FOURTH SECTION
\nCASE OF TONELLO v. HUNGARY
\n(Application no. 46524\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n24 April 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Tonello v. Hungary,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 10 April 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 46524\/14) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by an Italian national, Mr Andrea Tonello (\u201cthe applicant\u201d), on 10 June 2014.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr L. Serino and Mr G. Romano, lawyers practising in Rome. The Hungarian Government (\u201cthe Government\u201d) were represented by Mr Z. Tall\u00f3di, Agent, Ministry of Public Administration and Justice.<\/p>\n 3.\u00a0\u00a0The applicant alleged that the Hungarian authorities had failed to act swiftly in the proceedings concerning the abduction of his daughter and had not made adequate and effective efforts to enforce his right for his child to be returned after she had been illegally removed from Italy.<\/p>\n 4.\u00a0\u00a0On 13 January 2015 the complaint concerning the failure of the Hungarian authorities to ensure the applicant\u2019s daughter\u2019s return to Italy was communicated to the Government, and the remainder of the application was declared inadmissible,pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n 5.\u00a0\u00a0The Italian Government did not exercise their right under Article\u00a036\u00a0\u00a7\u00a01 of the Convention and Rule 44 \u00a7 1 of the Rules of Court to intervene in the proceedings.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1971 and lives in Vigonza (Padua).<\/p>\n 7.\u00a0\u00a0The applicant met his former partner, K.S., a Hungarian national, in 2008. They began living together in AbanoTerme (Italy) and had a daughter, who was born on 15 September 2011.<\/p>\n 8.\u00a0\u00a0According to the applicant, after the baby was born K.S. began engaging in obsessive behaviour and their relationship deteriorated.<\/p>\n 9.\u00a0\u00a0In 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.<\/p>\n 10.\u00a0\u00a0The 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.<\/p>\n 11.\u00a0\u00a0On 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.<\/p>\n 12.\u00a0\u00a0On an unspecified date the applicant lodged a request with the Pest Central District Court for the child\u2019s return, pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter, \u201cthe Hague Convention\u201d).<\/p>\n 13.\u00a0\u00a0On 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\u2019s 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.<\/p>\n 14.\u00a0\u00a0Following 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.<\/p>\n 15.\u00a0\u00a0Following 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.<\/p>\n 16.\u00a0\u00a0An enforcement order based on the second-instance decision of 8\u00a0November 2012 was issued on 21 January 2013 against K.S. The bailiff of the Mez\u0151t\u00far 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 \u2013 approximately EUR\u00a0490).<\/p>\n 17.\u00a0\u00a0Criminal proceedings against K.S. were initiated in 2013 by the Padua public prosecutor and a European arrest warrant was issued against her.<\/p>\n 18.\u00a0\u00a0On 14 January 2013 the Venice Minors Court found that it had jurisdiction to examine the applicant\u2019s 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\u2019s 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.<\/p>\n 19.\u00a0\u00a0On 18\u00a0January 2013 the preliminary-investigations judge (giudice per le indaginipreliminari)issued an arrest warrant against K.S. for the offence of international child abduction.<\/p>\n 20.\u00a0\u00a0On 23 January 2013 a European arrest warrant was issued against K.S. by the Padua Court.<\/p>\n 21.\u00a0\u00a0On 15 February 2013 the court bailiff sent a copy of the return order to the guardianship office of Mez\u0151t\u00far 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.<\/p>\n 22.\u00a0\u00a0On 28 February 2013 two members of the Mez\u0151t\u00farguardianship office\u2019s staff attempted to serve the order on K.S.; they were unsuccessful as they were unable to enter her home. As K.S.\u2019s 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.\u2019s 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.<\/p>\n 23.\u00a0\u00a0On 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.<\/p>\n 24.\u00a0\u00a0In 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.<\/p>\n 25.