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SHAW v. HUNGARY - 6457/09 [2011] ECHR 1197 (26 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1197.html
Cite as:
[2012] 2 FLR 1314,
[2012] Fam Law 1328,
[2011] ECHR 1197,
61 EHRR 15,
(2015) 61 EHRR 15
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SECOND
SECTION
CASE OF SHAW v. HUNGARY
(Application
no. 6457/09)
JUDGMENT
STRASBOURG
26
July 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shaw v. Hungary,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
David
Thór Björgvinsson,
Dragoljub
Popović,
András
Sajó,
Işıl
Karakaş,
Guido
Raimondi,
judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6457/09)
against the Republic of Hungary lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an
Irish national, Mr Leslie James Shaw (“the applicant”),
on 28 January 2009.
The
applicant was represented by Mr L. Hincker, a lawyer practising in
Strasbourg. The Hungarian Government (“the Government”)
were represented by Mr L. Höltzl, Agent, Ministry of Public
Administration and Justice.
3. The
applicant alleged that the Hungarian authorities failed to act
swiftly in the abduction proceedings at issue and did not make
adequate and effective efforts to enforce his right to the return of
his child, illegally removed from France, therefore breaching his
rights under Article 8 of the Convention.
On
5 July 2010 the President of the
Second Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1). In pursuit
of a request by the applicant, on 5 July 2011 the Chamber decided
not to hold a hearing in the case, considering that it was not
necessary in order to discharge its functions under the Convention
(Rule 54 § 3 of the Rules of Court).
The Irish Government did not exercise their right under
Article 36 § 1 of the Convention and Rule 44 of the Rules of
Court to intervene in the proceedings.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1953 and lives in Paris.
1. Facts giving rise to the present application
On
21 June 2005 the French first-instance court of Paris pronounced the
divorce of the applicant and his wife, Ms K.O., a Hungarian national.
It granted the parents joint custody of their daughter, born in
October 2000, and placed her with the mother, regulating the
applicant's access rights. At that time, the mother and the child
lived in Paris. This decision was upheld by the second-instance
French court on 29 November 2006.
Meanwhile,
on 19 September 2005, Ms K.O. filed a criminal complaint against the
applicant with the French authorities, alleging that he had sexually
abused their child. She further requested the suspension of the
applicant's custody and access rights. However, in the absence of any
evidence supporting her allegations, the complaint was dismissed on
2 November 2005.
On
29 December 2007, the mother took the child to Hungary for the
holidays. The applicant was aware of this. However, in a letter dated
5 January 2008 she informed the applicant that she had enrolled
their daughter in a Hungarian school without his consent, with no
intention to return her to France.
2. Proceedings in Hungary to establish the abduction of
the child
On
12 March 2008 the applicant brought an action against the mother
before the Hungarian Pest Central District Court. He requested the
court to establish the abduction of their child by the mother and to
order her to return the child to him, relying on Council Regulation
(EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and
Enforcement of Judgments in Matrimonial Matters and Matters of
Parental Responsibility (“EC Regulation on Recognition of
Judgments”) and the Hague Convention on the Civil Aspects of
International Child Abduction (“Hague Convention”). The
District Court established that the habitual residence of the child
was in France, because she had the centre of her life there.
Moreover, it observed that having had joint custody over their
daughter, neither parent could have decided on the habitual residence
of the child without the approval of the other parent. The District
Court ordered a forensic expert examination of the parties and their
daughter. The expert report concluded that abuse or indecency against
the child had not been probable and therefore there were no reasons
to disregard the obligation to order her return based on Article 13
(b) of the Hague Convention. Thus, on 30 May 2008 this court
established the abduction of the child and ordered the mother to take
her back to France by 6 June 2008, or to hand her over to the
applicant in Hungary on 10 June 2008.
On
2 September 2008 the Budapest Regional Court upheld the District
Court's decision, but established that the time-limit to return the
child back to France was 27 September 2008, or 1 October 2008 for
handing her over in Hungary. (For the execution of this judgment, see
heading 3 below.)
