European Court of Human Rights

FIRST SECTION

CASE OF VASSALLO v. HUNGARY

(Application no. 32662/20)

JUDGMENT
 

STRASBOURG

26 October 2023

This judgment is final but it may be subject to editorial revision.

In the case of Vassallo v. Hungary,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

 Alena Poláčková, President,
 Péter Paczolay,
 Gilberto Felici, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 32662/20) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 29 July 2020 by an Italian national, Mr Martin Ariel Vassallo, born in 1978 and living in Ibiza ("the applicant") who was represented by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg;

the decision to give notice of the application to the Hungarian Government ("the Government"), represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice;

the decision of the Italian Government not to avail themselves of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court;

the parties' observations;

Having deliberated in private on 3 October 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged failure of the Hungarian authorities to conduct a swift examination in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention").

2.  In 2009 the applicant met Ms B., a Hungarian national. They lived together for several years in Spain, where they were married in 2015. From this union two children were born, in 2013 in Hungary and in 2015 in Spain. In January 2017, after a family holiday with the children in a third country, the applicant returned to their home in Ibiza alone. B. went to Hungary with the children and announced to the applicant her intention to settle there permanently.

1. THE PROCEEDINGS BEFORE THE HUNGARIAN COURTS
   1. The proceedings related to the return of the children

3.  On 15 February 2017 the applicant filed an application for the return of the children to Spain based on the Hague Convention. On 13 July 2017, concluding that the children's habitual residence was in Spain, the Pest Central District Court ordered their return. In 2017 and 2018 the Budapest High Court and subsequently the Kúria confirmed this decision.

4.  On 13 February 2018 the Constitutional Court suspended the enforcement of the return orders and on 27 November 2018 cancelled the previous decisions on the grounds that the children's interests had not been duly taken into account, in violation of B.'s right to a fair trial.

5.  On 25 March 2019, having obtained a report on the psychological evaluation of the children, the Pest Central District Court once again ordered their return to Spain. The decision was upheld in the subsequent procedure by the High Court and the Kúria.

6.  All of these instances relied on evidence such as the common apartment of the family until the separation, the financial contribution of the parties to the family and the registration of the children in local communities, nurseries and health care services.

7.  On 21 October 2019 the Constitutional Court suspended anew the execution of the return proceedings and, on 25 February 2020, cancelled the last procedure on the grounds that the psychological impact of the return to Spain on the children had been insufficiently evaluated and the mother had not had the opportunity to put questions to the expert.

8.  On 22 June 2020, having examined a private psychological expertise presented by the mother, the Pest Central District Court again ordered the children's return to Spain.

9.  Meanwhile, on 10 December 2019 the Debrecen District Court in Hungary recognised a Spanish judgment related to divorce and custodial rights in favour of the applicant and the return of the children as enforceable under EU Regulation 2201/2003 (see paragraphs 14 and 16 below).

2. Other relevant decisions and facts

10.  The applicant was able to see his children five times in 2017, three times in 2018 and four times in 2019, after having applied numerous times to the Hungarian authorities in view of B.'s failure to cooperate.

11.  On 26 July 2020, during a parental visit, the applicant took the children to Spain where they have remained with him since, according to the elements in the case file.

12.  On 24 November 2020 the Budapest High Court terminated the applicant's return procedure in Hungary in view of this de facto reunification, after being informed of it by the Spanish authorities.

2. THE PROCEEDINGS BEFORE THE SPANISH COURTS
   1. The proceedings related to the return of the children

13.  After the first above-mentioned decision of the Hungarian Constitutional Court, the applicant also applied to the Spanish courts for the return of the children.

14.  On 30 October 2019 the certificate required by Article 42 of the Brussels II bis Regulation was transmitted to the Hungarian authorities for executing a decision ordering the return of the children to Spain (see paragraph 16 below).

2. Other relevant decisions

15.  On 31 January 2018, in a separate set of proceedings initiated by the applicant, the Court of First Instance of Ibiza granted him provisional custody of the children.

16.  On 23 February 2018, after a decision related to the lack of jurisdiction of the Hungarian courts, the applicant filed for divorce before the Court of First Instance of Ibiza, which pronounced the divorce on 21 January 2019. The Court established the children's habitual residence with their father in Spain and ordered their return, as well as indicating the modalities of custody, parental visits and B.'s contribution to alimony and putting a ban on her departure from Spanish territory with the children.

3. COMPLAINTS

17.  The applicant complained under Article 8 of the Convention of delays in the proceedings related to the return of the children to their habitual residence, the misapplication of the Hague Convention by the Hungarian Constitutional Court, the lack of assistance for implementing his parental contact rights during the relevant period and the non-enforcement of the decisions of the Spanish courts.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

18.  The relevant domestic law and practice, and international and comparative law are set out in the following judgments: X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013), Tonello v. Hungary (no. 46524/14, §§ 47-49, 24 April 2018) and M.V. v. Poland (no. 16202/14, §§ 45-55, 1 April 2021).

