome. The court found that it could not be said that one parent had better parental skills than the other and pointed out that it was crucial not to allow the process of parental alienation towards the mother, which had already started, to develop further. The court concluded that the problems associated with the handing over of the child to the mother, which had been demonstrated acutely on two occasions, were not unsurmountable. In particular, it was understandable and only natural for the second applicant to identify himself with the only dwelling he called his home, that of the father, where he had been born and lived continuously ever since, as opposed to the house of his maternal grandparents which he had visited only occasionally and had not grown to accept as his home. The court considered that while moving to live with his mother would undeniably bring about certain difficulties of adaptation in the second applicant’s life, those were not of a nature to negatively affect the relationship between mother and son but were bound to ebb away with time. Moreover, the fact that the father possessed several immovable properties and was in the process of converting a sanatorium into his primary residence, equipped with a swimming pool and a playground, should not be decisive in terms of child-rearing capacity. Also, the mother’s living conditions were acceptable for that purpose. The court concluded that it would be in both children’s best interest to live together on a permanent basis with one of the parents, in this case the first applicant. On 2 November 2014 the Supreme Court of Cassation dismissed V.D.’s appeal on points of law and the judgment of the Pleven Regional Court became final on that date. Between 15 March 2015 and 13 May 2015 V.D. was continuously refusing to return the second applicant to the mother, in defiance of the 2014 final judgment. During that period the child lived with his father, deprived of external contacts and not attending kindergarten. The first applicant’s repeated attempts to get in touch with V.D. in order to see her son remained without success. 3.     Enforcement proceedings The first applicant obtained a writ of enforcement on 7 April 2015 and on 16 April 2015 she sought assistance from the bailiff with the implementation of the final judgment of 27 November 2014 granting custody to her. On a number of occasions, namely on 23, 25, 26, 28 and 30   April 2015 and 5 May 2015, the bailiff attempted unsuccessfully to convene V.D. to hand over the second applicant to the mother. In particular the summons officer sent to deliver the invitation for voluntary compliance to V.D. recorded on the summons that no one had answered the door and that, according to a neighbour, V.D. maintained no contact with neighbours and would systematically not answer the door. On 12 February 2016 the first applicant again turned to the bailiff seeking enforcement of the final judgment. On 25 February 2016 V.D. requested the recusal of the bailiff and the latter recused himself on 14 July 2016. A new bailiff took the case over and on 15 September 2016 invited V.D. to voluntary comply with the judgment and hand the child over to the first applicant. As that did not happen, the bailiff convened V.D. to mandatorily hand the child over on 18 October 2016. On that date, after a psychologist and a representative of the child protection agency talked to the second applicant who refused to leave his father, the bailiff decided to postpone the handover. He noted that additional efforts had to be made to enhance the trust between the child and his mother. He then ordered that additional meetings between the applicants be held in an institutional setting to facilitate the prospective handover. In the following months the first applicant asked the bailiff on three occasions, respectively on 15 March, 3 August and 2 November 2017, to schedule a new date for the handover, apparently to no avail. 4.     Criminal proceedings against V.D. for lack of enforcement Starting in March 2015 the first applicant complained numerous times to the prosecuting authorities about V.D.’s obstructing the enforcement of the 2014 final judgment, which was a prosecutable offence under the criminal code. Save for one occasion, the prosecuting authorities systematically refused to open criminal proceedings due to the absence of sufficient evidence showing that a prosecutable offence had been committed. The first applicant unsuccessfully challenged the refusals before the higher prosecutors. On the sole occasion when the prosecutor had initially opened an investigation, he discontinued it for the same reason, terminating the investigative proceedings on 20 October 2015. The first applicant sought judicial review. On 30 November 2015 the Pleven District Court quashed the termination of the investigation and returned the case to the prosecution for further investigative measures. The district prosecutor again terminated the proceedings on 5 April 2016. He found that it was morally unacceptable to use force vis-a-vis a child who clearly demonstrated unwillingness to return to live with the mother. Thus, it was unacceptable to consider that V.D. had committed an intentional offence under Article 182 (2) of the Criminal Code, given that all he had done had been to act upon the wishes of his son. The first applicant again sought judicial review of the termination of the investigation. On 27 April 2016 the Pleven District Court set aside the prosecutor’s decision. In particular the court found that, given that the competent civil court had decided the question of custody in a final decision, it was unacceptable for anyone else thereafter – be it the other parent, the prosecution or the child himself – to take a stance on this issue. Furthermore, it was untenable for a person who owed compliance with a judicial decision to continually avoid delivering on his obligations. The situation no doubt represented a repeated, intentional, demonstrative failure of V.D to act upon the judgment; moreover, V.D. had not denied this failure