European Court of Human Rights

FIRST SECTION

CASE OF TÓTH v. HUNGARY

(Application no. 8324/18)

JUDGMENT
 

STRASBOURG

19 October 2023

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

In the case of Tóth 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. 8324/18) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 7 February 2018 by a Hungarian national, Mr Krisztián Tóth, born in 1975 and living in Budapest ("the applicant") who was represented by Mr A. Grád, 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 26 September 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 son.

2.  On 13 May 2009 the Budapest IV and XV District Court dissolved the applicant's marriage to I. and approved the parties' agreement about custody rights concerning the couple's son, Z., born in 2007.

3.  The agreement was modified by the parents and approved by the Pest County Government Authority in 2015 in respect of regular visits and in 2016 in respect of intermittent visits. Under the new terms the applicant was granted contact with Z. every second weekend and for the first half of every school holiday.

4.  On 14 September 2016 the applicant lodged an enforcement request with the Pest County Government Authority since his summer holiday had been interrupted by the child's mother, in breach of the contact agreement. Subsequently, the applicant could not exercise his contact rights between 26 August 2016 and April 2017. He lodged altogether twelve enforcement requests with the Government Authority and the latter initiated seven sets of enforcement proceedings during this period. It ordered the parties to provide factual information about the exercise of contact rights, but no decision was taken.

5.  On 17 June 2017 the applicant lodged a civil action seeking the amendment of the contact arrangements.

6.  Until September 2018 the applicant regularly appeared for the visits foreseen in the decision on contact rights but was only able to meet the child twice. Apparently, in the mother's view, the visits were not to take place since Z. did not want to meet his father. In September 2018 the applicant requested I. to inform him when the child was ready to meet him.

7.  On 31 January 2019 the Government Authority fined I. 10,000 Hungarian forints (approximately 25 euros) in respect of the visit of August 2016.

8.  On 12 June 2019 the Buda Surroundings District Court issued an interim ruling gradually extending the applicant's contact rights for the future. The decision was upheld on appeal by the Budapest Surroundings High Court on 16 July 2019. The applicant was able to meet his son regularly from that point on. On 30 October 2020 the Buda Surroundings District Court rendered its judgment, further extending the applicant's contact rights. The judgment was upheld by the second-instance court on 3 September 2020.

9.  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 son, in breach of his right to respect for his family life.

THE COURT'S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

10.  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.

11.  While Article 8 sets out 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).

12.  The Court considers that the decisive question in the present case is whether or not the Hungarian authorities fulfilled their positive obligation under Article 8 to act swiftly and exercise exceptional diligence to facilitate the enforcement of the contact arrangements set out in the court decisions.

13.  The Court observes that the agreement on the exercise of parental rights concluded between the applicant and I. came into force on 13 May 2009, when the District Court approved it. Various aspects were modified in 2015 and 2016, but from August 2016 the applicant was unable to see Z., since I. refused to cooperate.

14.  The Court also notes that the applicant requested at least twelve times that the Government Authority open enforcement proceedings against I. and the Government Authority initiated proceedings on at least seven occasions. However, the only enforcement proceedings concluded with a final decision were those in respect of a visit of August 2016, more than two years after the proceedings had been opened. In addition, the sole procedural measure the Government Authority appears to have taken was to request further factual information from the parties; no enforcement attempts were made and no other proceedings were finalised by decision. In the light of these circumstances, the Court cannot find that the domestic authorities dealt with the matter promptly.

15.  The Court acknowledges that the difficulties in ensuring the applicant's contact rights were essentially due to the mother's opinion that Z. did not want to meet the applicant. Nonetheless, the Court considers that the facts of the case indicated that the financial sanction imposed on I., more than two years after the refused visit, was inadequate to improve the situation at hand and overcome the mother's failure to cooperate. In any case, no concrete enforcement measure was taken to facilitate the applicant's contact rights. The domestic authorities did not avail themselves of any other legal avenue to ensure respect of the final judicial decision on the applicant's visiting rights.

16.  The Court does not lose sight of the fact that the interests of the child are paramount in such cases, requiring the question of contact to be determined primarily with regard to this consideration, rather than to the parents' own perceived interests. The Court also takes note of the Government's argument that the meetings had not taken place due to the child's hostility towards his father.

17.  However, it cannot but note that the domestic authorities at no point considered that it was against the child's interest to meet his father. Indeed, when issuing their interim measures and final decisions on the amended regulation of parental rights, both court instances found that the applicant's meetings with his child should gradually be extended. Nonetheless, it does not appear that during the period between 2016 and 2019 the domestic authorities made any effort to re-establish contact gradually or to explore available avenues, through the involvement of social services or otherwise, to maintain the applicant's ties with his son.

18.  Having regard to the above considerations, the Court concludes that the national authorities did not take all 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 10,500 euros (EUR) in respect of non-pecuniary damage and EUR 1,500 euros 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 6,000 plus any tax that may be chargeable.

23.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 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 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,500 (one thousand five hundred 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 19 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Alena Poláčková
 Deputy Registrar President