MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1362/H46-12

5 December 2019

1362nd meeting, 3-5 December 2019 (DH) Human rights   H46-12 Tonello v. Hungary (Application No. 46524/14) Supervision of the execution of the European Court’s judgments Reference document CM/Del/Dec(2019)1340/H46-8

 

Application	Case	Judgment of	Final on	Indicator for the classification
46524/14	TONELLO	24/04/2018	24/04/2018	Urgent individual measures

Case description

This case concerns a violation of the applicant’s right to respect for his family life on account of the authorities’ failure to enforce final decisions of Hungarian and Italian courts ordering the return of his daughter who was born in 2011 and wrongfully removed by her mother, K.S., from Italy to Hungary in 2012 (violation of Article 8).

The European Court found that the Hungarian authorities failed to take the necessary measures to locate the applicant’s child in a timely manner (§ 75) and to take effective coercive measures against K.S. with a view to enforcing the return orders without undue delay (§§ 73, 76-77, 80). This resulted in a situation where the applicant had been unable not only to be reunited with his daughter, but also to see her for more than six years (§§ 77-78). The Court further held that the authorities “rejected, on rather formalistic grounds, three applications for judicial assistance coming from their Italian counterparts”, whereas “stronger efforts to ensure an effective cooperation would have been welcomed in a situation (…) where return orders were issued by the authorities of both countries” (§ 79).

Status of execution

This case is examined under the enhanced supervision procedure in respect of the urgent individual measures required but as far as general measures are concerned, it is considered as a repetitive case of the Shaw group, examined by the Committee of Ministers under the standard supervision procedure. Since the latest examination of the case by the Committee in March 2019 (1340th meeting, DH), information on individual measures was received on 28 March (DH-DD(2019)367), 24 April (DH-DD(2019)571), 28 June (DH-DD(2019)765) and 14 October 2019 (DH-DD(2019)1264).

Individual measures

K.S., who was stripped of her parental authority (§§ 18, 36), remains in hiding with the child. Thus, the final return orders concerning the applicant’s daughter have not been enforced yet. The amounts awarded to the applicant in respect of pecuniary and non-pecuniary damage as well as of costs and expenses were paid.

The following information transpires from the authorities’ submissions in reply to the Committee’s decisions:

-       As to the warrants and criminal proceedings pending against K.S.:

At least two search warrants (from 2015 and 2017) and two arrest warrants (an unidentified warrant issued on 19 May 2014 and a second warrant from 2018) have been issued in Hungary against K.S. The first arrest warrant appears to have been issued on charges of endangering a minor (Section 208 § 1 of the Hungarian Criminal Code[1]– hereafter: CC). It is unclear whether these charges have been dropped. In relation to the second arrest warrant, criminal proceedings are pending against K.S. before the domestic courts for changing the custody of a minor (Section 211 CC). Before the Italian courts, K.S. is being prosecuted for kidnapping a minor and retaining a minor abroad, as well as for ill-treatment of family members. The European arrest warrants issued by the Italian courts in January 2013 and December 2014 in connection to those offenses are still in force to date.

-       As to the investigating authorities’ general search efforts:

Between April 2018 and May 2019, the police requested data inter alia from: the Land Registry, about property owned by K.S.’s relatives; the National Pension Insurance Directorate, about persons residing at mothers' homes and boarding institutions in Debrecen; the Public Road Traffic Control Information System and the National Toll Payment Services to monitor the movements of cars owned by K.S.’s relatives; the Hungarian State Railways Service Centre, about tickets bought by K.S.’s relatives; companies offering banking services and the Security Directorate of the Hungarian Post, about potential international bank transfers to the mother; the Communications Service of the National Police Headquarters, about potential information related to the offer of a reward for information about K.S. and the child. Beyond these examples of measures taken within the said period, the authorities submitted that data are obtained and analysed at monthly intervals.

