SECOND SECTION

DECISION

Application no . 42622/14 Péter András NEGYELICZKY against Hungary

The European Court of Human Rights ( Second Section ), sitting on 14 October 2014 as a Committee composed of:

Helen Keller , President, András Sajó , Robert Spano , judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 2 June 2014 ,

Having regard to the decision to grant priority to the above application unde r Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Péter András Negyeliczky , is a Hungarian national, who was born in 1972 and lives in Budapest . He was represented before the Court by Ms E. Szabó , a lawyer practising in Budapest .

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant married in 1999; and a son was born to the couple in 2004. The spouses separated on 21 May 2008 and divorced on 12 March 2009. Upon their separation they decided to settle different questions by consensus and to continue to be engaged in the parenting of their common child to an equal degree.

On 29 May 2008 they concluded a private agreement, according to which their son was placed with the mother and the applicant had visiting rights on two weekdays every week and on the weekend every two weeks, as well as on the second day of two-day holidays and a whole week three times a year. The applicant undertook to pay a monthly amount of 100,000 Hungarian forints (HUF; approximately 330 euros (EUR)) in child maintenance.

On 12 March 2009 the former spouses concluded another agreement, this time before the Budaörs District Court. According to this agreement, the mother was granted custody. At the same time, the parents agreed on joint exercise of their parental authority. In view of their mutual commitment to smooth cooperation, they did not request the court ’ s decision either about their respective right of access or about maintenance.

As of January 2013 the applicant ’ s former wife moved to Munich, Germany for professional reasons, having been recruited for a new post with her employer, an international company. She planned to move together with his son but the applicant refused to consent. As a result, the son has lived with the applicant, in Hungary, since then.

In order to be able to take the son with her to Germany, the applicant ’ s former wife brought different proceedings, whereas the applicant objected to that and initiated other proceedings.

Notably, the applicant ’ s former spouse requested the re-regulation of their respective rights of access from the competent Guardianship Authority. In turn, the applicant brought proceedings for “modification of child custody” ( gyermekelhelyezés megváltoztatása ) before the Buda Central District Court on 4 December 2012, requesting that custody be granted to him. With regard to the on-going court proceedings, the Guardianship Authority discontinued its own procedure.

On 17 May 2013 the applicant ’ s former wife initiated proceedings before the same court for “designation of the child ’ s residence” ( gyermek tartózkodási helyének kijelölése ).

In the first proceedings concerning the modification of custody, the District Court adopted, on 30 September 2013, an interim measure on the regulation of the parties ’ respective rights of access. According to this, the applicant was entitled to see his son from Tuesday on even-numbered weeks until Thursday on the following odd-numbered week (that is, for ten consecutive days in every two weeks), as well as on the second day of two ‑ day holidays and in the second part of school holidays. The designated place of handing over of the child was Budapest. The measure was adopted by a judge in contentious proceedings ( peres eljárás ). On 8 January 2014 the Budapest High Court upheld the decision.

On 30 September 2013 the District Court adopted another decision in the second proceedings concerning the designation of residence. It accepted the mother ’ s request and allowed that her child should reside permanently in Germany, at the mother ’ s place. The applicant ’ s request for the stay of the proceedings until a final judgment is adopted in the first case concerning placement was dismissed. The decision on designation of residence was adopted in non-contentious proceedings ( nemperes eljárás ) by a judicial clerk ( bírósági titkár ). On 10 December 2013 the Budapest High Court upheld the residence order. The applicant sought review against it before the Kúria and requested the suspension of the execution.

With reference to the residence order of 10 December 2013, the mother requested the re-regulation of the parents ’ respective rights of access before the Buda Central District Court by a new interim measure, in the framework of the first proceedings. Observing that on 5 March 2014 the Kúria had suspended the execution of the residence order, the Buda Central District Court dismissed the mother ’ s request for a new interim measure on 24 March 2014. It held that, as the situation stood, the circumstances did not warrant an amendment to the previously adopted interim measure. The dismissal became final on 16 April 2014.

Meanwhile, on 1 April 2014 the Kúria confirmed the residence order of 10 December 2013.

Throughout the proceedings, the applicant argued that his son ’ s best interest would be guaranteed if he stayed with him and with a younger step ‑ brother born from the applicant ’ s new wife and if he were not removed from his usual milieu , including various semi-professional sports activities, school, family and friendly relationships. The domestic courts were of the view that the experience and language knowledge to be gained during the stay abroad would be beneficial for the child and that there was nothing to suggest that the stay with his mother in Germany would prejudice his best interests. In its decision of 1 April 2014, the Kúria also underlined that the residence order was connected to and, indeed, followed from the parties ’ 2009 agreement, approved by the Budaörs District Court, granting custody to the mother. The Kúria emphasised that the law accorded priority to this kind of non-contentious proceedings; therefore the applicant ’ s request for the staying had been lawfully rejected. It also added that, depending on the outcome of the first proceedings, the decision on the designation of the child ’ s residence might eventually be amended.

Currently the Buda Central District Court ’ s interim measure regulating the parents ’ respective rights of access appears to be in force, unchanged. As a result, the applicant is entitled to have regular contacts with his son in Budapest, whereas at the same time the mother is entitled to take him to Germany. The first proceedings concerning the modification of the placement of the child appears to be pending at first instance. According to the Code of Civil Procedure, the Buda Central District Court may amend or revoke the interim measure whenever it sees fit.

COMPLAINTS

The applicant complained that his right to respect for family life had been infringed as a result of the domestic courts ’ decisions, allowing his son to be taken abroad, allegedly contrary to the child ’ s best interest and in contradiction with an interim measure in force. He relied on Article s 8 and 13 of the Convention as well as on Article 5 of Protocol No. 7.

THE LAW

T he mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see Keegan v. Ireland , 26 May 1994, § 50, Series A no. 290). An interference with this right may constitute a violation of Article 8 of the Convention, unless it is “in accordance with the law”, pursues a legitimate aim and can be regarded as “necessary in a democratic society” (see Diamante and Pelliccioni v. San Marino , no. 32250/08 , §§ 171-172 , 27 September 2011).

As regards the requirements flowing from Article 5 of Protocol No. 7, this provision essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children ( see, e.g., Cernecki v. Austria (dec.), no. 31061/96, 11 July 2000) . This provision guarantees such equality also in the event of the dissolution of a marriage.

Although called upon to apply the above principles in the case at hand, the Cour t could not disregard the fact s that, according to the available information, the applicant ’ s son currently resides in Hungary and spends the majority of the time (ten days in every two weeks, in addition to the proportionate parts of holidays) with his father, pursuant to an interim measure that appears to be in force unchanged. There is no indication that the residence order, allowing the mother to take the child with her to Germany on a permanent basis, has been enforced. Moreover, proceedings concerning the modification of the custody arrangement are pending at first instance.

In these circumstances, the Court considers that it would be premature to take a position , under Article 8 of the Convention, on the substance of this application. This part of the application should therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

Furthermore, the Court considers that the applicant ’ s submissions do not disclose any appearance of a violation of his rights under Article 5 of Protocol No. 7 . It follows that this part of the application is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

Concerning Article 13, the Court considers that, in the absence of an arguable claim from the perspective of the Articles invoked above, those issue being inadmissible, and because Article 13 has no independent existence, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Abel Campos Helen Keller              Deputy Registrar President