készíti: Gellért Ádám
email/elérhetőség: gadam107@yahoo.com

“The only necessary for "evil" to triumph is for a few good men to do nothing”

2011. július 19., kedd

Láthatási jog kikényszeríthetősége a gyámhatóság útján - 5 millió forintos kártérítés Strasbourgban

Még júniusban 50 millió forintos kártérítést ítélt meg egy magyar apának a strasbourgi bíróság. Az ítélet szerint a magyar hatóságok tétlensége (inaction) hozzájárult ahhoz, hogy az apa legalább hét éven keresztül nem tudott élni gyermekének láthatási jogával. Az ügy részletei (Zoltán Németh v. Hungary, No. 29436/05 14 June 2011) alább:

5. On 23 June 1998, following the pronouncement of the divorce of the applicant and his wife, the Budapest IV/XV District Court placed the applicant’s child – born in July 1993 – with the mother.

7. The parents managed to reach a settlement about the father’s access rights concerning visits until the summer of 1999, which was approved by the Budapest Regional Court on 8 January 1999. According to the arrangement, the applicant was allowed to see his son every second Saturday from 9 am until 6 pm, the day after Easter at the same hours and during the summer holidays from 7 until 14 July and from 1 until 14 August.

8. Until 26 May 2000 the applicant managed to see his son only rarely, since the mother refused to comply with the arrangement on most occasions. From this date onwards he was fully denied access to the child by his former wife.

23. It appears that the applicant has been unable to have any contact with his son since then.

31. The applicant alleged that the steps taken by the national authorities had not been effective and had contributed to the current situation. The domestic authorities continued to tolerate the unacceptable behaviour of the mother, who tried to do everything possible to prevent contact and obstruct the development of a loving relationship between him and his son.

32. He also pointed out that the guardianship authorities had made use of only two measures at their disposal, namely warning the mother and the imposition of fines. They therefore had not availed themselves of the possibility of temporarily placing the child with the applicant, initiating mediation proceedings or even providing police assistance to ensure the visits. With the ministerial decision, the authorities had even annulled the minimal achievements made.

33. He contended that the annulment of the fines by the Ministry would not have been necessary on the ground that the liability for the failure of the visits could not be established unambiguously, had the authorities complied with their obligation to respect the deadlines.

34. In the applicant’s view, the lack of any coercive measure had legalised the mother’s unlawful conduct. He also argued that the child upbringing counsellor and the foundation proposed by the authorities had been of no help, as they did not have any power to compel the mother to cooperate.

35. The applicant further emphasised that he had taken all possible legal steps to enforce his visiting rights. He finally highlighted the fact that his son had not opposed the meetings, which were hindered only by the mother.

55. From the foregoing the Court cannot but conclude, bearing in mind the interests involved, that the competent authorities did not act sufficiently promptly or make reasonable efforts to facilitate reunion. On the contrary, the inaction of the authorities placed the burden on the applicant to have constant recourse to a succession of time-consuming and ultimately ineffective remedies to enforce his rights. Over the years, they tolerated the mother’s unlawful actions which they were under a duty to prevent.

56. Accordingly, the Court concludes that, notwithstanding the margin of appreciation enjoyed by the competent authorities, the non-enforcement of the applicant’s right of access constituted a breach of his right to respect for his family life under Article 8 of the Convention.


(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Hungarian forints at the rate applicable at the date of settlement;

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