\u00a0\u00a0On 6 March 2013 the Padua public prosecutor lodged by means of a letter rogatory an application with the Budapest Prosecutor\u2019s 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.<\/p>\n 26.\u00a0\u00a0On 20 March 2013 the Mez\u0151t\u00far 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\u00a0October 2013 the Mez\u0151t\u00far 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\u00a0December 2013.<\/p>\n 27.\u00a0\u00a0On 5 September 2013 the deputy court bailiff, accompanied by police officers and guardianship office staff, visited K.S.\u2019s registered address and the residential address of her mother, but no one answeredthe door.<\/p>\n 28.\u00a0\u00a0On 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.<\/p>\n 29.\u00a0\u00a0On 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.<\/p>\n 30.\u00a0\u00a0On 21 January 2014 an international search warrant was issued by the Mez\u0151t\u00far police.<\/p>\n 31.\u00a0\u00a0On 17 March 2014 the Szolnok District Court declared the judgment of the Venice Minors Court (see paragraph 18 above) enforceable. On 30\u00a0June 2014, following an appeal by K.S, that decision was quashed by the Szolnok High Court.<\/p>\n 32.\u00a0\u00a0The Mez\u0151t\u00far district prosecutor\u2019s 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 March2014 respectively.<\/p>\n 33.\u00a0\u00a0On 5 May 2014 K.S. was summoned as a suspect, but she failed to appear.<\/p>\n 34.\u00a0\u00a0On 19 May 2014 an arrest warrant was issued against K.S.<\/p>\n 35.\u00a0\u00a0On 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.<\/p>\n 36.\u00a0\u00a0Following an appeal by the applicant against the Szolnok judgment of 30 June 2014 (see paragraph 31 above), on 25 November 2014 the K\u00faria declared the judgment of the Venice Minors Court (see paragraph 18 above) enforceable.<\/p>\n 37.\u00a0\u00a0On 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\u2019s 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.<\/p>\n 38.\u00a0\u00a0On 10 and 12 March 2015 staff of the Mez\u0151t\u00far guardianship office visited K.S.\u2019s registered address and her mother\u2019s home, but their attempts to serve the enforcement order failed.<\/p>\n 39.\u00a0\u00a0The Government pointed out that several searches and other procedural actions had failed to generate any results. In order to identify K.S.\u2019s place of residence, they had checked the database of the National Health Insurance Fund and requested data from all those of the country\u2019s 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.<\/p>\n 40.\u00a0\u00a0On 13 October 2016 the Mez\u0151t\u00far District Court, during the criminal prosecution against K.S. for child abduction, heard M.A., the child\u2019s 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\u2019s enrolment in a kindergarten.<\/p>\n 41.\u00a0\u00a0By 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.\u2019s place of residence.<\/p>\n 42.\u00a0\u00a0At the hearing of 15 December 2016 the Mez\u0151t\u00far District Court heard four of K.S.\u2019s relatives, who all stated that K.S. was living in hiding.<\/p>\n 43.\u00a0\u00a0On 20 April 2017 K.S. was acquitted by the Mez\u0151t\u00far District Court. The text of this judgment was not produced before the Court.<\/p>\n 44.\u00a0\u00a0The Mez\u0151t\u00far Attorney-General lodged an appeal against this judgment with the Szolnok High Court.<\/p>\n 45.\u00a0\u00a0On 10 May 2017 the Padua public prosecutor lodged by means of a letter rogatory a further application for judicial assistance. This application was dismissed.<\/p>\n 46.\u00a0\u00a0According 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\u2019s daughter had not yet been enforced.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW, INTERNATIONAL LAW AND EUROPEAN UNION LAW<\/p>\n A.\u00a0\u00a0Domestic law<\/strong><\/p>\n 47.\u00a0\u00a0According to section 172(1) of Act No. LIII of 1994 on Judicial Enforcement, the obligor is first called to voluntarily fulfil his or her obligation within a given deadline. In case of non-compliance, the bailiff immediately submits the case file to the competent court in order to determine the method of enforcement.<\/p>\n The possible methods of enforcement are governed by section 174 of the Act and include the possibility to impose a fine of up to HUF 500,000 (approximately EUR 1.600), which may be renewed. Moreover, the court may order the enforcement with police assistance. In such cases, the bailiff sets a date for the on-site proceedings and informs the competent guardianship authority, the obligor, the applicant and the police. If the child to be returned cannot be found at his or her place of residence, the bailiff orders a search warrant.