MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1390/H46-13

3 December 2020

1390th meeting, 1-3 December 2020 (DH) Human rights H46-13 Tonello (Shaw group) v. Hungary (Application No. 46524/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)912; DH-DD(2020)918; CM/Del/Dec(2019)1362/H-46-12

 

Application	Case	Judgment of	Final on	Indicator for the classification
46524/14	TONELLO	24/04/2018	24/04/2018	Urgent individual measures
6457/09	SHAW	26/07/2011	26/10/2011	Proposal to transfer the entire group under the enhanced procedure (complex problem)
5493/13	CAVANI	28/10/2014	28/01/2015
51323/14	EDINA TÓTH	30/01/2018	30/04/2018

Case description

The case of Tonello 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 at that point in time (§§ 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).

The other three cases of the Shaw group also concern violations of the applicants’ right to respect for their family life on account of the authorities’ failure to effectively address the issues arising from their children’s wrongful removals, between 2004 and 2014, by the applicants’ former spouses (violations of Article 8). The European Court identified several shortcomings in the conduct of return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction and/or the EU Regulation on Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (Shaw, Cavani) as well as in the enforcement of the domestic courts’ judgments on custody (Edina Tóth).

Status of execution

The Tonello case is examined under the enhanced supervision procedure in respect of the urgent individual measures required, as it is the only case of this group where the whereabouts of the abducted child remain unknown. As far as general measures are concerned, it is part of the Shaw group, so far examined by the Committee of Ministers under the standard supervision procedure. Since the last examination of Tonello by the Committee in December 2019 (1362^nd meeting, DH), information on urgent individual measures was received on 11 March (DH-DD(2020)912) and 20 October 2020 (DH-DD(2020)918). Action reports concerning Shaw and Cavani were received on 20 December 2012 and 7 September 2015
(DH-DD(2015)1236) respectively. 

Urgent individual measures in Tonello

K.S., who has been stripped of her parental authority, remains in hiding with the child. Thus, the final return orders concerning the applicant’s daughter remain unenforced.

At its last examination of the case, the Committee invited the authorities to provide further clarifications about the legal framework within which their investigative action is being undertaken (cf. below 1.) and strongly reiterated 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 (cf. below 2. and 3.). The Committee furthermore urged the authorities to examine all avenues capable of ensuring that the Italian authorities’ requests for judicial assistance can be met and invited them to provide information on the legal requirements of dual criminality in Hungary (cf. below 4. and 5.). Noting with interest Hungary and Italy’s agreement at ministerial level to form a joint investigative group, the Committee also regretted that no progress had been achieved regarding its actual establishment and strongly encouraged the Italian authorities to continue taking all necessary steps in order to activate it and render it effective (cf. below 6.).

Additionally, the Committee invited the authorities to provide information on the application reportedly lodged by K.S. with the Italian courts for parental authority over the child and on the result of that application and reiterated their call on the authorities to inform the Committee about the measures taken or envisaged to ensure that, once she has been 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 (cf. below 7. and 8.). Lastly, noting that the lack of tangible results in Tonello indicates the need for comprehensive general measures, the Committee urged the authorities to provide as soon as possible information on the general measures taken or envisaged in the context of the Shaw group of cases.

In response to these decisions, the authorities submitted information which may be summarised as follows:

1.     As to the legal framework for the authorities’ investigative actions

In February and March 2014, criminal charges were brought against K.S. for changing the custody of a minor (Section 211 of the Hungarian Criminal Code (CC)) and for abuse of a minor (Section 208 § 1 CC) respectively. In June 2016, the Prosecution Office of Mezőtúr dismissed the charges for abuse of a minor as unsubstantiated. Two unidentified arrest warrants were revoked in August 2016 and July 2018. In November 2019, the Szolnok District Court found K.S. guilty of changing the custody of a minor in absentia and sentenced her to a fine of HUF 200,000 (approx. EUR 550). The Szolnok Regional Court upheld this judgment in its order no. 6.Bf.98/2020. In June 2020, that order became final. As a result, the arrest warrant previously issued on 12 October 2018 against K.S. was revoked, the reward of HUF 500,000 (approx. EUR 1,370) offered by the police for the provision of relevant information was withdrawn and K.S.’s name was deleted from the list of people wanted under an arrest warrant.

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.[1] The European arrest warrants (EAWs) issued by the Italian courts in January 2013 and December 2014 in connection to those offenses are still in force to date. On the basis of these EAWs, K.S. is wanted by INTERPOL and her name also appears in the Schengen Information System. Pursuant to Act LIII of 1994 on Judicial Enforcement,[2] in February 2017 a search warrant was issued in Hungary against K.S., which is still in force. Furthermore, an INTERPOL Yellow Notice (global alert to help locate missing persons) regarding the applicant’s daughter has been created and is valid until April 2024. The minor is also registered in the Schengen Information System as a missing person.

A search warrant concerning the minor issued by the Police Headquarters of Mezőtúr is still in force. Additionally, under a previous search warrant, a reward of HUF 500,000 is offered by the police for the provision of information concerning the child. Several calls for providing information to the authorities have been repeatedly launched in the press and are displayed in public areas and on the official website of the police.

2.     As to the investigating authorities’ general search efforts

According to the information provided, the investigating authorities take measures to ensure that every piece of information as to the possible residence of the applicant’s child is followed up on.

3.     As to the investigation of elements appearing more capable of yielding results in particular

a) The child’s schooling: No new information has been provided in this respect.

b) Investigative action pertaining to the child’s paediatrician: The authorities submitted that it cannot be confirmed that the same doctor (Dr. Á.M.), was treating the child for several years, as stated in her testimony given before the Mezőtúr District Court in October 2016 (§ 40). They argue that this is because, in March 2017, in the context of an additional witness testimony, when her previous submissions were shown to her, she stated that the minutes did not correspond to the content of her previous statements. In June 2019, when the doctor was heard by the Szolnok District Court, she again stated that she had treated the child in 2018. On the basis of the above, the authorities question the credibility of Dr. Á.M.

4.     As to the legal requirements of dual criminality in Hungary

As regards the clarifications requested by the Committee on the requirement of dual criminality, advanced by the authorities for rejecting the Italian authorities’ requests for judicial assistance, the following information was provided: The Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between member States was transposed into Hungarian law in 2012. Pursuant to the relevant provisions, an EAW can be executed if the criminal offence described in the EAW: a) constitutes a criminal offence in Hungary as well (requirement of double criminality); or b) is one of the offences listed in Article 2 Paragraph (2) of the Framework Decision and the offence is punishable in the issuing member State by a custodial sentence or a detention order for a maximum period of at least three years (in this case double criminality is not required).

5.     As to the authorities’ cooperation with their Italian counterparts[3]

Between May and August 2020, upon the request of the Italian police and the National Central Bureau of INTERPOL in Italy, the Hungarian police informed their counterparts of the delivery of a final judgment in the criminal proceedings for changing the custody of a minor (see above) and forwarded to them the relevant judgments of the Szolnok District and Regional Courts. The Hungarian authorities also informed their counterparts about their search activities in Mezőtúr and that, following the conclusion of the proceedings for changing the custody of the child, the arrest warrant against K.S. has been revoked, which nevertheless does not affect the Schengen Information System notices placed by the Italian authorities.

6.     As to the establishment of a joint investigative group

In January 2020, the Italian police requested the establishment of the joint investigative group whose setting-up was decided between the Ministers of Interior of Hungary and Italy in May 2019.[4] However, the Hungarian police replied that the legal conditions for the establishment of this group were not met.

7.     As to the measures taken to ensure that steps to re-establish contact between father and daughter once the child found are carefully identified in order to safeguard the child’s best interest

The authorities submitted that, if the child is found, the bailiff’s office, the authority issuing the search warrant and the nearest place designated for the temporary placement of the child shall be notified. Until such placement, it shall be ensured that the relative of the child accompanying her can remain with her. The police pay the utmost attention to the protection of the child’s interests and shall cooperate with the competent authorities within the boundaries of their competence.

8.     Further developments

Both the Hungarian[5] and the Italian[6] press continue to follow this case and it has been repeatedly reported that K.S. has lodged an application for parental authority over the child before the Italian courts. The articles furthermore present the applicant’s efforts to find his child since 2012 as well as his statement that, on an unspecified date, INTERPOL contacted K.S.’s lawyer with a view to reaching an agreement. This was reportedly followed by a meeting in Budapest, where K.S.’s representative requested that all charges against K.S. be dropped and that the child be not returned to Italy. The applicant also stated that K.S. requested that the applicant pay child alimony.

General measures

It derives from the Action Reports received in Shaw and Cavani in 2012 and 2015 respectively that the European Court’s judgments in these cases were published and disseminated. No information has been provided on further general measures taken in response to the Committee’s relevant decision in the context of its previous examination of Tonello.

Analysis by the Secretariat

Urgent individual measures in Tonello

More than two and a half years after the European Court’s final judgment, and almost nine years after her wrongful removal from Italy to Hungary, the whereabouts of the daughter of the applicant, who actively continues searching for her, remain 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 utmost concern, given in particular that no information has been submitted capable of rebutting the assumption that the child has never attended school although she is already nine years old.

1.     As to the legal framework for the authorities’ investigative action

It is noted at the outset that certain issues related to the framework in which the authorities undertake their investigative action have been clarified. For instance, it is evident that no criminal proceedings are pending any longer against K.S. at domestic level, given that since the last examination of the case, she has been convicted of changing the custody of a minor and fined as a result (the payment of the fine imposed on her remaining the only outstanding aspect). It is also evident that all current search proceedings to establish her and the child’s whereabouts are solely linked to the European arrest warrants (EAWs) issued by the Italian courts.

