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2022. February 25.

Decision 3066/2022 (II. 25.) AB

Decision number: IV/562/2021.
Subject of the case:

Constitutional complaint against the ruling No. 49.Pkf.636.669/2020/3 of the Budapest-Capital Regional Court (supplementing the keeping of contacts)

The Constitutional Court found a conflict with the Fundamental Law and annulled the rulings delivered by the Budapest IV District Court and the Budapest XV District Court in the subject-matter of the enforcement of contact. In the case underlying the procedure, the petitioner, as a separated parent, was entitled to regular and periodic contact with his minor child. The parent living with the child repeatedly refused to hand over the child in view of the state of danger and the epidemic, therefore the petitioner applied to the court for an order to substitute the contact. In its final ruling, the court granted the application in part and ordered the substitution of the missed regular weekend contact, but rejected the application for the substitution of the periodic contact due in the summer, as after the summer substitution was not possible and could only have been enforced at the expense of the ongoing contact. In the petitioner’s view, the failure of the court to order the substitution of the periodic contact the missing of which was not attributable to the contact person constituted a contra legem application of the law, and thus infringed his right to respect for his family life and his right to maintain contact. In its decision, the Constitutional Court found that it was not clear from the court’s decision exactly why and to what extent the end of the holiday period was an obstacle to the substitution of the contact, if the legal conditions for the substitution were otherwise met. The Constitutional Court could not verify whether the court had recognised the fundamental rights relevance of the case, identified the fundamental rights of the persons concerned or carried out a complex examination based on the principle of proportionality of competing fundamental rights positions, the requirement of fair weighing and the need to strike a fair balance. Therefore, the panel of the Constitutional Court declared that the challenged rulings were in conflict with the Fundamental Law and annulled them.