European Court of Human Rights

 

 

THIRD SECTION

CASE OF KUKAVICA v. BULGARIA

(Application no. 57202/21)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 June 2023

 

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

In the case of Kukavica 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. 57202/21) 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 23 November 2021 by a Croatian national, Mr Elvis Kukavica, born in 1978 and living in Munich (“the applicant”) who was represented by Mr T. Hoehn, a lawyer practising in Sofia;

the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Ms B. Simeonova, 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 Croatian 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 a complaint that a Bulgarian court’s final decision in proceedings about international child abduction, which refused to order the immediate return of the applicant’s child from Bulgaria to the country of the child’s habitual residence, breached the applicant’s right to family life under Article 8 of the Convention.

2.  In August 2018 the applicant married a Bulgarian national, V.K. Their daughter, A., was born in October 2018 in Germany, where the family lived.

3.  On 25 December 2019 during the family’s stay in Bulgaria on holiday, V.K. informed the applicant that she was not going back to Germany with A. The applicant left for Germany.

4.  On 17 March 2020 the applicant sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). He also relied on Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels II bis Regulation”).

5.  The Bulgarian Ministry of Justice, acting as Central Authority under the Hague Convention, instituted proceedings on behalf of the applicant before the Sofia City Court (“the SCC”).

6.  On 18 January 2021 the SCC granted the applicant’s request for A.’s return to Germany. It observed that A.’s return without V.K. would be unacceptable as it posed a “grave risk” to A.’s psychological wellbeing. However, it did not apply the “grave risk exception” under Article 13(b) of the Hague Convention, which allowed it not to order the return of the child, because it found that the applicant had undertaken “adequate arrangements” within the meaning of Article 11(4) of the Brussels II bis Regulation (see K.J. v. Poland, no. 30813/14, § 39, 1 March 2016, as regards “adequate arrangements”).

7.  Following V.K.’s appeal, in a final judgment of 25 May 2021 the Sofia Court of Appeal (“the SCA”) rejected the applicant’s request. While the SCA acknowledged that A. showed unreserved affection for the applicant and was close to both his parents, it found that separating mother and child was unacceptable and the existence of such a possibility represented a “grave risk exception” to A.’s return. The applicant was unaware of the negative effects which his controlling conduct had on V.K. The prospects that disagreements between him and V.K. result in causing stress to A., and the lack of understanding of the situation by both parents, were also creating obstacles to the child’s return. The existing conflict between the parents had been qualified in an expert report as psychological violence by the applicant to V.K. Such a situation, which did not merely involve inconveniences for the child ordinarily linked to her return, would be intolerable.

8.  The SCA held that the applicant’s related undertakings could not be considered “adequate arrangements”. They had “not been coordinated with a relevant authority in the member State”. In addition, the undertaking, made in a declaration before a notary, to provide a separate lodging (safe harbour) to V.K. and A. - if he did not provide them with the family home in Germany without living there himself - was inadequate. The reason was that it was made conditional on V.K. not using the family flat. That flat did not offer acceptable conditions as its owner lived there and it was unclear if he would continue to do so.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

9.  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 ruling. The complaint under Article 6 § 1 is absorbed by the principal complaint under Article 8 (see Rinau v. Lithuania, no. 10926/09, § 152, 14 January 2020, with further references).

10.  The Government claimed non-exhaustion of domestic remedies and an abuse of the right to individual application. The applicant had not informed the Court that he had initiated custody proceedings in Germany, and if in them he had sought a ruling for the child’s return under Article 11(7) and (8) of the Brussels II bis Regulation. Also, he had not sought reopening of the proceedings before the Bulgarian courts.

11.  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), it was not essential for the applicant to have informed the Court about such proceedings. As his complaint before the Court concerns the domestic court’s reasoning in the return proceedings, he has made use of the appropriate mechanism the very aim of which was to bring about the speedy return of a wrongfully removed child (see, mutatis mutandis, Raw and Others v. France, no. 10131/11, § 62, 7 March 2013).

12.  Reopening of civil proceedings cannot usually be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see, among other authorities, Šorgić v. Serbia, no. 34973/06, § 54, 3 November 2011).

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 have been summarised in X v. Latvia (cited above, §§ 92-108) and reiterated in Vladimir Ushakov v. Russia (no. 15122/17, §§ 76‑83, 18 June 2019). The relevant provisions of the Brussels II bis Regulation have been set out in M.A. v. Austria (no. 4097/13, §§ 68-69, 15 January 2015).

