CASE OF TONELLO v. HUNGARY
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
6. The applicant was born in 1971 and lives in Vigonza (Padua). 7. The applicant met his former partner, K.S., a Hungarian national, in 2008. They began living together in Abano Terme (Italy) and had a daughter, who was born on 15 September 2011. 8. According to the applicant, after the baby was born K.S. began engaging in obsessive behaviour and their relationship deteriorated. 9. In November 2011 K.S. spent a week in Hungary with their daughter. In December of the same year she again travelled to Hungary with the baby. It was agreed that the applicant would fetch them on 30 December and drive them back to Italy. While on his way to Hungary, the applicant was informed by K.S. that she did not intend to return to Italy. 10. The applicant first returned to Italy (without having reached Hungary); he then set off again for Hungary, where (after arriving) K.S. initially denied him access to his daughter. After several days, K.S. allowed the applicant to see the baby and informed him that he could see her again, provided that he agreed to let his daughter stay in Hungary with K.S. and pay 500 euros (EUR) per month in child support. The applicant rejected this proposal and on 9 January 2012 returned to Italy. 11. On 21 February 2012 the applicant lodged an application with the Venice Minors Court requesting that the court strip K.S. of parental authority over their daughter, order the return of the child to Italy and grant him exclusive custody. 12. On an unspecified date the applicant lodged a request with the Pest Central District Court for the child’s return, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, “the Hague Convention”). 13. On 13 September 2012 the Pest Central District Court found that K.S. was keeping the child in Hungary illegally and ordered that she return the child to the applicant’s residence in Italy by 21 September 2012. Alternatively, the child should be handed to the applicant or his proxy in Budapest no later than 24 September 2012. 14. Following an appeal by K.S., on 8 November 2012 the Budapest High Court upheld the decision of the Pest Central District Court and ordered that the child be returned to Italy by 30 November 2012 or to the applicant or his proxy in Budapest by 4 December 2012. 15. Following a further appeal by K.S., that decision was upheld by the Supreme Court on 22 January 2013; nevertheless, the child was not returned to the applicant. 16. An enforcement order based on the second-instance decision of 8 November 2012 was issued on 21 January 2013 against K.S. The bailiff of the Mezőtúr District Court instructed the mother to comply with the final decision and return the child to the applicant within fifteen days and ordered her to pay a fine of 152,400 Hungarian forints (HUF – approximately EUR 490). 17. Criminal proceedings against K.S. were initiated in 2013 by the Padua public prosecutor and a European arrest warrant was issued against her. 18. On 14 January 2013 the Venice Minors Court found that it had jurisdiction to examine the applicant’s case pursuant to articles 8, 10, 11 and 42 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 (see paragraph 49 below), allowed the applicant’s application (see paragraph 11 above), stripped K.S. of her parental authority and, like its Hungarian counterpart, ordered the immediate return of the child to Italy. 19. On 18 January 2013 the preliminary-investigations judge (giudice per le indagini preliminari) issued an arrest warrant against K.S. for the offence of international child abduction. 20. On 23 January 2013 a European arrest warrant was issued against K.S. by the Padua Court. 21. On 15 February 2013 the court bailiff sent a copy of the return order to the guardianship office of Mezőtúr District in order to enable the said authority to serve it on K.S. and to inform her of the consequences of failing to comply with the order. 22. On 28 February 2013 two members of the Mezőtúr guardianship office’s staff attempted to serve the order on K.S.; they were unsuccessful as they were unable to enter her home. As K.S.’s post box was in a locked part of the building, they were not able to leave behind any notification either. They went to the registered address of K.S.’s mother but they could not find anybody there either. They left behind a notification in the post box there informing K.S. of their attempt to enter her home and of the date of the next visit by guardianship office staff. 23. On 4 March 2013 guardianship office staff again visited the registered permanent address of K.S. and the registered residential address of her mother but again failed to serve the enforcement order on her. 24. In March 2013 the Department of International Private Law of the Hungarian Ministry of Justice conducted mediation proceedings through the legal representatives of K.S. and the applicant in order to try to reach an amicable agreement. 25. On 6 March 2013 the Padua public prosecutor lodged by means of a letter rogatory an application with the Budapest Prosecutor’s Office for judicial assistance. The application was dismissed on 29 October 2013 on the grounds that the judgment of the Venice Minors Court (see paragraph 18 above) was not yet enforceable (see paragraph 31 below) and the requirement of dual criminality was not satisfied. 