<\/p>\n B.\u00a0\u00a0International law<\/strong><\/p>\n 48.\u00a0\u00a0The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abductionread as follows (see Cavani v. Hungary, no.\u00a05493\/13, \u00a7 33, 28 October 2014, andA. v. Austria, no. 4097\/13, \u00a7 67, 15\u00a0January 2015):<\/p>\n Article 12<\/p>\n \u201cWhere 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. …\u201d<\/p>\n Article 13<\/p>\n \u201cNotwithstanding 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 –<\/p>\n …<\/p>\n b)\u00a0\u00a0there 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.\u201d<\/p>\n Article 16<\/p>\n \u201cAfter 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.\u201d<\/p>\n C.\u00a0\u00a0European Union Law<\/strong><\/p>\n 49.\u00a0\u00a0The 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 matters of parental responsibility, repealing Regulation (EC) No. 1347\/2000 (\u201cthe Brussels IIa Regulation\u201d), read as follows (for more details see Cavani, cited above \u00a7 32, andA. v. Austria, cited above, \u00a7 68):<\/p>\n Article 11 – Return of the child<\/p>\n \u201c1.\u00a0\u00a0Where 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. …<\/p>\n 3.\u00a0\u00a0A 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.<\/p>\n 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. …<\/p>\n 8.\u00a0\u00a0Notwithstanding 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.\u201d<\/p>\n Article 42 – Return of the child<\/p>\n \u201c1.\u00a0\u00a0The 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.<\/p>\n 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.\u201d<\/p>\n Article 47 – Enforcement procedure<\/p>\n \u201c1.\u00a0\u00a0The enforcement procedure is governed by the law of the Member State of enforcement.<\/p>\n 2.\u00a0\u00a0Any 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.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 50.\u00a0\u00a0The applicant complained that the Hungarian authorities had failed to take timely and adequate measures to ensure that he was reunited with his daughter following her abduction. In particular, he argued that they had not made sufficient attempts to locate K.S. and the child. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life …<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 51.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 52.\u00a0\u00a0The applicant submitted that the order had not been enforced and the Hungarian authorities had failed to locate the official place of residence of K.S. and the applicant\u2019s daughter, who were believed to be living in Mez\u0151t\u00far.<\/p>\n 53.\u00a0\u00a0The applicant considered that the Hungarian authorities had not fully cooperated with the Italian authorities in order that the arrest warrants could be executed and an end be put to the unlawful abduction of the child.<\/p>\n 54.\u00a0\u00a0According to the applicant, despite the role and the actions of the bailiff (who had very limited skills), the Hungarian authorities had failed to locate the child and had therefore failed to seize the opportunity to ensure her return to Italy. He stated that the authorities had not filed any criminal charges against K.S. \u2013 despite evidence that she had committed the crime of illegally changing the place of residence of a child \u2013 after the second-instance judgment ruling that the child had been illegally transferred.<\/p>\n 55.\u00a0\u00a0According to the applicant, the Mez\u0151t\u00far police had been completely incapable of conducting an investigation. They had refused to publish in the newspapers the fact that an arrest warrant had been issued against K.S. The actions of the police had been insufficient for this type of investigation. In this connection, the applicant raised doubts as to the efficacy of the warrant, as the police had had no power to arrest K.S. in the absence of criminal proceedings pending against her.<\/p>\n 56.\u00a0\u00a0Lastly, the applicant considered in general that the absence of contact between a child of a young age and one of its parents for such a long period of time might cause serious and irreparable harm to the child\u2019s relationship with that parent. In the present case, the applicant alleged that the absence of any contact between him and his child, owing to the passivity of the Hungarian authorities, had compromised the chances of the child accepting a reunion with her father.