CASE OF CAVANI v. HUNGARY
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
6. The first applicant was born in 1971 and lives in Formigine (Italy). The second and third applicants were born in 2003 and 2004 respectively and apparently live with their mother in Budakeszi (Hungary) or somewhere nearby. 7. 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. 8. In August 2004 the first applicant travelled to Hungary. The family was supposed to return to Italy but the first applicant’s wife refused to leave and the first applicant returned to Italy alone. 9. In December 2004 the first applicant joined his family in Hungary for the Christmas holidays and his wife again refused to return to Italy with him and kept the children with her. 10. In February 2005 the first applicant wrote to his wife requesting that she return to Italy with their daughters. 11. On 3 March 2005 the first applicant asked the Italian Ministry of Justice to initiate proceedings for the return of the children to Italy. On 23 March 2005 he also instigated proceedings before the Court of Modena (Italy) for separation from his wife and the return of his daughters to Italy. 12. On 25 April 2005 his wife started parallel divorce proceedings before the Buda Surroundings District Court. 13. On 2 May 2012, the applicants lodged a complaint before the European Commission alleging a violation of Article 11 of the Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“the EU Regulation on Recognition of Judgments”), which is still pending. 14. In 2011 the marriage between the first applicant and his ex-wife was annulled (see paragraph 26 below). As at the date of introduction of the present application, the first applicant had been unable to see his daughters since 2005. 15. 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 cared for by their mother and therefore refused to order their return to Italy. 16. On 9 November 2005 the Budapest Regional Court quashed the decision of the Pest Central District Court and ordered that the children be returned to Italy by 10 December 2005 at the latest, but this failed to happen. 17. An enforcement order was issued against the first applicant’s ex-wife by the Buda Surroundings District Court on 26 April 2006 and upheld by the Pest County Regional Court on 5 September 2006. The decision was not enforced. 18. 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. 19. On 21 July 2010, following the issue of a European arrest warrant by the Italian authorities, the first applicant’s ex-wife was arrested by the Hungarian police but was released shortly thereafter with no progress having been made regarding a possible return of the second and third applicants to Italy. 20. 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. 21. On 8 November 2012 the headmaster of Széchenyi István Primary School, located in Budakeszi, initiated proceedings before the Budakeszi district guardianship authority to bring the second and third applicants under its protection. 22. On an unspecified date, the first applicant and his ex-wife reached an agreement pursuant to which the second and third applicants would remain with their mother in Hungary but would be able to visit the first applicant in Italy several times per year. In the light of that agreement, on 19 February 2013 the first applicant requested the suspension of the enforcement proceedings against his ex-wife, and the Buda Surroundings District Court duly suspended the proceedings until 19 August 2013. 23. On 16 August 2013, the first applicant withdrew his enforcement request. 24. Following a proposal drafted by the competent Social and Child Welfare Service (HÍD Szociális és Gyermekjóléti Szolgálat) ‒ which was of the view that the children were no longer in danger ‒ the Buda Surroundings District Court discontinued the enforcement proceedings. 25. 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. 26. On an unknown date the Criminal Court of Modena sentenced the ex-wife to 18 months’ imprisonment, suspended. 27. The marriage between the first applicant and his ex-wife was annulled by the ecclesiastical tribunal of the Umbria region, whose decision was granted exequatur by the Court of Appeal of Bologna on 18 July 2011. 28. On 4 October 2011, following an appeal by the prosecutor, the Court of Appeal of Bologna sentenced the applicant’s ex-wife to 18 months’ imprisonment, suspended. 29. 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. 30. 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.