1666/19, Y I INNI v. BUŁGARIA - Decyzja Europejskiego Trybunału Praw Człowieka

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Decyzja Europejskiego Trybunału Praw Człowieka z dnia 15 września 2020 r. 1666/19

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2020:0915DEC000166619

FOURTH SECTION

DECISION

Application no. 1666/19

Y and Others

against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 15 September 2020 as a Committee composed of:

Branko Lubarda, President,

Carlo Ranzoni,

Péter Paczolay, judges,

and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above application lodged on 21 December 2018,

Having regard to the information submitted by the respondent Government and the comments in reply submitted by the applicants,

Having deliberated, decides as follows:

Uzasadnienie faktyczne

THE FACTS

1. The Bulgarian Government ("the Government") were represented by their Agent, Ms S. Sobadzhieva, of the Ministry of Justice.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The first applicant, a Brazilian national, is a scientific researcher who has resided in Bulgaria since 2012. She is the mother of the second and third applicants (born respectively in 2010 and 2012). It would appear that she currently resides in the United States of America.

1. Divorce and custody proceedings

4. The first applicant and P.P. married in 2009 in the United States of America and thereafter lived together in Bulgaria.

5. In 2012 P.P. brought judicial proceedings for divorce seeking custody over the children. On 1 March 2013 the Sofia District Court allowed the claim for divorce, but granted custody to the first applicant. The court also determined contact between P.P. and the two children who were to live with the first applicant in Sofia.

6. Following the appeal of both parties, on 19 February 2015 the Sofia City Court approved a settlement reached in the meantime by the parties as regards custody and contact rights. According to the settlement, the first applicant was to keep custody of the children and P.P. was to have contact with them.

7. According to the first applicant, P.P. complied with the contact regime between 2013 and October 2015, when he retained both children and thereafter refused to allow her to take the children back.

2. Proceedings for a change of custody

8. On 20 June 2016 P.P. brought a claim for a change of custody. While in November 2017 the Kostinbrod District Court allowed P.P.'s claim and awarded custody to him and contact rights to the first applicant, the Sofia Regional Court, acting at second instance, found in June 2018 that there were no changes in the circumstances which could justify a change in the custody of the children and rejected P.P.'s related claim. The latter judgment became final on 5 March 2019.

3. Proceedings seeking judicial authorisation for the children to leave the country

9. In March 2014 the first applicant brought a claim seeking the court's authorisation for the children to leave the country with her, in the absence of the father's agreement. The proceedings ended more than four years later, in July 2018, when the Sofia City Court granted permission for the children to travel abroad to Brazil with their mother only.

4. Enforcement proceedings in respect of custody

10. The first applicant obtained a writ of enforcement on 8 July 2015 and sought the bailiff's assistance with the implementation of the settlement on custody approved by the Sofia City Court on 19 February 2015 (see paragraph 6 above). Different bailiffs attempted to summon P.P. to voluntarily hand the children over to the first applicant respectively in late 2015, in March 2016 and in September 2017, without success, as P.P. did not live at the address he had provided to the authorities and the children were not enrolled in kindergarten there. In November 2017 the first applicant renewed her requests to the bailiff to proceed with the enforcement. Thereafter, three bailiffs successively withdrew from the case between 21 December 2017 and 21 September 2018, following which the first applicant sought the assistance of a new bailiff.

11. The first applicant claims that she has been able to see her children only rarely since October 2015.

B. The friendly-settlement negotiations before the Court

12. On 4 December 2019 the Court took a decision to communicate the application to the respondent Government. On 16 December 2019 the Court sent to the parties declarations setting out friendly-settlement terms. Those terms were prepared by the Registry for the purpose of facilitating a friendly settlement of the case, as such appeared possible in view of the circumstances of the case and the Court's case-law and practice. In a letter also of 16 December 2019, the Court informed the applicants of the communication of their application to the Government. That letter explicitly specified, with reference to Rule 62 § 2 of the Rules of Court, that friendly-settlement negotiations were strictly confidential.

13. On 9 March 2020 both the applicants and the Government informed the Court of their position in respect of the friendly-settlement proposals made by the Registry. In particular, the applicants made an alternative concrete proposal for a friendly settlement, which was forwarded to the Government. The Government stated that they were not prepared to reach a friendly settlement at that stage; however, they were conducting negotiations with the applicants' representatives with a view to reaching a settlement and would inform the Court of any meaningful developments.