It is nevertheless regrettable that, in a case requiring urgent individual measures, more than two years passed after the present judgment became final before the domestic courts concluded the above criminal proceedings. In the context of this case, it is also highly doubtful that the fine of approx. EUR 550 imposed on K.S. will have any coercive effect: information on the compliance of K.S. with the criminal judgment is awaited. These circumstances confirm the urgent need for comprehensive general measures to address the problems arising in the context of international child abduction cases in Hungary (see below).

It is also noted that a number of questions remain unaddressed. In particular, it is unclear which charges K.S. was acquitted of on 20 April 2017 by the Mezőtúr District Court (§ 43), which proceedings the arrest warrants revoked in August 2016 and July 2018 were linked to, or how wide is the scope of action the authorities may undertake in the course of the above-mentioned search proceedings. The Committee might thus wish to call on the authorities to identify all the outstanding factual and legal questions under this head and to submit all relevant information in one consolidated document. The Committee might also wish to invite the authorities to benefit from the Department for the Execution of Judgments’ technical assistance in this respect.

2.     As to the authorities’ search efforts

It is noted that no tangible progress has been achieved, although the authorities appear to continue devoting considerable resources to searching for the child.

It is acknowledged that the authorities are confronted with considerable challenges in the context of cases where the abducting parent’s aim is to remain in hiding. However, in the absence of more precise information on the authorities’ search efforts since the Committee’s last examination, questions arise as regards the plausibility of certain of their conclusions. For instance, against the background that this appeared to be one of the most promising investigative avenues, it is difficult to understand the authorities’ sudden doubts as to the veracity of the child’s pediatrician’s (Dr. Á.M.) testimony as a whole, merely because she disagreed with the content of the minutes of one of her witness statements.

Drawing plausible conclusions is a vital element in the assessment of the effectiveness of the investigative efforts. In light of the above, the Committee might wish to renew 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. The Committee might furthermore wish to firmly invite the authorities to consider assigning the search or its supervision to the highest police authority, if this has not yet been done.

3.     As to the authorities’ cooperation with their Italian counterparts

The authorities have limited themselves to providing information on the legal requirements of dual criminality in Hungary without explaining why, in application of these requirements, effective cooperation between the Hungarian and Italian police continues to be impossible six years after the first request for judicial assistance was received. It is deeply regrettable that, despite the Committee’s repeated calls, the authorities have not only failed to make any progress in meeting the Italian authorities’ requests for judicial assistance on the basis of the non-satisfaction of dual criminality (an argument already examined and rejected by the Court, see § 79), but now further submit that the establishment of the joint investigative group is impossible as certain unidentified requirements are not met, more than a year and a half after its setting-up was agreed upon between Hungary and Italy at ministerial level. Considering that effective cooperation between the Hungarian and Italian authorities has become all the more imperative now that the search efforts are solely linked to the EAWs, the Committee might wish to exhort the authorities to present concrete proposals on possible ways to overcome this impasse, taking into account that general measures might also be required to this end.

4.     Other outstanding matters

The provision of an outline of the authorities’ future actions with a view to protecting the child’s best interests when taking steps to re-establish contact between father and daughter once the girl found may be noted with satisfaction.

 

In the context of a case with outstanding urgent individual measures, it is of concern that despite the Committee’s call, no information has been provided on the reported application for parental authority lodged by K.S. with the Italian courts. Likewise, the reported contacts between INTERPOL and K.S.’s lawyer with a view to reaching an agreement, which appear to have been followed by a meeting in Budapest, were not mentioned in the authorities’ submissions but only learned from the press. The Committee might wish to firmly urge the authorities to provide information which clearly elucidates all developments in this case, including on the above-mentioned important matters. In the light of the information that K.S. is apparently represented by a lawyer, the authorities could be invited to provide information on the possibilities of mediation provided by the Hungarian legislation and on the measures taken to explore whether an agreement between the applicant and K.S. could be achieved in this way.

General measures

The long-standing nature of the issues examined under the Shaw group (first case final in 2011) and the recurring patterns which led to the finding of violations, in combination with the lack of tangible results so far in Tonello indicate the existence of a complex problem that urgently requires a comprehensive response by the authorities, also taking into account the fact that a new similar case was communicated to them in November 2017 (Kupás, No. 24720/17).

To date, despite the Department for the Execution of Judgments’ repeated calls and the Committee’s relevant decision in the context of its latest examination of Tonello, no information has been provided on the general measures taken to address this situation. The Committee might therefore wish to consider transferring the Shaw group to the enhanced supervision procedure under the indicator “complex problem”.

When drafting their Group Action Plan, the authorities might wish to take into account the 2013 Concluding Opinion of the Kúria’s working group on the return processes concerning children illegally brought to Hungary,[7] national expert research highlighting the shortcomings of the national system when addressing international child abductions,[8] as well as the Parliamentary Assembly of the Council of Europe’s Resolution 1291 (2002) on International Abduction of Children by One of the Parents.

Financing assured: YES