CEDH · CASELAW;CLIN;ENG — 12 février 2013

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Hungary - 29617/07 Judgment 12.2.2013 [Section II] Article 14 Discrimination Total removal of applicant’s access rights on account of his attempts to transmit his religious beliefs to his child: violation   Facts – The applicant belonged to the religious denomination Hit Gyülekezete (Congregation of the Faith). In 2000 he divorced and his son, who was born in 1994, was placed with the mother. The applicant was granted access. He twice applied without success for custody or an order varying his rights of access. In 2006 the domestic courts withdrew custody from the mother and placed the boy with his older brother. It refused to give custody to the applicant after noting a comment in an expert psychologist’s report that the applicant held unrealistic educational ideas hallmarked by religious fanaticism which rendered him unfit to provide the boy with a normal upbringing. Ultimately, in 2008, the courts removed the applicant’s access rights altogether, on the grounds that he had abused them by imposing his religious convictions on his son. Law – Article 14 in conjunction with Article   8: The decision to deprive the applicant of access rights in respect of his son had constituted an interference with his right to respect for family life. When deciding on the applicant’s suitability to contribute to his son’s development, the domestic authorities had added to their consideration the factor – that had evidently been decisive – of the applicant’s religious convictions and its possible effects on the child. The applicant’s religious convictions had thus had a direct bearing on the outcome of the matter in issue and there had been a difference of treatment between the applicant and other parents in an analogous situation. The aim pursued, namely the protection of the child’s health and rights, was legitimate. However, the rights to respect for family life and religious freedom as enshrined in Articles   8 and   9 of the Convention, together with the right to respect for parents’ philosophical and religious convictions in education, as provided in Article   2 of Protocol No.   1, conveyed on parents the right to communicate and promote their religious convictions in their children’s upbringing. That would be an uncontested right in the case of two married parents sharing the same religious ideas or worldview and promoting them to their child, even in an insistent or overbearing manner, unless it exposed them to dangerous practices or physical or psychological harm. The Court saw no reason why the position of a separated or divorced parent who did not have custody of his or her child should be different per se . In the instant case there was no evidence that the applicant’s religious convictions involved dangerous practices or exposed his son to physical or psychological harm. No convincing evidence had been presented to substantiate a risk of actual harm, as opposed to the mere unease, discomfort or embarrassment which the child might have experienced on account of his father’s attempts to transmit his religious beliefs. The expert had not examined the applicant, nor had his suggestion that the applicant should be examined by a psychiatrist been followed up. The Government had not demonstrated the presence of exceptional circumstances which could justify a measure as radical as the total severance of contact between the applicant and his son. The domestic courts had decided to apply an absolute ban on the applicant’s access rights without giving any consideration to the question whether the mere suspension of access for a certain period of time or any other less severe measure that existed under Hungarian law (such as the exercise of access rights in controlled circumstances) would have sufficed to allow the child to regain his emotional balance. For the Court, the approach adopted by the authorities had amounted to a complete disregard of the principle of proportionality that was requisite in this field and inherent in the spirit of the Convention. Consequently, the applicant had been discriminated against on the basis of his religious convictions in the exercise of his right to respect for family life. Conclusion : violation (unanimously). Article 41: EUR 12,500 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes