| Applicant name | KUKAVICA |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | Bulgaria |
| Application no. | 57202/21 |
| Date | 13/06/2023 |
| Judges | Ioannis Ktistakis, President, Yonko Grozev, Andreas Zünd |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Not necessary (positive obligation) |
| Type of privacy | Procedural privacy; relational privacy |
| Keywords | Abduction; procedural requirements violated |
| Facts of the case | In 2018, the applicant married a Bulgarian national; soon after, their daughter was born in Germany, where they lived. A year later, during the family’s stay in Bulgaria on holiday, the mother informed the applicant that she was not going back to Germany with her daughter. The applicant left for Germany. The applicant asked a Bulgarian court to order the child’s return to Germany, but the court observed that the child’s return without the mother would be unacceptable as it posed a “grave risk” to its psychological wellbeing. The appeal court reached the same conclusion, pointing inter alia to the controlling behaviour of the father towards the mother, which had created a conflict between them. |
| Analysis | This case is a relatively straightforward : 1. The Court deals with this case not under Article 6 ECHR, but solely under Article 8 ECHR, confirming its view that there are procedural requirements implicit in the substantive human rights contained in the Convention. 2. The government claims that the application should be declared inadmissible. Although the applicant was also involved in custody proceedings and he had not informed the ECtHR of these proceedings, these were unrelated to the current case which concerns the return of a child from another country. Thus, there is no abuse of right. Moreover, reopening of civil proceedings cannot usually be regarded as an effective remedy. Thus, the applicant exhausted all domestic remedies. 3. The ECtHR is very, very critical on how the domestic courts have handled the affair. It finds that the appeal court’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. The appeal court focused its assessment of the situation on the existence of a conflict between the parents, omitted to address many of the applicant’s related arguments and its reasoning in respect of the ones it commented on was unclear. It did not examine whether there were feasible options for the mother to return to Germany with the child and live separately from the applicant. The appeal court’s analysis lacked the elements necessary for a proper assessment of the best interests of the child in the light of Article 8 ECHR Consequently, that right was violated. |
| 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 8,200 (eight thousand and two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |