CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 21647/93                       by Géza SZEGO                       against Hungary        The European Commission of Human Rights (First Chamber) sitting in private on 16 January 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 January 1993 by Géza SZEGO against Hungary and registered on 8 April 1993 under file No. 21647/93;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the Commission's decision of 1 December 1993 to communicate the application as regards the applicant's complaint under Article 8 para. 1 of the Convention and to declare the remainder of the application inadmissible.        Having regard to the observations submitted by the respondent Government on 18 March 1994; and the applicant's letter of 8 May 1994 and the observations in reply submitted by his representative on 10 December 1994;        Having regard to the Government's further submissions of 25 January and 18 May 1995;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case, as they have been submitted by the parties, may be summarised as follows.        The applicant, born in 1954, is a Hungarian national and resident in Budapest.   He is an engineer by profession. As from 22 September 1994 he has been represented by Mr. L. Németh, a lawyer practising in Budapest.   A.    Particular circumstances of the case        On 3 November 1984 the applicant married B.G.   On 6 June 1985 B.G. gave birth to a daughter (Zs.), on 31 October 1986 to a son (M.).        On 24 November 1987 B.G. instituted divorce proceedings.   She claimed - inter alia - that not the applicant but D.B. was the natural father of both children.   The applicant also claimed the right of custody over both children.        On 22 May 1990 the Buda Central District Court (Budai Központi Kerületi Bíróság) pronounced the divorce.   The District Court, having taken expert evidence, declared that the applicant was not the natural father of Zs., but of M.   The Court transferred the right of custody over M. to B.G. and granted the applicant a right of access every second weekend and during the school holidays.        On 28 January 1992 the Metropolitan Court (Fovárosi Bíróság), upon the applicant's appeal against the decision of 22 May 1990, amended the judgment as regards the applicant's right of access to M. during the initial four months.   The remainder of the appeal was dismissed.        Accordingly, as from 1 February 1992, the applicant was entitled to have access to M. by way of collecting him from B.G.'s flat every second Saturday at 9 a.m.   Until 1 August 1992 he was to return M. at 5 p.m. the same day, however, after this date the applicant was to return him only on Sundays at 5 p.m.   Furthermore, the applicant was entitled to have access to M. for half of the child's school holidays. If he had no access to M. on a weekend for any reason other than through his own fault he should have access the next weekend instead.        In its reasoning, the Metropolitan Court considered that B.G. was opposed to access and that the applicant was also suitable to exercise the right of custody.   However, the Court found that it was in M.'s interest to be in B.G.'s custody.        On 11 February 1992 the applicant informed the Dazed Local Authority Mayor's Office (Dazed Községi Önkormányzat Polgármesteri Hivatal) that on 8 February 1992 he attempted to collect M. from B.G.'s flat but that D.B. prevented him from doing so and let him have access to M. only in the flat for a while.   He asked for the help of the local authority in order to have access to his son and to institute family law proceedings in order to transfer custody to him.        On 20 February 1992 the local authority organised a meeting between the parties.   They agreed that B.G. would guarantee the access but only between 10 a.m. and 1 p.m. every second Saturday.   B.G. also insisted that the applicant should not take M. to his own flat but he should exercise his right to visit in the village of Dazed where she lived.        On 13 March 1992 the notary of the local authority wrote a letter to B.G. warning her that in case of failure to comply with the agreement of 20 February 1992, enforcement measures would have to be taken.        On 24 March 1992 the applicant informed the public guardianship department of the local authority that, despite the agreement of 20 February 1992, he still had no access to M.   He claimed again that the local authority should institute family law proceedings in order to transfer custody to him.   He also filed an opinion of a well-known Hungarian psychologist to substantiate his claims.        On 2 April 1992 the local authority organised a further meeting between the parties, including D.B.   As B.G. had failed to comply with the previous agreement, the applicant insisted on access to M. as ordered by the court.   B.G. and D.B. very reluctantly accepted to guarantee the applicant's access to M.   According to the minutes of this meeting, signed by the applicant, three visits had taken place in the period between 20 February and 2 April 1992.   This is contested by the applicant.        On 4 April 1992 the applicant had access to M. in accordance with the court judgment.        On 20 April 1992 the applicant informed the local authority that on 18 April 1992 he had again been prevented from having access to M. in that B.G. and D.B. had informed him that M. did not want to join him, because they were about to travel and were already packing their suitcases.   The applicant also stated that B.G. and D.B. had told M. in his presence - inter alia - that the applicant had lied and had molested them.   The applicant further submitted that B.G. had physically attacked him and that D.B. had intended to throw water over him.    He had therefore decided to leave the flat.    The applicant renewed his request with the local authority to enforce the court judgment.   No reply was given to him.        On 28 April 1992 the applicant informed the Administrative Department of the Budapest Commissioner of the Republic's Office (Budapesti Köztársasági Megbízotti Hivatal Igazgatási Hatósági Osztály) that, apart from the visit of 4 April 1992, he had not had any access to M.   He urged intervention to enforce the court judgment.   No reply was given to him.        On 4 May 1992 the applicant again informed the local authority that B.G. was still hindering his access to M. and claimed urgent intervention to enforce the court judgment.   No reply was given to him.        On 5 May 1992 the applicant lodged an application with the Administrative Department of the Budapest Commissioner of the Republic's Office requesting that the notary of the local authority be excluded from the enforcement proceedings.    He claimed that the notary was biased and did in fact very little to enforce the court judgment.        On 10 May 1992 the applicant informed the local authority that on 9 May 1992 B.G. had again prevented him from having access to M. and that he had again been attacked by her.   He urged the local authority to intervene.   No reply was given to him.        On 18 May 1992 the applicant informed the local authority that on 16 May 1992 D.B. had hindered his access to M.   He urged again the local authority's intervention.   No reply was given to him.        On 31 May 1992 the applicant informed the local authority that on 24 May 1992 B.G. and her family had changed their abode and requested to be informed about their new address.   A copy of this letter was sent also to the Administrative Department of the Budapest Commissioner of the Republic's Office.        On 1 June 1992 this Administrative Department informed the applicant about B.G.'s new address and advised him that, therefore, in the future the Budapest XX. District Local Authority Major's Office (Budapesti XX. kerület Polgármesteri Hivatal) had jurisdiction in the case and, therefore, it was no longer necessary to exclude the notary of the Diosd Local Authority from the enforcement proceedings.        On 9 June 1992 the Diosd Local Authority also informed the applicant about B.G.'s new address.        In Summer 1992 the applicant claimed the assistance of the Budapest XX. District Local Authority Major's Office.   The administrator of the Local Authority thereupon wrote a letter to B.G. in which she was warned that she should comply with the court judgment. An agreement was also made with the parties that the applicant would meet M. in a child care institute because he was said to be afraid of going to the applicant's flat.   It appears that the applicant met M. once at the institute concerned, and that after this meeting B.G. claimed that M. did not want to meet the applicant.        On 17 October 1992 the same administrator accompanied the applicant and noted that the applicant was in effect denied access to M.   The applicant was allowed to visit M. for a while in B.G.'s flat only and M. told him that he did not want to join him.   A video recording was made by B.G. of the visit.        On 17 November 1992 the administrator accompanied the applicant again.   This time M. was ill, but B.G. had failed to inform the applicant thereof.   The applicant had no access to M.        On 16 January 1993 the administrator again accompanied the applicant.   B.G. was not at home.   D.B. told the applicant that M. did not want to see him.   This was confirmed by M.   The applicant had no access to M.        On 12 March 1993 the Budapest XX. District Local Authority imposed a fine of 5,000 Hungarian forints upon B.G. for failure to comply with the court judgment regarding the applicant's right of access to M.   On 4 May 1993 the Administrative Department of the Budapest Commissioner of the Republic's Office rejected B.G.'s appeal. Her further appeal was dismissed by the Ministry of Public Welfare (Népjóléti Miniszterium) on 12 November 1993.   The fine was enforced in January 1994.        In February 1994 the Budapest XX. District Local Authority imposed a fine of 10,000 Hungarian forints upon B.G. for her continued failure to comply with the court judgment.   Upon the B.G.'s appeal, the Administrative Department of the Budapest Commissioner of the Republic's Office reduced the amount to 5,000 Hungarian forints.        On 12 July 1994 the Budapest XX. District Local Authority imposed another fine of 10,000 Hungarian forints upon B.G. for her continued failure to comply with the court judgment.   The Authority noted that through B.G.'s fault the applicant had not been able to have access to his son M. throughout 1993.        On 5 November 1994 the Budapest XX. District Local Authority appointed a person to assist the applicant in implementing his right of access to M.   According to a report of this person, B.G. and D.B. reacted aggressively when he and the applicant wanted to fetch M. for the regular visit and M. had stated in a stereotype manner that he did not wish to see the applicant.   The report concluded that it appeared that B.G. and D.B. would render any visits between the applicant and M. impossible.        On 31 March 1995 the Administrative Department of the Budapest Commissioner of the Republic's Office dismissed B.G.'s appeal.   The Administrative Department considered that the applicant's right of access had been deliberately regulated to the effect that he was entitled to take M. away from his home.   The Department noted that B.G. had prevented the applicant for many years from exercising his right of access.   The Department also stated that B.G.'s appeal submissions according to which M., although encouraged by B.G., opposed for years leaving his home together with the applicant, could give rise to serious problems in M.'s education which might necessitate - in the absence of any favourable changes within a reasonable lapse of time - that further measures be taken by the competent guardianship authority, which might ultimately result in court proceedings to change M.'s place of residence.   The Department based its decision on S. 92 of the Act on Family, Marriage and Guardianship as well as on SS. 66 and 82 of the Code of Administrative Procedure.   B.    Relevant domestic law        Questions of guardianship and access to children are governed by the Act I of 1952 on Family, Marriage and Guardianship.        According to S. 70, a minor shall be under parental supervision or under guardianship.   S. 72 para. 1 provides that, as a rule, parental supervision is jointly exercised by the parents.   According to its paragraph 2, if the parents do not live together and the minor is, in agreement between the parents or by virtue of a court decision, placed with one of the parents, the parental supervision is exercised by the parent with whom the child has been placed.        S. 92 provides that the parent living separately from the child has the right and obligation to maintain relations with his child, and to hold regular contacts with his child.   The parent or other person taking care of the child is obliged to ensure the undisturbed maintenance of these relations.   The guardianship authority is to provide for the enforcement of the court decision concerning the access to the child.        Pursuant to S. 47 of the Act II of 1972 on Courts, the Hungarian Supreme Court has the power to issue guiding principles and directive decisions when such guidance on a particular point of law is needed in the interest of the unity of the case-law.   Such guiding principles and directive decisions are binding upon all courts (S. 48).        As regards the right of access to children placed with one parent, the relevant part of Directive Decision No. 17 may be summarised as follows:   The placement of a child with one of his/her parents does not affect the right and the obligation of the other parent to regularly visit the child, to express his/her love and to maintain close relations with his/her child.   The parent who, without reason, obstructs the child from the communication with the other parent, and turns the child against him/her, gravely violates the interests of the child.   The emotional balance of the child is thereby adversely and unpredictably affected and it can even result in the child turning against both his/her parents.   Such deeply condemnable conduct of the parent affects harmfully the development of the child and gives every reason to draw the conclusion that this parent is not suitable to take care of the child, and could eventually lead to changing the placement of the child.   COMPLAINTS        The applicant's remaining complaint relates to the lack of enforcement by the public authorities of the court judgment concerning his access to his son M.   The applicant He invokes Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 January 1993 and registered on 8 April 1993.        On 1 December 1993 the Commission decided to communicate the applicant's complaint about the absence of enforcement of his right of access to his son to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.   The remainder of the application was declared inadmissible.        The Government submitted written observations on 18 March 1994.        On 13 April 1994 the applicant was granted legal aid.        The applicant filed personal submissions on 8 May 1994.   The observations in reply submitted by his representative were dated on 10 December 1994.   The Government filed further submissions on 25 January and 18 May 1995.   THE LAW        The applicant complains about the continuing lack of access to his son M.   and about the lack of enforcement of the court judgment which provides for access to M.   He invokes Article 8 para. 1 (Art. 8-1) of the Convention.        Article 8 (Art. 8), as far as relevant, reads as follows:        "1.    Everyone has the right to respect for his ... family life,      ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society ... for the      protection of the rights and freedoms of others."   a.    The Government maintains that the Commission has no competence ratione temporis to examine the applicant's complaint to the extent that it relates to the period prior to 5 November 1992.        The Commission observes that since the Convention entered into force with respect to Hungary on 22 November 1992, it will limit its examination of the present case to the facts occurring after that date, and events prior to it will be taken into account merely as a background (cf. Eur. Court H.R., Hokkanen judgment of 23 September 1994, Series A no. 299-A, p. 19, para. 53).   b.    The Government further maintain that the applicant failed to exhaust the remedies available to him under Hungarian law, as required under Article 26 (Art. 26) of the Convention.   The Government submit that the applicant failed to bring court proceedings against B.G. with a view to changing the decision on the placement of his son M.        The applicant objects to this view and refers in particular to the length of such proceedings and the lapse of time during which he would not be able to have access to M.        According to Article 26 (Art. 26) of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.        In the present case, the applicant repeatedly addressed to the local authority which is competent under the Act on Marriage, Family and Guardianship for the enforcement of court decisions regarding the access to children.        The Commission recalls that the rule of exhaustion of domestic remedies dispenses the States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system.   However, international law, to which Article 26 (Art. 26) makes express reference, demands recourse solely to such remedies as are both available to the persons concerned and sufficient (cf. Eur. Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 29, para. 50, and p. 33, para. 60).        The Commission considers that the enforcement proceedings pursued by the applicant constituted an effective and sufficient remedy under Hungarian law with regard to the complaint of continued lack of access to his son, which he raises before the Commission under Article 8 para. 1 (Art. 8-1) of the Convention.   Court proceedings with a view to changing the placement of a child, as suggested by the respondent Government, cannot be regarded as a remedy for the lack of access to his son.        The condition under Article 26 (Art. 26) of the Convention that domestic remedies must be exhausted has, therefore, been met.   c.    