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. augusztus 9., kedd

Újabb Magyarországot elmarasztaló strasbourgi döntés - 8.5 millió forintos kártérítés egy ír apának

A magyar államnak 20.000 eurós kártérítést és 12.000 euró eljárási költséget kell megfizetnie egy Párizsban élő ír apának, mert a magyar hatóságok nem jártak el kellő gyorsasággal az apa láthatási jogának érvényesítése során - döntött a strasbourgi bíróság még július végén (Shaw v. Hungary, Application No. 6457/09, 26 July 2011). Két hónapon belül ez a második ilyen ügy. Júniusban az emberi jogi bíróság szintén 20.000 eurós kártérítést ítélt meg egy magyar férfinak.

A Shaw ügyben a következőkben kellett döntenie a strasbourgi bíróságnak:

70. The main issue in the present case is the transfer abroad and illicit non-return of the applicant's child. The Court must accordingly examine whether, seen in the light of their international obligations arising in particular under the EC Regulation on the Recognition of Judgments and the Hague Convention, the domestic authorities made adequate and effective efforts to secure compliance with the applicant's right to the return of his child and the child's right to be reunited with her father (see Ignaccolo-Zenide, cited above, § 95).

A bíróságok túllépték a hathetes, kötelezően előírt elintézési határidőt:

71. In proceedings related to the return of a child, Article 11 § 3 of the EC Regulation on the Recognition of Judgments sets a clear obligation on the domestic courts to issue a judgment within six weeks after the application is lodged, unless exceptional circumstances arise. The Court points out that following the applicant's submission of a claim to the Pest Central District Court on 12 March 2008, the first-instance judgment was delivered only after seven weeks, on 30 May 2008. A further thirteen weeks passed until the adoption of the second-instance judgment of 2 September 2008. The Supreme Court's judgment was issued eleven weeks thereafter, on 18 November 2008.

72. It is to be noted that the reason for the delay between the first- and the second-instance decision could partially be due to the five-week court vacation between 14 July and 12 August 2008. However, if the six-week time-limit had been observed, the Regional Court should have delivered judgment before the court vacation, that is, no later than 11 July 2008. Moreover, such cases should be classified as urgent, requiring treatment even during the court vacation. No reasons were given as to the further delays in the proceedings and there were no exceptional circumstances which would justify them. The domestic courts thus failed to act expeditiously in the proceedings to return the child, manifestly in breach of the applicable law. The Court finds that these delays in the procedure alone enable it to conclude that the Hungarian authorities had not complied with their positive obligations under the Convention.

A magyar hatóságok nem jártak el kellő gyorsasággal az eljárás során:

73. Further to this, and notwithstanding the authorities' efforts to locate the mother and the child following their disappearance (see paragraphs 23 to 32 above), the Court finds that those authorities failed to take adequate and effective measures for the enforcement of the return order prior to 29 July 2009. Almost eleven months passed between the delivery of the enforceable final judgment ordering the return of the child on 2 September 2008 and the disappearance of the mother and her daughter on 29 July 2009. Within this period, the only enforcement measures taken were the unsuccessful requests of the bailiff to voluntarily return the child, and the imposition of a relatively small amount of fine on one occasion. The other measures at the authorities' disposal were left unused, including the possibility of police assistance and the repeated imposition of fines. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by one of the parents.

74. In addition, the Court observes that even though Ms K.O. was arrested on 27 July 2009, no steps were taken by the authorities to execute the return order of the child that day, despite the enforceable final order to do so. It is true that the date set for the on-site proceedings for the return of the child was scheduled only for 29 July 2009. However, the Court points out that the domestic court decision as to the method of enforcement was already final on 18 June 2009. It finds no reasons justifying the period of more than one month between these two dates in light of the requirement of expeditious action by the authorities.

76. Lastly, in the Court's view, the impugned situation was aggravated by the fact that more than three and a half years passed without the father being able to exercise his access rights. This was essentially due to the fact that the Hungarian authorities established lack of jurisdiction in the matter despite the existence of a final court decision, certified in accordance with Article 41 of the EC Regulation on Recognition of Judgments (see paragraphs 33 to 37 above).

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