SECOND SECTION

Application no. 20255/12 Gary PRIZZIA against Hungary lodged on 29 March 2012

STATEMENT OF FACTS

The applicant, Mr Gary Prizzia , is an American national, who was born in 1962 and lives in Glen Allen, Virginia . He is represented before the Court by Ms E. Volni , a lawyer practising in Budapest .

An earlier case of the applicant (application no. 4966/05) was declared inadmissible by a Committee on 11 December 2007.

A. The circumstances of the case

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

On 19 March 2005, following the pronouncement of the divorce of the applicant and his wife, the Budapest Central District Court placed the couple ’ s child – born on 3 February 2003 – with the mother. In its final judgment of 27 March 2007 the Supreme Court regulated the applicant ’ s access rights in a way that he had access to his son 4 days every month and was entitled to spend one month of the summer holiday with him, including the possibility to take him to the USA . The mother was obliged to hand over the necessary travel documents for this purpose.

In August 2007 the applicant complained to the Budapest XIIth District Guardianship Authority that his access granted in respect of August 2007 could not be exercised on the account of the mother ’ s reluctance to co-operate. The Guardianship Authority established that the mother and son had not been available on 1 August 2007 as regulated in the Supreme Court ’ s judgment. On 11 September 2007 the Authority warned the mother that she might be fined for her conduct. The applicant for his part initiated enforcement proceedings with no success.

On 1 July 2008 the mother again failed to comply with the applicant ’ s access right. On 23 July 2008 the then competent Budapest XIIIth District Guardianship Authority imposed a fine of 100,000 Hungarian forints (“HUF”) (approximately 360 euros (EUR)) on her, ordering the handover of the child to the applicant on 1 August 2008.

The applicant requested the enforcement of the access regulations. On 28 July 2008 a bailiff ordered the mother to deliver the child ’ s passport to the applicant within three days. Nonetheless, she did not comply with this decision but handed over the child ’ s passport to an employee of the Ministry of Foreign Affairs. However, the Ministry did not transfer the passport to the applicant upon the bailiff ’ s order but returned it to the mother on 15 October 2008. The applicant lodged a criminal complaint against the mother. Eventually, on 19 October 2010 the Budapest Public Prosecutor ’ s Office discontinued the investigation, finding no appearance of a criminal offence.

On 24 September 2009 the Authority established the mother ’ s non-compliance with the access regulations in respect of 1 August 2008 and imposed a further fine of HUF 200,000 (EUR 720) for the overdue visit. The mother ’ s request for a judicial review was rejected by the Budapest Regional Court on 23 July 2010.

It appears that the applicant was otherwise able to have contact with his son in compliance with the Supreme Court ’ s decision.

Meanwhile, both the applicant and the mother initiated actions before the Buda Central District Court in February 2007, the applicant seeking, in particular, a change in custody and the court or escrow deposit of the child ’ s passport. The mother requested a restriction on the applicant ’ s access rights, removing his entitlement to take the child to the USA . On 11 December 2008, in the joined proceedings, the court rejected both actions. The decision was upheld by the Budapest Regional Court , acting as a second instance court, on 25 January 2010.

The child ’ s envisaged stay with his father, first scheduled for 1 July and then rescheduled for 1 August 2009, did not take place. On both occasions a police officer accompanied the applicant to the mother ’ s flat, but his access right could not be enforced, since the mother had left with the child for an unknown place. The applicant initiated enforcement proceedings, following which a penalty in the sum of HUF 50,000 (EUR 180) was imposed on the mother.

Meanwhile, the applicant initiated another action before the Pest Central District Court, again seeking a change of custody. In an interim measure of 15 June 2010, the court ruled that the applicant ’ s access rights in respect of the 2010 summer holiday should be exercised in Hungary . In its judgment of 19 May 2011 the court dismissed the applicant ’ s action. It limited his access rights to the effect that the child ’ s summer holiday could take place in Hungary only, and this until the child ’ s sixteenth birthday, explaining that the child was concerned about his father not bringing him back to Hungary . The court also regulated the exact days of every other month when the applicant was entitled to visit his son in Hungary in the coming years. On 29 November 2011 the Budapest Regional Court upheld the first-instance decision, rejecting the applicant ’ s request to establish the bi-monthly days of visit in a flexible way.

It appears that simultaneously the applicant initiated proceedings in the USA with a view to an international warrant being issued in order to retrieve his child.

COMPLAINTS

The applicant complains that, for five years, the authorities have failed to enforce a legally binding court decision on his access rights. He further submits that the Pest Central District Court ’ s decision of 19 May 2011 establishing the exact days of visits for the following years was too cumbersome for him and thus unfair. He moreover complains about the authorities ’ inaction concerning the enforcement of his access rights concerning summer holidays and about the fact that subsequently his visits became limited to the territory of Hungary . He relies on Articles 6 and 8 of the Convention, Article 2 §§ 2 and 3 of Protocol No. 4 and Article 5 of Protocol No. 7.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his 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 applicant could properly exercise his right of access to his child?

2. Has the length of the civil proceedings, including the enforcement, been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention, in view of the fact that the applicant ’ s access rights according to the judgment of 27 March 2007 do not seem to have been respected at all until the modifications of 29 November 2011?