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 57.\u00a0\u00a0The Government emphasised the importance of protecting children\u2019s rights, pointing out that removal of the child from her usual environment could have a negative effect on her physical and psychological health. The authorities had therefore to decide carefully on which method of enforcement was in the best interests of the child.<\/p>\n 58.\u00a0\u00a0Referring to the judgments of Maire v. Portugal (no.48206\/99, ECHR 2003\u2011VII), andIgnaccolo-Zenide v. Romania (no.31679\/96, ECHR 2000\u2011I), the Government stressed that the national authorities\u2019 obligation to take measures to facilitate reunion was not absolute. Moreover, they emphasised that coercion in this area had to be limited.<\/p>\n 59.\u00a0\u00a0The Government then gave a detailed overview of the steps taken by the Hungarian authorities during the proceedings, which had even included their initiating mediation proceedings, with the involvement of the legal representatives of both parties (see paragraph 24 above). In the light of the above-mentioned steps, the Government was of the opinion that the Hungarian authorities had done everything possible to ensure the child\u2019s return to her father. They had ordered the child\u2019s return, invited the mother to voluntarily comply with the order, and imposed a fine on her. Following the disappearance of K.S. and her daughter, the authorities had issued arrest warrants, and the guardianship office and the bailiff had regularly tried to serve them on K.S. at her registered address.<\/p>\n 60.\u00a0\u00a0The Government maintained that the Hungarian legal system afforded prompt and efficient means of ensuring the enforcement of such decisions. However, objective circumstances, such as the absconding of the mother and child in question to an unknown location, might arise which temporarily prevented the authorities from taking further measures. Such events could not be imputed to the authorities. Therefore, the Government were of the opinion that the applicant\u2019s rights under Article 8 had not been violated.<\/p>\n 61.\u00a0\u00a0In general terms, the Government concluded that the unsuccessful outcome of the proceedings could not be imputed to the domestic authorities; rather, it was essentially due to external factors.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 62.\u00a0\u00a0The main point to be assessed in the present case is whether the Hungarian authorities acted expeditiously and took all the measures that they could reasonably have been expected to take in order to ensure the child\u2019s return to her father once they had issued a final return order under the Hague Convention.<\/p>\n (a)\u00a0\u00a0Principles established by the Court\u2019s case-law<\/p>\n 63.\u00a0\u00a0The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective \u201crespect\u201d for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Raw and Others v. France, no. 10131\/11, \u00a7\u00a078, 7\u00a0March 2013; Maire, cited above, \u00a7 69, ECHR 2003\u2011VII; Sylvester v.\u00a0Austria,nos. 36812\/97 and 40104\/98, \u00a7 55, 24\u00a0April 2003; Ignaccolo-Zenide, cited above, \u00a7 94; and M.A. v. Austria, no. 4097\/13, \u00a7\u00a0104, 15\u00a0January 2015).<\/p>\n 64.\u00a0\u00a0In relation to the State\u2019s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent\u2019s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such a reunion (see, among other authorities, Ignaccolo-Zenide, cited above, \u00a7 94, andIglesias Gil and A.U.I. v.\u00a0Spain, no. 56673\/00, \u00a7 49, ECHR 2003\u2011V).<\/p>\n 65.\u00a0\u00a0In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate execution as can reasonably be demanded in the special circumstances of each case (see Sylvester, cited above, \u00a7 59, and Ignaccolo-Zenide, cited above, \u00a7 96).<\/p>\n 66.\u00a0\u00a0The Court reiterates that in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child in question and the parent who does not live with him or her (see Ignaccolo-Zenide, cited above, \u00a7 102). The Hague Convention recognises this fact because it provides for a range of measures to ensure the prompt return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children, and any failure to act for more than six weeks may give rise to a request for explanations (see Neulinger and Shuruk v. Switzerland [GC], no.