CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 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. 23558/94                       by A.L. H., E.S. H., D.C. L.,                       B.M. L. and M. E.                       against Hungary        The European Commission of Human Rights sitting in private on 20 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 9 December 1993 by A.L. H., E.S. H., D.C. L., B.M. L., and M. E. against Hungary and registered on 2 March 1994 under file No. 23558/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   THE FACTS        The applicants, born out of wedlock in 1987, 1989, 1992, 1992 and 1992, respectively, are of Romanian origin. When lodging their application, they lived in the United States of America with adoptive parents. Before the Commission, they are represented by Mr. J. Davies, the Director of the Hungarian branch of the Solomon Foundation. The Foundation appears to arrange adoptions from several countries to the United States, and has organised inter alia the adoption in question. Mr. Davies was appointed by the applicants' adoptive parents.   A.    Particular circumstances of the case        The facts, as they have been submitted by the applicants, may be summarised as follows.        In August/September 1992 the applicants, accompanied by their natural mothers, their only parents known, left Romania and entered Hungary.        In August/October 1992 the natural mothers recorded declarations with a Hungarian notary public according to which they irrevocably agreed to their children's adoption by couples of US nationality, allowing them to emigrate to the United States. The adoptions were organised by Mr. Davies. Subsequently the natural mothers left Hungary. The applicants were provisionally taken care of by foster parents paid for by the prospective adoptive parents.        In March/April 1993 the General Administrative Bureau of the Szeged Mayor's Office (Szeged Megyei Jogú Város Polgármesteri Hivatal Általános Igazgatási Iroda) decided that the applicants be provisionally placed under state custody and be committed to the Csongrád County Child and Youth Protection Institute (Csongrád Megyei Gyermek- és Ifjúságvédo Intézet). The Bureau considered that this measure was necessary, pursuant to Section 10 of the Rules on the Protection of Minors (Decree No. 51/1986. /XI.26./ MT), in order to protect the applicants' interests. The Office noted that the applicants' natural mothers had left Hungary and, in the absence of the prospective adoptive parents, the applicants had no legal representative. The decision was enforced immediately.        Mr. Davies' appeal on behalf of the applicants was allegedly rejected by the General Administrative Bureau of the Szeged Mayor's Office on the ground that he had no legal interest in the matter of the applicants. His request that a special guardian be appointed to represent the interests of the applicants and to lodge an appeal on their behalf was allegedly also rejected. According to Mr. Davies, his request for copies of the custody decisions was to no avail.        In July 1993 the General Administrative Bureau of the Szeged Mayor's Office terminated the state custody. The Bureau, referring to Section 11(3) of the Rules on the Protection of Minors, noted that the Hungarian Ministry of Social Welfare had meanwhile communicated the issue of the applicants' and other Romanian children's adoption to Romania, and the Embassy of Romania had agreed on the adoption scheme and the emigration of the children concerned.        The applicants thereupon were handed over to their adoptive parents in the United States.        B.     Relevant domestic law        Sections 10 and 11 of the Rules on the Protection of Minors concern the provisional committals to institutions and the placement of minors.        Section 10 provides as follows:              "(1) A minor shall be provisionally committed to the      nearest Institute for the Protection of Children and Youth by the      guardianship authority ..., the court, the police, the      prosecutor's office, the governor of the prison or the      administrative organ of the communal council, if an immediate      measure is necessary in order to avoid a serious risk to the      minor's well-being.              (2) The authority concerned shall provide for the transfer      of the minor to the Institute for the Protection of Children and      Youth, and shall notify the competent guardianship authority      accordingly. A minor under 3 years of age shall be transferred      to the nearest nursery home, and both the Institute for the      Protection of Children and Youth and the competent guardianship      authority shall be simultaneously notified about this measure.              (3) The decision ordering the provisional committal may be      executed immediately."        Section 11 reads as follows:              "(1) If the guardianship authority, following the      provisional committal order, establishes that there are reasons      warranting the termination of the parental custody, it shall      initiate an action against the parent(s) in order to terminate      custody.              (2) If the termination of custody does not appear      necessary, the guardianship authority may take the following      measures in order to protect the minor's interests:              a) place the minor in institution care, or            b) place the minor provisionally with the other parent or            with another suitable person.              (3) If the measures under (1) and (2) above are not      necessary, the guardianship authority shall terminate the      provisional committal."   COMPLAINTS        The applicants complain that the decisions taken by the General Administrative Bureau of the Szeged Mayor's Office in March/April 1993 to place them under state custody and to commit them to a children's home violated their right to liberty under Article 5 para. 1 of the Convention. They further claim that this measure violated their right to respect for their private and family life as guaranteed under Article 8. They also submit that this measure amounted to inhuman and degrading treatment, contrary to Article 3 of the Convention. They further complain under Article 6 that they were denied a public hearing to challenge the impugned decision. They finally complain under Article 2 of Protocol No. 4 that, as a consequence of the measure concerned, they were prevented from leaving Hungary.   