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SECOND SECTION

CASE OF ZOLTÁN NÉMETH v. HUNGARY

(Application no. 29436/05)

JUDGMENT

STRASBOURG

14 June 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 Zoltán Németh v. Hungary,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Françoise Tulkens, President,
David Thór Björgvinsson,
Dragoljub Popović,
Giorgio Malinverni,
András Sajó,
Guido Raimondi,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 24 May 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 29436/05) 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 a Hungarian national, Mr Zoltán Németh (“the applicant”), on 4 August 2005.

The applicant was represented by Ms M. Regász, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.

On 14 February 2008 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).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1958 and lives in Szigetszentmárton.

1. Measures taken by the domestic courts

On 23 June 1998, following the pronouncement of the divorce of the applicant and his wife, the Budapest IV/XV District Court placed the applicant’s child – born in July 1993 – with the mother.

The applicant was thereafter not able to see his son due to the mother’s reluctance to hand over the child.

The parents managed to reach a settlement about the father’s access rights concerning visits until the summer of 1999, which was approved by the Budapest Regional Court on 8 January 1999. According to the arrangement, the applicant was allowed to see his son every second Saturday from 9 am until 6 pm, the day after Easter at the same hours and during the summer holidays from 7 until 14 July and from 1 until 14 August.

Until 26 May 2000 the applicant managed to see his son only rarely, since the mother refused to comply with the arrangement on most occasions. From this date onwards he was fully denied access to the child by his former wife.

2. Measures taken by the local guardianship authorities

The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights.

On 16 June and 18 July 2000 the competent Budapest XV District Guardianship Authority heard both parents, warned the mother to allow the applicant to see his son and imposed fines on her. However, these fines were later cancelled.

In January 2001 the case was transferred to the Budapest XIII District Guardianship Authority. Since a warning issued in July 2001 was to no avail, it fined the mother 10,000 Hungarian forints (HUF) (approximately 37 euros (EUR)) on 13 August 2001 and a further HUF 30,000 (EUR 110) on 18 October 2001.

Furthermore, in December 2001 the Budapest XV District Guardianship Authority discontinued the proceedings, initiated ex officio by the Budapest XIII District Guardianship Authority, to place the child under protection (“védelembe vétel”), finding no reason for it. The child welfare service contacted the parents in an attempt to find a solution to the situation. It prepared an environment study at the mother’s home, establishing that it was ideal for the upbringing of the child, who was in a loving relationship with his mother. However, it emphasised the importance of and need for a balanced contact between the child and his father.

As the applicant had had no contact with his child since May 2000, he lodged complaints with various authorities, but to no avail.

The Guardianship Authority then contacted a child upbringing counsellor (“nevelési tanácsadó”) who recommended the assistance of a foundation specialised in facilitating visits. It therefore ordered that the regular visits scheduled for the period between 16 February and 11 May 2002 be held at the foundation’s premises. It appears that there was therefore some contact between the applicant and his son in this period. The applicant’s relationship with his son was examined and found to be harmonious. Subsequently, the Guardianship Authority invited both parents to a reconciliatory meeting on 10 June 2002. This, however, proved to be unsuccessful. The father’s environment was also examined, and it was established that the conditions were appropriate to hold the visits there. The authority recommended a gradual extension of the duration of the contact between the father and the child.

The Guardianship Authority drew up a new access schedule on 16 August 2002 and warned the parents once again to respect these arrangements. However, the mother continued to deny access to the child.

Following the applicant’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights, on 30 March 2004 the Budapest XI District Guardianship Authority again warned the mother and took nine separate decisions concerning the visits not ensured in 2003, imposing a series of fines on her in the total amount of HUF 260,000 (EUR 975). On 23 June 2004 it initiated the child’s placement under protection. Subsequently, on 15 September 2004 the Guardianship Authority imposed a further fine of HUF 100,000 (EUR 375) for the overdue visits from 1999 until 2003.

The Guardianship Authority also ordered police assistance twice in 2004. Afterwards, the applicant managed to see his son until the following year.

3. Court proceedings to change custody of the child

Meanwhile, the applicant initiated an action before the Budapest IV/XIV District Court in February 2002, seeking a change of custody and requesting the temporary placement of the child with him as an interim measure. Since no measures were taken thereafter, he submitted a petition to the ombudsman, asking for his assistance.

Eventually, the Budapest Regional Court, acting as a second-instance court, rejected the maintenance of contact with the child via the foundation mentioned in paragraph 14 above, and dismissed the applicant’s action on 23 March 2005.