15.  Having repeatedly held that the exceptions to return under the Hague Convention have to be interpreted strictly (see X v. Latvia, cited above, § 116), and that the “grave risk exception” cannot arise solely from separation from the parent who was responsible for the wrongful removal (see, K.J. v. Poland, no. 30813/14, § 67, 1 March 2016), it is not the Court’s task to take the place of the domestic authorities in determining the existence of a “grave risk” to the child’s return. It has to ascertain whether the courts’ interpretation and application of the provisions of the Hague Convention secured the applicant’s rights guaranteed under Article 8 of the Convention (see Vladimir Ushakov, cited above, § 92).

16.  The courts’ analysis when deciding on A.’s return to Germany revolved in the first place around the question of the effects which separating A. from V.K. would have on the child. The SCA, like the lower court, found that separation represented a “grave risk” to return, as it would negatively impact A.’s emotional state. When rejecting the applicant’s request for A.’s return, the SCA further found that the conflict between him and V.K. would place A. in an intolerable situation, even if she were to return to Germany with her mother.

17.  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, cited above, § 82). The applicant had proposed different solutions to counter the identified risk for the child stemming from the conflict between him and V.K. He had also sought to ensure that his undertakings were legally enforceable. His proposals, as observed by the SCA in its judgment, were relevant for the examination of what constituted “adequate arrangements”. Their nature and importance therefore required a specific and clear reply. Contrary to the Government’s submission that the SCA had made a thoroughly reasoned analysis of the decisive points, the Court finds that the SCA focused its assessment of the situation on the existence of a conflict between A.’s parents, omitted to address many of the applicant’s related arguments and its reasoning in respect of the ones it commented on was unclear.

18.  The SCA did not examine whether there were feasible options for V.K. to return to Germany with the child and live with her separately from the applicant (compare, mutatis mutandis, with K.J. v. Poland, cited above, § 61). Nothing in the circumstances revealed before it objectively ruled out such a possibility. It did not appear that A.’s return necessarily meant a return to the applicant’s home or separation from V.K. It did not emerge that there were obstacles to V.K.’s own return to Germany, that criminal proceedings were pending against her there, or that the applicant might actively prevent her from seeing the child (see, mutatis mutandis, K.J., cited above, § 68, and Maumousseau and Washington v. France, no. 39388/05, § 74, 6 December 2007). The SCA did not deal with this question.

19.  The SCA noted in its final judgment that a Bulgarian court could issue a “safe-harbour order” and a German court - a related “mirror order”, which would make possible the return of the child. Alternatively, a German court could issue a “safe-harbour order”. However, the SCA did not comment on the applicant’s readiness, expressed in detailed terms in his written reply to V.K.’s appeal of the lower court’s judgment, to do anything necessary to make his undertakings enforceable in Germany. Neither did the SCA give him related instructions (see paragraph 8 above). While it explicitly noted that he had signed a declaration before a German notary, with specific detailed undertakings, the SCA found them inadequate as they “had not been coordinated with an authority in the member State”, without clarifying further. In the declaration the applicant had committed to providing separate accommodation and financial support to both V.K. and A. in Germany, pending the divorce-and-custody proceedings, and had guaranteed with all his property immediate enforcement of his undertakings, which he maintained did not require judicial validation. Furthermore, it did not react to his motion to issue an interim order for the protection of L. incorporating his undertakings in it, and/or to instruct him to obtain a relevant order from a German court. The SCA concluded that no “adequate arrangement” had been offered, without genuinely engaging with the options put forward by the applicant or clearly stating what he had to do to render the undertakings acceptable (see Vladimir Ushakov, cited above, § 82). Insufficient reasoning in a ruling accepting objections to the return of a child under the Hague Convention is incompatible with the requirements of Article 8 of the Convention (see Blaga v. Romania, no. 54443/10, § 70, 1 July 2014).

20.  The SCA’s analysis lacked the elements necessary for a proper assessment of the best interests of the child in the light of Article 8 of the Convention (compare with G.N. v. Poland, no. 2171/14, § 65, 19 July 2016). Accordingly, SCA’s decision was not sufficiently reasoned in respect of the existence of a “grave risk” to A.’s return to Germany and the possibilities to offset any such risk. The SCA’s interpretation and application of the Hague Convention and the Brussels II bis Regulation therefore failed to secure to the applicant the Convention guarantees, in violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  The applicant claimed 21,000 euros (EUR) for non-pecuniary damage, EUR 6,529 for costs and expenses before the domestic courts and EUR 3,600 for those before the Court.

22.  The Government submitted that these sums were unjustified and excessive.

23.  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 him (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).

24.  Having regard to the documents in its possession and the complexity of the issues discussed, the Court awards the applicant EUR 8,200 in all for costs and expenses, of which EUR 5,200 for legal fees incurred in the domestic proceedings and EUR 3,000 in the proceedings before the Court, plus any tax that may be chargeable to the applicant.

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 8,200 (eight thousand and two hundred 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