Communicated on 13 January 2015
SECOND SECTION
Application no. 46524/14
Andrea TONELLO
against Hungary
lodged on 10 June 2014
STATEMENT OF FACTS
THE FACTS[A1]
1. The applicant, Mr Andrea Tonello, is an Italian national, who was born in 1971 and lives in Vigonza. He is represented before the Court by Mr L. Serino, a lawyer practising in Rome.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant met his former partner, K.S., a Hungarian national, in 2008. They moved in together in Abano Terme (Italy) and had a daughter who was born on 15 September 2011.
4. According to the applicant, after the baby was born K.S. began displaying some obsessive behaviour and their relationship deteriorated.
5. In November 2011, K.S. spent a week in Hungary with their daughter. In December of the same year she again travelled to Hungary with the baby. It was agreed that the applicant would fetch them on 30 December and drive them back to Italy. On his way to Hungary, the applicant was informed by his former partner that she did not intend to return to Italy.
The applicant first returned to Italy and then travelled again to Hungary, where he was initially denied access to his daughter. After several days, K.S. allowed the applicant to see the baby and informed him that he could see her again provided that he agreed to let his daughter stay in Hungary with K.S. and pay an allowance of 500 euros (EUR) per month. The applicant rejected this proposal and on 9 January 2012returned to Italy, where he initiated legal proceedings against K.S. (see below).
1. Proceedings before the Hungarian courts
a) Proceedings initiated by the applicant
6. On 13 September 2012 the Pest Central District Court found that the applicant’s former partner was keeping the child in Hungary illegally and ordered that she return the child to the applicant’s residence in Italy by 21 September 2012. Alternatively, the child should be handed to the applicant or his proxy in Budapest no later than 24 September of the same year.
7. On 8 November 2012 the Budapest High Court upheld the decision of the Pest Central District Court and ordered that the child be returned to Italy by 30 November 2012 or to the applicant or his proxy in Budapest by 4 December 2012.
8. The decision was upheld by the Supreme Court on 22 January 2013 but the child was not returned to the applicant.
9. An enforcement order based on the second instance decision of 8 November 2012 was issued on 21 January 2013 against the applicant’s former partner. The order was to be implemented with the assistance of the police and the applicant’s former partner was ordered to pay a fine.
According to the applicant, as of the day of the lodging of the present application the order has not been enforced and the Hungarian authorities have failed to locate the official place of residence of K.S. and the applicant’s daughter, who are believed to be living in Mezőtúr.
10. On 17 March 2014, the Szolnok District Court declared the judgment of the Venice court (see paragraph 15, below) executory.
11. At the time of the lodging of the present application, two sets of criminal proceedings were pending against K.S.
b) Proceedings initiated by the applicant’s former partner
12. On 6 January 2012 the applicant’s former partner initiated proceedings before the Mezőtúr District Court with a view to obtain custody of her daughter as well as child maintenance. The Mezőtúr District Court granted custody to the applicant’s former partner by way of an interim measure. The decision was declared executory notwithstanding an appeal lodged by the applicant. Subsequently, the Mezőtúr District Court suspended that set of proceedings, pending the proceedings before the Pest Central District Court. The proceedings before the Mezőtúr District Court were discontinued on account of the Hungarian courts’ lack of competence. The decision to discontinue the proceedings was confirmed by the Supreme Court on 27 August 2013.
13. On 20 March 2013, the Mezőtúr District Court granted a request from K.S. to suspend the return order issued by the Budapest High Court but this decision was subsequently quashed by the Szolnok High Court on 19 June 2013. On 16 October 2013, the Mezőtúr District Court rejected another similar request. The latter decision was upheld by Szolnok High Court on 4 December 2013.
K.S. also lodged a request to terminate the enforcement proceedings, which was rejected by the Pest Central District Court on 4 October 2013 and then by the Budapest High Court on 10 December 2013.
