| Applicant name | Osso |
| Applicant type | 1 |
| Number of applicants | Natural person |
| Country | Bulgaria |
| Application no. | 51056/21 |
| Date | 13/06/2023 |
| Judges | Ioannis Ktistakis, President, Yonko Grozev, Andreas Zünd |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Procedural requirements |
| Type of privacy | Procedural privacy; relational privacy |
| Keywords | No adequate decision-making; unnecessary delay |
| Facts of the case | Applicant married a Bulgarian national in 2014 and in the same year, they beget a son in the UK. In 2017, they relocate to Switzerland. In 2019, when on holiday in Bulgaria, the mother informs the applicant that neither she nor her son would return to Switzerland. Psychological reports showed that separation of the child from either his mother or his farther would have detrimental effects. However, because if the child joined his farther, he would have to learn a new language, the Bulgarian court found that the child was better adapted to live in Bulgaria. Interestingly detailed, the court also pointed out that in Bulgaria, the child was daily attending kindergarten with extracurricular activities, while in Switzerland he had only gone to day-care twice a week. Thus, the mother was awarded custody. |
| Analysis | There are several preliminary objections raised by the government, which the Court quickly does away with. As to the substance of the complaint, with respect to which applicant relied on both Article 6 and 8 ECHR, but the Court decided to treat the complaints solely under the procedural requirements implicit in the right to privacy, the ECtHR finds that the national authorities’ decision was not sufficiently reasoned as regards the factors capable of constituting an exception to the child’s immediate return. This disabled the Court from ascertaining that those questions were genuinely and effectively examined. They were also focussed on the living conditions and social connections in Bulgaria, but these inconveniences are necessarily linked to the experience of return the ECtHR finds. It continues that the return of the child to Switzerland did not necessarily implied separation from his mother. The judicial proceedings, around seventeen months and two weeks elapsed before the date of the final domestic judgment, were long. Although the ECtHR is mindful of the fact that the pandemic might have caused delay, this delay was excessive in light of the preferred time frame of 6 weeks as following from the The Hague Convention. Thus, a violation of Article 8 ECHR was found. |
| Other Article violation? | – |
| Damage awarded | 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; |
| Documents | Judgment |