CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 juin 2015

.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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase }     Communicated on 15 June 2015   FOURTH SECTION Application no. 6168/09 Teodora Nikolaeva RUNTOVA and Kristian Georgiev GEORGIEV against Bulgaria lodged on 10 December 2008 STATEMENT OF FACTS The applicants, Ms Teodora Nikolaeva Runtova and Mr Kristian Georgiev Georgiev, are Bulgarian nationals, who were born in 1970 and 1999 respectively and live in Sofia. The first applicant is the mother of the second applicant. 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 and G.G., who was the first applicant’s husband at the time and the second applicant’s father, emigrated in 2004 together from Bulgaria to Canada where they had received resident status. Thereafter the relationship between the parents deteriorated and the family returned to Bulgaria for the parents’ divorce. On 27 December 2005 the court pronounced the divorce by consent between the first applicant and G.G. It gave the exercise of parental rights to the mother and contact rights to the father, the latter to be exercised every first and third weekend of the month, 30 days during the summer and ten days during the winter. 2.     Police ban on the second applicant’s leaving the country While the divorce proceedings were pending, G.G. was in agreement to his son’s leaving Bulgaria only with his mother without any limitation. He signed an authorisation to that effect before a notary on 19 September 2005. Having apparently changed his mind, G.G. subsequently signed a new declaration explicitly opposing such travel and handed it in to the police. As a result, on 20 July 2007 the police issued a ban on the second applicant’s leaving the country, referring to the mother’s intention to settle with her son in Canada and to the need to protect the father’s contact rights with the child. The first applicant brought judicial review proceedings on 26 July 2007, challenging the ban. On 26 June 2008 the first instance court quashed the ban, finding that the police had failed to carry out a proportionality analysis of the particular circumstances of the case. The police and G.G. appealed. On 9 June 2009 the Supreme Administrative Court confirmed the lower court’s judgment quashing the ban. 3.     Proceedings before the civil courts to allow the child’s travel On 20 November 2007 the first applicant brought a claim before the Sofia District Court. She sought, under Article 72 of the Family Code, the court’s authorisation for her son’s leaving the country in the absence of the father’s agreement. She also asked the court to change the contact rights between father and child in view of a psychologist’s conclusion about the father’s negative influence on the child. The Sofia District Court granted her first request on an unspecified date by allowing the second applicant’s unlimited travel abroad accompanied only by his mother. The court did not rule on the second request for a change in the contact rights. Following an appeal by both G.G. and the first applicant, the Sofia City Court upheld the lower court’s judgment on 2 July 2009. It also established a new contact regime between the second applicant and G.G. The second instance court’s judgment was not appealed against and became enforceable on 24 August 2009. 4.     Proceedings challenging the constitutionality of the Regulations for the Issuing of Identity Documents On 27 October 2008 the first applicant brought proceedings under Article   185 of the Code of Administrative Procedure before the Supreme Administrative Court, asking the court to quash sections 11(8) and 12(1)(5) of the Regulations for Issuing of Identity Documents (the Regulations) as being contrary to the Constitution and the Bulgarian Identity Papers Act. In a final decision of 15 December 2009, a five-member formation of the Supreme Administrative Court granted the request only partially. More specifically, the court held that section 11(8) of the Regulations, authorising the police to refuse to issue passports to minors where one parent’s signature is missing from the request, was not incompatible with Article   2 of Protocol No. 4 to the Convention, nor with Article 35 of the Bulgarian Constitution or with section 33(3) of the Bulgarian Identity Papers Act. At the same the highest national administrative court found that the police refusals under section 12(1)(5) of the Regulations to accept to process such requests were against Article 30 of the Code of Administrative Procedure; as a result, the court upheld the first applicant’s request and quashed section   12(1)(5) of the Regulations as contrary to a legal act of higher standing. B.     Relevant domestic law and practice 1.     The Constitution According to Article 35, everyone shall have the right freely to choose a residence, to move within the national territory, and to leave the country. This right may be restricted solely by statute for the purpose of protecting national security, public health, and the rights and freedoms of others. 2.     Family Code 1985 and Family Code 2009 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. The essence of this provision was reproduced in Article 123 § 2 of the new Family Code 2009. 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. 3.     Bulgarian Identity Documents Act 1998 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). 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. 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. 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. 4.     Regulations for the Issuing of Bulgarian Identity Documents (repealed as of 12 February 2010) 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 entered into force; a judicial decision depriving the missing parent of his or her parental rights; or, a death certificate of the parent whose agreement was missing. According to section 12(1)(5), the police had to refuse to accept to process a request for an identity document when the request was not accompanied by all the requisite documents. 5.     Code of Administrative Procedure 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). Article 185 provides that secondary legislation can be challenged in court. According to Article 30 (2), if a request for the issuing of an individual administrative act has not been submitted in line with the legal requirements, the administrative body gives a three-day period for correcting the defects in the request. 6.     Relevant judicial practice in respect of issuing of passports to minors 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. In doing so, the highest national court referred to its constant practice in respect of questions related to the exercise of parental rights. COMPLAINT The applicants complain in particular under Article 8 of the Convention about the duration of the civil proceedings under the Family Code in which they sought permission for the second applicant’s travel in the absence of parental consent.     QUESTION TO THE PARTIES Was the time it took the civil courts to grant permission for the second applicant’s travel abroad in the absence of his father’s agreement compatible with the authorities’ obligation under Article 8 of the Convention to act diligently in order effectively to respect the applicants’ right to enjoy family life together (see Penchevi v. Bulgaria , no. 77818/12, §§ 72-74, 10 February 2015)?