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. 25954/94                       by E. T.                       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 5 January 1994 by E. T. against Hungary and registered on 15 December 1994 under file No. 25954/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born out of wedlock on 13 April 1992, is of Romanian origin. When lodging her application, she lived in the United States of America with adoptive parents. Before the Commission, she is 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 applicant's adoptive parents on 9 December 1993.   A.    Particular circumstances of the case        The facts, as they have been submitted by the applicant, may be summarised as follows.        In October 1992 the applicant, accompanied by her natural mother, her only parent known, left Romania and entered Hungary.        On 15 October 1992 her natural mother recorded a declaration with a Hungarian notary public according to which she irrevocably agreed to her daughter's adoption by Mr. and Mrs. T., a couple of US nationality, allowing her to emigrate to the United States. The adoption was organised by Mr. Davies. Subsequently her natural mother left Hungary. The applicant was provisionally taken care of by foster parents paid for by the prospective adoptive parents.        In April 1993 the General Administrative Bureau of the Szeged Mayor's Office (Szeged Megyei Jogú Város Polgármesteri Hivatal Általános Igazgatási Iroda) decided that the applicant 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 applicant's interests. The Office noted that the applicant's natural mother had left Hungary and, in the absence of the prospective adoptive parents, the applicant had no legal representative. The decision was enforced immediately.        Mr. Davies' appeal on behalf of the applicant 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 applicant. His request that a special guardian be appointed to represent the interests of the applicant and to lodge an appeal on her behalf was allegedly also rejected. According to Mr. Davies, his request for a copy of the custody decision 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 applicant's 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 applicant thereupon was handed over to her 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 applicant complains that the decision taken by the General Administrative Bureau of the Szeged Mayor's Office in April 1993 to place her under state custody and to commit her to a children's home violated her right to liberty under Article 5 para. 1 of the Convention. She further claims that this measure violated her right to respect for her private and family life as guaranteed under Article 8. She also submits that this measure amounted to inhuman and degrading treatment, contrary to Article 3 of the Convention. She further complains under Article 6 that she was denied a public hearing to challenge the impugned decision. She finally complains under Article 2 of Protocol No. 4 that, as a consequence of the measure concerned, she was prevented from leaving Hungary.   THE LAW   1.    The applicant raises several complaints in respect of her placement under guardianship and confinement to a public children's home, which terminated in July 1993. The applicant did not specify the exact date. She lodged her application with the Commission on 5 January 1994. The question, therefore, arises whether she 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 applicant complains that her placement under state custody and confinement to a public children's home amounted to a violation of her 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 April 1993 the applicant, then one year old, was staying in Hungary with paid foster parents with a view to her adoption and emigration to join her 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 applicant be provisionally committed to the Csongrád County Child and Youth Protection Institute, where she 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 applicant's committal to the Csongrád County Child and Youth Protection Institute did not amount to a deprivation of her liberty within the meaning of Article 5 para. 1 (Art. 5-1).        The applicant's submissions do not, therefore, disclose any appearance of a violation of her 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 applicant further complains that the decision of April 1993 to place her under state custody violated her right to respect for her private and family life. She relies 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 applicant, while awaiting the conclusion of her adoption proceedings and her emigration to join her future adoptive parents in the United States, had been placed with paid foster parents in Hungary. The question arises whether the decision of April 1993 amounted to an interference with her right to respect for her 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 decision concerned was taken in accordance with this legal provision, a circumstance not contested by the applicant.        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 applicant's interests pending clarification of the circumstances of her 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 applicant's temporary placement under state custody was ordered on the ground that the applicant's natural mother had left Hungary after having signed the adoption papers. In the absence of the prospective adoptive parents, the applicant had no legal representative. The applicant was 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 applicant's right to respect for her 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 applicant's 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)