THE LAW   1.    The applicants raise several complaints in respect of their placement under guardianship and confinement to a public children's home, which terminated in July 1993. The applicants did not specify the exact date. They lodged their application with the Commission on 9 December 1993. The question, therefore, arises whether they complied with the period of six months under Article 26 (Art. 26) of the Convention. The Commission is, however, not obliged to resolve this matter, as the application is anyway inadmissible for the following reasons.   2.    The applicants complain that their placement under state custody and confinement to a public children's home amounted to a violation of their right to liberty under Article 5 para. 1 (Art. 5-1) of the Convention.        Article 5 para. 1 (Art. 5-1), as far as relevant, provides as follows:        "Everyone has the right to liberty and security of person.   No      one shall be deprived of his liberty save in the following cases      and in accordance with a procedure prescribed by law:      ...            d.     the detention of a minor by lawful order for the      purpose of educational supervision or his lawful detention for      the purpose of bringing him before the competent legal      authority;"        The Commission notes that in March/April 1993 the applicants, then one to five year old minors, were staying in Hungary with paid foster parents with a view to their adoption and emigration to join their future adoptive parents in the United States.   This adoption was, like other adoptions of Romanian children, organised by Mr. Davies of the Solomon Foundation.   The impugned decision ordered that the applicants be provisionally committed to the Csongrád County Child and Youth Protection Institute, where they stayed for about three months.        The Commission recalls that the protection afforded by Article 5 (Art. 5) also covers minors (Eur. Court H.R., Nielsen judgment of 28 November 1988, Series A no. 144, p. 22, para. 58). However, in the particular circumstances of the case, the Commission finds that the applicants' committal to the Csongrád County Child and Youth Protection Institute did not amount to a deprivation of their liberty within the meaning of Article 5 para. 1 (Art. 5-1).        The applicants' submissions do not, therefore, disclose any appearance of a violation of their right to liberty under Article 5 para. 1 (Art. 5-1).        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2).   3.          The applicants further complain that the decisions of March/April 1993 to place them under state custody violated their right to respect for their private and family life. They rely on Article 8 (Art. 8) of the Convention, which provides as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        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 in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission notes that at the relevant time the applicants, while awaiting the conclusion of their adoption proceedings and their emigration to join their future adoptive parents in the United States, had been placed with paid foster parents in Hungary. The question arises whether the decisions of March/April 1993 amounted to an interference with their right to respect for their private and family life within the meaning of Article 8 para. 1 (Art. 8-1).        However, the Commission does not have to resolve this matter, as, even assuming such an interference, it was justified under Article 8 para. 2 (Art. 8-2) for the following reasons.        The Commission notes that the measure in question was based on Section 10 of the Rules on the Protection of Minors. The decisions concerned were taken in accordance with this legal provision, a circumstance not contested by the applicants.        The Commission further finds that the relevant Hungarian law was aimed at protecting "health or morals" and "the rights and freedoms" of children. There is nothing to suggest that it was applied for any other purpose in the present case. In this respect the Commission notes in particular that the aim of the impugned measure was to protect the applicants' interests pending clarification of the circumstances of their adoption and envisaged emigration.        It remains to be examined whether the interference complained of was "necessary in a democratic society" in order to pursue this aim.        The notion of necessity implies that the interference must be proportionate to the legitimate aid pursued; in determining whether an interference is "necessary in a democratic society", the Court will take into account that a margin of appreciation is to be left to the Contracting States (Eur. Court H.R., Rieme judgment of 22 April 1992, Series A no. 226, p. 71, para. 69).        The Commission, referring to its earlier findings, notes in particular that the applicants' temporary placement under state custody was ordered on the ground that the applicants' natural mothers had left Hungary after having signed the adoption papers. In the absence of the prospective adoptive parents, the applicants had no legal representative. The applicants were still in a transitory legal situation and stayed with paid foster parents. At the same time, numerous similar adoption transactions, organised by the Solomon Foundation, were taking place.        In this situation, the Hungarian authorities could reasonably find it necessary to take the provisional measure in question in order to investigate the matter together with the Romanian authorities. The state custody lasted for some three months and was terminated as soon as the investigation was completed.        In these circumstances the Commission finds that the interference was necessary for the aforesaid legitimate aim and, considering its provisional nature and short duration, also proportionate to this aim.        Consequently, there is no appearance of a violation of the applicants' right to respect for their private life.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para 2 (Art. 27-2). of the Convention.   4.    As regards the remainder of the applicants' complaints, the Commission, having regard to the material before it, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.        It follows that this part of the application must be rejected in accordance with Article 27 (Art. 27) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission        (H. C. KRÜGER)                              (S. TRECHSEL)