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2023. July 24.

Decision 14/2023 (VII. 24.) AB on establishing a constitutional requirement

Decision number: IV/02930/2022
Subject of the case:

Constitutional complaint aimed at establishing the lack of conformity with the Fundamental Law and annulling the ruling No. 6.Pkf.51.643/2022/4 of the Budapest Environs Regional Court (enforcement of keeping contacts)

The Constitutional Court held that it is a constitutional requirement stemming from Articles VI (1) and XVI (1) of the Fundamental Law that on the basis of section 22/C (2) (b) of the Act CXVIII of 2017 on the Rules Applicable to Civil Non-Contentious Proceedings in Court and Certain Non-Contentious Proceedings in Court (ANCP), the court may order the making up of any missed contact in any case where the conditions for the issuance of a ruling on the enforcement of a missed contact are fulfilled; the making up of the missed contact may take place at the latest within six months from the issuance of the court’s ruling, at the next appropriate time. The Constitutional Court also declared that the challenged ruling of the Budapest Environs Regional Court is in conflict with the Fundamental Law and annulled it. In the case underlying the procedure, the petitioner filed a request for enforcement of contact on the grounds that the petitioner’s ex-spouse had obstructed contact by handing over the child’s expired document for contact when the petitioner wanted to travel abroad with the child. The court of first instance rejected the application. The court of second instance, partially reversing the appealed part of the first instance ruling, found that the former spouse had breached the provisions of the decision on contact with regard to the continuous contact due at the time complained of. The petitioner complained that the courts had failed to order the making up of the contact. In the petitioner’s view, the courts had taken decisions contrary to the Fundamental Law by applying the law in a contra legem manner, depriving the petitioner of the right to the subsequent making up of contact. In its decision, the Constitutional Court held that, as follows directly from the grammatical interpretation of section 22/C of the ANCP, the Act does not expressly and uncontroversially preclude the failure to make up for missed contact where the court delivers its decision after six months from the original date of contact. The interpretation of the law chosen by the Budapest Environs Regional Court, which excludes the making up of missed contact in cases such as that of the applicant, deprives the separated parent of a protected fundamental right between that parent and the child, and is therefore outside the scope of interpretation conferred on the trial court and thus is contrary to the Fundamental Law. The Constitutional Court therefore annulled the contested ruling and attached a constitutional requirement to the relevant wording of the ANCP.