4. Decision of the Ministry

In April 2005 the Ministry of Youth, Family and Social Matters quashed the decisions of the Budapest XI District Guardianship Authority described in paragraph 16 above, thereby withdrawing the fines imposed and the order to initiate the child’s placement under protection, without the possibility to appeal against the decision. The Ministry established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant’s access rights prior to 1 March 2004. It nevertheless ordered the Guardianship Authority to take effective measures to ensure the applicant’s rights by using the range of measures at its disposal and not only through the imposition of fines. The Ministry pointed out, inter alia, that:

“... [t]he fact that the administration of minor A.N.’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good, but other measures would be required as well, as it seems that the fines do not lead to any result, the goal being to enable Zoltán Németh to exercise his visiting rights regarding his son. That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father. This should have been done already by the previous guardianship authority. The placement of the child under protection was initiated once by the Budapest XIII District Guardianship Authority, but the proceedings were discontinued by the Budapest XV District Guardianship Authority on the ground that the child’s care may be provided through basic service. The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest. ...

Overall, it can be established that the first-instance guardianship authorities were not controlling the situation, revoking the fines imposed on formal grounds. ... The Budapest Guardianship Authority was a “spectator” to the situation, hindered the enforcement proceedings several times; on the basis of the appeal even it could have clarified whether the visits took place, or could have requested the first-instance guardianship authority to hear the parties, once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer. ...

The second-instance guardianship authority also omitted [to fulfil its obligations] in that when the father had not received his son for months and the competent guardianship authority did not assist the enforcement, it did not take over the case. It is not an acceptable solution to settle cases that, instead of solving the professional problems, the second-instance guardianship authority repeatedly assigns new acting organ. This practice is unlawful ...

It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions between 1999 and 2004 by not effectively promoting the enforcement of the contacts ...”

The applicant initiated the review of the Ministry’s decision before the Chief Prosecutor’s Office. On 25 August 2005 this Office established that the decision in question had been unlawful and informed the Ministry about its findings.

However, the applicant was not able to exercise his access rights after the Ministry’s decision had been adopted. He initiated several enforcement proceedings, following which a few penalties in the sum of the statutory maximum were imposed on the mother.

It appears that the applicant has been unable to have any contact with his son since then.

5. Criminal proceedings against the mother

Meanwhile, as it had become impossible for the applicant to meet his child, he lodged a criminal complaint against the mother for endangering a minor, on 10 January 2004. The Pest Central District Court found the mother guilty and imposed a criminal fine on her on 5 September 2007. In its reasoning, the court emphasised that:

“[a] child’s moral development can be endangered not only by so-called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development. Thus, by the conduct of the mother, who, having knowledge of the fact – of which the child also had knowledge – that the father was to exercise his access rights at a given date, knowingly violated this right by organising for that date an attractive programme for the child in the countryside, at a location far from the father ... The mother involved the child in her conflict with the father, informed him of the court actions brought against or by him and made disparaging remarks about the father, thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her.”

However, it also noted that the applicant:

“... [h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission.”

No further information was provided by the parties as to the development of the criminal case before the appellate court.

II. RELEVANT DOMESTIC LAW

The relevant rules concerning the enforcement of contact orders can be found in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows:

Section 33

“(1) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order.

(2) If non-compliance with the contact order on the part of the parent ... is a fault of his/her own, the guardianship authority shall warn him/her about the consequences of such conduct. The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct.

(3) If the measures provided for under subsection (2) are of no effect and one year has not elapsed from the receipt of the warning, the guardianship authority shall apply the rules governing enforcement of the Act on Public Administration Procedure with the exceptions set forth in this Decree.

...

(5) If the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or there are disturbances in the communication between the parents [in force since 15 February 2003], the guardianship authority may initiate the involvement of the child welfare service’s contact centre, the ordering of taking the child into protection, or the institution of the child protection mediation procedure.

(6) If it is proved that the parent ... brings up the child by continuously turning him/her against the person entitled to contact, and despite enforcement measures fails to comply with the contact order, an action to change custody may be brought before the court.”

Moreover, section 72 of Act no. 31 of 1997 on the Protection of Children and Child Welfare Administration provides for the possibility temporarily to place the child with the other parent living apart, if the child’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary. Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child.