The
mother lodged a petition for review of the final decision with the
Supreme Court, which shared the Regional Court's view that the legal
conditions for the child's continued stay in Hungary were absent. It
assessed forensic psychology reports and concluded that the child was
still emotionally attached to her father as well, thus her return to
France would not cause her serious trauma. On 18 November 2008 the
Supreme Court therefore upheld the Regional Court's decision.
3. Enforcement proceedings in Hungary before 29 July
2009 for the return of the child to France
Following
the final judgment delivered by the Regional Court (see paragraph 11
above), the Pest Central District Court ordered the enforcement of
the judgment for the return of the child on 15 October 2008.
On
29 October and 26 November 2008 the bailiff unsuccessfully called on
Ms K.O. to comply voluntarily with the court order.
On
5 December 2008 the bailiff referred the case file to the Heves
District Court in order for it to establish the method of
enforcement.
On
17 December 2008 the mother requested the suspension of the
enforcement proceedings. The request was dismissed by the Hungarian
Heves District Court on 19 December 2008. It further ordered her to
pay a fine of 50,000 Hungarian forints (HUF) (approximately 180 euros
(EUR)) and warned her to comply with her obligations. It pointed out
that the court could not review an enforceable decision. This
decision was upheld by the Heves County Regional Court on 12 February
2009.
Upon
the bailiff's request, the mother's living conditions were examined
by the Guardianship Authority. The attempts to promote the mother's
voluntary compliance with her obligations were without success.
Moreover,
Ms K.O. initiated an action before the Pest Central District Court to
have the enforcement proceedings terminated. The District Court
dismissed her action on 14 January 2009.
On
27 April 2009 the Heves County Regional Court ordered the enforcement
of the child's return with police assistance. The decision became
final on 18 June 2009.
On
20 July 2009 the bailiff invited the mother to ensure the child's
return during the on-site proceedings to be effected on 29 July 2009.
In
the meantime, on 31 March 2009 the first-instance court of Paris had
issued a European arrest warrant against Ms K.O. for the offence of
change of custody of a minor. On 27 July 2009 she was arrested in
Hungary.
On
28 July 2009 the mother was released by the Budapest Regional Court,
which refused to enforce the European arrest warrant. It observed
that criminal proceedings were pending against Ms K.O. before the
Hungarian authorities for the same act (see paragraphs 40–41
below), which rendered the European arrest warrant obsolete.
4. Enforcement proceedings in Hungary after 29 July
2009 for the return of the child to France
On
29 July 2009 the bailiff attempted to hold on-site proceedings, which
were unsuccessful as Ms K.O. and her daughter had absconded. The
Heves Police Department declared them missing and issued a warrant.
On
19 October 2009 the bailiff effected on-site proceedings at the
primary school of the child and established that the child had not
attended the classes during the school year.
On
28 October 2009 the bailiff attempted to locate the mother and the
child in Eger. However, it was recognised that the address given was
non-existent. With police assistance, he searched all potential
buildings in the neighbourhood, without success.
Moreover,
the police authority carried out regular inspections at the mother's
registered address (on 10, 13, 14, 23 September 2009, 14 January and
18 February 2010) in order to detect potential contact between the
mother and her parents.
On
17 February 2010 the bailiff ordered the stay of the enforcement
proceedings as the mother and the child were staying at an unknown
location.
In
the spring of 2010, following a request for mutual legal assistance
made by the investigating judge of the French appellate court, the
authorities gathered information on the mother from telecommunication
providers, contacted Ms K.O.'s former employer, the Mayor's Office of
the registered place of her residence, and heard several witnesses.
The
Police Headquarters also monitored the database of the National
Health Insurance Fund in order to obtain data as to any potential
medical service provided for the mother or the child.
The
child's school was also being monitored. Exemption from class
attendance was granted by the school principal on 23 November 2009.
It was established that the child failed to appear at exams scheduled
for 4 June and 18 August 2010.
The
Eger Police Headquarters regularly (on 1, 4, 13 September, 15 October
2009, 20 January, 19 February, 19 March, 24 April, 27 May, 22 June
and 25 July 2010) checked the public areas and places as well as the
mother's former address in Eger as, according to certain information,
the mother is allegedly residing in Eger.