but had instead considered it justified as beneficial for the child. Nothing in the file suggested that V.D. had made any attempt to return the child to the mother and the prosecution had wrongly deemed that such an inadequate conduct could have been prompted by a concern for the child’s well-being. The court found that the prosecution’s conclusion that no offence had been committed was “absolutely unfounded and even puzzling”, given that sufficient material had been collected during the investigation proving the offence and identifying the offender. Consequently, as legal norms of both material and procedural nature had been applied wrongly, the court remitted the case to the prosecuting authorities for “completing the investigation into the offence which had been clearly committed and for seeking criminal responsibility from V.D”. The district prosecutor lodged an appeal against that decision and the case was allocated to a judicial formation in the Pleven Regional Court. It does not appear that those proceedings have come to an end. 5.     Involvement of the social services On 5 February 2014 the director of the local Directorate for Social Assistance wrote to the first applicant informing her that the second applicant had expressed discomfort with the fact that his maternal grandfather behaves harshly to him. The director further recommended that the first applicant make efforts to improve her communication with the father, which would inevitably decrease the tension in the child and facilitate the relations among all concerned. On 12 August 2014 the first applicant complained in writing to the executive director of the Agency for Social Assistance in Sofia about V.D. not having allowed her to meet with the second applicant between December 2012 and June 2013. V.D. had not expressed any interest in their second common child, however, after custody had been granted to the first applicant, he had offered her to give up her custody rights over the second applicant in favour of him, the father, and in exchange of that he would provide financially for their second child as well. As she had refused he had threatened her that he would be bringing complaints against her and causing nuisance for the next 14 years. She also complained about V.D. having established personal relations with some officials of the social services who had been telling the child that he does not need a mother, or had been drawing up reports favourable to the father and negative to her. She asked assistance so that she could take care of her two children without stress and permanent disturbance. On 14 April 2015 the first applicant complained to the Child Protection Unit in the local Directorate for Social Assistance about her inability to meet with the second applicant as a result of obstruction by V.D., who moreover was not exercising the necessary care for the second applicant. She sought support from these authorities with the handing over of the second applicant to her. The Child Protection Unit forwarded her complaint to the prosecution who refused to open an investigation on 21 May 2015. On 21 April 2015 V.D. turned to the Directorate for Social Assistance requesting that measures be undertaken towards the preservation of the second applicant’s health and well-being. In July 2015 he asked that psychological counselling be provided to his elder child and that social workers and/or a psychologist be always present during the meetings between the child and his mother so that those take place in a controlled environment. Between 28 and 31 July 2015 four meetings between the two applicants took place, always in the presence of specialised professionals who produced a report at the end. The report concluded that the second applicant was visibly at ease and happy in his mother’s company, however he was categorically opposed to leaving the premises with the mother only and each time went home with his father instead. Upon the initiative of V.D., in 2015 the second applicant was examined by a psychologist, who found that he was displaying symptoms of anxiety and insecurity provoked by fear to be taken to his mother’s house. The psychologist concluded that the forceful taking of the child into the mother’s household would have traumatic consequences for him. On 15 February 2016 the local Directorate for Social Assistance directed the second applicant and his father to attend, over the period of three months, regular preparatory counselling sessions provided by the authorities with a view to facilitating the child’s acceptance of the mother and prompting his willingness to go with her. On 7 March 2016 the local Directorate for Social Assistance wrote to the first applicant in reply to her earlier request for assistance. They pointed out that the child was firmly opposed to going to live with her and in order to overcome that reality the authorities had put in place, since February 2016, regular counselling sessions with a psychologist for the child and the father. In order to achieve optimal results in the process of working with the child, it was necessary that the first applicant also attend such sessions for which she had to apply explicitly. A record by the centre for social assistance of 18 May 2016 noted that V.D. had declared his willingness to cooperate in the process of handing the child over to live with the mother. Another report by the social services of 1   June 2016 noted that it had been agreed with the first applicant that she meet the second applicant in the absence of his father’s presence; however, this had not happened to date. The report recommended that further work be undertaken, following which on 9 June 2016 the child and V.D. were again directed to attend counselling sessions. On 22 June 2016 V.D. wrote to the Directorate for Social Assistance, informing them that the police had ordered him to hand over the child to the mother without further delay and asking for assistance in the process. Counselling sessions for further three months were offered to V.D. and the child by a non-governmental organisation contracted out by the authorities between July and October 2016. In August 2016 the first applicant wrote to the director of that organisation, signalling that for about four years she had been unable, for reasons outside her control, to live with her child. On 16 February 2017 the local Directorate for Social Assistance wrote to V.D. informing him that as the first applicant had not consented to attend preparatory counselling sessions, it was impossible to conduct work aimed at building emotional closeness between the two applicants. 