Other measures at the authorities’ disposal are listed in the Act on Public Administration Procedure, providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

The applicant complained about the continuing lack of access to his son and about the insufficient measures taken by the public authorities to enforce his access rights, in violation of his right under Article 8 of the Convention. The Court observes that some of the complaints raised by the applicant which referred to Article 6 § 1 (see paragraphs 31 to 35 below) also concerned in substance the issues raised under Article 8 of the Convention. It deems it appropriate to examine these arguments in the context of the latter provision (see Kutzner v. Germany, no. 46544/99, §§ 56 and 57, ECHR 2002-I; and V.A.M. v. Serbia, no. 39177/05, § 115, 13 March 2007). Article 8 of the Convention, in its relevant part, provides:

“1. Everyone has the right to respect for his ... family life ...

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 ... 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 Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

A. The parties’ submissions

1. The applicant

The applicant alleged that the steps taken by the national authorities had not been effective and had contributed to the current situation. The domestic authorities continued to tolerate the unacceptable behaviour of the mother, who tried to do everything possible to prevent contact and obstruct the development of a loving relationship between him and his son.

He also pointed out that the guardianship authorities had made use of only two measures at their disposal, namely warning the mother and the imposition of fines. They therefore had not availed themselves of the possibility of temporarily placing the child with the applicant, initiating mediation proceedings or even providing police assistance to ensure the visits. With the ministerial decision, the authorities had even annulled the minimal achievements made.

He contended that the annulment of the fines by the Ministry would not have been necessary on the ground that the liability for the failure of the visits could not be established unambiguously, had the authorities complied with their obligation to respect the deadlines.

In the applicant’s view, the lack of any coercive measure had legalised the mother’s unlawful conduct. He also argued that the child upbringing counsellor and the foundation proposed by the authorities had been of no help, as they did not have any power to compel the mother to cooperate.

The applicant further emphasised that he had taken all possible legal steps to enforce his visiting rights. He finally highlighted the fact that his son had not opposed the meetings, which were hindered only by the mother.

2. The Government

The Government submitted that the guardianship authorities had applied almost all available measures to enforce the applicant’s access rights. They had warned the mother and imposed penalties on several occasions, involved a foundation and a child upbringing counsellor and also forwarded the father’s letter seeking to take the child into protection to the guardianship authority. They nevertheless acknowledged that these measures had later been annulled by the Ministry’s decision in 2005, partially due to the fact that subsequently, the liability for the failure of visits could not be established unambiguously.

They pointed out that some of the fines imposed on the mother after March 2005 had later been enforced, notwithstanding the fact that the collection of such penalties limited the resources for the child’s maintenance and was therefore not frequently applied.

In any event, the applicant’s own conduct was open to criticism, as some visits had not taken place due to his omission. Moreover, on several occasions he had failed to request the enforcement of fines or had revoked the motion for their enforcement. They further highlighted that the use of coercion must be limited to the absolutely necessary degree. Finally, the Government emphasised that the applicant had not been completely barred from seeing his son.

In sum, the Government maintained that the authorities had done everything necessary and reasonable in order to comply with their positive obligation under Article 8 of the Convention.

B. The Court’s assessment

1. General principles

The Court notes, firstly, that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005).

The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework and the implementation of specific steps (see, amongst other authorities, Glaser v. the United Kingdom, no. 32346/96, § 63, 19 September 2000). In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, and the State’s margin of appreciation (see, amongst other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290).

Article 8 includes a right for a parent to have measures taken with a view to his or her being reunited with the child, and an obligation for the national authorities to take such measures. This also applies to cases where contact disputes concerning children arise between parents (see mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 A).

The Court observes that whilst national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250).

What is decisive is whether the national authorities have taken all necessary steps to facilitate reunion as can reasonably be demanded in the special circumstances of each case (see Glaser v. the United Kingdom, cited above, § 66).

In this context, 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 do not cohabit (see Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000 I).

Finally, the Court has 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 child lives (see Ignaccolo-Zenide, cited above, § 106).

2. Application of the above principles to the present case

Turning to the particular facts of the case, the Court acknowledges the efforts made by the national authorities to enforce the applicant’s visiting rights, and is aware that the difficulties in arranging access were in large measure due to the animosity between the parents. Nonetheless, the Court does not accept that responsibility for the failure of the relevant decisions or measures in actually bringing about contacts can be attributed to the applicant.

The Court considers that the present case is to be distinguished from the cases of Szegő v. Hungary (no. 21647/93, Commission decision of 16 January 1996) and Kálló v. Hungary ((dec.), no. 70558/01, 14 October 2003). In the former case, an administrator accompanied the applicant to the visits several times, imposed fines and envisaged further coercive measures to be taken. Similarly, in the latter case, the authorities took a variety of measures to secure the applicant’s access rights, including assistance by officials, granting of requests for interim measures, issuing of warnings and the imposition of fines of significant amounts. Furthermore, the children were also reluctant to meet their fathers, as opposed to the present case where the relationship between the father and his son was found to be harmonious (see paragraph 14 above).