14. On 17 June 2020 the Government wrote to the Court objecting to the admissibility of the application on the grounds that the first applicant, acting also as representative for the second and third applicants, had abused the right of application under Article 34 of the Convention. The Government pointed out that between early February 2020 and 18 March 2020 the first applicant had disclosed the terms of the friendly-settlement declarations, proposed by the Court's Registry, to several public bodies and national courts. The latter included the State Agency for Child Protection (SACP), the Inspectorate at the Supreme Judicial Council ("the Inspectorate") the Kostinbrod District Court, the Sofia District Court and the Sofia Regional Court.

15. In particular, in an e-mail of 10 February 2020, which had been sent to the SACP and contained copies of the friendly-settlement declarations proposed by the Registry, the first applicant stated that the Court had suggested a settlement of the case; she also insisted on a meeting with representatives of the SACP to discuss how to be better prepared for dealings with Government lawyers. She likewise made a proposal for a counter offer which was different from the alternative proposal sent by her representative to the Court on 9 March 2020 (see paragraph 13 above). In particular, that counter proposal involved creating a governmental commission to work on similar cases, which would have to employ two close Bulgarian friends of the first applicant for a specific monthly payment. Similarly, the Government was expected to commit to spending a certain amount of money on "advertising the problem", using the first applicant's book and story (see paragraph 22 below), in an effort to prevent future similar situations. The proposal stated that if no reply was received by a given date, the first applicant was going to campaign via television and Internet media as she knew she would get from the Court a comparable amount of money to what she was asking from the Government (see sentence immediately above). The e-mail and attachments in question were forwarded by the central SACP to two local social services centres, located respectively in Sofia and in the countryside.

16. Furthermore, on 27 February 2020 one of the applicant's lawyers representing her in domestic proceedings stated in a public hearing before the Sofia District Court (in a case brought by the first applicant against P.P.) that a case was pending before the Court and that the Court Registry's documents could establish that the first applicant's children were at risk of parental alienation. The lawyer further stated that the Court had suggested a settlement as the lack of effective enforcement of the first applicant's parental rights would otherwise lead to another judgment against Bulgaria finding a violation.

17. Another of the first applicant's lawyers in the proceedings mentioned in the previous paragraph presented, and the national court accepted, a copy (in English) of the letter of 16 December 2019 from the Court's Registry informing the applicants that the case had been communicated to the Government (see paragraph 12 above), and enclosing the friendly-settlement declaration proposed by the Registry. That letter also included specific paragraphs stating that the Court had decided not to disclose the applicants' identity to the public, that both the Government and the applicants were requested to replace the applicants' name by the letter of the alphabet used in the name of the case in any submissions related to this case, that the documents deposited with the Registry should not be made accessible to the public if they contained the applicants' names or could easily lead to their identification. On 5 March 2020 the first applicant enclosed the Bulgarian translation of these documents with her submissions to the national court.

18. On 24 February 2020 the first applicant wrote to the Inspectorate with a request related to other domestic proceedings concerning custody of her children. She enclosed documents from the Court's Registry in connection with the present application, including the text of the friendly-settlement declarations proposed by the Registry. She stated in particular that she was bringing to their attention a recommendation by the Court for her to agree to a friendly settlement under the terms of which the Bulgarian Government had to take steps to return the children to her by a given date.

19. Similar submissions were made by the first applicant before the Kostinbrod District Court and the Sofia Regional Court in two civil cases regarding domestic violence. In the former case, the Court's letters and declarations were enclosed with a request before the national court dated 18 March 2020 and were accompanied by a certified translation in Bulgarian.

Zarzuty

COMPLAINTS

20. The applicants complained under Article 8 of the Convention about the authorities' failure to reunite them, despite a final court decision approving an agreement giving custody in respect of the second and third applicants to the first applicant. The applicants further complained about their inability to enjoy family life together because of the impossibility to leave the country to visit their relatives in Brazil for over four years.

Uzasadnienie prawne

THE LAW

A. The parties' positions

21. The Government pointed out that at the time of communication of the case in December 2019, the Court had made it clear to the applicants' representative that the nature of friendly-settlement negotiations was strictly confidential. The first applicant had therefore been aware of this requirement and should have complied with it. Instead, she had the documents related to the friendly-settlement negotiations translated into Bulgarian and submitted them to a number of national bodies and courts. Since she had intentionally made this information public, as may be seen from her communications with the different institutions, her actions constituted an abuse of the right of individual application. The Government invited the Court to reject the whole application, given that the first applicant was acting on behalf of the second and third applicants.