THE COURT'S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

1. Admissibility

19.  The Government considered that the applicant is no longer a victim as he has been reunited with his children. They further argued that the length of the proceedings was justified because of the procedural non-compliance related to the fundamental rights of the mother and of the children.

20.  The Court notes that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a "victim" for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010).

21.  The main argument of the applicant is the delays attributable to the Hungarian authorities in dealing with his application. The successful outcome of the proceedings in favour of the applicant, or as seems to be suggested by the Government, the de facto reunion with his children, do not correspond to the above-mentioned criteria. Accordingly, the applicant may still claim to have been the victim of the alleged violations of Article 8 of the Convention.

22.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2. Merits

23.  The principles relevant to the present case can be found in the judgments X v. Latvia (cited above, §§ 93-108), Shaw v. Hungary (no. 6457/09, § 70, 26 July 2011) and R.S. v. Poland (no. 63777/09, §§ 54-55, 21 July 2015).

24.  The primary interference with the applicant's right to respect for his family life may not be attributed to an action or omission on the part of the respondent State, but rather to the action of the mother, who took their children to Hungary. That action nevertheless placed the respondent State under a positive obligation to secure for the applicant his right to respect for his family life, which included examining his application under the Hague Convention with a view to ensuring his prompt reunion with his children (see G.N. v. Poland, no. 2171/14, §§ 47-48, 19 July 2016).

25.  The return proceedings before the Hungarian authorities were initiated on 15 February 2017 and can be considered to have terminated on 24 November 2020. The domestic courts took approximately three years and nine months to deal with the matter, after examining the case twelve times before four instances. The Court notes that out of this time, it took the Constitutional Court roughly nine months in 2018 (paragraph 4 above) and four months in 2019/20 (paragraph 7 above) from suspending the enforcement of return order to cancelling the lower courts' decision. Also, the proceedings were terminated due to the de facto reunion.

26.  Because the passage of time risks compromising irretrievably the position of a non-resident parent, the specific nature of the Hague Convention proceedings requires domestic courts to rely on the presumption that an immediate return of the children to their habitual residence is in their best interest (see, mutatis mutandis, McIlwrath v. Russia, no. 60393/13, § 126, 18 July 2017).

27.  The Convention also requires the Contracting States to organise their courts in such a way as to enable them to meet the requirements of the "reasonable time" criteria in the context of the right to a fair trial, which was also mentioned by the Hungarian Constitutional Court in relation to B.'s procedural rights. Therefore, if the psychological expertise and the cross-examination of the expert were considered essential in this type of proceedings, for which priority is inherent to the subject matter of the case, the judicial system and procedure should have been organised in such a way as to undertake such steps at the earliest phase of the proceedings to prevent multiple renewals and delays. Due to the lack of such precautions, a period of three years and nine months in a matter as sensitive as the international return and parental custody rights of young children was not in compliance with the positive obligation to act expeditiously (compare, R.S. v. Poland, cited above, § 70). The Court does not observe any circumstances capable of exempting the domestic courts from such obligations.

28.  The Court also notes that, except for the Constitutional Court's decisions, all judicial decisions were in favour of the applicant. It is also striking that on 10 December 2019 the Debrecen District Court recognised the Spanish court's decision in favour of the applicant regarding parental custody as enforceable. However, the two sets of proceedings do not seem to have been linked at any stage, nor was any measure taken to enforce the Spanish court's decision.

29.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention. In view of this conclusion, the remaining arguments do not require further examination.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicant claimed 17,748.80 euros (EUR) in respect of pecuniary damage, indicated and documented as translation fees for the purpose of legal actions, fees for travel and accommodation in relation to the proceedings and parental visits. He claimed EUR 40,000 for the anguish caused by the unnecessarily lengthy period of separation from his children and the trauma of recreating ties after their reunion. The applicant also claimed EUR 12,000 for costs and expenses incurred before the Court and presented copies of invoices provided by his representative, corresponding to the study of the case and initial application, and the observations in response to those of the Government.

31.  The Government qualified these requests as being excessive and invited the Court to reject them.

32.  The Court has found that the Hungarian authorities failed to take adequate measures to finalise expeditiously the relevant proceedings related to the return of the children to their habitual residence. There is thus a causal link between the delays in question and the expenses necessary for the applicant's later visits to his children in Hungary. In view of the documents presented and ruling on an equitable basis, the Court awards EUR 4,000 for pecuniary damage, plus any tax that may be chargeable.

33.  Regarding non-pecuniary damage, the situation must have accentuated the distress resulting from the separation of the applicant from his children, which is not sufficiently compensated for by the finding of a violation of the Convention. Ruling on an equitable basis, the Court awards EUR 9,000 under this head, plus any tax that may be chargeable.

34.  In respect of cost and expenses, having regard to the documents in its possession, the Court considers it reasonable to award EUR 4,000, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Alena Poláčková
 Deputy Registrar President