;MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-18

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-18 Tonello (Shaw group) v. Hungary (Application No. 46524/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)551, DH-DD(2021)1097, CM/Del/Dec(2020)1390/H46-13

 

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	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

Since the last examination of Tonello by the Committee, information on the urgent individual measures required in this case was received on 19 April (DH-DD(2021)551) and 20 October 2021 (DH-DD(2021)1097. Action reports concerning Shaw and Cavani were received on 20 December 2012 and 7 September 2015 (DH-DD(2015)1236) respectively. On 10 November 2021, the applicant’s representative in Tonello submitted a communication under Rule 9.1 (DH-DD(2021)1183).

As regards urgent individual measures in Tonello

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

In response to the decisions adopted at the Committee’s’1390^th meeting (December 2020, DH),[1] the authorities submitted information which may be summarised as follows:

1.     As to K.S.’s compliance with the criminal judgment which convicted her in Hungary in 2020, and the legal framework for the authorities’ investigative actions

No information is available to the authorities on whether K.S. appealed against the 2020 judgment of the Szolnok Court of Appeal which convicted her for changing the custody of a minor, imposing on her a fine of approx. EUR 550. They also have no information on the charges K.S. was acquitted of by the Mezőtúr District Court in April 2017. The authorities reiterated that, following the dismissal, by the Prosecution Office of Mezőtúr, of the charges for abuse of a minor (Section 208 § 1 of the Hungarian Criminal Code (CC) in 2016 and the termination of the above-mentioned proceedings for changing the custody of a minor (Section 211 CC) in 2020,[2] no criminal proceedings are currently pending against K.S. in Hungary.

It is recalled that, before the Italian courts, K.S. was being prosecuted for kidnapping a minor and retaining a minor abroad, as well as for ill-treatment of family members.[3] The European arrest warrants (EAWs) issued by the Italian courts in January 2013 and December 2014 in connection to those offenses appeared to be still in force when the authorities’ latest submissions were received. The authorities reiterated that, on the basis of these EAWs, K.S. is wanted by INTERPOL and her name also appears in the Schengen Information System. The minor is also registered in the Schengen Information System as a missing person on the basis of warrants issued by the Italian and Hungarian authorities.

2.     As to the general search efforts and the investigation of elements appearing more capable of yielding results

In the context of the efforts to locate the child, the Jász-Nagykun-Szolnok County Police Headquarters is undertaking investigative action in parallel with the Mezőtúr Police Department. No commission of any further offences has been established so far.

On the basis of the information available to the authorities, the abducted child is not attending school in Hungary. The authorities reiterated their previous submissions on the elements that led them to question the veracity of the child’s pediatrician’s (Dr. Á.M.) testimony, according to which she was treating the child in her practice in Mezőtúr at least until September 2018.

3.     As to the authorities’ cooperation with their Italian counterparts[4] and the establishment of a joint investigative group[5]

The authorities submitted that, since no criminal proceedings are pending against K.S. in Hungary, no legal possibility to establish the joint investigative group exists.

4.     Further developments

No information is available to the Hungarian authorities on the reported application for parental authority lodged by K.S. with the Italian courts or on the reported contacts between INTERPOL and K.S.’s lawyer with a view to reaching an agreement. Concerning the possibilities of mediation provided by the Hungarian legislation, in DH-DD(2021)551, the authorities submitted that the conduct of criminal mediation, which allows for relevant criminal proceedings to be suspended,[6] has become obsolete, since no criminal proceedings are pending against K.S. in Hungary; whereas in DH-DD(2021)1097, the authorities submitted that possibilities for the conduct of mediation between the parties continue to be available under the domestic legislation.

Both the Hungarian[7] and the Italian[8] press continue to follow this case. It has been reported that, in the course of 2021, K.S. has been convicted by the Italian courts for child abduction (sottrazione di minore) and was sentenced to a four-year imprisonment and a fine of EUR 250,000.[9] It appears that the charges for kidnapping (sequestro), which could have led to a prison sentence of more than nine years were not retained, as the Italian courts took only into account the facts of this case up to 2015, considering that, for the facts which occurred after 2015 and for the same type of crime, it is the Hungarian courts that have jurisdiction.[10] It has furthermore been reported that the Italian prosecuting authorities have already opened a new file for child abduction in this case, an offence that will continue to be committed until the mother reaches an agreement with the applicant.

As regards individual measures in the other cases

In Shaw, the mother and the applicant’s daughter were found in August 2011. The child was transferred to France in September 2011 and was placed under the applicant’s custody. In July 2012, the mother was convicted in France for child abduction and was sentenced to one-year imprisonment. The infringement proceedings instituted on the basis of a complaint lodged by the applicant with the European Commission, claiming a violation of the Regulation (EC) No. 1393/2007[11] (Shaw, § 43) was discontinued in May 2012. The applicant’s daughter has reached majority in the meantime.

In Cavani, 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, the first applicant requested the suspension, in February 2013 and ultimately the termination, in August 2013, of the enforcement proceedings against his ex-wife (Cavani, §§ 22-23). The second applicant has reached majority in the meantime, whereas the third applicant will reach majority next year.

In Edina Tóth, the applicant’s former husband was apprehended in Budapest in May 2014 and the child was thus located. Since the applicant was living abroad at that time, the child’s place of residence was established temporarily with her father in Csobánka, Hungary (Edina Tóth, §§ 40-41).

As regards general measures

At its last examination of this group, the Committee noted that the long-standing nature of the issues examined under this group 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. It therefore invited the authorities to prepare a Group Action Plan indicating specific measures envisaged to address the problems arising in the context of international child abduction. No response has been provided by the authorities in this respect.

Analysis by the Secretariat

As regards urgent individual measures in Tonello

More than three and a half years after the European Court’s final judgment, and almost ten 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 presumption that the child has never attended school although she is already ten years old.