To
date, these measures have not led to locating Ms K.O. or her
daughter.
5. Enforcement proceedings in Hungary concerning the
applicant's access rights
On
15 April 2008 the Paris Court of Appeal issued a certificate
concerning the applicant's access rights established by the French
decision of 29 November 2006 (see paragraph 7 above) based on Article
41(2) of the EC Regulation on Recognition of Judgments.
The
applicant thereafter requested the Hungarian Eger District Court to
enforce his access rights. The case was transferred to the competent
guardianship authority on 29 April 2008. The Gyöngyös
District Guardianship Authority dismissed his request on 23 May 2008.
It established its lack of jurisdiction, relying on Article 10 of the
EC Regulation on Recognition of Judgments, as proceedings
concerning the child's abduction were pending before the Pest Central
District Court (see paragraph 10 above).
On
12 January 2009 the Heves County Prosecutor's Office raised an
objection against this decision, finding it unlawful. It relied on
Article 41 of the EC Regulation on Recognition of Judgments, arguing
that the Guardianship Authority not only had jurisdiction, but also a
legal obligation to enforce the applicant's access rights. It
therefore proposed that the Guardianship Authority's decision be
quashed.
The
Gyöngyös District Guardianship Authority did not accept
this proposal and submitted it for review to the North-Hungarian
Regional Administrative Office, which shared the Guardianship
Authority's opinion establishing lack of jurisdiction. The applicant
sought judicial review of this decision before the Heves County
Regional Court. On 27 May 2009 the court dismissed the applicant's
action, finding that it would legalise the child's unlawful retention
in Hungary by enforcing his access rights and would be contrary to
Article 16 of the Hague Convention.
The
applicant's access rights have not been respected ever since.
6. French decision granting exclusive custody to the
applicant
At
the applicant's request, but in Ms K.O.'s absence, the French
first-instance court of Créteil issued a preliminary
injunction placing the child with the applicant and granting him
exclusive custody rights on 14 April 2008.
In
2009 the applicant initiated proceedings before the Eger District
Court for the recognition of this judgment in Hungary. Following a
remittal, the case is currently pending before the Heves Country
Regional Court.
7. Criminal proceedings against the mother
On
1 June 2009 the applicant filed a criminal complaint with the Eger
District Public Prosecutor's Office against the mother. Relying on
section 195(4) of the Criminal Code, he considered that Ms K.O. was
guilty of endangering a minor due to not having complied with a final
judgment obliging her to hand over their daughter to him.
The
Heves County Public Prosecutor's Office dismissed the complaint on
24 June 2009. It considered that the constitutive elements of
the crime had not been fully present as the mother should have been
fined for not respecting access rights. However, the fine imposed on
her (see paragraph 16) served to enforce her obligation to hand
over the child to the applicant.
In
the meantime, in the autumn of 2008 the applicant had filed a
criminal complaint with the Hungarian authorities for change of
custody of a minor, based on section 194 of the Criminal Code. On 29
September 2009 the Heves District Public Prosecutor's Office ordered
investigations. However, finding that no enforceable decision existed
concerning exclusive custody of the child, it terminated the
investigations on 8 January 2010. The applicant's appeal was
dismissed.
8. Further measures requested by the applicant
On
14 January 2009 the applicant submitted a complaint to the European
Commission, claiming a violation of the Regulation (EC) no. 1393/2007
on the Service in the Member States of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (“EC Regulation on
Service of Documents”), the EC Regulation on Recognition of
Judgments and the Charter of Fundamental Rights of the European
Union. On 3 November 2009 the Commission issued a letter of formal
notice to the Hungarian authorities concerning the possible violation
of the EC Regulation on Recognition of Judgments. Reply to the
letter of formal notice was submitted by the Minister of Foreign
Affairs in December 2009. The proceedings are still pending.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW
A. International law
1. Relevant provisions of the EC Regulation on
Recognition of Judgments
This
Regulation entered into force on 1 March 2005 (with the exception of
Denmark) and has direct effect in the Member States of the European
Union, including Hungary.
