MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-20

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-20 Tonello (Shaw group) v. Hungary (Application No. 46524/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)674, DH-DD(2024)1104, CM/Del/Dec(2022)1451/H46-17

 

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
51323/14	EDINA TOTH	30/01/2018	30/04/2018
32662/20	VASSALLO	26/10/2023	26/10/2023

Case description

The Shaw group concerns violations of the applicants’ right to respect for their family life on account of the authorities’ failure to effectively address the issues arising from the wrongful removal of their children, between 2004 and 2017, by their former spouses (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, Vassallo), as well as in the enforcement of the domestic courts’ judgments on custody (Edina Tóth).

In Tonello, the Court found a violation on account of the authorities’ failure to enforce final decisions of the Hungarian and Italian courts ordering the return of the applicant’s daughter who was born in 2011 and wrongfully removed by her mother, K.S., from Italy to Hungary in 2012 (Article 8). The European Court found that the Hungarian authorities had 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 to see his child 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).

Status of execution

Since the last examination of this group by the Committee of Ministers in December 2022 (1451^st meeting) (DH), the Hungarian authorities submitted two action plans on 26 May 2023 (DH-DD(2023)674) and 30 September 2024 (DH-DD(2024)1104). The new information contained in these documents is summarised below.

      I.        As regards urgent individual measures in Tonello

In December 2022, the Committee of Ministers “noted with interest the recent search efforts undertaken by the police and strongly urged the authorities to continue exploring all possible investigative avenues in their search for the child, and to provide clear information on the investigative actions that have been and/or will be undertaken in the course of their search; reiterated their firm invitation to the authorities to consider assigning the search or its supervision to the highest police authority possible.”

Furthermore, the Committee “firmly reiterated their call on the authorities to present concrete proposals on how to overcome the legal obstacles to setting up a joint investigative team with the Italian authorities, underlining that general measures might also be required to this end, and to effectively cooperate with their Italian counterparts in all aspects of the case”.

1.     As to the current situation of the mother and the child

The applicant’s child and her mother, K.S. continue to be at an unknown location and the authorities’ efforts to locate them have not yielded further results since the last examination of the case.

According to the latest information received, the child is still in the Hungarian police’s missing persons’ list and there is still no sign that she is attending school in Hungary despite having reached school age several years ago.[1] Further to the termination of earlier proceedings (see CM/Notes/1390/H46-13 for details), there are no criminal proceedings or investigations pending against K.S. in Hungary,[2] and the criminal fine imposed on her by Hungarian courts was paid by her mother on 29 March 2021.[3]

2.     As to the investigative efforts of the authorities

The Jász-Nagykun-Szolnok County Police Headquarters and the Mezőtúr Police Department have continued to undertake numerous search measures already noted during the last examination of the case, including enhanced checks on a monthly basis, regular checks for data on medical treatment, regular contacts with the Education Office, periodic requests to known parcel delivery service providers and water and energy supplier companies, and undercover information collection.[4] In addition, they indicated that they make regular inquiries to the Department of Citizenship and Registry Office to establish whether the child and K.S. have applied for citizenship or naturalisation with different or false personal data; conduct checks of social networking sites; and regularly inspect integrated address registers.[5] Based on the information available, the child does not have a Hungarian address but may have a registered residence in Italy.

3.     As to the requisite cooperation with the Italian authorities

In January 2020, the Italian police requested the establishment of a joint investigative group envisaged by the Ministers of Interior of Hungary and Italy in May 2019. Considering that the mother, K.S. is not under investigation in Hungary, the authorities submitted that there continues to be no legal basis for setting up a joint investigation team.[6]

As regards procedures before the Italian authorities, following the judgment by the Court of Padova in May 2021, the Court of Appeals of Venice confirmed the mother’s conviction in absentia for child abduction (sottrazione di minore) in February 2022. The applicant’s representative last informed the Committee that an execution order was issued on 17 August 2022 and that a notification was sent to the Hungarian authorities on 22 December 2022.[7] The Hungarian authorities indicated that they have not received any requests from the Italian authorities regarding the execution of the conviction by the Padova Court.[8]

Since October 2022, there has been an alert in the Schengen Information System (SIS) regarding K.S. as a person wanted for criminal prosecution.[9] The child has been registered in the SIS as a missing person[10] and the “Yellow Notice” created for her in INTERPOL’s International Notices System is still in force.[11]

    II.        As regards individual measures in the other cases

Just satisfaction was paid in all four cases in this group.

In Shaw and Edina Tóth, the applicants’ children have reached the age of majority. In Vassallo, on 26 July 2020, during a parental visit, the applicant took the children to Spain where they have remained with him since. After being informed of this de facto reunification, on 24 November 2020, the Budapest High Court terminated the applicant’s return procedure in Hungary (Vassallo, §§ 11-12).

