CASE OF ZOLTÁN NÉMETH v. HUNGARY
Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
4. The applicant was born in 1958 and lives in Szigetszentmárton. 5. On 23 June 1998, following the pronouncement of the divorce of the applicant and his wife, the Budapest IV/XV District Court placed the applicant’s child – born in July 1993 – with the mother. 6. The applicant was thereafter not able to see his son due to the mother’s reluctance to hand over the child. 7. The parents managed to reach a settlement about the father’s access rights concerning visits until the summer of 1999, which was approved by the Budapest Regional Court on 8 January 1999. According to the arrangement, the applicant was allowed to see his son every second Saturday from 9 am until 6 pm, the day after Easter at the same hours and during the summer holidays from 7 until 14 July and from 1 until 14 August. 8. Until 26 May 2000 the applicant managed to see his son only rarely, since the mother refused to comply with the arrangement on most occasions. From this date onwards he was fully denied access to the child by his former wife. 9. The applicant repeatedly complained to the local guardianship authority as from that date and requested it to take effective measures in order for him to be able to exercise his access rights. 10. On 16 June and 18 July 2000 the competent Budapest XV District Guardianship Authority heard both parents, warned the mother to allow the applicant to see his son and imposed fines on her. However, these fines were later cancelled. 11. In January 2001 the case was transferred to the Budapest XIII District Guardianship Authority. Since a warning issued in July 2001 was to no avail, it fined the mother 10,000 Hungarian forints (HUF) (approximately 37 euros (EUR)) on 13 August 2001 and a further HUF 30,000 (EUR 110) on 18 October 2001. 12. Furthermore, in December 2001 the Budapest XV District Guardianship Authority discontinued the proceedings, initiated ex officio by the Budapest XIII District Guardianship Authority, to place the child under protection (“védelembe vétel”), finding no reason for it. The child welfare service contacted the parents in an attempt to find a solution to the situation. It prepared an environment study at the mother’s home, establishing that it was ideal for the upbringing of the child, who was in a loving relationship with his mother. However, it emphasised the importance of and need for a balanced contact between the child and his father. 13. As the applicant had had no contact with his child since May 2000, he lodged complaints with various authorities, but to no avail. 14. The Guardianship Authority then contacted a child upbringing counsellor (“nevelési tanácsadó”) who recommended the assistance of a foundation specialised in facilitating visits. It therefore ordered that the regular visits scheduled for the period between 16 February and 11 May 2002 be held at the foundation’s premises. It appears that there was therefore some contact between the applicant and his son in this period. The applicant’s relationship with his son was examined and found to be harmonious. Subsequently, the Guardianship Authority invited both parents to a reconciliatory meeting on 10 June 2002. This, however, proved to be unsuccessful. The father’s environment was also examined, and it was established that the conditions were appropriate to hold the visits there. The authority recommended a gradual extension of the duration of the contact between the father and the child. 15. The Guardianship Authority drew up a new access schedule on 16 August 2002 and warned the parents once again to respect these arrangements. However, the mother continued to deny access to the child. 16. Following the applicant’s repeated complaints to various authorities about the failure to take adequate action to enforce his rights, on 30 March 2004 the Budapest XI District Guardianship Authority again warned the mother and took nine separate decisions concerning the visits not ensured in 2003, imposing a series of fines on her in the total amount of HUF 260,000 (EUR 975). On 23 June 2004 it initiated the child’s placement under protection. Subsequently, on 15 September 2004 the Guardianship Authority imposed a further fine of HUF 100,000 (EUR 375) for the overdue visits from 1999 until 2003. 17. The Guardianship Authority also ordered police assistance twice in 2004. Afterwards, the applicant managed to see his son until the following year. 18. Meanwhile, the applicant initiated an action before the Budapest IV/XIV District Court in February 2002, seeking a change of custody and requesting the temporary placement of the child with him as an interim measure. Since no measures were taken thereafter, he submitted a petition to the ombudsman, asking for his assistance. 19. Eventually, the Budapest Regional Court, acting as a second-instance court, rejected the maintenance of contact with the child via the foundation mentioned in paragraph 14 above, and dismissed the applicant’s action on 23 March 2005. 20. In April 2005 the Ministry of Youth, Family and Social Matters quashed the decisions of the Budapest XI District Guardianship Authority described in paragraph 16 above, thereby withdrawing the fines imposed and the order to initiate the child’s placement under protection, without the possibility to appeal against the decision. The Ministry established that the decisions of the guardianship authority had been unlawful and it discontinued the administrative proceedings concerning the exercise of the applicant’s access rights prior to 1 March 2004. It nevertheless ordered the Guardianship Authority to take effective measures to ensure the applicant’s rights by using the range of measures at its disposal and not only through the imposition of fines. The Ministry pointed out, inter alia, that: “... [t]he fact that the administration of minor A.N.’s case concerning access got to a guardianship authority that instantly sanctions the mother for the overdue visits is good, but other measures would be required as well, as it seems that the fines do not lead to any result, the goal being to enable Zoltán Németh to exercise his visiting rights regarding his son. That is why the guardianship authority should initiate the placement of the child under protection and consider intervening