Last Updated on September 22, 2021 by LawEuro
Information Note on the Court’s case-law 215
February 2018
Hadzhieva v. Bulgaria – 45285/12
Judgment 1.2.2018 [Section V]
Article 8
Positive obligations
Failure to ensure fourteen-year old girl was looked after while her parents were held in police custody: violation, no violation
Facts – The applicant, then aged fourteen, was alone at home on 4 December 2002 when police officers arrived to arrest her parents following an extradition request by Turkmenistan. Her parents, who were out at the time, were arrested on their return and taken into custody. The applicant remained alone in the flat. She was reunited with her parents on 17 December 2002 following their release on bail. The applicant subsequently sought compensation for the stress and suffering she had endured on account of the authorities’ failure to organise support and care for her during her parents’ detention. Dismissing her claim, the court of appeal found that, even if she had been left alone after her parents’ arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, as her mother had stated at a court hearing on 6 December 2002, two days after her arrest, that there was someone to take care of her.
Law – Article 8
(a) Initial period between arrest and first court hearing – The situation clearly presented risks for the applicant’s well-being as she was fourteen-years of age when her parents were arrested. Under the relevant domestic legal provisions the authorities had the responsibility, seemingly from the moment the applicant’s parents were taken into custody, either to enable them to arrange for her care or to enquire into her situation of their own motion; they were also required to provide the applicant with assistance, support and services as needed, in either her own home, a foster family or a specialised institution. The Government had not submitted that any of this was done by the relevant authorities at any point prior to the court hearing two days after the parents’ arrest. For the initial two-day period, therefore, the authorities had failed to comply with their positive obligation to ensure that the applicant was protected and provided for in her parents’ absence.
Conclusion: violation (four votes to three).
(b) Period from court hearing till the parents’ release – The competent authorities had had no reason to assume, or suspect after the court hearing on 6 December 2002 that the applicant had been left alone and was not provided for in her parents’ absence. In these circumstances, their obligation under domestic law to take detained persons’ children into care, if no care was available, was not relevant after the hearing. The parents were educated, professional persons of apparent means who cared for their daughter. Neither parent had alerted any authority at any stage that their daughter had been left alone or voiced any concerns about her care in their absence. Indeed, the mother had apparently stated in court that there was someone to care for her. In addition, the parents were legally represented by a lawyer of their own choosing who had taken part in the court hearing when the judge had inquired into the applicant’s care. The lawyer had continued to represent them throughout their detention and was a neighbour of the applicant’s family.
Accordingly, in the absence of any steps by or on behalf of the parents at the material time, the domestic courts’ reliance on the record of the detention hearing and their conclusion that neither the police, the prosecution or the courts had needed to enquire further about the applicant’s situation did not amount to a failure to act appropriately in the context of their Article 8 obligations.
Conclusion: no violation (unanimously).
Article 41: EUR 3,600 in respect of non-pecuniary damage.
(See also, for a similar case decided under Article 3 of the Convention, Ioan Pop and Others v. Romania, 52924/09, 6 December 2016, Information Note 202)
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