On the other hand, the Court finds that this case shows certain similarities with the case of Eberhard and M. v. Slovenia (nos. 8673/05 and 9733/05, 1 December 2009). In both cases, most of the fines imposed were never executed or the related decisions were ultimately quashed on procedural grounds.

It is true that the authorities took some measures to enforce the applicant’s visiting rights, including warnings, the assistance of a child upbringing counsellor, the organisation of a reconciliatory meeting, the conduct of criminal proceedings against the mother and the imposition of fines. However, these measures proved to be ineffective or not sufficiently prompt, resulting in a situation where the father was not able to see his son for several years, between May 2000 and February 2002 and from May 2002 until March 2004.

The Court would reiterate that in general, the national authorities are better positioned to consider the procedure to follow in such situations, and the Court, as a rule, will find a violation of Article 8 only where the inefficiency of the measures applied is manifest. However, the State authorities will fail to fulfil their obligations where the national authorities themselves admit that the procedures applied were not satisfactory and they failed to remedy such shortcomings, or where they contributed to the non-execution of otherwise appropriate measures. The Court is not satisfied that the authorities made efficient use of the arsenal of measures at their disposal despite the Ministry’s express instructions concerning the steps to be taken (see paragraph 20 above). It notes in particular that they did not place the child with the applicant temporarily, nor did they initiate mediation proceedings or intervene in the proceedings which concerned the change of the child’s custody (see paragraphs 18 and 19 above); moreover, the authorities revoked the fines which were, in principle, capable of contributing to the enforcement of the applicant’s visitation rights (see paragraphs 20 and 21 above) and, apart from two occasions, they did not provide police assistance to enforce the visits.

The Court is mindful of the fact that coercion in this field must be limited. However, the only period in which the exercise of the applicant’s rights seems to have been undisturbed ran from March 2004 until April 2005, when the authorities twice provided police assistance for the visits.

The Court further notes that only in September 2004 did the competent guardianship authority decide on the sanctions for the failure of certain visits between 1999 and 2003, therefore breaching their obligation to act sufficiently promptly.

The only time when the situation appears to have improved was when the case was transferred to the Budapest XI District Guardianship Authority in 2004. It imposed several fines, initiated the placement of the child under protection and provided assistance for the visits. However, the Ministry of Youth, Family and Social Matters quashed these measures in April 2005 (see paragraph 20 above), perpetuating a situation where the applicant is unable to have contact with his child.

From the foregoing the Court cannot but conclude, bearing in mind the interests involved, that the competent authorities did not act sufficiently promptly or make reasonable efforts to facilitate reunion. On the contrary, the inaction of the authorities placed the burden on the applicant to have constant recourse to a succession of time-consuming and ultimately ineffective remedies to enforce his rights. Over the years, they tolerated the mother’s unlawful actions which they were under a duty to prevent.

Accordingly, the Court concludes that, notwithstanding the margin of appreciation enjoyed by the competent authorities, the non-enforcement of the applicant’s right of access constituted a breach of his right to respect for his family life under Article 8 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant contended, relying on Article 13 of the Convention, that no effective remedy was available against the Ministry’s decision brought in April 2005.

The Court observes, however, that the applicant availed himself of a complaint to the Chief Prosecutor’s Office, which established the unlawfulness of the decision in question. The Court therefore considers that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.

The applicant also claimed that the authorities’ attitude towards him and the decisions they had taken amounted to discrimination against him based on his gender, in violation of the prohibition of discrimination enshrined in Article 14 of the Convention.

The Court finds that, insofar as this complaint may be considered as a separate issue from the complaint under Article 8 of the Convention, there is nothing in the case file indicating discrimination against the applicant based on his gender. The Court therefore concludes that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.

III. 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 40,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested this claim.

The Court considers that the applicant must have suffered distress as a result of the non-enforcement of his access rights and awards him, on an equitable basis, EUR 20,000 for non-pecuniary damage.

B. Costs and expenses

The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic courts and the Court, without providing any particulars of this claim.

The Government observed that the applicant’s claim was not supported by any evidence and requested the Court to reject it.

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 were reasonable as to quantum. In the present case the applicant did not produce any documentary evidence in support of his claim. The Court therefore rejects it.

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 complaint concerning Article 8 admissible and the remainder of the application inadmissible;

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, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Hungarian forints at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 14 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Françoise Tulkens
Registrar President