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.”
2. Relevant provisions of the Hague Convention
Hungary
acceded to this Convention on 7 April 1986, promulgating it in
Law-Decree no. 14 of 1986.
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.”
B. Domestic law
Act No. LIII of 1994 on Judicial Enforcement
According
to section 172(1) of the Act, the obligor is first called to
voluntarily fulfil his or her obligation within a given deadline. In
case of non-compliance, the bailiff immediately submits the case file
to the competent court in order to determine the method of
enforcement.
The
possible methods of enforcement are governed by section 174 of the
Act and include the possibility to impose a fine up to HUF 500,000
which may be renewed. Moreover, the court may order the enforcement
with police assistance. In such cases, the bailiff sets a date for
the on-site proceedings and informs the competent guardianship
authority, the obligor, the applicant and the police. If the child to
be returned cannot be found at his or her place of residence, the
bailiff orders a search warrant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the Hungarian
authorities failed to take timely and adequate measures for him to be
reunited with his daughter following her abduction. In his view, this
would have been required by Article 8 of the Convention, which reads
as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument.
A. Admissibility
The
Government submitted that the applicant had introduced a complaint to
the European Commission on 14 January 2009, claiming a violation of
the EC Regulation on Service of Documents, the EC Regulation on the
Recognition of Judgments and the Charter of Fundamental Rights of the
European Union, as his access rights and custody rights established
by the French courts had not been enforced by the Hungarian
authorities. The proceedings were pending before the Commission. It
was implied in the Government's observations that this element
precluded the examination of the case by the Court, in application of
Article 35 § 2 (b) of the Convention which provides as follows:
“2. The Court shall not deal with any
application submitted under Article 34 that ...
(b) is substantially the same as a matter
that has already been examined by the Court or has already been
submitted to another procedure of international investigation or
settlement and contains no relevant new information.”
The
applicant did not comment on this issue.
The
Court recalls that it has already held that such individual
complaints to the European Commission do not qualify as “another
procedure of international investigation or settlement” for the
purposes of Article 35 § 2 (b) of the Convention (see
Karoussiotis v. Portugal, no. 23205/08, §§
65–76, 1 February 2011). It follows that this objection
must be rejected. Moreover, the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties' submissions
1. The applicant
The
applicant pointed out, relying on Article 12 of
the Hague Convention, that the authorities should have ordered the
child's return without delay. He emphasised the authorities' duty to
act speedily as the passage of time might cause irreparable harm to
his family life. However, no swift measures were taken to secure his
rights. A period of fourteen months passed from the first-instance
judgment ordering the return of the child on 30 May 2008 until the
first real action taken by the bailiff on 29 July 2009.
Moreover,
the applicant criticised the domestic courts' findings establishing
lack of jurisdiction to enforce his access rights.
He
expressed his concerns as to the well-being of his daughter,
considering that she was taken out of school and not given proper
medical care.
He
acknowledged that the mother's behaviour had contributed to the
difficulties of the enforcement. However, in his opinion the
authorities had not taken adequate measures to sanction the mother.
Relying on reports made by the Hungarian Kék Vonal
Child Crisis Foundation and by the US Department of State in 2005, he
asserted that Hungary did not allow for the effective solution of
such cases.
In
this connection, he raised doubts as to the efficiency of the warrant
order as the police had no power to arrest Ms K.O. in the absence of
criminal proceedings pending against her. The police might merely
request her to identify herself and reveal her place of residence.
He
concluded that the domestic authorities had failed to take all
necessary measures to enforce his rights, violating his rights under
Article 8 of the Convention.
2. The Government
The
Government emphasised the importance of protecting children's rights,
pointing out that removal of a child from her usual environment might
have negative effect on her physical and psychological health. The
authorities must therefore carefully choose the method of enforcement
which is in the best interest of the child.