\u00a041615\/07, \u00a7\u00a0140, ECHR 2010). In proceedings under the EU Regulation on Recognition of Judgments (see paragraph 49above) this is likewise so, as Article 11 \u00a7 3 requires the judicial authorities concerned to act expeditiously, using the most prompt procedures available in domestic law, and to issue a judgment no later than six weeks after the application is lodged (see Shaw v. Hungary, no.\u00a06457\/09, \u00a7 66, 26 July 2011).<\/p>\n 67.\u00a0\u00a0Although coercive measures in the context of child care and relations with children are not desirable, the Court reiterates that the use of sanctions must not be ruled out in the event of manifestly unlawful conduct by the parent who owes enforcement (seeAneva and Others v. Bulgaria, nos.\u00a066997\/13 and 2 others, \u00a7 110, 6 April 2017; Shaw, cited above, \u00a7\u00a067; andIgnaccolo\u2011Zenide, cited above, \u00a7\u00a0106). Even if the domestic legal order does not allow for effective sanctions, the Court considers that each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it by Article 8 of the Convention and the other international agreements that it has chosen to ratify (see Ignaccolo-Zenide,cited above, \u00a7 108).<\/p>\n 68.\u00a0\u00a0Lastly, the Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044\/96, 35532\/97 and 44801\/98, \u00a7\u00a090, ECHR 2001\u2011II; Al-Adsani v. the United Kingdom [GC], no.35763\/97, \u00a7\u00a055, ECHR 2001\u2011XI; and X v. Latvia [GC], no. 27853\/09, \u00a7\u00a7 93 and 94, ECHR 2013). Consequently, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted, in the present case, in the light of the Hague Convention and the EU Regulation on Recognition of Judgments (see Ignaccolo-Zenide, cited above, \u00a7 95, and Cavani v. Hungary, no. 5493\/13, \u00a7 53, 28 October 2014).<\/p>\n (b)\u00a0\u00a0Application of these principles to the present case<\/p>\n 69.\u00a0\u00a0The Court notes, firstly, that it is not contested by the Government that the relationship between the applicant and his child falls within the sphere of family life under Article 8 of the Convention.<\/p>\n 70.\u00a0\u00a0The main issue in the present case is the transfer abroad and illicit non-return of the applicant\u2019s child. It is undisputed that the mother\u2019s non-return of the child to Italy was wrongful according to the EU Regulation on Recognition of Judgments and the Hague Convention, and as also stated by the Pest Central District Court in its judgment of 13 September 2012 (see paragraph 13 above), and by the K\u00faria on 25 November 2014 (see paragraph 36 above), and that Hungary was under an obligation to return the child to Italy, in accordance with the provisions of the EU Regulation on Recognition of Judgments and the Hague Convention. The Court must accordingly examine whether, seen in the light of their international obligations arising in particular under the EU Regulation on Recognition of Judgments and the Hague Convention, the domestic authorities made adequate and effective efforts to secure compliance with the applicant\u2019s right to reunification with his daughter (see the case-law quoted in paragraph 68 above).<\/p>\n 71.\u00a0\u00a0In respect of proceedings relating to the return of a child, Article\u00a011\u00a0\u00a7\u00a03 of the EU Regulation on Recognition of Judgments sets a clear obligation on the domestic courts to issue a judgment within six weeks of the application for the return of the child being lodged, unless exceptional circumstances arise(see paragraphs 49and 66 above). In the present case, the applicant did not complain about the speed with which the Hungarian courts ordered the return of the child to Italy and the reunification of the applicant and his daughter, but only about the non-enforcement of such an order, in particular of the order by the Pest Central District Court of 13\u00a0September 2012 (see paragraph 13 above), which settled the issue.<\/p>\n 72.\u00a0\u00a0In this respect, the Court notes that an enforcement order was issued against the applicant\u2019s ex-partner. This order was supposed to be enforced with the assistance of the police; however, at the date of the latest information available to the Court (see paragraph46above), which is almost five and a half years after the issuing of the order on 13 September 2012, the decision had not yet been enforced.<\/p>\n 73.\u00a0\u00a0The Court further notes that it was only on 21 January 2013 that the applicant\u2019s ex-partner was sentenced to a fine of HUF 152,400 (see paragraph 16above).