European Court of Human Rights

 

 

FIRST SECTION

CASE OF HORVATOVICH v. HUNGARY

(Application no. 12141/16)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

9 March 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Horvatovich v. Hungary,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Péter Paczolay,
          Gilberto Felici, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 12141/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 February 2016 by a Hungarian national, Mr Péter László Horvatovich (“the applicant”), born in 1972 and living in Groningen, who was represented by Mr D.A. Karsai, a lawyer practising in Budapest;

the decision to give notice of the application to the Hungarian Government (“the Government”), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 14 February 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s complaint under Article 8 of the Convention that the Hungarian authorities had failed to enforce decisions in relation to his contact rights with his daughter.

2.  On 24 October 2002 the Budapest II and III District Court dissolved the applicant’s marriage with A. and approved the parties’ agreement about custody rights concerning the couple’s daughter, B, born in 1997. Under the terms of the agreement the applicant was granted contact with B. every second weekend and during the Christmas holidays and was allowed to call B. every Thursday. The Budapest II District Guardianship Authority (“the Guardianship Authority”) subsequently fined A. on at least two occasions for not having complied with the terms of the agreement. The applicant did not have any contact with his daughter between 1 September 2005 and 8 April 2007. On 29 August 2011 the Budapest II and III District Court found A. guilty of endangering a minor and issued her with a warning. It appears that subsequently meetings between the applicant and his daughter took place regularly.

3.  On 27 December 2012 B. failed to appear at a scheduled meeting with her father and on 18 January 2013 the applicant lodged an enforcement request with the Guardianship Authority. The Guardianship Authority heard from both A. and B. several times. It decided to suspend the proceedings on 2 July 2013 since A. had lodged a request that the applicant’s contact rights be amended.

4.  Following an appeal by the applicant, the Budapest Governmental Authority overturned the first-instance decision and ordered the Guardianship Authority to continue the enforcement proceedings on 18 November 2013. Subsequently, A. was heard once by the Guardianship Authority.

5.  In the meantime, the applicant had lodged an enforcement request in respect of a visit that should have taken place on 1 June 2013; enforcement proceedings continued in respect of both requests.

6.  In parallel, the applicant had brought proceedings seeking the child’s placement under temporary protection on two occasions (2 August 2013 and 10 June 2014). The first request was dismissed, and no final decision was taken in the second set of proceedings until after 8 December 2015.

7.  On 29 July 2014 a forensic expert psychologist was appointed to carry out a psychological assessment of A. and B. A new expert was appointed on 28 January 2015 because B. had not complied with the measure.

8.  On 6 July 2015 a forensic psychologist carried out a psychological evaluation of B. and the applicant.

9.  On 9 July 2015 the Guardianship Authority ordered the parties to participate in mediation proceedings.

10.  On 1 September 2015 the Guardianship Authority discontinued the enforcement proceeding since B. had turned eighteen years old. At that point the applicant had had no contact with his daughter for three years.

11.  The applicant complained under Article 8 of the Convention that the domestic authorities had failed to make sufficient efforts to enforce the contact arrangement in respect of his daughter, in breach of his right to respect for his family life.

THE COURT’S ASSESSMENT

12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

13.  While Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and ensure due respect for the interests safeguarded by Article 8 (see Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts)). The relevant principles in respect of proceedings concerning a parent’s relationship with his or her child have been summarised in, inter alia, T.C. v. Italy (no. 54032/18, §§ 57-58, 19 May 2022).

14.  The Court considers that the decisive question in the present case is whether or not the Hungarian authorities fulfilled their duty to act swiftly and exercise exceptional diligence to facilitate the enforcement of the contact arrangements set out in the court decisions.

15.  The Court observes that the District Court’s decision on contact arrangements was in force but not implemented from 27 December 2012 (the date from which the applicant was unable to exercise his contact rights in respect of his daughter) until B. reached adulthood.

16.  It also notes that the enforcement proceedings began on 18 January 2013 but were suspended almost six months later by the Guardianship Authority. Furthermore, despite the instruction of the second‑instance authority to continue the proceedings, the only procedural measures the Guardianship Authority appears to have taken were hearing B. on one occasion and ordering the parties to participate in mediation, more than three years after the proceedings had been opened. The Guardianship Authority also commissioned a psychological expert opinion which, again, was only submitted in respect of B. some three years into the proceedings. No enforcement attempts were made, and no final decision was taken in the case until 1 September 2015 when the proceedings were discontinued altogether, B. having reached adulthood. At this point the applicant had had no contact with his daughter for almost three years.

17.  As demonstrated by the facts of the case, the delays in the domestic proceedings proved decisive for the applicant’s future relations with his daughter and thus had a particular quality of irreversibility. The considerable length of time for which the contact arrangement remained unenforced frustrated the applicant’s rights and eventually meant that the passage of time led to the de facto determination of the matter.

18.  Having regard to the above considerations, the Court concludes that the national authorities did not take all the steps which could reasonably be required to enforce the applicant’s contact rights.

19.  The Court therefore finds that there has been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

20.  The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,200 plus VAT in respect of costs and expenses incurred before the Court.

21.  The Government contested these claims.

22.  The Court finds that the applicant must have sustained some non‑pecuniary damage which is not sufficiently compensated for by the finding of a violation of the Convention. Making its assessment on an equitable basis, it awards him the sum of EUR 8,000 plus any tax that may be chargeable.

23.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 4,000 in respect of costs and expenses incurred during the proceedings before the Court, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four 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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Liv Tigerstedt                                                   Alena Poláčková
          Deputy Registrar                                                      President