Marcus4Love
/ 86.44.156.* / 2009-06-02 12:10
Oto list, który wysłałem do Bułgarii
Działanie Bułgarskego Ministerstwa Sprawiedliwości
jest działaniem na szkodę dzieci!
Central Authority
Of Hague Convention
Ministry of Justice
1 Slavyanska St.,
Republic of Bulgaria,
Sofia 1040
Mrs. Maria HRISTOVA
June 01, 2009
Dear Mrs. Hristova,
I am very sorry to learn what happened with treatment of Nikoleta and Pavel Vasilev.
I do believe that court proceeding was according to Bulgarian Law:
Amendment and Supplement of the Code of Civil Procedure, published in SG, issue 84 of 2003, introduces after Art. 501 a new, seventh section, entitled Proceedings on a Child’s Return or on the Exercising of the Right of Access. Art. 502 of it determines the Sofia City Court to be the competent court to review and make decisions on cases on applications for children’s return and for exercising of the right of access. Under Art. 504 of the CCP, in cases under the Convention the Sofia City Court must come with a decision within 30 days from the application’s submission; under Art. 505 the appeal of the Sofia City Court’s decision is filed with the Sofia Court of Appeals within 14 days from the date of the decision, in compliance with the provisions of Art. 197 of the CCP. The Sofia Court of Appeals must come with a decision within 30 days from the date of the submission of the appeal and this decision is final.
If the above dates was properly executed it looks that children established already new “habitual residence” in Bulgaria, and shall not be returned to Poland.
I believe the application submitted by Polish mother was with false pretence and as such shall lead do vacate all court proceedings.
Firstly, according to Polish law (1) if even one parent is a Polish citizen the child is Polish citizen, and (2) Polish citizen can not have another citizenship. In this case on Polish soil the child is only, and ONLY Polish.
Probably on Bulgarian soil a child is Bulgarian, as born from Bulgarian father. I do not know (I will be very happy to get official information) about registration with proper Bulgarian office to be legally Bulgarian, when the child was born in Poland (both children probably are born in Poland I am guessing.)
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention in short) shall be executed and a child should be returned to country of the “habitual residence” in this case to Poland, BUT the removal from that country must be tested as “wrongful”.
As I understand it was not tested properly.
Wrongful is, when: (a) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
If the father, (a) had the formal written statement from mother of the child the removal was not wrongful but authorized – agreed (sic!), and (b) if mother was for long period of time out of Poland without her known whereabouts to father and with children’s father agreement, she did not exercised her parental custody.
Children’s father is claiming that he got formal agreement with mother of children authorized/approved signatures in Bulgarian Embassy in Poland. This claim is easy to verify. In case it is true the Hague convention can not be applied as there is no “wrongful removal” and all court proceedings in Bulgaria in regards to Hague applications must be revoked.
Again, in this case the removal can not be “wrongful”. And Hague Convention does not apply in this case.
Polish Central Authority (in this case Ministry of Justice) shall test the application. It looks, that mother presented false information and it can be treated as a crime.
On the other side of the coin, when the application was received by Bulgarian Central Authority, it shall be tested for removal to be “wrongful”.
Ministry of Justice represented by Ms Miglena Taczewa, is wrong saying that everything is legal – it is not completely legal.
When children were living for approximately 2 years in Bulgaria, Bulgaria started to be children habitual residence, but this is a subject of the local Court decision.
Art. 13 of the Convention: “…the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - …” and
“ b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” – the Bulgarian court probably did not