Referring
to the judgments of Maire v. Portugal (no. 48206/99, ECHR
2003 VII) and Ignaccolo-Zenide v. Romania (no. 31679/96,
ECHR 2000 I), the Government stressed that the national
authorities' obligation to take measures to facilitate reunion was
not absolute. Moreover, they highlighted that coercion in this area
must be limited.
Relying
on the aforementioned, the Government were of the opinion that the
Hungarian authorities had done everything to ensure the child's
return to her habitual place of residence. They had ordered the
child's return, invited the mother to voluntarily comply with the
order, and imposed a fine on her. Following the disappearance of Ms
K.O. and her daughter, the authorities had issued warrants and
carried out regular checks at public places, border stations, at the
mother's address and the child's school. Moreover, once a final
judgment recognised the validity of the French judgment granting
exclusive custody to the applicant, the police might initiate
criminal proceedings for the offence of endangering a minor and
gather information covertly.
They
maintained that the Hungarian legal system afforded prompt and
efficient means to ensure the enforcement of such decisions. However,
objective circumstances, such as the absconding of the mother and the
child to an unknown location, might occur which temporarily prevented
the authorities from taking further measures. Such events could not
be imputed to the authorities. Therefore, the Government were of the
opinion that the applicant's rights under Article 8 had not been
violated.
Finally,
concerning the enforcement of the applicant's access rights, the
Government shared the domestic authorities' opinion establishing lack
of jurisdiction. Moreover, they pointed out that proceedings for the
recognition of the French judgment were pending. In sum, the
Government concluded that the domestic authorities had acted in
compliance with the law.
2. The Court's assessment
1. General principles
The
Court reiterates that the essential object of Article 8 is to protect
the individual against arbitrary action by public authorities. There
are in addition positive obligations inherent in effective “respect”
for family life. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the
individual and of the community as a whole; and in both contexts the
State enjoys a certain margin of appreciation (see Keegan v.
Ireland, 26 May 1994, § 49, Series A no. 290).
In
relation to the State's obligation to take positive measures, the
Court has repeatedly held that Article 8 includes a parent's right to
the taking of measures with a view to his being reunited with his
child and an obligation on the national authorities to facilitate
such reunion (see, among other authorities, Ignaccolo-Zenide v.
Romania, cited above, § 94, ECHR 2000 I; Nuutinen v.
Finland, no. 32842/96, § 127, ECHR 2000 VIII and
Iglesias Gil and A.U.I. v. Spain, no. 56673/00, §
49, ECHR 2003 V).
In
cases concerning the enforcement of decisions in the sphere of family
law, the Court has repeatedly held that what is decisive is whether
the national authorities have taken all necessary steps to facilitate
the execution as can reasonable be demanded in the special
circumstances of each case (see Hokkanen v. Finland, 23
September 1994, § 53, Series A no. 299 A;
Ignaccolo-Zenide, cited above, §96; Nuutinen v.
Finland, cited above, §128, and Sylvester v. Austria,
nos. 36812/97 and 40104/98, § 59, 24 April 2003).
The
Court reiterates that in cases of this kind, the adequacy of a
measure is to be judged by the swiftness of its implementation, as
the passage of time can have irremediable consequences for relations
between the child and the parent who does not live with him or her
(see Ignaccolo-Zenide, cited above, § 102). The
Hague Convention recognises this fact because it provides for a range
of measures to ensure the prompt return of children removed to or
wrongfully retained in any Contracting State. Article 11 of the Hague
Convention requires the judicial or administrative authorities
concerned to act expeditiously to ensure the return of children and
any failure to act for more than six weeks may give rise to a request
for explanations (Neulinger and Shuruk v. Switzerland [GC],
no. 41615/07, § 140, ECHR 2010 ...). In proceedings
under the EC Regulation on Recognition of Judgments this is likewise
so, as Article 11 § 3 requires the judicial authorities
concerned to act expeditiously, using the most prompt procedures
available in domestic law, and issue a judgment no later than six
weeks after the application is lodged.
The
Court also held that although coercive measures against the children
are not desirable in this sensitive area, the use of sanctions must
not be ruled out in the event of unlawful behaviour by the parent
with whom the children live (see Ignaccolo-Zenide, cited
above, § 106).