   III.        As regards general measures

In December 2022, the Committee noted with interest the recent adoption of Act LXII of 2021 on International Judicial Cooperation in Matrimonial Matters aimed at addressing shortcomings identified in the domestic application of the Hague Convention, the need for which had also been underlined by the Hungarian Commissioner for Fundamental Rights and the Constitutional Court (see Notes CM/Notes/1451/H46-17 for full details). It urged the authorities to provide concrete information on the way in which the legislation has rectified the shortcomings identified by the Court in the Shaw group, including examples of its implementation by the domestic authorities in practice, as well as on measures taken or envisaged to address the remaining issues, if any, with a focus on the authorities’ failure to make adequate and effective efforts to enforce domestic courts’ reunification and return orders.

In reply to the Committee’s decision, the authorities indicated that the Central District Court of Pest has exclusive jurisdiction to conduct first-instance non-contentious civil proceedings aimed at the return of a child unlawfully brought to Hungary. They submitted data regarding the number of incoming[12] and concluded[13] cases per year between 2019 and 2024, and the average duration of concluded proceedings.[14] The average length of concluded cases decreased from 75 days in 2019 to 29 days in the first half of 2024.

Moreover, the National Office for the Judiciary held a training for judges in March 2024 on recent family law-related questions of non-contentious proceedings.

Analysis by the Secretariat

      I.        As regards urgent individual measures in Tonello

More than six and a half years after the European Court’s final judgment, and almost 13 years after the child’s wrongful removal, the whereabouts of the applicant’s daughter remain unknown. This situation, already highly problematic in view of the “disruption of the emotional ties between the father and the child” (§ 80), remains a matter of utmost concern, given that there is no sign that the child is attending school in Hungary where she was last known to be living. The Committee might therefore wish to express continuing concern that the child’s whereabouts remain unknown 13 years after her wrongful removal, given in particular the assumption that she has never attended school.

The police continue to devote considerable resources to searching for the child, and the search efforts appear to be assigned to the highest police authorities possible under the relevant Hungarian legal framework.[15] Both the Jász-Nagykun-Szolnok County Police Headquarters and the Mezőtúr Police Department have been continuing the various investigative steps, already recognised by the Committee, and have taken additional extensive search measures and actions. These continued search efforts appear dedicated and appropriate, even though they have unfortunately not led to the location of the child to date, and the Committee may wish to note them with satisfaction.

Nevertheless, as locating the child remains of primary importance, the Committee may wish to encourage the authorities to maintain these efforts.

    II.        As regards individual measures in the other cases

As the children in Shaw and Edina Tóth have reached the age of majority, the applicant in Vassallo was reunited with his children, and the just satisfaction amounts awarded by the Court were duly paid on time, no further individual measures appear necessary or possible in these cases. The Committee may wish to end their supervision of the individual measures in Shaw (the leading case), and to close the supervision of the repetitive cases Edina Tóth and Vassallo cases by adopting the draft final resolution attached to these Notes.

   III.        As regards general measures

During the past decade the number of international family law conflicts in Hungary has increased significantly, with more and more parents seeking the authorities’ assistance in international child abduction cases.[16] The importance and urgency of the requisite general measures thus cannot be underestimated.

The main sources of the violations found by the Court in the Shaw group of cases have been identified in previous Notes (see CM/Notes/1419/H46-18, footnote 21). As noted at the group’s last examination in 2022, Act LXII of 2021 appears to address some of these shortcomings such as domestic courts’ failure to act expeditiously in order to establish the abduction.[17] The statistical data recently submitted regarding the number and average length of relevant domestic proceedings appears to confirm this conclusion. The Committee might wish to note with satisfaction the positive trends regarding the length of international child abduction-related domestic proceedings resulting from the adoption of Act LXII of 2021 on International Judicial Cooperation in Matrimonial Matters, stress that the consolidation of these trends remains of paramount importance, and invite the authorities to continue to provide updated statistical information, including not only on the number and length of first-instance proceedings but also on the outcome of these cases and their possible appellate phase.

However, neither Act LXII of 2021, nor the information submitted by the authorities address the central issue of the authorities’ failure to take adequate and effective measures for the enforcement of domestic courts’ reunification and return orders.[18] Given that this shortcoming has been repeatedly identified by the European Court in this group of cases[19] and also implies the need for changes in practice, the Committee might wish to urge the authorities to provide information on the measures taken or envisaged with respect to this issue. They might wish to draw inspiration from the relevant practices established by other member States (e.g. Karadziz v. Croatia (No. 35030/04); and Ignaccolo-Zenide v. Romania (No. 31679/96)).

Lastly, in Vassallo, a judgment issued following the last examination of this group of cases, the European Court once again highlighted the lack of any measures taken to enforce a foreign court’s decision (Vassallo, § 28). Given the lack of information about measures taken or envisaged with respect to enhancing cooperation with foreign authorities as regards international child abduction cases, as well as the past lack of cooperation with Italian authorities in Tonello specifically,[20] the Committee might wish to urge the authorities to take targeted measures to address this, including through trainings and awareness raising for law enforcement officials, prosecutors, and judges, drawing also on Council of Europe expertise and training courses such as the relevant HELP (Human Rights Education for Legal Professionals) courses.[21]

Finally, the Committee might wish to invite the authorities to submit all outstanding information in a comprehensive updated action plan as soon as possible and no later than the end of September 2025.

Financing assured: YES