European Court of Human Rights

 

 

THIRD SECTION

CASE OF OSSO v. BULGARIA

(Application no. 51056/21)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 June 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Osso v. Bulgaria,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Ioannis Ktistakis, President,
          Yonko Grozev,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 51056/21) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 October 2021 by an Italian national, Mr Giuseppe Osso, born in 1972 and living in Bülach (“the applicant”) who was represented by Mr S. Ivanov, a lawyer practising in Sofia;

the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Ms R. Nikolova, of the Ministry of Justice;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

the Italian Government’s position that they do not wish to exercise their right under Article 36 § 1 of the Convention;

Having deliberated in private on 23 May 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns complaints, under Article 8 of the Convention, related to the decision-making process and the length of judicial proceedings for the immediate return of the applicant’s child to the country of his habitual residence.

2.  In 2014 the applicant married a Bulgarian national, G.O. Their son, L., was born in December 2014 in the United Kingdom, where the family lived until their relocation to Switzerland in 2017.

3.  In July 2019, while on holiday with L. in Bulgaria, G.O. informed the applicant that she and L. would not return to Switzerland.

4.  On 25 July 2019 the applicant sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction (”the Hague Convention”). The Bulgarian Ministry of Justice, acting as Central Authority under the Hague Convention, received the request from the Swiss Central Authority on 5 August 2019 and instituted proceedings before the Sofia City Court (“the SCC”) on 5 November 2019.

5.  A psychological expert report found that separating L. from either his mother or father would have strong traumatic consequences for him. On 1 July 2020 the SCC ordered L.’s return to Switzerland.

6.  In a final judgment of 20 April 2021 the Sofia Court of Appeal (“SCA”) quashed the SCC’s decision and rejected the applicant’s request. It observed that L. had established a close emotional connection with the applicant and, if the child remained to live in Bulgaria without his father, that would be traumatic for him. However, L.’s return to Switzerland without his mother would endanger his physical and psychological development, a valid exception to return under Article 13 (b) of the Hague Convention. If separated from G.O., L. might develop anxiety which could in turn translate into him becoming aggressive to other children and they aggressive to him in return.

7.  The effects of a separation from the mother and the need for L. to learn a new language [German], if returned to Switzerland, could lead to difficulties with his education. L. had been adapting better to life in Bulgaria than he had to life in Switzerland. In Bulgaria he was daily attending kindergarten and extracurricular activities, while in Switzerland he had only gone to day-care twice a week.

8.  G.O. had felt oppressed and lacking in confidence in Switzerland, and her emotional state inevitably affected that of the child. G.O.’s own physical and psychological wellbeing had improved during her stay in Bulgaria. The existing conflict between the parents had negatively affected L.’s emotional state and his ability to adapt to the environment in Switzerland. The risks held by ongoing criminal proceedings against G.O. in Switzerland were further obstacles to her and the child’s return.

9.  On 7 October 2021 the Troyan District Court, ruling on interim measures, attributed custody rights to G.O. until conclusion of the divorce proceedings. On 24 March 2022 that court dissolved the marriage and gave custody rights to G.O. and contact rights to the applicant. The case is currently pending before the Lovech Regional Court on appeal by the applicant.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

10.  The applicant complained under Articles 6 § 1 and 8 of the Convention of the SCA’s failure to adduce relevant and sufficient reasons for its refusal to order the return of his child and to act expeditiously as required under the Hague Convention. The complaints under Article 6 § 1 are absorbed by the principal complaint under Article 8 (see Rinau v. Lithuania, no. 10926/09, § 152, 14 January 2020, with further references).

11.  The Government stated that the applicant had abused the right to individual application by not informing the Court of progress in the custody proceedings in Bulgaria. He had also failed to file a “request for fixing of time-limit in the event of delay” (relevant domestic law in that regard has been summarised in Finger v. Bulgaria, no. 37346/05, § 49, 10 May 2011), thus failing to exhaust domestic remedies.

12.  Proceedings for custody rights being, in principle, unconnected to the purpose of the Hague Convention (see X v.  Latvia, [GC], no. 27853/09, §§ 100-101, ECHR 2013), the Court finds that it was not essential for the applicant to have informed it about such proceedings. Also, a request for fixing of time-limit could not provide effective redress in respect of delays resulting from courts’ own failure to organise proper examination of the case, or in situations in which the proceedings had lasted too long without there being identifiable periods of inactivity (see Deyanov v. Bulgaria, no. 2930/04, §§ 69-70, 30 September 2010). Lastly, it could not reduce delays due to factors extraneous to the judicial system.

13.  The application is neither manifestly ill‑founded nor inadmissible on any ground listed in Article 35 of the Convention, and must be declared admissible.

14.  The general principles on the issue of international child abduction and the procedural obligations of the States have been summarised in X v. Latvia (cited above, §§ 92-108). Principles about the promptness of proceedings have been outlined in G.S. v. Georgia (no. 2361/13, § 49, 21 July 2015, with further references).

15.  In the present case, the SCA’s examination of the situation focused firstly on the separation of mother and child, which it considered unacceptable as it would have put L. at risk. The Court reiterates that the “grave risk exception” cannot arise solely from the child’s separation from the parent responsible for the wrongful removal (see K.J. v. Poland, no. 30813/14, § 67, 1 March 2016). This separation, however difficult for the child, would not automatically meet the grave-risk test (ibid.).