26. On 20 March 2013 the Mezőtúr District Court allowed an application lodged by K.S. for the return order issued by the Budapest High Court (see paragraph 14 above) to be suspended, but this decision was subsequently quashed by the Szolnok High Court on 19 June 2013. On 16 October 2013 the Mezőtúr District Court refused another similar application lodged by K.S. Following an appeal by K.S., the latter decision was upheld by Szolnok High Court on 4 December 2013. 27. On 5 September 2013 the deputy court bailiff, accompanied by police officers and guardianship office staff, visited K.S.’s registered address and the residential address of her mother, but no one answered the door. 28. On 20 September 2013 the bailiff attempted to serve the enforcement order at the same addresses, but with no success, as K.S. and her daughter had absconded. The guardianship office informed the court bailiff that they had no useful information concerning the whereabouts of K.S. and her daughter. 29. On an unspecified date, K.S. lodged an application for the enforcement proceedings to be terminated; that application was refused by the Pest Central District Court on 4 October 2013. That judgment was upheld by the Budapest High Court on 10 December 2013. 30. On 21 January 2014 an international search warrant was issued by the Mezőtúr police. 31. On 17 March 2014 the Szolnok District Court declared the judgment of the Venice Minors Court (see paragraph 18 above) enforceable. On 30 June 2014, following an appeal by K.S, that decision was quashed by the Szolnok High Court. 32. The Mezőtúr district prosecutor’s office ordered an investigation in respect of K.S. concerning the unauthorised custody of a minor and the endangering of a minor on 17 February and 18 March 2014 respectively. 33. On 5 May 2014 K.S. was summoned as a suspect, but she failed to appear. 34. On 19 May 2014 an arrest warrant was issued against K.S. 35. On 5 November 2014 the bailiff unsuccessfully tried to serve the enforcement order on K.S. at her registered residential address. Residents of the area were not able to provide any useful information to the bailiff. 36. Following an appeal by the applicant against the Szolnok judgment of 30 June 2014 (see paragraph 31 above), on 25 November 2014 the Kúria declared the judgment of the Venice Minors Court (see paragraph 18 above) enforceable. 37. On 23 December 2014 the Padua public prosecutor lodged by means of a letter rogatory a further application for judicial assistance and requested that the Padua police be authorised to assist the local judicial police with the execution of the arrest warrant. On 18 March 2015 the Budapest Prosecutor’s Office dismissed this application on the grounds that the conduct described in the criminal complaint could be classified as kidnapping under the Italian Criminal Code, but not under Article 190 of the Hungarian Criminal Code. 38. On 10 and 12 March 2015 staff of the Mezőtúr guardianship office visited K.S.’s registered address and her mother’s home, but their attempts to serve the enforcement order failed. 39. The Government pointed out that several searches and other procedural actions had failed to generate any results. In order to identify K.S.’s place of residence, they had checked the database of the National Health Insurance Fund and requested data from all those of the country’s financial institutions that provided payment services. Moreover they had requested data from the mobile phone companies, the Hungarian State Treasury, the Hungarian tax and customs authorities, and regional and local tax and customs agencies; they had also run checks in the databases of companies providing card services to regular customers in the territory of Hungary. 40. On 13 October 2016 the Mezőtúr District Court, during the criminal prosecution against K.S. for child abduction, heard M.A., the child’s paediatrician. M.A. said that she had visited the child several times over the years. In particular, on 1 September 2016 she had issued a medical certificate which had been required for the child’s enrolment in a kindergarten. 41. By a letter dated 13 December 2016 the Italian Central Authority informed the applicant that the Hungarian authorities were still not able to execute the return order because they had still not identified K.S.’s place of residence. 42. At the hearing of 15 December 2016 the Mezőtúr District Court heard four of K.S.’s relatives, who all stated that K.S. was living in hiding. 43. On 20 April 2017 K.S. was acquitted by the Mezőtúr District Court. The text of this judgment was not produced before the Court. 44. The Mezőtúr Attorney-General lodged an appeal against this judgment with the Szolnok High Court. 45. On 10 May 2017 the Padua public prosecutor lodged by means of a letter rogatory a further application for judicial assistance. This application was dismissed. 46. According to the latest information received by the Court, in February 2018 the criminal proceedings against K.S. were still pending Szolnok High Court and the return order of the applicant’s daughter had not yet been enforced.