Lastly, the Court reiterates that the Convention must
be applied in accordance with the principles of international law, in
particular with those relating to the international protection of
human rights (see Streletz, Kessler and Krenz v.
Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90,
ECHR 2001 II, and Al-Adsani v. the United Kingdom [GC],
no. 35763/97, § 55, ECHR 2001 XI). Consequently, the
Court considers that the positive obligations that Article 8 of the
Convention lays on the Contracting States in the matter of reuniting
a parent with his or her children must be interpreted, in the present
case, in the light of the Hague Convention and the EC Regulation on
the Recognition of Judgments (see Ignaccolo-Zenide, cited
above, § 95).
2. Application of the above principles to
the present case
The
Court notes, firstly, that it is common ground that the relationship
between the applicants comes within the sphere of family life under
Article 8 of the Convention.
The
main issue in the present case is the transfer abroad and illicit
non-return of the applicant's child. The Court must accordingly
examine whether, seen in the light of their international obligations
arising in particular under the EC Regulation on the Recognition of
Judgments and the Hague Convention, the domestic authorities made
adequate and effective efforts to secure compliance with the
applicant's right to the return of his child and the child's right to
be reunited with her father (see Ignaccolo-Zenide, cited
above, § 95).
In
proceedings related to the return of a child, Article 11 § 3 of
the EC Regulation on the Recognition of Judgments sets a clear
obligation on the domestic courts to issue a judgment within six
weeks after the application is lodged, unless exceptional
circumstances arise. The Court points out that following the
applicant's submission of a claim to the Pest Central District Court
on 12 March 2008, the first-instance judgment was delivered only
after seven weeks, on 30 May 2008. A further thirteen weeks passed
until the adoption of the second-instance judgment of 2 September
2008. The Supreme Court's judgment was issued eleven weeks
thereafter, on 18 November 2008.
It
is to be noted that the reason for the delay between the first- and
the second-instance decision could partially be due to the five-week
court vacation between 14 July and 12 August 2008. However, if the
six-week time-limit had been observed, the Regional Court should have
delivered judgment before the court vacation, that is, no later than
11 July 2008. Moreover, such cases should be classified as urgent,
requiring treatment even during the court vacation. No reasons were
given as to the further delays in the proceedings and there were no
exceptional circumstances which would justify them. The domestic
courts thus failed to act expeditiously in the proceedings to return
the child, manifestly in breach of the applicable law. The Court
finds that these delays in the procedure alone enable it to conclude
that the Hungarian authorities had not complied with their positive
obligations under the Convention.
Further
to this, and notwithstanding the authorities' efforts to locate the
mother and the child following their disappearance (see paragraphs 23
to 32 above), the Court finds that those authorities failed to take
adequate and effective measures for the enforcement of the return
order prior to 29 July 2009. Almost eleven months passed between the
delivery of the enforceable final judgment ordering the return of the
child on 2 September 2008 and the disappearance of the mother
and her daughter on 29 July 2009. Within this period, the only
enforcement measures taken were the unsuccessful requests of the
bailiff to voluntarily return the child, and the imposition of a
relatively small amount of fine on one occasion. The other measures
at the authorities' disposal were left unused, including the
possibility of police assistance and the repeated imposition of
fines. Although coercive measures against children are not desirable
in this sensitive area, the use of sanctions must not be ruled out in
the event of manifestly unlawful behaviour by one of the parents.
In
addition, the Court observes that even though Ms K.O. was arrested on
27 July 2009, no steps were taken by the authorities to execute the
return order of the child that day, despite the enforceable final
order to do so. It is true that the date set for the on-site
proceedings for the return of the child was scheduled only for 29
July 2009. However, the Court points out that the domestic court
decision as to the method of enforcement was already final on 18 June
2009. It finds no reasons justifying the period of more than one
month between these two dates in light of the requirement of
expeditious action by the authorities.
Concerning
the Government's argument that the removal of the child from her
usual environment might have negative effects on her well-being (see
paragraph 58 above), the Court refers to the judgment of the Supreme
Court delivered on 18 November 2008 (see paragraph 12 above).