<\/p>\n 74.\u00a0\u00a0In the present case, the Government explained that the Pest Central District Court\u2019s judgment of 13\u00a0September 2012 had not been enforced because of K.S. disappearance and the ensuing impossibility of tracing her whereabouts (see paragraphs 59-61 above). The Court notes that since 2012 K.S. has been in hiding with the child. It appears, therefore, that in order to make it possible for the applicant to maintain family ties with his child, the domestic authorities were required in the first place to establish the whereabouts of K.S.<\/p>\n 75.\u00a0\u00a0The Court further observes that the attempts at enforcement of the return order, between January 2013 and March 2015, were unsuccessful. As regards the alleged lack of measures for establishing the whereabouts of K.S., the Court notes that the bailiff visited the presumed places of residence of K.S. and K.S.\u2019s mother on several occasions, but did not find her there (see paragraphs22, 23, 27, 28, 35 and 38 above). It was further established that K.S. had not been receiving her correspondence.The Court notes, however, no further steps were taken in order to locate K.S. and her daughter elsewhere.In this respect, it is worth noting that it was not until October 2016 that the child\u2019s pediatrician and K.S.\u2019s relatives were questioned by the Court about K.S.\u2019s whereabouts (see paragraphs 40 and 42 above). In particular, the pediatrician told the Mez\u0151t\u00farDistrict Court that she had issued a medical certificate for the child\u2019s enrolment in kindergarten. In the Court\u2019s view, this shows that the child was probably registered in the school system and could easily have been located by the domestic authorities had they diligently tried to enforce the relevant court decisions.<\/p>\n 76.\u00a0\u00a0The Court further observes that bailiff substantially confined himselfin requesting K.S. to voluntarily return the child (see paragraph16above), while the proceedings aimed at enforcing the return order remained de facto dormant and did not bring any result until the date of the latest information available to the Court (see paragraph 46 above), which is for approximately five and a half years. Without overlooking that the enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, the Court reiterates that the lapse of time risks compromising the position of the non-resident parent irretrievably, and, as long as the return decision remains in force, the presumption stands that return is also in the interests of the child (see, for instance, M.A. v.\u00a0Austria, \u00a7 136, andSevere v.\u00a0Austria, no.\u00a053661\/15, \u00a7 110, 21\u00a0September 2017; all cited above).<\/p>\n 77.\u00a0\u00a0Moreover, the Court considers that the facts of the case indicated that the financial sanction imposed on K.S. (see paragraph 16above) constituted an inadequate means of improving the situation at hand and overcoming the mother\u2019s lack of cooperation.It is true that the authorities took some other measures, including the organisation of mediation proceedings by the Ministry of Justice (see paragraph 24 above) and the institution of criminal proceedings against the mother. However, these measures proved to be ineffective or not sufficiently prompt, resulting in a situation wherein the applicant had been, until at least February 2018 (see paragraphs 46 and 72 above), still not able to see his daughter.<\/p>\n 78.\u00a0\u00a0The Court also stresses that because of the domestic authorities\u2019 failure to locate K.S. and the child, not only were the applicant and his daughter prevented from being reunited but, for over six years, they were also prevented from merely seeing each other occasionally. Not once in that period has the applicant been able to see or communicate with his daughter.<\/p>\n 79.\u00a0\u00a0Lastly, the Court notes that the Hungarian authorities rejected, on rather formalistic grounds, three applications for judicial assistance coming from their Italian counterparts (see paragraphs 25, 37and45 above) and underlines that stronger efforts to ensure an effective cooperation would have been welcomed in a situation like the present one, where parents were of different nationalities and return orders were issued by the authorities of both countries.<\/p>\n 80.