As regards the substance of the applicant's complaint, the respondent Government submit that the applicant's submissions regarding the period between the entry into force of the Convention with regard to Hungary and the date when he lodged his application are insufficient to conclude that his right to respect for his family life has been breached.   In any event, they consider that the Hungarian guardianship authorities took appropriate measures with a view to enforcing the applicant's right of access to M. in accordance with the court decisions of 1992, in particular by imposing fines upon B.G.   Having regard to the well-being of the child and taking into account the principle of proportionality, no stronger means of coercion could be employed.        The applicant submits that over the past years the authorities did not succeed in enforcing his access rights.        The Commission recalls that the essential object of Article 8 (Art. 8) is to protect the individual against arbitrary interference by the public authorities.   There may in addition be positive obligations inherent in an effective "respect" for family life.   Whilst the boundaries between the State's positive and negative obligations do not lend themselves to precise definition, the applicable principles are similar.   In particular, in both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (cf. Eur. Court H.R., Hokkanen judgment, loc. cit., p. 20, para. 55).        When children have been taken into public care and care measures have been implemented, or where the care has been provisionally transferred to a third person, Article 8 (Art. 8) includes a right for the parent to have measures taken with a view to his or her being reunited with the child and an obligation for the national authorities to take such action (Eur. Court H.R., Hokkanen judgment, loc. cit., p. 20, para. 55).        However, the obligation of the national authorities to take such measures is not absolute, since the reunion of a parent with a child who has lived for some time with other persons may not be able to take place immediately and may require preparatory measures being taken to this effect.   The nature and extent of such preparation depends on the circumstances of each case, but the understanding and co-operation of all concerned will always be an important ingredient.   Whilst national authorities will have to do their utmost to facilitate such co- operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 (Art. 8) of the Convention (cf. Hokkanen judgment, loc. cit., p. 22, para. 58).        The Commission finds that similar considerations apply to a case such as the present one where one parent complains about the lack of access to a child living with the other parent.        Accordingly, the Commission has to examine whether the national authorities have taken all such necessary steps to enforce the applicant's access right as can reasonably be demanded in the circumstances of the present case.   In this respect, the Commission observes that its review does not only relate to facts that have taken place before the date of introduction of the present Application, but covers the continuing situation of the applicant's lack of access to his son (cf. Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8, p. 38, para. 7).        As regards the background of the present case, the Commission notes that the applicant was, following his divorce in 1990, granted a right of regular access to his son who was placed with his mother G.B.   The court decision on the terms of his right of access became final in January 1992.   It appears that problems as to the implementation of these access rights arose as early as from February 1992, and the applicant repeatedly asked for the help of the competent local authority.        The Budapest XX. District Local Authority Major's Office, competent as from summer 1992, took various measures to enforce the applicant's right of access.   In particular, on 17 November 1992 and again on 16 January 1993, an administrator of the Local Authority continued the practice started on two earlier occasions to accompany the applicant on the days fixed for the child's visits.   The applicant's right of access could thereby nevertheless not be implemented.        As a next step, the Local Authority, in decisions of 12 March 1993, February 1994 and July 1994, imposed fines amounting to 5,000 and 10,000 Hungarian forints, respectively, upon B.G. for failure to comply with the court judgment regarding the applicant's right of access to M.   On 5 November 1994 the Budapest XX. District Local Authority designated a person to assist the applicant in the exercise of his access rights.   Finally, on 31 March 1995 the Administrative Department of the Budapest Commissioner of the Republic's Office, when dismissing B.G.'s appeal against the fine of July 1994, envisaged that, in the absence of any favourable changes within a reasonable lapse of time, further measures be taken by the competent guardianship authority which might ultimately result in court proceedings to change M.'s place of residence.        In these circumstances, the Commission is satisfied that the competent authorities, bearing in mind the competing interests and the difficulties in reconciling the applicant's and B.G's opposing positions, made reasonable efforts to enforce the applicant's right of access to his son, as determined in the court judgment of January 1992. In particular, the guardianship authorities had recourse to various measures in order to afford the applicant practical assistance on the occasion of visiting days, and to compel M.'s mother B.G. by means of repetitive fines to comply with her obligations under the said judgment.   The Commission also notes the Administrative Department's decision   of 31 March 1995 which envisages further coercive measures.        Accordingly, the Commission, having regard to the margin of appreciation enjoyed by the competent Hungarian authorities, finds no appearance of a violation of the applicant's right to respect for his family life under Article 8 (Art. 8) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber          (M.F. BUQUICCHIO)                           (C.L. ROZAKIS)