in the custody proceedings on the side of the father. This should have been done already by the previous guardianship authority. The placement of the child under protection was initiated once by the Budapest XIII District Guardianship Authority, but the proceedings were discontinued by the Budapest XV District Guardianship Authority on the ground that the child’s care may be provided through basic service. The guardianship authority did not request the review of the decision despite the fact that the failure of care in basic service had been fully manifest. ... Overall, it can be established that the first-instance guardianship authorities were not controlling the situation, revoking the fines imposed on formal grounds. ... The Budapest Guardianship Authority was a “spectator” to the situation, hindered the enforcement proceedings several times; on the basis of the appeal even it could have clarified whether the visits took place, or could have requested the first-instance guardianship authority to hear the parties, once they made the mistake of transferring the case file to the court without having made copies of at least the proceedings pending preceding the transfer. ... The second-instance guardianship authority also omitted [to fulfil its obligations] in that when the father had not received his son for months and the competent guardianship authority did not assist the enforcement, it did not take over the case. It is not an acceptable solution to settle cases that, instead of solving the professional problems, the second-instance guardianship authority repeatedly assigns new acting organ. This practice is unlawful ... It is indisputable that the first instance guardianship authority and the second instance guardianship authority made omissions between 1999 and 2004 by not effectively promoting the enforcement of the contacts ...” 21. The applicant initiated the review of the Ministry’s decision before the Chief Prosecutor’s Office. On 25 August 2005 this Office established that the decision in question had been unlawful and informed the Ministry about its findings. 22. However, the applicant was not able to exercise his access rights after the Ministry’s decision had been adopted. He initiated several enforcement proceedings, following which a few penalties in the sum of the statutory maximum were imposed on the mother. 23. It appears that the applicant has been unable to have any contact with his son since then. 24. Meanwhile, as it had become impossible for the applicant to meet his child, he lodged a criminal complaint against the mother for endangering a minor, on 10 January 2004. The Pest Central District Court found the mother guilty and imposed a criminal fine on her on 5 September 2007. In its reasoning, the court emphasised that: “[a] child’s moral development can be endangered not only by so-called immoral conduct ... but also by depriving the child of the opportunity of healthy moral development. Thus, by the conduct of the mother, who, having knowledge of the fact – of which the child also had knowledge – that the father was to exercise his access rights at a given date, knowingly violated this right by organising for that date an attractive programme for the child in the countryside, at a location far from the father ... The mother involved the child in her conflict with the father, informed him of the court actions brought against or by him and made disparaging remarks about the father, thereby exerting emotionally negative influence on the child living under a common roof with her and thus being to an increased degree dependent on her.” However, it also noted that the applicant: “... [h]imself did not dispute that on certain occasions contact with the child became frustrated because of his own omission.” 25. No further information was provided by the parties as to the development of the criminal case before the appellate court. 26. The relevant rules concerning the enforcement of contact orders can be found in Government Decree no. 149/1997 (IX. 10.) on Guardianship Authorities, Child Protection Procedure and Guardianship Procedure, which provides as follows: “(1) The development of the child is endangered if the parent ... wilfully and repeatedly fails to comply with a final contact order. (2) If non-compliance with the contact order on the part of the parent ... is a fault of his/her own, the guardianship authority shall warn him/her about the consequences of such conduct. The decision shall contain an injunction ordering the parent ... to terminate the unlawful conduct and a warning about the legal consequences of continuing the unlawful conduct. (3) If the measures provided for under subsection (2) are of no effect and one year has not elapsed from the receipt of the warning, the guardianship authority shall apply the rules governing enforcement of the Act on Public Administration Procedure with the exceptions set forth in this Decree. ... (5) If the maintenance of contact entails conflicts, is continuously frustrated by obstacles, or there are disturbances in the communication between the parents [in force since 15 February 2003], the guardianship authority may initiate the involvement of the child welfare service’s contact centre, the ordering of taking the child into protection, or the institution of the child protection mediation procedure. (6) If it is proved that the parent ... brings up the child by continuously turning him/her against the person entitled to contact, and despite enforcement measures fails to comply with the contact order, an action to change custody may be brought before the court.” 27. Moreover, section 72 of Act no. 31 of 1997 on the Protection of Children and Child Welfare Administration provides for the possibility temporarily to place the child with the other parent living apart, if the child’s emotional development is seriously threatened by his or her family environment and his or her immediate placement is necessary. Such serious threat may be established in case of risk of substantial and irreversible damage to the emotional development of the child. 28. Other measures at the authorities’ disposal are listed in the Act on Public Administration Procedure, providing for police assistance for the enforcement of administrative decisions and the imposition of procedural fines.