Judgement 28383/20

Applicant name A ET AUTRES
Applicant type Natural person
Number of applicants3
Country Bulgaria
Application no. 28383/20
Date 09/05/2023
Judges Ioannis Ktistakis, président,
 Yonko Grozev,
 Andreas Zünd
Institution Court
Outcome Art. 8Violation
ReasonPositive obligation (right and freedoms of others)
Type of privacyRelational privacy; procedural privacy
KeywordsCustody; length proceedings
Facts of the caseThe case is brought by a mother and her two children, all having dual Bulgarian and American citizenship. When father and mother split, father takes the children to America and is awarded custody. Mother, having moved to Bulgaria, objects and is later granted custody. She feels, however, that the legal proceedings were not speedy enough and thus violated her right to family life under Article 8 ECHR, and that of her two children.
AnalysisThe Court succinctly rejects a handful of preliminary objections. The application was not submitted out of time, it was not premature, it was not manifestly ill-founded, and the applicants did not fail to include important information in their claim. Turning to the substance of the matter, the Court underlines the importance of swiftly making decisions in terms of custody, because of the implications for the bond between children and parents and the children’s need for stability. It points out that the domestic proceedings for the return of the children in this case lasted about eleven months, including six months to obtain a judgment at first instance, which exceeds the six-week period provided for in under Article 11 of the Hague Convention. Although that time limit is not mandatory, the length of the proceedings in this case are not justifiable. The Court points to several steps that took too long, such as the six weeks it took to transmit the Ministry of Justice’s request for return to the Court, the notification of the parties of a court decision, which took weeks, and the time it took to draw up of an expert report. This leads the ECtHR to conclude that the government had violated its positive obligation to provide for a speedy procedure under Article 8 ECHR.
On top of that, the Court points out, the final judgment of the court of appeal was enforced only after a period of eight months, because the father objected and asked for the case to be reopened twice. It took more than three months to examine the first application for reopening, and the ECtHR is not satisfied that the court, when it ruled on the second appeal by the father, did give enough weight to the fact that the father had submitted his new application only two days after the first refusal to reopen the proceedings by the same court. Because the delay meant that the eldest child only returned to his mother’s home months after their separation, and that the two brothers had been separated for about sixteen months, the Court finds a violation of Article 8 ECHR.
This case fits in the Courts reliance on the procedural requirements it feels are implicit in substantive human rights, such as the right to privacy, meaning that it does not have to turn to the right to a fair trial (Article 6 ECHR), which includes a right to a speedy legal procedure.
Other Article violation?
Damage awardedEUR 15 000 jointly with the applicants, plus any amount that may be due on that sum by way of tax, for non-material damage;
EUR 3,000 jointly to the applicants, plus any amount that may be due on this sum by them by way of tax, for costs and expenses;
EUR 4,500 to the children’s mother, plus any amount that may be due on that sum by her by way of tax, for costs and expenses;
Documents Judgment