6.     Proceedings for change of custody In May 2015 V.D. brought proceedings for change of custody over the second applicant. On 30 June 2015 the Pleven District Court granted his request for interim measures and awarded temporary custody to him and contact rights to the first applicant. The court noted in particular that, following an incident in the home of the second applicant’s maternal grandparents, where on 9 June 2015 he had been slapped by his grandmother, the latter had been ordered by the court on 16 June 2015 as a child-protection measure not to use violence vis-à-vis the second applicant. The court noted also that according to a social worker acquainted with the case the adults in the mother’s home were incapable of handling the second applicant and resorted to physical coercion as an educational method. In August 2015 V.D. did not allow the second applicant to spend time with his mother or to go on holiday with her and his younger sibling, despite the contact rights determined in the interim measure. On 14 October 2015 the Pleven District Court, ruling on the merits, rejected V.D.’s request for a change of custody. The court observed, on the one hand, that the second applicant was happy spending time with his mother and younger sibling, and the first applicant was not preventing his contact with his father. On the other hand, the court established that the child only saw his mother at the premises of the social services, and not in the comfort of her home, which suggested that V.D. had not made efforts to predispose the child to stay with his mother. The court also considered that continued restrictions to the second applicant’s contacts with his mother would lead to his alienation from her, which was not in his best interest. It was also important for him to live with his younger sibling with whom they were close in age. This decision was upheld by the Pleven Regional Court in a final judgment of 1 February 2016. The court found in particular that, while the second applicant undoubtedly felt ill-at-ease at his mother’s home, the reason for this had been the incident when he had been hit by his grandmother as well as his father’s conduct. The grandmother had since left the home and moved abroad, so there was no further danger of violence in the mother’s home. Moreover, the first applicant had demonstrated better parental skills and, if the second applicant continued to be separated from her, there was a real risk that the relation between the two would collapse. The consequences of such a development would be much graver for the child’s well-being than the stress associated with his being handed over to her. According to the first applicant, since 10 June 2015 she has only been able to see her son in institutional settings. B.     Relevant domestic law 1.     Enforcement of judgments In accordance with Article 404 of the Code of Civil Procedure of 2008 (“the 2008 Code”) final judicial decisions can be subject to forced enforcement. Article 527 of the 2008 Code provides that if a party obliged to hand over a child pursuant to a final judicial decision relating to parental rights, fails to do so, the bailiff can impose fines on him or her for every failure to comply with the judicial decision. In addition, the bailiff may request assistance from the social services and municipal and police authorities. The bailiff can also take the child by force and hand him or her over to the entitled parent. A creditor can challenge in court a bailiff’s refusal to carry out an act requested by the creditor, or a bailiff’s decision to terminate or suspend the enforcement proceedings (Article 435 of the Code). 2.     Criminal sanctions for failure to ensure contact with a child Article 182 (2) of the Criminal Code of 1968, in force at the time of the events, provides that a parent or another relative who prevents contact with a child or the enforcement of a court judgement on custody can be sentenced to probation, fined up to EUR 153 and, in severe cases, sentenced to up to six months’ imprisonment or to a fine of up to EUR 1,533. As from April 2010, that is a publicly prosecutable offence whereby proceedings can be brought solely by the prosecutor. 3.     Children’s residence According to section 71(1) of the Family Code 1985, minor children must live with their parents. If this is not the case, the district court issues an order for the child’s return to his or her parents. The order can be appealed against before the regional court and an appeal does not suspend enforcement. 4.     Protection of children According to section 23 of the Child Protection Act, measures for protecting children in their family environment include, among others, the provision of pedagogical, psychological and legal assistance to parents who exercise parental responsibility; the provision of appropriate social services including informing and consulting the child; social work aimed at facilitating contacts between parents and children, and overcoming conflict in their relationship. COMPLAINTS The applicants complain under Articles 8 and 13 of the Convention about the authorities’ failure to enforce two final court decisions awarding custody in respect of the second applicant to the first applicant, as well as about the lack of effective remedies in this connection. QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention? 2.     Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention? The parties are invited to provide information about any relevant developments.