2. Proceedings before the Italian courts
14. On 21 February 2012, the applicant lodged an application with the Venice Court requesting that the court strip K.S. of parental authority over the applicant’s daughter, order the return of the child to Italy and grant the applicant exclusive custody.
15. On 14 January 2013, the Venice Court granted the applicant’s request and, like its Hungarian counterparts, ordered the immediate return of the child to Italy.
16. Criminal proceedings against K.S. were initiated by the Office of the Prosecutor in Padova and a European arrest warrant was issued against her. The proceedings were still pending at the time of the lodging of the present application.
B. Relevant domestic law
17. The relevant rules concerning the enforcement of contact orders are contained in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides:
Section 33
“(2) A child’s development is endangered where the person entitled or obliged to maintain child contact repeatedly neglects, deliberately, to comply or to properly comply with the [contact rules], and thereby fails to ensure undisturbed contact.
...
(4) Where, in examining compliance with subsections (1)-(2), the guardianship authority establishes [culpability on the parent’s side], it shall, by a decision, order the enforcement of the child contact within thirty days from the receipt of the enforcement request. In the enforcement order it shall:
a) invite the non-complying party to meet, according to the time and manner specified in the contact order, his or her obligations in respect of the contact due after the receipt of the order and to refrain from turning the child against the other parent,
b) warn the non-complying party of the legal consequences of own-fault non-compliance with the obligations under subsection (a),
c) oblige the non-complying party to bear any justified costs incurred by the frustration of contact.
(5) Where the person entitled or obliged to maintain contact fails to meet the obligations specified in the enforcement order under subsection (4), the guardianship authority may ...
a) initiate the involvement of the child contact centre of the child welfare service or take the child into protection in the event that the maintenance of contact entails conflicts, or is continuously frustrated by obstacles, or the parents have communication problems,
b) initiate a child protection mediation procedure ....
...
(7) If it is established that during the child’s upbringing the custodial parent/person obliged to allow access by the non-custodial parent/person continuously turns him/her against the person entitled to contact and, despite the enforcement measures specified under subsections (4)-(5), fails to comply with the contact order, the guardianship authority:
a) may bring an action seeking a change of placement if it is in the best interests of the child,
b) shall file a criminal complaint ...”
C. Relevant international law
18. The relevant provisions of the EU Regulation on Recognition of Judgments read:
Article 1 - Scope
“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
...
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.
2. The matters referred to in paragraph 1(b) may, in particular, deal with:
(a) rights of custody and rights of access”
Article 2 - Definitions
“For the purposes of this Regulation:
11. the term "wrongful removal or retention" shall mean a child’s removal or retention where:
(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and
(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.”
Article 10 - Jurisdiction in cases of child abduction
“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”
Article 11 - Return of the child
“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ...
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. ...
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”
Article 21 - Recognition of a judgment
“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”
Article 23 - Grounds of non-recognition for judgments relating to
parental responsibility
“A judgment relating to parental responsibility shall not be recognised:
...
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally; ...”
Article 40 - Scope
“1. This Section shall apply to:
(a) rights of access;
and
(b) the return of a child entailed by a judgment given pursuant to Article 11(8).”
Article 41 - Rights of access
“1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.”
Article 42 - Return of the child
“1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.”
Article 47 - Enforcement procedure
“1. The enforcement procedure is governed by the law of the Member State of enforcement.
2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.”
Article 60 - Relations with certain multilateral conventions
“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:
(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”
19. The relevant provisions of the Hague Convention read:
Article 3
“The removal or the retention of a child is to be considered wrongful where -
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.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 12
“Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ...”
Article 13
“Notwithstanding the provisions of the preceding Article, 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 -
...
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.”
Article 16
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”
COMPLAINT
The applicant complains that the Hungarian authorities have failed to enforce a legally binding court decision of 8 November 2012 ordering the return of his daughter to Italy. He alleges a violation of Article 8 of the Convention.
QUESTION
Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, have the authorities fulfilled their positive obligation under Article 8 to ensure that the applicant could have access to his daughter and properly exercise his parental responsibility?
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