22. The applicants' representative conceded that the first applicant had provided the documents in question to the SACP, the Inspectorate, the Kostinbrod District Court and the Sofia District Court, but argued that she had not done so before the Sofia Regional Court. In any event, all the documents she had submitted to the specified institutions were intended to provide a comprehensive overview of the facts of the case. She had not shared the information about the friendly-settlement negotiations with any media outlets or other traditional means for dissemination of information. Had her intent been to exert pressure on the Government or the Court, she would have used better avenues than merely approaching the institutions discussed above. Given her prior success in attracting public attention to her case, namely via an interview she had given about it in mid-2018 and a children's book she had written and disseminated before applying to the Court, she could easily have had the media publish the friendly-settlement declarations had she wanted to.

B. The Court's assessment

23. The Court reiterates that under Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, friendly-settlement negotiations are confidential. That rule is absolute and does not allow for an individual assessment of how much detail was disclosed (see Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010, and Abbasov and Others v. Azerbaijan (dec.), no. 36609/08, § 28, 28 May 2013).

24. The Court has repeatedly held that the rule of confidentiality serves to protect both the parties and the Court from any attempt to exert political or any other kind of pressure. Thus, it aims to facilitate a friendly settlement by ensuring that the information provided in the course of negotiations is not made public (see Heldenburg v. the Czech Republic (just satisfaction), no. 65546/09, § 25, 9 February 2017). The Court has specified that Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court prohibit the parties from making public information concerning the friendly-settlement negotiations, either through the media, or by a letter likely to be read by a significant number of people, or by any other means (see Abbasov and Others, cited above, § 30).

25. In view of the importance of this principle, the Court points out that a breach of the rule of confidentiality of friendly-settlement negotiations might justify the conclusion that an application is inadmissible on the grounds of an abuse of the right of application. In order to be regarded as an abuse of application, the disclosure of confidential information must be intentional. Also, the direct responsibility of the applicant or his legal representative in the disclosure must be established with sufficient certainty; a simple suspicion is not enough for an application to be declared inadmissible as an abuse of the right of individual application under Article 35 of the Convention (see, among many other authorities, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; Lesnina Veletrgovina DOO v. the former Yugoslav Republic of Macedonia, (dec.), no. 37619/04, 2 March 2010; Arsovski v. the former Yugoslav Republic of Macedonia, no. 30206/06, § 40, 15 January 2013, and Barreau and Others v. France (dec.), no. 24697/09, 13 December 2011).

26. Turning to the present case, the Court notes that the Government submitted information and documents showing that the first applicant had contacted a number of national institutions, disclosing to them the terms of the friendly settlement proposed by the Registry. The first applicant's representative conceded that this had indeed been the case, but argued that it had been done for the purpose of providing a full overview of her case.

27. In the circumstances, the Court finds that the actions of disclosing the content of the friendly-settlement declarations proposed by the Court's Registry to different national institutions and courts were clearly intentional. While the media was not directly contacted, the first applicant appears to have voiced such intentions in the counter proposal sent to SACP (see paragraph 15 above). In any event, the disclosures were made before a number of different institutions and officials, including in the context of other contentious proceedings which might have been influenced as a result. As can be seen from the facts, those actions are attributable primarily directly to the first applicant and, in one case, to her representatives in different domestic proceedings (see paragraphs 15 to 19 above).

28. The Court observes in particular that in some of her e-mails, namely to the child protection authorities, the first applicant explicitly asked for a meeting with those authorities to discuss how to be better prepared for dealings with Government lawyers in the context of settling the case (see paragraph 15 above). Similarly, her legal representative submitted before a national court the terms of the friendly-settlement declarations proposed by the Court's Registry. Another of her representatives likewise stated in an open hearing that a settlement had been proposed by the Court as the lack of effective enforcement of the first applicant's parental rights would otherwise lead to another judgment against Bulgaria finding a violation (see paragraph 16 above).

29. Having regard to the above, in particular the information described in paragraphs 15 to 19 above, the Court finds that the first applicant intentionally, and more than once, disclosed the details of the friendly-settlement negotiations to the public. Importantly, the first applicant had applied before the Court in the instant case also on behalf of her children, the second and third applicants.

30. In these circumstances, and given that at the time of communication of the case to the Government the applicants had been explicitly informed of the strictly confidential nature of the friendly-settlement negotiations (see paragraph 12 above), both the first applicant and her legal representatives including in related domestic proceedings, should have complied with the confidentiality requirement at all stages of the proceedings, (see, similarly, Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009). However, they did not do so and the first applicant failed to provide any convincing justification for it. The Court finds that such conduct therefore amounts to a breach of the rule of confidentiality, which must also be considered to be an abuse of the right of petition.

31. It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as constituting an abuse of the right of application and must be rejected, pursuant to Article 35 § 4 thereof.

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020.

Ilse Freiwirth

Branko Lubarda

Deputy Registrar

President