\u00a0\u00a0Having regard to the foregoing, and notwithstanding the respondent State\u2019s margin of appreciation in respect of the matter and without overlooking the difficulties created by the resistance of the child\u2019s mother, the Court concludes that the Hungarian authorities failed to take without undue delay all the measuresthat could reasonably be expected of them to enable the applicant and his child to maintain and develop family life with each other. This resulted in the disruption of the emotional ties between the father and the child and thereby breached the applicant\u2019s right to respect for his family life, as guaranteed by Article 8.<\/p>\n 81.\u00a0\u00a0There has therefore been a violation of this provision.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 82.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 83.\u00a0\u00a0The applicant claimed 20,449.99 euros (EUR) in respect of pecuniary damage for the travel costs and expensesincurred between September 2013 and July 2015 through his efforts to have his daughter returned.<\/p>\n 84.\u00a0\u00a0The applicant also claimed EUR 300,000 in respect of non\u2011pecuniary damage, arguing that owing to the Hungarian authorities\u2019 conduct he had not seen his daughter for more than six years.<\/p>\n 85.\u00a0\u00a0The Government found the claims to be excessive. As to the claim for pecuniary damage, they were of the view that it wasnot connected to the violation alleged.<\/p>\n 86.\u00a0\u00a0The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention (see, inter alia, Akta\u015f v. Turkey,no. 24351\/94, \u00a7 352, ECHR 2003\u2011V (extracts)). As regards pecuniary damage, the Court discerns a causal link between the violation found and the pecuniary damage alleged, given that,had the violation not occurred, the applicant would not have had to travel repeatedly to Hungary specifically to take measures in order to attempt to have his daughter returned, who was illegally retained there owing to the delays of the Hungarian authorities in enforcing the return order. However, on the basis of the documentary evidence submitted by the applicant, in particular his flight bookings and the costs related to his car journeys (such asfuel, carhire and restaurants), the Court only partially allows this claim, and awards him EUR 8,000 in respect of pecuniary damage.<\/p>\n 87.\u00a0\u00a0As regards non-pecuniary damage, the Court accepts that the applicant must have suffered distress as a result of the Hungarian courts\u2019 failure to take swift and adequate measures to enforce the return of his child to Italy, which is not sufficiently compensated by the mere finding of a violation of the Convention. Having regard to the sums awarded in comparable cases (see, notably and mutatis mutandis, Maire, \u00a7 82; Shaw, \u00a7\u00a084;M.A.v.\u00a0Austria, \u00a7\u00a0142;andSevere, \u00a7 126,allcitedabove)and making an assessment on an equitable basis, the Court awards the applicant EUR\u00a020,000 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 88.\u00a0\u00a0On the basis of bills of costs issued by his representatives, the applicant also claimed EUR 105,573.87(including VAT) for costs and expenses. This sum is composed of EUR 90,381.37 incurred in the civil and criminal proceedings before the Italian and Hungarian courts, and EUR\u00a015,192.50 for the costs incurred before the Court.<\/p>\n 89.\u00a0\u00a0The Government submitted that the applicant\u2019s claim was not supported by any evidence and requested the Court to reject it.<\/p>\n 90.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds that the costs and expenses for the proceedings before Italian and Hungarian courts were at least in part aimed at redressing the breach of the applicant\u2019s rights under Article 8 and considers it reasonable to award the total sum of EUR 25,000, covering costs and expenses under all heads.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 91.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the application admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 8 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, the following amounts:<\/p>\n (i)\u00a0\u00a0EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (iii)\u00a0\u00a0EUR 25,000 (twenty five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above-mentioned amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 24 April 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Vincent A. De Gaetano
\nGeorges Ravarani,
\nMarko Bo\u0161njak, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
\nDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n