Communicated on 12 December 2013

SECOND SECTION

Application no. 5493/13 Francesco CAVANI and others against Hungary lodged on 16 January 2013

STATEMENT OF FACTS

1. The first applicant is Mr Francesco Cavani , an Italian national, who was born in 1971 and lives in Formigine , Italy. The second and third applicants are his two daughters, Ester Cavani , a Hungarian/Italian national who was born in 2003, and Anna Maria Cavani , a Hungarian/Italian national who was born in 2004. The place of residence of the second and third applicants is at present unknown. The applicants are represented before the Court by Mr G. Thuan dit Dieudonné , a lawyer practising in Strasbourg.

A. The circumstances of the case

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

3. In June 2004 the first applicant ’ s then wife, whom he had married in 2002 and who is the mother of the second and third applicants, took the second and third applicants from Italy, where the family was living, to Hungary.

4. In August 2004 the first applicant went to Hungary. The family was supposed to travel back to Italy but the first applicant ’ s wife refused. The first applicant returned to Italy alone.

5. In December 2004 the first applicant joined his family in Hungary for the Christmas holidays and again his wife refused to return to Italy with him and kept the children with her.

6. In February 2005 the first applicant requested his wife in writing that she return to Italy with their daughters.

7. On 3 March 2005 the first applicant requested the Italian Ministry of Justice to initiate proceedings for the return of the children to Italy. On 23 March 2005 he also started proceedings before the Court of Modena (Italy) for separation from his wife and the return of his daughters to Italy.

8. On 25 April 2005 his wife started parallel divorce proceedings before the Buda Surroundings District Court.

9. On 2 May 2012, the applicants lodged a complaint before the European Commission alleging a violation of Article 11 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility , which is still pending.

10. A t present t he marriage between the first applic ant and his ex-wife has been annulled . The second and third applicants live in an unknown location with their mother and the first applicant has been prevented from seeing them since 2005.

1. Proceedings before the Hungarian courts

11. On 25 August 2005 the Pest Central District Court found that the first applicant ’ s ex-wife was keeping the children in Hungary illegally, in violation of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) . However, it considered that given their young age, the children needed to be taken care of by their mother and therefore refused to order their return to Italy.

12. On 9 November 2005 the Budapest Regional Court quashed the decision of the District Court and ordered that the children be returned to Italy by 10 December 2005 at the latest, which never happened.

13. An enforcement order was issued against the first applicant ’ s ex-wife by the Buda Surrounding s District Court on 26 April 2006 and upheld by the Pest County Regional Court on 5 September 2006. The decision was not enforced.

14. On 5 February 2007 the Buda Surroundings District Court ordered the enforcement of the decision of 9 November 2005, this time with the assistance of the police. Again, the decision was not enforced.

15. On 21 July 2010, following a European arrest warrant issued by the Italian authorities, the first applicant ’ s ex-wife was arrested by the Hungarian police but was released shortly thereafter with no consequences for a possible return of the second and third applicants to Italy.

16. On 14 October 2011, she was sentenced in absentia by the Buda Surroundings District Court to a 200-day fine for illegally changing the custody of a minor.

2. Proceedings before the Italian courts

17. On 28 November 2005, the Court of Modena granted exclusive custody of the children to the first applicant.

18. On 15 December 2005, the first applicant pressed criminal charges against his ex-wife for child abduction.

19. On an unknown date the Criminal Court of Modena sentenced the ex-wife to 18 months on parole. On 4 October 2011, following an appeal by the prosecutor, the Court of Appeal of Bologna sentenced her to 18 months without parole.

20. The first applicant ’ s ex-wife appealed against her conviction before the Italian Court of Cassation. One month before the hearing the first applicant withdrew his criminal suit in the hope of appeasing the situation and allowing his ex-wife to travel freely to Italy with their two daughters.

21. On 30 November 2012 the Court of Cassation quashed the judgment of the Court of Appeal of Bologna in the light of the first applicant ’ s decision to withdraw his criminal suit.

B. Relevant domestic law

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

Section 33

“(2) A child ’ s development is endangered where the person entitled or obliged to maintain child contact repeatedly fails, by his or her own fault, to comply or to properly comply with the [contact rules], and thereby fails to ensure undisturbed contact.

...

(4) Where, in examining compliance with subsections (1)-(2), the guardianship authority establishes [culpability on the parent ’ s side], it shall, by a decision, order the enforcement of the child contact within thirty days from the receipt of the enforcement request. In the enforcement order it shall:

a) invite the omitting party to meet, according to the time and manner specified in the contact order, his or her obligations in respect of the contact due after the receipt of the order and to refrain from turning the child against the other parent,

b) warn the omitting party of the legal consequences of own-fault non-compliance with the obligations under subsection (a) ,

c) oblige the omitting party to bear any justified costs incurred by the frustration of contact.

(5) Where the person entitled or obliged to maintain contact fails to meet the obligations specified in the enforcement order under subsection (4), the guardianship authority may ...

a) initiate to involve the child contact centre of the child welfare service or to take the child into protection in case the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or the parents have communication problems,

b) initiate child protection mediation procedure ....

...

(7) If it is proved that the person liable to contact brings up the child by continuously turning him/her against the person entitled to contact and, despite the enforcement measures specified under subsections (4)-(5), fails to comply with the contact order, the guardianship authority:

a) may bring an action seeking change of placement if it is the best interests of the child,

b) shall file a criminal complaint ...”

C. Relevant international law

23. The relevant provisions of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility read as follows:

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.”

The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction ( Hungary acceded to this Convention of 25 October 1980 , promulgated in Hungary by Law-Decree no. 14 of 1986 ) read as follows:

Article 3

“ The removal or the retention of a child is to be considered wrongful where -

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised bu t for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. ”

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.”

COMPLAINT

24. The applicant complains that since 2005 the Hungarian authorities have failed to enforce a legally binding cou rt decision granting him child access and custody rights. He alleges a violation of Article 8 of the Convention .

QUESTION s TO THE PARTIES

Has there be en a violation of the applicant s ’ right to respect for their family life, contrary to Article 8 of the Convention? In particular, have the authorities observed their positive obligations under Article 8 to ensure that the first applicant could have access to the second and third applicant and properly exercise his parental responsibility ?