The Committee has noted on multiple occasions the significant challenges the authorities are confronted with in the context of cases where the abducting parent’s aim is to remain in hiding. That said, it is regrettable that, overall, the content of the information provided in respect of the authorities’ efforts to comply with their obligations under Article 46 does not correspond, in frequency and in quality, to what is expected in the context of a case requiring urgent individual measures. The authorities’ submissions are to a great extent vague and rely often on elements that the European Court and the Committee has already assessed and found to be unsatisfactory.

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

It is regrettable that, despite the Committee’s explicit call, the authorities have so far failed to identify the outstanding factual and legal questions under this head or to meaningfully cooperate with the Department for the Execution of Judgments to this end. It has thus been impossible to establish the scope of action the authorities may undertake in the course of the search, and a concrete timeline of the legal measures taken against the mother or with a view to locating the child. This makes it difficult to assess the effectiveness of the action taken so far. They Committee might wish to strongly invite again the authorities to submit a translated copy of the Mezőtúr District Court judgment of April 2017, which acquitted K.S. of unidentified charges. It might furthermore wish to strongly urge the authorities to submit information on the compliance of K.S. with the 2020 criminal judgment and to strongly reiterate that alleviating the doubts concerning the capacity of the fine of approx. EUR 550 imposed on her to have any coercive effect is linked with the adoption of comprehensive general measures.

It is further noted that, when the charges for abuse of a minor (Section 208 § 1 CC) were dismissed in 2016, the applicant’s child had not yet attained schooling age. The Committee might wish to invite the authorities to provide information on whether K.S.’s potential criminal[12] or administrative[13] liability in this respect has been re-examined by the competent prosecution authorities in light of the unrebutted assumption that the child has never attended school, although she has in the meantime attained schooling age.

2.         As to the authorities’ search efforts

No tangible progress in locating the child has been achieved so far. It is noted that no reply has been provided to the specific questions that remain open as regards the authorities’ conclusions in respect of crucial aspects of the search, including as to the credibility of the child’s paediatrician. It is also noted that investigative action continues being taken under the supervision of the local and County police authorities. The Committee might wish to exhort the authorities to continue exploring all possible investigative avenues, while placing particular emphasis on those that appear more capable of yielding results, and to reiterate their firm invitation to the authorities to consider assigning the search or its supervision to the highest police authority possible.

3.         As to the authorities’ cooperation with their Italian counterparts and the establishment of a joint investigative group

It is noted with regret that the establishment of a joint investigative group is no longer possible since no criminal proceedings are pending any longer against K.S. in Hungary. On the other hand, it is noted with deep regret that, despite the Committee’s repeated calls, the authorities have still not provided an adequate explanation on why it has so far been impossible to make any progress in meeting the Italian authorities’ requests for judicial assistance[14] on the basis of the non-satisfaction of dual criminality[15] (an argument already examined and rejected by the Court, see § 79). Taking into account that the domestic legislation appears to only require that the offence for which the EAW was issued is also a criminal offence under Hungarian law (without requiring the same criminal qualification of the impugned act in the legislation of the requesting country),[16] the Committee might wish to invite the authorities to provide examples from the domestic case-law supporting their approach on this matter. In any event, the authorities should also be exhorted anew to present concrete proposals on possible ways to overcome this impasse and effectively cooperate with the Italian authorities, strongly reiterating that general measures might also be required to this end.

4.         Other outstanding matters

The authorities’ failure to provide clear and detailed information despite the Committee’s repeated requests is problematic. The Committee might wish to exhort the authorities to provide information which clearly elucidates all developments in this case, including on the reported application for parental authority lodged by K.S. with the Italian courts,[17] the reported contacts between INTERPOL and K.S.’s lawyer with a view to reaching an agreement[18] and K.S.’s reported recent conviction by the Italian courts, together with the authorities’ assessment on how this development potentially affects their own investigative actions. In the light of the information that K.S. is apparently represented by a lawyer, the authorities should be strongly urged to provide information on the measures taken to explore whether an agreement between the applicant and K.S. could be achieved through mediation (other than criminal mediation, which appears to be no longer an option).

Individual measures in the other cases  

The reunification of the applicant in Shaw with his child and the re-establishment of regular contacts of the applicant in Cavani with his children put an end to the violations at issue. The negative consequences they suffered as a result of these violations have been redressed by the timely payment of the just satisfaction awarded. As no further individual measures appear necessary, the Committee might wish to close the examination of the individual measures question in Shaw, as well as the Cavani case, without prejudice to the continuing need for the adoption of general measures.

As regards Edina Tóth, information is awaited on the current situation of the applicant’s child.

General measures

It is deeply regrettable that, more than ten years after the first case of this group became final, the authorities have still provided no information on specific measures envisaged to address the complex problems arising in the context of international child abduction, despite the Committee’s repeated calls in this respect and the failure to achieve tangible results in Tonello.

In view of the long-standing problems in this domain in Hungary[19] and the fact that a new similar application has been communicated to the Hungarian authorities by the European Court in 2021,[20] a rigorous, comprehensive response is urgently required.

The Committee might therefore wish to strongly urge the authorities to submit without further delay an Action Plan for the whole group, providing information on their overall strategy with a view to tackling the long-standing problems in this domain. In this context, concrete solutions should be envisaged in respect of a wide range of shortcomings identified by the European Court.[21] The authorities might wish to draw inspiration from other member States that have tackled problems arising from international child abductions in an effective manner,[22] and in which regard the Department for the Execution of Judgments remains ready to cooperate. In the event that no tangible progress has been made by December 2022, it would be appropriate for the Secretariat to be instructed to prepare a draft interim resolution for the Committee’s consideration.

Financing assured: YES