16.  The SCA’s decision was not sufficiently reasoned as regards the factors capable of constituting an exception to the child’s immediate return, so as to enable the Court to ascertain that those questions were genuinely and effectively examined (see Vladimir Ushakov v. Russia, no. 15122/17, § 82, 18 June 2019). The SCA’s analysis appears to have concentrated on examining G.O.’s and L.’s living conditions and social connections in Bulgaria, and on comparing them with the difficulties the child was likely to experience in Switzerland. Those difficulties were found sufficient to represent an exception allowing the court not to order L.’s return. However, a “grave risk” cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return, but necessitates situations which go beyond what a child might reasonably bear (see X v. Latvia, cited above, § 116).

17.  It does not appear from the file that L.’s return to Switzerland necessarily implied separation from his mother. It was not suggested that G.O. lacked access to Switzerland or that the applicant might actively prevent her from seeing the child there (see K.J. v. Poland, cited above, § 68). The SCA however did not explore options for G.O. to return to Switzerland with L. The issue of whether it was possible for the mother to follow her son to Switzerland and to maintain contact with him should have been dealt with (compare with X v. Latvia, cited above, § 117). Instead, the SCA apparently considered that G.O.’s unwillingness to live there with the applicant, as well as the conflict between them, were an obstacle to such return. Allowing the return mechanism to be automatically deactivated on the sole basis of a refusal by the abducting parent to return would subject the system designed by the Hague Convention to the unilateral will of that parent (see Thompson v. Russia, no. 36048/17, § 70, 30 March 2021).

18.  As to the risk of criminal proceedings against G.O., the SCA did not acknowledge the fact that the Swiss authorities had refused to open criminal proceedings against her. It considered unreliable the applicant’s assertion that he would withdraw his challenge to that refusal, for the reason that he had not effectively done so. The SCA disregarded his lawyer’s explanation that the applicant had made the criminal complaint in the first place because abducting a child was a criminal offence and that he was ready to not pursue it, if G.O. expressed a wish to return to Switzerland together with L., something she had not done. The Court is unaware either of any attempts of the Swiss authorities to apprehend G.O. Nothing indicated that she would not have access to effective legal remedies there, were she to need them, and to proper defence to ensure the protection of her interests and those of L. (see G.N. v. Poland, no. 2171/14, § 64, 19 July 2016). In situations of firm refusals of abducting parents to return to the State of habitual residence on the grounds of risk of criminal prosecution, under Part VI (II(2)(i)(67)) of the Guide to Good Practice under the Hague Convention, domestic courts may consider protective measures in the form of voluntary undertakings given to them by the left-behind parent. It appears the SCA did not explore this possibility.

19.  Therefore, the SCA did not seek to genuinely examine whether it had been possible for G.O. to return to Switzerland with L. (compare with Vladimir Ushakov, cited above, § 82).

20.  As to the speed of the judicial proceedings, around seventeen months and two weeks elapsed between the date on which the applicant’s request for L.’s return was registered by the SCC and the date of the final domestic judgment (see paragraphs 4 and 6 above). The Court has previously found similar or even shorter periods to be excessively long (see G.N. v. Poland, cited above, §§ 66-68 - seventeen months and two weeks; Blaga v. Romania, no. 54443/10, § 83, 1 July 2014 - almost fourteen months; K.J. v. Poland, cited above, §§ 71-72 - twelve months; and R.S. v. Poland, no. 63777/09, § 70, 21 July 2015 - over six months).

21.  The Government emphasised that the proceedings included a two‑month period during the COVID-19 state of emergency. G.O. and the applicant had also caused a delay as a result of procedural irregularities in their submissions before the SCA.

22.  The fact is that the overall length of the proceedings nonetheless exceeded by far the six-week time-limit recommended in Article 11 of the Hague Convention. Without overlooking the Government’s arguments, the Court notes that the lapse of time was to a large extent caused by the courts’ own handling of the case. Effective respect for family life requires that future relations between parent and child not be determined by the mere effluxion of time (see, among many others, Ferrari v. Romania, no. 1714/10, § 53, 28 April 2015). It appears that in this part the domestic authorities failed to act with requisite diligence.

23.  Accordingly, the applicant suffered a disproportionate interference with his right to respect for his family life, in that the decision-making process by the SCA, including the length of the return proceedings as a whole, did not satisfy the procedural requirements inherent in Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant claimed 156,791.47 euros (EUR) for non-pecuniary damage.

25.  As for costs and expenses, he claimed EUR 93,208.53 incurred before the domestic courts and the Court. Of it, EUR 46,085.12 was for fees to his legal representatives in Bulgaria, EUR 34,852 to his legal representatives in Switzerland and in the divorce proceedings in Bulgaria, EUR 7,374.76 for translation of documents in domestic proceedings, and EUR 4,046.71 for travel expenses.

26.  The Government contested the applicant’s claim.

27.  The applicant must have sustained non‑pecuniary damage which cannot be compensated solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant (compare with Aneva and Others v. Bulgaria, no. 66997/13 and 2 others, § 132, 6 April 2017, and A and Others v. Bulgaria [Committee], no. 28383/20, § 29, 9 May 2023).

28.  Regard being had to the documents in its possession and the applicable criteria, the Court awards the applicant EUR 7,000 covering costs under all heads.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

         Olga Chernishova                                                Ioannis Ktistakis
          Deputy Registrar                                                      President