According to forensic psychology reports, at that time the child
still had emotional ties to her father and would have adapted easily
to moving back to France. However, the Court acknowledges that the
passage of time may change the circumstances – which may call
for an eventual re-assessment of her ties to her parents and their
environments respectively. When enforcing the child's return, the
guarantees set forth in Article 8 of the Convention shall apply in a
manner subject to the child's best interests. Guidance on this point
may be found, mutatis mutandis, in the Court's case-law on the
expulsion of aliens (see, Maslov v. Austria [GC], no. 1638/03,
§ 71, 23 June 2008, and Emre v. Switzerland, no.
42034/04, § 68, 22 May 2008), according to which, in order to
assess the proportionality of an expulsion measure concerning a child
who has settled in the host country, it is necessary to take into
account the child's best interests and well-being, and in particular
the seriousness of the difficulties which he or she is likely to
encounter in the country of destination and the solidity of social,
cultural and family ties both with the host country and with the
country of destination (see Neulinger and Shuruk, cited above,
§§ 145–146, ECHR 2010 ...; Üner v. the
Netherlands [GC], no. 46410/99, § 57, ECHR 2006 XII).
Lastly,
in the Court's view, the impugned situation was aggravated by the
fact that more than three and a half years passed without the father
being able to exercise his access rights. This was essentially due to
the fact that the Hungarian authorities established lack of
jurisdiction in the matter despite the existence of a final court
decision, certified in accordance with Article 41 of the EC
Regulation on Recognition of Judgments (see paragraphs 33 to 37
above).
Having
regard to the foregoing, and notwithstanding the respondent State's
margin of appreciation in the matter, the Court concludes that the
Hungarian authorities failed to fulfil their positive obligations.
There
has consequently been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed EUR 40,215 in respect of
pecuniary damage, as he had been forced to take a year of sabbatical
from his workplace in order to be able to take action for the return
of his daughter. Moreover, due to the authorities' unsatisfactory
action, he had had to hire private detectives to establish the
location of his daughter.
In
addition, he claimed EUR 50,000 euros in respect of non-pecuniary
damage suffered as a consequence of the Hungarian authorities'
inability to enforce his access and custody rights. He highlighted
the emotional anguish occasioned by his daughter's abduction and his
subsequent efforts to be reunited with her.
The
Government found the claims to be excessive.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention and that this may, in the appropriate case, include
compensation in respect of loss of earnings (see, inter alia,
Aktaş v. Turkey, no. 24351/94, § 352, ECHR
2003 V (extracts)). With regard to the pecuniary damage claimed
by the applicant, the Court finds that there is no causal link
between the damage claimed and the violation found. It therefore
dismisses this claim.
As
regards non-pecuniary damage, the Court has found that the Hungarian
authorities failed to take adequate measures to facilitate
reunification of the applicant with his daughter (see paragraphs 69
to 80 above). It considers that the applicant must be regarded as
having suffered anguish and distress as a result of the abduction of
his daughter and the insufficient measures taken by the Hungarian
authorities. Ruling on an equitable basis, the Court awards him the
sum of EUR 20,000 under this head.
B. Costs and expenses
The
applicant also claimed altogether EUR 99,526 for
the costs and expenses incurred through his efforts to recover his
daughter. From his voluminous and arithmetically inconsistent
submissions, the following items belonging under this head could be
deciphered: EUR 6,297 as travel costs, EUR 56,381 as legal fees
billed by his lawyers for his representation before the domestic
courts and the Court, and EUR 6,653 as translation and clerical
costs.
The
Government found the claim to be excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 12,000 covering costs
under all heads, having regard to the fact that the violation found
relates to only part of the procedures initiated by the applicant,
namely, the execution of the Pest Central District Court's judgment
(see paragraphs 13 to 32 above).
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application
admissible;
Holds that there has been a
violation of Article 8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Hungarian forints at the rate applicable at the date of settlement:
(i) EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of
the applicant's claim for just satisfaction.
Done in English, and notified in writing on 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