-       As to the investigation of elements identified by the Secretariat as appearing more capable of yielding results in particular:

i)              Monitoring of K.S.’s bank account:

The mother’s bank account was closed on 9 November 2015. Bank statements until that date were analysed by the police. No tangible information was obtained.

ii)             The child’s schooling:

On 1 September 2016, at the request of the child’s grandmother, the child’s paediatrician issued a medical certificate required for her enrolment in kindergarten (see also § 40 of the judgment). The child was enrolled in the St. Stephan Catholic Kindergarten in Mezőtúr but did not attend it. Since September 2018, when the child reached the mandatory schooling age, she has not been enrolled in school.

iii)            The child’s health record and the investigative action pertaining to her paediatrician:

The police contacted the National Health Insurance Fund on multiple occasions to obtain data on medical services provided to K.S. and the child. General practitioners in the wider Mezőtúr area were heard as witnesses. These efforts yielded no results. On the contrary, as results from the witness statements of the child’s paediatrician, Dr. Á.M., the latter examined the child in her practice in Mezőtúr on 25 June 2015; and on 3 September 2018. On the latter occasion, the child was accompanied by a person unknown to the doctor at the mother’s request. This is the last reported sighting of the child.

iv)            The assumption established in 2014 that mother and child “reside habitually in Mezőtúr”[2]:

House searches carried out in May 2014 at K.S.’s permanent and temporary residencies in Mezőtúr “made it likely that she and the child were living permanently at the given place”[3]. As a result, the arrest warrant of 19 May 2014 was issued against K.S. Subsequent searches at the said residencies as well as at residencies of K.S.’s relatives gave “no signs that the wanted persons were residing there”[4]. These properties are searched regularly, but after May 2014 there are no signs that K.S. and the child reside in Mezőtúr.

-       As to the authorities’ cooperation with their Italian counterparts

Within the context of the criminal proceedings in Italy against K.S., requests for judicial assistance were submitted to the Hungarian authorities by their Italian counterparts on 6 March 2013, 23 December 2014 and 1 June 2017. These requests were not granted because the requirement of dual criminality is not satisfied: On one hand, in Italy K.S. is charged with kidnapping a minor and retaining a minor abroad, whereas in Hungary the same conduct is qualified as the offence of changing the custody of a minor, which is a misdemeanour. On the other hand, K.S.’s criminal liability for ill-treatment of a family member (the second charge she faces in Italy) could not be established on the basis of the investigation carried out in Hungary. No updated information has been provided as to the Italian authorities’ request, submitted in May 2018, for the provision of information in relation to K.S.’s fingerprints[5].

-       As to the setting-up of a joint investigation group

In May 2019, the Ministers of Interior of Hungary and Italy reached an agreement for the setting-up of a joint investigation group. At technical level, the submission of a formal request by the Italian authorities for the creation of the investigation group is still awaited. In June 2019, it was established that solely the criminal proceedings pending against K.S. in Italy may serve as a basis for cooperation within the context of this investigation group. In July 2019, it was agreed to hold a preparatory meeting in Budapest to accelerate the procedure for the creation of the investigation group. Several meeting dates have been set for this purpose, but the meeting has been repeatedly postponed at the request of the Italian authorities.

Further developments: Both the Hungarian[6] and the Italian[7] media continue covering this case. These articles report that K.S. recently lodged an application for parental authority over the child before the Italian courts. This claim was reportedly rejected. The articles furthermore present the applicant’s efforts to find his child since 2012 as well as his statement that “the country [Hungary] was protecting [K.S.]”.

-       Bilateral consultations

During bilateral meetings that took place between the authorities and the Department for the Execution of Judgments on 29 and 30 October 2019 in Budapest, the authorities provided orally additional explanations and undertook to submit further clarifications shortly.

Analysis by the Secretariat

More than a year and a half after the European Court’s judgment became final, and almost eight years after her wrongful removal from Italy to Hungary, the whereabouts of the daughter of the applicant, who actively continues searching for her, are still unknown. This situation, already highly problematic as a result of the “disruption of the emotional ties between the father and the child” (§ 80), has become a matter of gravest concern given that the child does not appear to have ever attended school, although she is already eight years old.

As to the authorities’ investigative efforts

It is noted that the authorities continue to devote considerable resources to searching for the child and are keeping the Committee informed on a regular basis. Nevertheless, no tangible progress has been achieved.

Questions remain open, firstly as concerns the legal framework within which the authorities’ investigative action is being undertaken. For instance, it is unclear whether the arrest warrant of 19 May 2014 is still in force, i.e. whether the mother is still charged with endangering a minor (section 208 § 1 CC) or, if these charges have been dropped, why. It is furthermore unclear whether the search warrants that are pending against the mother are linked to specific proceedings and what is the nature of these proceedings. Further clarifications are required in respect of these questions.

Further questions arise as regards the authorities’ conclusions in respect of crucial aspects of the investigation. For instance, it is difficult to reconcile a number of facts (e.g. the fact that the child has been treated for years and at least as recently as September 2018 by the same doctor in Mezőtúr; or that in 2016 the child was initially enrolled in a kindergarten in Mezőtúr, albeit without finally attending it) with the authorities’ conclusion that since May 2014 there is no evidence that mother and child reside in Mezőtúr.

The drawing of plausible conclusions is an important element in the assessment of the effectiveness of the investigative efforts. In light of the above, the Committee might wish to strongly reiterate its call on the authorities to continue exploring all possible investigative avenues, while placing particular emphasis on those that appear more capable of yielding results. In this respect, the Committee might also wish to invite the authorities to consider re-launching the public, nation-wide call for the provision of information concerning K.S. and the child, to keep it active as long as the child has not been located, and to keep the Committee informed of any result.

It is acknowledged that the authorities are confronted with considerable difficulties in the context of a case where the abducting parent’s aim is to remain in hiding. The Committee might nevertheless wish to recall Hungary’s undertaking to abide by the judgment by virtue of Article 46 § 1 of the Convention.

As to the authorities’ cooperation with their Italian counterparts

At the outset, it is stressed that effective cooperation between the authorities of the requesting and requested State in cases of international child abduction is of major importance, as demonstrated by the example set in Bianchi v. Switzerland (application no. 7548/04), where the abducting parent and abducted child were finally located as a result of the cooperation between the Italian and Swiss authorities.

In the present case, despite the Committee’s call for effective cooperation by the Hungarian authorities with their Italian counterparts, no progress has been achieved so far in meeting the Italian authorities’ requests for judicial assistance. The argument that these requests cannot be met because the requirement of dual criminality is not satisfied has already been examined and rejected by the Court as formalistic (§ 79). It can therefore no longer be relied upon. The Committee might wish to recall that Hungary, as a State Party to the European Convention on Mutual Assistance in Criminal Matters (CETS No. 030[8]), has undertaken “to afford […] the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party” (Article 1). It is therefore of utmost importance that the Hungarian authorities examine all avenues capable of ensuring that the Italian authorities requests can be met. In this respect, the Committee might wish to invite the authorities to provide information on the legal requirements of dual criminality in Hungary.

 

Hungary and Italy’s agreement at ministerial level to form a joint investigative group can be noted with interest. Taking into account the urgent nature of this case, it is nevertheless regrettable that no progress has been achieved regarding the actual establishment of the group, reportedly due to the lack of a formal request by the Italian authorities. The Committee therefore might also wish to encourage the Italian authorities to take all necessary steps in order to activate and render effective the joint investigative group.

Other outstanding matters

No information has been provided on the reported application for parental authority lodged by K.S. with the Italian courts. The Committee might wish to invite the authorities to provide information in this respect.

It is recalled that the European Court did not order the child’s return to the applicant in Italy once she is located. Given that the child has practically never known her father, it is of crucial importance to ensure that, once she is found, any possible further steps to re-establish contact between father and daughter are carefully identified by the competent authorities in order to safeguard the child’s best interest. As no such information has been received, the Committee might wish to reiterate its call in this respect.

Lastly, despite the Secretariat’s repeated calls, to date the Committee has not received any information on the development of a comprehensive strategy to respond to the Court’s judgments in the Shaw group (see above). Although the present examination of Tonello only focuses on the urgent individual measures needed, the lack of tangible results so far is an additional indication for the need of comprehensive general measures. The Committee might therefore wish to strongly encourage the authorities to provide as soon as possible information on the general measures taken or envisaged within the context of the Shaw group of cases.

Financing assured: YES